BFN v Australian Unity Home Care Service Pty Limited
[2023] NSWPIC 156
•5 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | BFN v Australian Unity Home Care Service Pty Limited [2023] NSWPIC 156 |
| APPLICANT: | BFN |
| RESPONDENT: | Australian Unity Home Care Service Pty Limited |
| MEMBER: | Anthony Scarcella |
| DATE OF DECISION: | 5 April 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; section 4(b); primary psychological injury disputed; defence under section 11A(1) raised; section 66 permanent impairment claim disputed; weekly benefits and treatment and related expenses disputed; Attorney General's Department v K, Federal Broom Co Pty Ltd v Semlitch, State Transit Authority v El-Achi, AB v AW; Department of Education and Training v Sinclair, ISS Property Services Pty Ltd v Milovanovic and Kushwaha v Queanbeyan City Council considered and applied; Held – the applicant suffered a work-related primary psychological injury within the meaning of section 4(b) and her employment with the respondent was the main contributing factor to the contraction and/or aggravation, acceleration, exacerbation or deterioration of the condition; the respondent has not discharged its onus under section 11A(1); the matter is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor under section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. The applicant suffered a work-related primary psychological injury within the meaning of s 4(b) of the Workers Compensation Act 1987 and her employment with the respondent was the main contributing factor to the contraction and/or aggravation, acceleration, exacerbation or deterioration of the condition. 2. The respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline within the meaning of s 11A(1) of the Workers Compensation Act 1987. The Commission orders: 3. The matter is remitted to the President for referral to a Medical Assessor under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 24 March 2020 (deemed) – disease. (b) Body system: psychological/psychiatric disorder. (c) Method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute dated 1 November 2022 and attached documents; (b) Reply dated 24 November 2022 and attached documents; (c) Application to Admit Late Documents filed by the applicant dated (d) Application to Admit Late Documents filed by the respondent dated (e) Application to Admit Late Documents filed by the applicant dated 5. Following the issue of the Medical Assessment Certificate, the matter is to be listed for a further preliminary conference to deal with the outstanding disputes, namely, the claim for weekly payments of compensation and medical and related treatment expenses. |
STATEMENT OF REASONS
BACKGROUND
The applicant, BFN, is a 57-year-old woman who was employed by the respondent, Australian Unity Home Care Service Pty Limited (Australian Unity), as a permanent part-time care worker.
BFN alleges that she developed a primary psychological injury as a result of three years of bullying and harassment by Australian Unity’s management, deemed to have occurred on 24 March 2020.
BFN lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
On 20 August 2020, Employers Mutual Limited (EML), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury within the meaning of s 4 of the 1987 Act; denying an entitlement to weekly payments compensation; denying an entitlement to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of ss 59 and 60 of the 1987 Act; and raising a defence under s 11A of the 1987 Act.[1]
[1] Reply at pages 1-5.
On 15 March 2021, BFN, through her lawyers requested a review of the decision contained in EML’s dispute notice dated 20 August 2020 under s 287A of the 1998 Act.
On 29 March 2021, EML issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability.[2]
[2] Reply at pages 6-11.
On 20 May 2022, BFN, through her lawyers, claimed permanent impairment compensation under s 66 of the 1987 Act in respect of the alleged primary psychological injury deemed to have occurred on 24 March 2020.[3]
[3] Application to Resolve a Dispute at page 100.
On 20 July 2022, EML issued a dispute notice under s 78 of the 1998 Act denying injury within the meaning of s 4(b) of the 1987 Act; denying an entitlement to weekly payments compensation; denying an entitlement to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of ss 59 and 60 of the 1987 Act; denying an entitlement to lump sum compensation under s 66 of the 1987 Act; and raising a defence under s 11A of the 1987 Act.[4]
[4] Reply at pages 12-16.
BFN, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 1 November 2022 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming weekly benefits compensation from 12 September 2020 and ongoing under ss 36 and 37 of the 1987 Act; medical and related expenses under s 60 of the 1987 Act; and lump sum compensation under s 66 of the 1987 Act as a result of the alleged primary psychological injury sustained in the course of her employment with Australian Unity on 24 March 2020.
ISSUES FOR DETERMINATION
The parties agreed that the following issues remained in dispute:
(a) whether BFN suffered a gradual onset of her alleged primary psychological condition deemed to have occurred on 24 March 2020 within the meaning of s 4(b)(i) of the 1987 Act; and/or in the alternative, whether BFN suffered an aggravation, acceleration, exacerbation or deterioration of an underlying psychological condition deemed to have occurred on 24 March 2020 within the meaning of s 4(b)(ii) of the 1987 Act;
(b) whether the Australian Unity’s defence under s 11A(1) of the 1987 Act has been made out, namely, whether it has established that BFN’s alleged primary psychological condition 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 and/or discipline;
(c) BFN’s entitlement to weekly payments of compensation within the meaning of ss 32A, 33, 36 and 37 of the 1987 Act arising from her alleged psychological injury deemed to have occurred on 24 March 2020;
(d) BFN’s entitlement to medical and related treatment expenses under s 60 of the 1987 Act, as claimed, and
(e) BFN’s entitlement to lump sum compensation under s 66 of the 1987 Act.
Matters previously notified as disputed
The issues in dispute were notified in the dispute notices referred to above.
Matters not previously notified
No other issues were raised.
PROCEDURE BEFORE THE COMMISSION
The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 18 January 2023. Mr Craig Tanner of counsel appeared for BFN, instructed by Ms Anne Gracie, solicitor and Ms Lyn Goodman of counsel appeared for Australian Unity, instructed by Mr Luke McCann, solicitor.
During the conciliation phase the parties agreed as follows:
(a) the issue of injury and the respondent’s s 11A(1) defence be determined first and if determined in BFN’s favour, the matter be remitted to the President for referral to a Medical Assessor to assess BFN’s whole person impairment in respect of injury, and
(b) following the issue of the Medical Assessor’s certificate, the matter be relisted before me for a further preliminary conference to deal with the outstanding disputes, namely, the claim for weekly payments of compensation and medical and related treatment expenses.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD dated 1 November 2022 and attached documents;
(b) Reply to ARD (Reply) dated 24 November 2022 and attached documents;
(c) Application to Admit Late Documents (AALD) lodged by BFN dated 19 December 2022 and attached documents;
(d) AALD lodged by Australian Unity dated 12 January 2023 and attached document, and
(e) AALD dated 18 January 2023 handed up by BFN at the arbitration hearing and attached document.
Oral evidence
Neither party sought leave to adduce oral evidence from or to cross-examine any witness.
BFN’s evidence
In evidence there are statements by BFN dated 19 May 2020, 1 July 2021,
20 October 2021, 15 November 2021 and 16 August 2022. I will now refer to the relevant parts of those statements.BFN’s statement dated 19 May 2020 was taken by an investigator engaged by EML.
BFN stated that she had previously claimed workers compensation eight years ago whilst working as a nurse in respect of bullying in the workplace. She referred to the claim as a short term claim.
BFN stated that prior to the commencement of her employment with Australian Unity, she had obtained nursing qualifications and occupational health and safety certificates as well as a Diploma and Certificates III and IV in Community Services. She had previously been employed in disability care with Family Services. She had worked for Community Services and worked in nursing and was now working in community aged care.
BFN stated that she commenced employment with Australian Unity in about July 2015 as a permanent part-time care worker under a 30 hour per fortnight contract. She performed more than 30 hours per fortnight and did a lot of overtime and never knocked it back unless she was not feeling well. She took whatever was offered to her. She had worked at the same location, [redacted] Home Care [redacted] Campbelltown. She had volunteered to mentor care workers in the [redacted] and [redacted] branches during work hours and after hours.
BFN stated that her direct supervisor was BIU, service coordinator. BJL was the acting branch manager. When she first commenced her employment, the branch manager was BDS.
BFN stated that she had experienced conditions related to anxiety or depression prior to the commencement of her employment with Australian Unity when, about five or six years ago, her marriage split up and there were a few deaths in her family thereafter. However, her condition had been under control for some time. When she first commenced work with Australian Unity these issues had occurred but she found that working really helped her depression. She was doing really well at work in the first 12 months of her employment and was starting to get back on her feet. Everything was great.
BFN stated that she had three different types of duties. When working with National Disability Insurance Scheme (NDIS) clients and normal clients, she performed domestic duties. Sometimes she would provide social support. Sometimes she would provide respite support, where she would just sit with the client. A lot of the time, it was house work and personal care such as showering.
BFN stated that the first two years of her employment with Australian Unity were fantastic “and then they changed branch managers and everything from there went haywire”.[5] BEW replaced BDS as branch manager of both branches. “This is when all the trouble started with me personally.”[6]
[5] ARD at page 4 at [30].
[6] ARD at page 5 at [35].
BFN stated that, prior to BEW’s arrival, her manager was very supportive, in that, if one did something wrong, she would talk about it. It was respectful. Everyone was happy and there were no dramas. There would be a discussion about the problems and then it was done with. It was a good environment. The whole team worked well together.
BFN stated that in the past two years, her work colleagues had nominated her to be the work health and safety representative for the [redacted] and [redacted] branches. When those branches merged with the [redacted] Branch, she believed that she would be attending all three branches for staff meetings. However, this did not occur despite making enquiries of the service coordinators. She was also concerned about not being on roster to attend staff meetings at [redacted] in the past 12 months in order to continue her team talks. She approached BIU and BOE, service coordinator, about printing documents to enable her to present to the care workers at staff meetings in respect of occupational health and safety topics. BIU informed her that she was too busy and BOE advised that there was no need because they were going to email all care workers the team talks.
BFN stated that she had been attending Campbelltown mainstream occupational health and safety meetings on a monthly basis and participating in monthly team talks at [redacted] and [redacted] branches until BEW became branch manager.
BFN stated that since BEW had become branch manager, she felt like she had been bullied, victimised and missed out on new roles and opportunities with Australian Unity. She did not know why.
BFN stated that, in late 2018, she was provided with an opportunity to act as an administrator at [redacted] three days per week and two days out in the field assisting clients with their daily needs. However, the opportunity was short lived. She was only given six days in that acting role and had to go back into the field full-time when BEW became branch manager. It was BFN’s understanding that she was given the acting role for at least four months whilst one of the service coordinators was on leave. Instead, BEW brought on a member of staff from the Penrith Branch to perform the role and a few months later, BIU became acting administrator for both branches.
BFN stated that she took her complaint to the union and a meeting was organised. In about August 2019, a meeting was held with BEW and others, wherein BEW raised his voice at BFN and was asked to leave the meeting for 20 minutes to cool down. The outcome of the meeting was that BEW was directed to inform BFN personally of any training employment opportunities that came along. The date of the meeting being August 2019 is uncertain bearing in mind the reference in the email from BFN to BTA of Australian Unity and her union referred to below.
BFN referred to positions that had come up with Australian Unity and stated that she received some negative feedback from BEW in respect of one. BEW had not informed her of the positions that she had become aware of.
BFN stated that a NDIS client had booked and paid for a 10 day cruise from 1 March 2019 to 10 March 2019. NDIS had agreed to fund the provision of a care worker in the package. BFN advised BOE one month prior to the commencement of the cruise that the client had requested her to assist him on the cruise. BOE informed her that she had to speak to BEW and BQC, the NDIS service coordinator.
BFN referred to discussions between herself and BQC about the number of hours allowed for her role as a carer on the cruise. BFN informed BQC that the latter’s quoted figures were incorrect after having consulted with the relevant union but that she was going to attend the cruise and was happy to sort out the dispute on a later date. BFN confirmed with BOE that she would be accompanying the client on the cruise.
On 22 February 2019, the NDIS client contacted BFN advising that he was upset and asking whether she had spoken to BEW. BFN advised the client that she had not seen BEW in the office that morning. The client informed BFN that BEW had told him that if he had not heard back from BFN or the union by lunchtime, BFN would not be attending the cruise and that if she did, she would not have a job.
BFN stated that the NDIS client informed her that BEW had telephoned him later on the afternoon of 22 February 2019 and informed him that BFN would not be attending the cruise with him because the union representative had failed to get back to him by midday. BEW also told him that he could not find a replacement and that BFN was the problem.
On 9 June 2019, BFN sent an email to BTA of Australian Unity and her union.[7] The email recorded a variety of stressors being experienced by BFN some of which have been referred to above. She noted that since the appointment of BEW, the last 12 months had been stressful for her and she felt like she had been bullied or victimised and had missed out on new roles and opportunities with Australian Unity for unknown reasons.
[7] ARD at pages 79-82.
BFN stated that BJL took over the role of branch manager having been a service coordinator at [redacted]. BJL informed her that she wanted to clean things up and work as a team.
In her statement, BFN referred numerous times to “a hire contract”. It is clear that she was referring to a higher contract, namely, a contract that increased her hours beyond her current contracted 30 hours per fortnight. Counsel for both parties interpreted the phrase likewise.
BFN stated that, for about two years, she had been seeking increased hours but her requests seemed to be ignored. Other new care workers had commenced as casuals and had been placed on more hours. However, her contract still sat on 30 hours per fortnight. She was regularly told that management would look into it but she would never hear any more.
In her statement, BFN referred to complaints that had been made against her. The statement made no reference to a letter she received from Australian Unity dated 13 December 2019 requesting a formal meeting to address performance and conduct concerns. She referred to a meeting on 30 December 2019 about allegations and written warnings. On the evidence, it appeared that the meeting she was referring to actually took place on 17 December 2019 and that there had only been one written warning dated 24 January 2020. Accordingly, it is appropriate that, at this point, I refer to the Australian Unity letter dated 13 December 2019[8] and relevant correspondence thereafter.
[8] Applicant's AALD dated 18 January 2023.
On or about 13 December 2019, BFN received a letter from Australian Unity bearing the same date and the signature of BOE, service coordinator, requesting that she attend a formal meeting to address performance and conduct concerns, which were stated to be:
“Allegation 1: disruptive/distracting behaviours in team meetings;
Allegation 2: breach in confidentiality;
Allegation 3: gossiping in a client’s home about other staff and Australian Unity on speaker where the client could hear the conversation;
Allegation 4: not providing quality service for clients;
Allegation 5: not following reasonable directions and instructions, and
Allegation 6: serious misconduct/harassment of a client.”
The letter advised BFN that, at the meeting, she would have the opportunity to respond and provide any other information before any determinations were made in respect of her employment. BFN was advised that, following the receipt of her responses, Australian Unity would advise her of the outcome as soon as possible. The meeting was set down for 17 December 2019 at 10.30am at Australian Unity’s Campbelltown office. BFN was advised that she could invite a support person of her choosing. She was also advised of the particulars of Australian Unity’s employee assistance provider for her to access if she so desired.
The formal meeting to address performance and conduct concerns in respect of BFN took place on 17 December 2019. BFN attended with her support person, BFP from the United Workers Union. BFN provided oral responses to each of the six allegations during the course of the meeting and followed up with written responses later that day in a letter dated 17 December 2019 (the response) she emailed to BOE.[9]
[9] ARD at pages 35-36.
In the response in respect of allegation 1, BFN refuted telling a service coordinator that she would not have a position in the future.
In the response in respect of allegation 2, BFN noted that the allegation related to an incident where she had called a client after hours. She explained that she had received a call from an unrecognised number and at about 6.00pm, redialled that number to find out who had called her. It was only when the client’s wife answered the call that she realised the unknown number belonged to a client. She apologised and attempted to end the call but the client’s wife continued with the conversation. The client’s wife said that she had heard from BEW that he was attempting to get rid of older care workers because they had made trouble for him.
In the response in respect of allegation 3, BFN noted that the allegation related to the same client as in allegation 2 but that no further information was provided to elaborate on the allegation. BFN denied gossiping with clients and stated that she did not use her telephone when she was at a client’s home.
In the response in respect of allegation 4, BFN noted that the allegation related to the same client as in allegation 2 and 3 but that no further information was provided to elaborate on the allegation. BFN refuted that she did not provide quality service for clients.
In the response in respect of allegation 5, BFN noted that the allegation related to the same client as in allegations 2, 3 and 4 but that no further information was provided to elaborate on the allegation. BFN refuted that she did not follow reasonable directions and instructions.
In the response in respect of allegation 6, BFN noted that the allegation related to the same client as in allegations 2, 3, 4 and 5 and that the client’s wife felt harassed by being contacted after hours. BFN again explained that the call was made by accident and that she did not know she was calling a client because she did not recognise the number. She had apologised to the client’s wife immediately and attempted to end the call as soon as she could.
BFN received a letter from Australian Unity dated 24 January 2020 that described the letter as being a “First Written Warning”. The letter referred to the formal meeting on 17 December 2019 and made the following findings in respect of each of the six allegations:
“1. During the Branch Operating Model meeting on 4 October 2019 you engaged in inappropriate behaviour by making the following comment ‘I was told if you (BIU) don't perform in position as a Service Coordinator you will be moved to Rostering and BGN will be moved to Service Coordinator’. You denied this allegation during our meeting and in your written response. Your comment was witnessed by BIU, BGN and myself. On the balance of probabilities we find that the allegation was substantiated.
2. During the staff meeting on 28 November 2019, all care workers were instructed not to contact clients. However, we received a complaint from the client BKO that you called her at approximately 6.00pm while she was at Campbelltown hospital [sic]. In your response you replied that you unconsciously pressed redial on an unknown missed call to your phone and in your written response you apologised when BKO answered your call and that you attempted to end the call. On the balance of probabilities we find that the allegation that you breached confidentiality was unsubstantiated.
3. In relation to the allegation of both BKP and BKO could hear your conversation gossiping about other staff and Australian Unity on speaker when you was [sic] in the clients [sic] BKP’s and BKO's home BKP and BKO could hear your conversation. You stated in your initial response you answer phone calls when you are with a client but that you keep the conversation to a minimum. In your later written response, you replied that you do not use your phone when you are at a client's home. Noting that your written response was contrary to both your initial response and the account from BKP, on the balance of probabilities we find that the allegation that you were gossiping in the client's home was substantiated.
4. You admitted during our meeting that you regularly check your phone for any work calls as the phone screen is completely cracked and it is not easy to see. The client BKP complained about the quality of service provided by you as you were distracted by your phone rather than attending to his service requirements. On the balance of probabilities we find that this allegation was substantiated.
5. In your response you denied that you had failed to follow reasonable directions and instructions when directed not to contact clients. You stated that if a client is not at home when you arrive for a scheduled service then you can call the client. However, you were advised in a staff meeting on 28 November 2019 that all care workers were instructed not to contact clients. I noted in the meeting that you did not acknowledge any personal accountability or responsibility for choosing to breach our procedures. On the balance of probabilities we find that this allegation was substantiated.
6. During the meeting you denied that you contacted clients outside of working hours and questioned the client about why you were removed from their service. However, you explained it was an accident as you did not recognise the number you were calling back. On the balance of probabilities we find that the allegation that you breached confidentiality was unsubstantiated.
You were given the opportunity to respond to these allegations and Australian Unity considered your responses. As a result of appropriate consideration, your behaviour and conduct was found to be below the minimum standard expected from a Care Worker in accordance with our Code of Conduct and Values.
Consequently, the decision has been made to issue you with a first written warning for unacceptable performance. Any further instances of unacceptable behaviour could lead to a formal performance management process and may result in the termination of your employment with Australian Unity. …”[10]
[10] Reply at pages 101-102.
BFN stated that she was “a mess”[11] when she received the Australian Unity warning letter. She was petrified of receiving another complaint and being sacked for doing anything that she did or said.
[11] ARD at page 13 at [86].
BFN stated that, after receiving the Australian Unity warning letter, she continued to work but that management was making it very difficult for her. Every time she sent an email to the two girls in the office, she could feel the coldness and if she walked into the office, she could feel the tension. She thought that the girls felt threatened that she wanted their jobs.
BFN stated that the last complaint (prior to ceasing work) came from a client alleging that she was not providing the service required and that she was always on the telephone. BFN stated that she was questioned by BJL about the cleaning services she provided for the client. She explained that, on arrival at the client’s home, the client would get her clothes out of the washing machine, put them in the basket and carry the basket out to the line and they would both hang up the washing. She then cleaned the bathroom. BFN was asked to stop in the middle of her explanation and BJL informed her that she was “doing it wrong, that client is not meant to be doing nothing that is your job”.[12] BFN explained that the process was what they had been doing in the past, that is, working together. BFN stated that she was not going to stop anyone from participating in tasks if they were able and capable. BJL raised her voice and told BFN that she was performing her job incorrectly. BFN could not understand why she could not have been called into the office and spoken to. She was in the process of attending to another client and became so upset that she telephoned a friend, who advised her to consult a doctor. BFN did not refer to the date of the incident referred to above but the evidence indicated that it occurred on about 24 March 2020.
[12] ARD at page 12 at [81].
BFN stated that after the incident referred to above, she consulted her general practitioner, who issued her with a medical certificate and advised her that she had a WorkCover claim. The doctor recommended that she consult a psychiatrist. She felt stressed by her situation and became tearful and experienced feelings of anxiety. She cannot sleep at night but sleeps through the day. At night, she runs through over and over what has happened to her.
BFN stated that she felt as if she did not have any support. She followed the processes at work. She felt like Australian Unity were trying to get rid of her because she was friends with the other branch manager. She believed that the managers were trying to get her out. She has had a few complaints made against her but they were only minor.
BFN stated that she liked Australian Unity and that she loved her clients. She liked to work hard and learn new things. She would really like to return to her job but she wanted to be respected.
In her statement dated 1 July 2021, BFN stated that she has continued to receive treatment from the general practitioners and psychologists at the BXU Corporation Medical Centre. She was now taking one Sertraline 50mg tablet per day for depression.
BFN stated that she remained unemployed as at the date of the statement. An attempt was made to arrange for a mediation with Australian Unity to discuss her return to work. However, it did not take place and she formed the impression that Australian Unity did not wish to proceed down that road with her.
BFN expressed the view that Australian Unity had acted unreasonably and summarised the same in the following terms:
“I do not think my employer acted reasonably. I was yelled at by my branch manager at the performance meeting. My requests for minutes of meetings were ignored. As a result of this I was unable to properly address the allegations made against me by management. The concerns about the workplace that I raised were also ignored. I was overlooked for positions I applied for. I was unable to continue my role as OH and S officer which I had been appointed tor. I was threatened with termination of employment by the Branch Manager if I maintained my request to accompany a client on a cruise who had specifically asked for me to accompany him on the cruise. My valid concerns about rostering, breaks, training, staff meetings and OH and S team talks were ignored. Despite my training and education I was made to feel like an idiot by my employer.”[13]
[13] ARD at page 18 at [7].
In her statement dated 20 October 2021, BFN attached a letter from United Workers Union to Australian Unity dated 7 February 2020.[14] The letter was signed by BFP and was written in response to Australian Unity’s warning letter. BFP went through and commented on the findings in respect of each of the six allegations made against BFN. She noted that allegations 2 and 6 were found to be unsubstantiated. BFP alleged an absence of procedural fairness in the process, which she described in the following terms:
“BFN has not been afforded procedural fairness during this process or in the lead up to this decision. From the commencement of this process, crucial information was strategically withheld until the meeting commenced, including the specifics of the allegations, in order to ambush BFN during the meeting.
This demonstrated that the object of the meeting was to confound and attack rather than to conduct proceedings in a transparent, balanced and fair manner.
In addition, the lack of specific details in several of the allegations placed BFN at an inherent disadvantage when trying to recall information and defend herself.
Furthermore, there has been an inadequate consideration of BFN’s responses (submitted on 18 December 2019) prior to reaching the decision. Such pre-determined outcomes are viewed with scepticism by the Fair Work Commission.”[15]
[14] ARD at pages 36-39.
[15] ARD at pages 38-39.
BFP concluded by requesting Australian Unity to review the relevant information and retract the warning letter.
In her statement dated 16 August 2022, BFN stated that, she was referred for an aorto-iliac CT angiogram. A mass was identified in the left lower lobe of the lung, measuring 14mm. A PET scan was undertaken on 5 October 2021 and a biopsy of the mass was taken on 22 October 2021. On 29 October 2021, BFN received a telephone call from her general practitioner, Dr Alison Thorn, confirming the presence of a small lung cancer cell.
BFN stated that the diagnosis of a small lung cancer cell did not have any effect on her psychological health. It was just another piece of information. It did not increase her stress levels. She had been informed by the doctors that the cancer had been found early and was being treated. She had been advised that the cancer had now gone but that she continued to undergo treatment to ensure that it does not return.
BFN stated that she continues to become tearful when she thinks about how she was treated at work and she continues to suffer from anxiety and stress. She sleeps through the day.
BJL’s evidence
In evidence, there is a statement by BJL dated 15 May 2020 taken by an investigator engaged by EML.[16] I will now refer to the relevant parts of that statement.
[16] Reply at pages 74-81.
BJL stated that she had been employed by Australian Unity for about 11 years. She commenced in an administrative role, moved to the service coordinator position and then on to the role of acting branch manager. She has held the branch manager’s position since January 2020.
BJL stated that she has known BFN since the latter commenced her employment with Australian Unity. BFN was involved in the care of clients and she was based in Campbelltown. BIU was BFN’s direct supervisor. BJL understood that BFN had made a claim for workers compensation in respect of a psychological injury allegedly sustained in the course of employment with Australian Unity on 24 March 2020.
BJL stated that, when she first started acting in the branch manager’s role, BIU requested her to sit in on support supervision with BFN to check and see how she was going. At that time, BFN asked questions about being offered a higher contract and they came to an agreement that, if she performed well enough in her job, the idea of increasing her contract would be revisited. BJL was aware that there were some performance issues with BFN previously and that this was the reason for her undergoing the check-ins. BJL stated that BFN was apparently performing very well and that was why she told her increasing her contract hours would be revisited after she demonstrated her performance over an extended period of time. BFN was happy with the explanation. Australian Unity had received no complaints from clients and things were going along well.
BJL stated that BFN swore in front of two elderly gentlemen whilst they were away at a dinner. BJL advised BFN that it was inappropriate and asked her not to swear in front of clients. BFN took the view that the clients did not mind. BJL advised BFN that she needed to be a bit more respectful and the latter responded by saying, “well just write me up”.[17] BJL reported the incident to BIU. BJL was not aware of any further complaints made about BFN by clients.
[17] Reply at page 77 at [31].
BJL stated that she had further contact with BFN when the latter telephoned the office crying and complaining about the treatment she was receiving by her service coordinator. BFN also told her that she could not afford to live on her current wage and she wanted a contract with increased hours. BJL told BFN to calm down and not to cry in front of a client when they were out for the day. BFN advised her that she was at the counter getting a coffee and that the client was at a table.
BJL could not recall any further contact with BFN until she had a meeting with all the care workers upon becoming branch manager. She was uncertain of the precise date of the meeting. BFN attended the meeting. She did not recall BFN raising any issues at the meeting. BJL added:
“From all reports, from that meeting the claimant (BFN) was going very well. We were still reviewing whether we wanted to increase her contract.”[18]
[18] Reply at page 78 at [39].
BJL stated that, on a date she could not recall, she received a telephone call from BIU advising that a client had contacted her with concerns about BFN. BJL decided to telephone BFN to discuss the issues and ascertain what was going on. BJL was aware that, prior to her becoming branch manager, BFN was on a one and only warning but was not fully aware of that situation. She was aware that BFN was disputing the warning.
BJL described her telephone conversation with BFN as follows:
“I called [redacted] (BFN) and I said, do you have a minute to talk and she said yes. I asked her about the client. BFN did get upset and I asked her if she could walk me through what happened that day. I did tell her that we had received a complaint from the client. She proceeded to tell me what she did and what she got the client to do. I was a bit shocked because what she was saying is that when she got to the house she told the client to pick up the laundry basket, take the clothes out of the washing machine and take the clothes out the back and hang the clothes on the line. I said, BFN you are getting the client to do your job. She agreed. I said why when we pay you to do the job would you get the client to do your job. She said she was doing this to keep the client independent. I said that was not her call. We do have some younger clients that do want to stay independent so they do some of the chores. However, this client did not ask for that. I said to BFN who are you to say to the client to do that. She said she had been doing this for five years. I said BFN you have been doing it wrong for five years. I said you are asking an 89-year-old client to do their washing when we pay you to go in to [sic] her home and do it for her. I said that is wrong. She said well I have been doing it like that for years, and who are you. I said please do not do it again, it is not the right thing to do. She then hung up.”[19]
[19] Reply at pages 78-79 at [41].
BJL stated that, about five minutes later, BFN telephoned her again and was hysterical. BFN informed her that she was on her last warning. She was screaming. BJL had to tell her to calm down but she remained hysterical. BJL continued to tell her that what she was doing was wrong. She had been provided with service instructions and she was required to follow them. BJL asked BFN not to telephone the client. Such request triggered BFN because of the previous complaint made against her in respect of contacting a client. BFN explained that she did not contact the client but that the client messaged her on Facebook. BJL told her not to be friends with clients on Facebook because there were boundaries in place. BFN started to “lose it”[20] on the telephone and said that she could name 10 other care workers who are friends with clients on Facebook.
[20] Reply at page 79 at [45].
BJL stated that following her telephone conversation with BFN she went off work that day. She then lodged a claim for a psychological injury.
BJL conceded that she would probably not have given BFN a warning in respect of the incident. She took the view that if BFN had been doing it for five years, she obviously did not know that her actions were wrong.
BJL stated that she would like BFN to return to work. Prior to the telephone calls referred to above, she was doing well. BJL was surprised that she made a workers compensation claim. She believed that because BFN was on her final warning and that she was telephoning her about another issue, she became very upset.
BJL stated that she believed that BFN is a caring person but that there were rules in place to protect the carers as well as the clients.
BIU’s evidence
In evidence, there is a statement by BIU dated 25 May 2020 taken by an investigator engaged by EML.[21] I will now refer to the relevant parts of that statement.
[21] Reply at pages 83-89.
BIU stated that she had been employed by Australian Unity for about 11 years. She commenced her employment as a care worker, moved on to an administrative position and then as a service coordinator. She had 10 direct staff members working under her and BFN was one of them.
BIU stated that Australian Unity underwent a restructure and supervisors were given different areas and different care workers. Following the restructure, BIU became BFN’s supervisor.
BIU stated that she understood that BFN had made a claim for workers compensation in respect of a psychological injury allegedly sustained in the course of employment with Australian Unity on 24 March 2020.
BIU stated that BFN was employed as a care worker located at the Campbelltown branch. There were times that she was required to work in different areas, if necessary. BFN generally worked every day and some weekends. She was assigned clients based on her availability and the times she was able to work. She also had some regular clients to look after. BIU did not see BFN on a daily basis because she worked in the office and BFN worked as a care worker out in the field. There was an open line of communication between them at all times.
BIU stated that she had not personally had any issues working with BFN. However, she was aware of some complaints and issues raised by clients. When such complaints are raised, there is a protocol to be followed. She was uncertain of the exact number of complaints but she believed that there had been two or three “big complaints”[22] made in respect of BFN. Clients had complained about service quality and “things happening within the service”.[23]
[22] Reply at page 85 at [25].
[23] Reply page 85 at [26].
BIU stated that BOE had met with BFN in relation to a complaint made by one of her clients that had been escalated to human resources. BIU observed that, at the time she raised the complaints with BFN, she appeared to take them well. She had not had any personal issues with BFN. She was able to speak with her and address matters. BFN took things on board. However, due to the nature of the complaints, they had to be escalated. As BIU was on leave at the time of the meeting, BOE sat in on the meeting.
BIU stated that, following BFN’s meeting with BOE, Australian Unity issued a first written warning letter dated 24 January 2020 arising from “the few incidences [sic] in the months of the complaints”.[24]
[24] Reply page 86 at [30].
BIU stated that there was another complaint made against BFN “not so long ago which was a similar complaint from another client”.[25] The complaint related to services not being properly provided. The same process was being adopted as those in the previous complaints. However, BIU had not been able to speak with BFN because she had gone on stress leave on the day she was notified of the new complaint. The matter was still under investigation.
[25] Reply at page 86 at [32].
BIU stated that when the recent complaint had been received, she did not have a conversation with BFN about it. BJL, the branch manager, spoke to BFN about it.
BIU stated that BFN had never raised any issues with her in respect of bullying or harassment in the workplace. She was unaware that BFN felt she was being bullied or harassed. BIU had not heard from any co-workers that BFN felt she was being bullied. When there was a client complaint, it was her duty of care to follow-up and ensure that it did not happen again. She was required to follow the process and that is what she did.
BIU stated that she was unaware that BFN was stressed in relation to work. BFN would call in and ask for more work if she needed it. Australian Unity would help and if there were more services available, then she would be provided with more work.
BOE’s evidence
In evidence, there is a statement by BOE dated 26 May 2020 taken by an investigator engaged by EML.[26] I will now refer to the relevant parts of that statement.
[26] Reply at pages 91-94.
BOE stated that, in 2016, she had been employed by Australian Unity as an allocator. In 2017, she became a service coordinator. As a service coordinator, she was required to manage staff. BFN had been working under her and another service coordinator, BIU, since 2018.
BOE stated that she oversaw 14 care workers. Care workers were assigned to certain service coordinators (14 care workers each).
BOE stated that she understood that BFN had made a claim for workers compensation in respect of a psychological injury allegedly sustained in the course of employment with Australian Unity on 24 March 2020.
BOE stated that, in 2019, a client complaint about BFN was made prior to BIU taking Christmas leave. BOE stepped in to do the interview with BFN because, by that time, BIU was on leave.
BOE stated that she had the meeting with BFN, her support person from the union, BFP, and a service coordinator. She did not provide the date of the meeting.
BOE stated that Australian Unity only have formal meetings with care workers when they have client complaints and “things have built up”.[27] If a meeting is required, human resources need to be made aware of the issues and then, they confirm whether there is a need to bring the staff member in for a discussion. A discussion then takes place with the care worker and if necessary, a warning is provided.
[27] Reply at page 93 at [31].
BOE referred to a client complaint that BFN spent half an hour cleaning and half an hour on her telephone in the allocated hour for cleaning. She conceded that it was the client’s word against BFN’s word. BOE also referred to an allegation that, despite being advised not to contact a client about her removal from service, BFN telephoned the client’s wife. BOE stated that there were a few other concerns and issues that she raised with BFN at the meeting. BFN denied the allegations.
BOE stated that she was uncertain of the outcome following the meeting. She only addressed the issues on BIU’s behalf because she was the only other service coordinator present at the time. She believed that there were other concerns in relation to BFN. However, she did not know the specifics of those issues which had built up over several months.
BOE stated that she was unaware of any complaints made by BFN in relation to bullying by BJL. BOE had never witnessed any bullying behaviour by BJL towards BFN.
The Quantumcorp factual investigation report: 9 June 2020
In evidence, there is the Quantumcorp factual investigation report dated 9 June 2020 commissioned by EML.[28] Attached to the factual investigation report were the statements of BFN dated 19 May 2020; BJL dated 15 May 2020; BIU dated
25 May 2020; and BOE dated 26 February 2020, all of which have been referred to above.[28] Reply at pages 37-100.
Also attached to the Quantumcorp factual investigation report was a file note dated
2 June 2020 (the file note) by an investigator, [redacted], of his discussions with witnesses nominated by BFN.[29][29] Reply at pages 96-98.
The file note recorded that BGN had worked with BFN but was unprepared to assist with enquiries until she spoke to her supervisor.
The file note recorded that BRF had worked with BFN but because of a problem with her memory, she would not provide a statement. However, BRF advised that she believed BFN kept getting knocked back for jobs she applied for. BRF was aware that BFN was given a job in the office and really enjoyed it but was laughed at by some of the other staff members because of the way she spoke on the telephone. BRF advised that BFN was a union delegate and the health and safety officer and that she did a lot of good for the other staff.
The file note recorded that BDS was the branch manager for BFN prior to BEW taking over the position. BDS advised that she had no issues with BFN. She stated that there were changes made within the organisation and the roles changed. She had reapplied for the position she had been in but the position was given to BEW. BDS advised that a lot of the staff had problems with BEW as a manager. He had a management style that upset a lot of people. BDS advised that she was the one that gave BFN the opportunity to work in the office at Alexandria and that she thought she was doing a good job. BDS had thought that as soon as she left, BEW would remove BFN from the office and he did so. BDS believed that BFN was not treated fairly. BFN was a valuable asset to the company. BDS no longer worked for Australian Unity.
The file note recorded that BSH had worked with BFN. BSH advised that she was going through the same issues that BFN had gone through with Australian Unity. She was off work and seeking legal advice. She believed BFN was a very good worker, who was always happy to help anyone.
The file note recorded that BUR had worked with BFN. However she was unprepared to assist with enquiries. BUR advised that BFN’s working hours were cut once BEW became the manager. She also advised that BEW did not say nice things about BFN and a lot of the other staff.
The file note recorded that BVM had worked with BFN. She advised that she had experienced issues with BEW. BVM advised that there was an incident where a client’s husband had exposed himself to her. She contacted BEW and he advised her not to fill out anything but just make a note and send it to the office. BVM did so. BVM then contacted BFN because she was the health and safety officer. BFN told her that she needed to complete an incident report immediately and she did so. BEW became upset that she had completed the report. However, nothing was done about it. Several weeks later, the client’s husband again exposed himself to her and she completed another incident report. On this occasion, she sent it to BEW and the union became involved. An investigation had commenced and BEW had been moved somewhere or was on leave. No one knew what had happened to him. BVM advised that BEW spoke to other staff about BFN and made unfavourable remarks. BEW also reduced BFN’s hours and took the health and safety officer’s role away from her.
The file note recorded that BFP, union representative, did not want to become involved in the investigation.
BRF’s evidence
In evidence, there is a statement by BRF dated 5 October 2021.[30] I will now refer to the relevant parts of that statement.
[30] ARD at page 47.
BRF stated that she had been requested to provide a short statement by BFN’s solicitor.
BRF stated that she had known BFN since the latter commenced working with Australian Unity in about 2015. She trained BFN to do her job. BFN was a very happy and bubbly person, a real team player and very supportive and caring of her clients. She was a very good care worker.
BRF stated that, once BEW commenced work as the branch manager, BFN started to experience significant problems. BFN’s whole personality changed to that of a person who was depressed and anxious. BFN advised her that she would apply for jobs and get knocked back. She had been given a job by the previous manager, BDS, but after the latter left, some of the other staff members used to laugh at BFN because of the way she spoke on the telephone. The job was taken away from her by BEW.
BRF stated that BFN was the union delegate and also the health and safety officer. She did a lot of good things for the staff but her work was largely unappreciated by the management team after BEW came on board. Since BFN ceased work with Australian Unity as a result of her psychological injury, BEW was sacked and no longer worked for Australian Unity. BRF stated that BEW had caused a lot of problems for a lot of people.
BRF repeated that she had trained BFN and stated that she was an extremely competent care worker and would be very surprised if there were any issues in relation to discipline and performance.
BWT evidence
In evidence, there is a statement by BWT dated 25 November 2021.[31] I will now refer to the relevant parts of that statement.
[31] ARD at pages 48-49.
BWT stated that she had been receiving home care for over 10 years.
BWT stated that she went to “a yarn up trip”[32] to Wollongong, Aboriginal Home Care, [redacted] on an undisclosed date. On that trip, the area manager, who she did not name, approached her asking about BFN. She did not know what the area manager was talking about and she felt bombarded by the questions she asked. BWT was asked questions about BFN’s work and if she was happy with BFN.
[32] ARD at page 48 at [4].
BWT stated that, prior to the Wollongong trip, she had telephoned Australian Unity in Campbelltown to complain about the change in her shopping times. She was unhappy that her shopping schedule had been changed from mornings to afternoons. Australian Unity took a long time to look into her complaint.
BWT stated that she did not make any complaints about BFN, who had nothing to do with the change in her shopping times. It was an Australian Unity management decision.
BWT provided the following details of her home care routine:
(a) prior to her care worker arriving to perform cleaning duties, she would put cleaning products in the bath and toilet;
(b) prior to her care worker arriving to perform cleaning duties, she would complete her washing, take her washing out of the machine and place it in the basket;
(c) when her care worker arrived, she would take the basket to the clothes line and hang out her washing with her care worker;
(d) once the washing was hung, the care worker would clean her bath and toilet, vacuum the hallway, lounge room and kitchen and mop the floor;
(e) the care worker would assist her in making her bed, and
(f) if there was still time left, some care workers would sit down and have a chat until their allocated time was over.
BWT stated that she had been on several trips with Australian Unity and recalled that BFN had been on a couple of those trips. BFN made everybody laugh when travelling on the bus. She was really kind and everyone loved her. BWT stated that BFN got everyone involved. She cracked jokes and got everybody singing and playing games. Everyone was happy travelling when BFN was on the shift. BWT observed BFN to always have been a happy and funny person. She was the life of any yarn up trips and BWT now missed her.
It is apparent that BWT was the client that was the subject of BJL’s two telephone conversations with BFN on or about 24 March 2020.
The treating medical evidence
In evidence, there are BFN’s clinical records produced by BXU Corporation on 2 October 2020.[33]
[33] ARD at pages 157 -244.
The first entry in the BXU Corporation clinical records is dated 27 May 2016 and the last entry is dated 30 September 2020.
An entry was made in the BXU Corporation clinical records on 9 June 2016 by Dr Jesse Hall.[34] Dr Hall recorded that BFN had suffered reactive depression following a series of personal and professional losses. Reference was made to BFN having lost her mother, father, marriage and job. It was noted that BFN had found her remaining family fractured and broken and that she had strained relations with her children. In the previous year she described suicidality. BFN agreed to a trial of Sertraline 50mg tablets.
[34] ARD at pages 243-244.
An entry was made in the BXU Corporation clinical records on 8 August 2016 by Dr Ferdous Huq.[35] Dr Huq diagnosed BFN with depression and had a long discussion with her about multiple issues. Dr Huq noted that BFN was a home care worker and that she had suffered multiple losses over the past few years including, the loss of her mother, father, sister, best friend and the end of her 25 year marriage. He also noted ongoing interpersonal conflict with her daughters and other relatives and that she now had minimal contact with them.
[35] ARD at pages 240-241.
An entry was made in the BXU Corporation clinical records on 19 January 2017 by Dr Katherine Hanks.[36] Dr Hanks recorded that BFN had been feeling tired and run down from time to time over a long period. She had experienced a lot of problems with depression over the past 1.5 years but felt that, in the past few months, she was slowly coming out of the depression. BFN found her home care work rewarding but found the hours difficult. It was hard to find time for self-care appointments. She had consulted a psychologist but struggled to find the time. She had spoken to a counsellor over the telephone and she found that helpful.
[36] ARD at pages 233-234.
An entry was made in the BXU Corporation clinical records on 2 February 2017 by Dr Hanks, where, amongst other things, she recorded that BFN reported that there was “still a lot of stressful stuff going on”.[37]
[37] ARD at pages 231-232.
An entry was made in the BXU Corporation clinical records on 18 December 2017 by Dr Huq.[38] Dr Huq recorded, amongst other things, that BFN was working full-time and loved her job. She reported that she had been feeling better.
[38] ARD at page 224.
An entry was made in the BXU Corporation clinical records on 8 March 2019 by Dr Ruyi Yuan.[39] Dr Yuan reported that BFN had multiple issues; felt more tired; felt unwell; was taking her medications regularly; had lots of social issues; had financial issues; often cried at night; had no social support; did not really have friends or other family; and had a history of suicide attempts. Dr Yuan diagnosed depression.
[39] ARD at pages 217-218.
An entry was made in the BXU Corporation clinical records on 19 March 2019 by Mr Matthew James, nurse practitioner.[40] Mr James recorded that BFN was experiencing ongoing life stress and worry and financial pressures. She had been previously diagnosed with depression. There was workplace stress with her manager and she did not feel supported.
[40] ARD at page 215.
Another entry was made in the BXU Corporation clinical records on 19 March 2019 by Dr Yuan.[41] Dr Yuan recorded that BFN was experiencing work issues and was thinking of changing jobs. She was not being supported in her current job. She did not wish to consult a psychologist.
[41] ARD at pages 213-214.
An entry was made in the BXU Corporation clinical records on 16 April 2019 by Dr Heather McKenzie.[42] Dr McKenzie recorded that BFN attended complaining of chest pain and had psychological issues including, long-standing trust issues. She was upset that her husband had a new partner and seemed to be doing well but that she was struggling emotionally and financially. Dr McKenzie encouraged her to consult a psychologist.
[42] ARD at pages 210-211.
An entry was made in the BXU Corporation clinical records on 21 June 2019 by Dr Yuan.[43] Dr Yuan recorded that BFN was suffering from depression and anxiety but was much better than when she had first consulted him three months previously. There were lots of external stressors with work, finances and the breakdown of a relationship, with ongoing grief. She suffered panic attacks two to three times per week; had difficulty sleeping; was afraid to fall asleep sometimes; lived alone; and had last attempted suicide two to three years previously but had no current intention to self-harm. Dr Yuan prescribed BFN Diazepam 5mg tablets.
[43] ARD at pages 207-208.
An entry was made in the BXU Corporation clinical records on 2 July 2019 by Dr Yuan.[44] Dr Yuan recorded that BFN was feeling a lot better on her current medications and found that she had more energy. He arranged for BFN to consult Ms Jocelyn Harper, psychologist.
[44] ARD at page 206.
An entry was made in the BXU Corporation clinical records on 17 July 2019 by Ms Harper.[45] Ms Harper recorded that BFN outlined a range of issues impacting on her well-being and assisted her in gaining some clarity. She explored some strategies that may assist her and arranged for follow-up appointments.
[45] ARD at page 204.
An entry was made in the BXU Corporation clinical records on 14 November 2019 by Ms Harper.[46] Ms Harper recorded that BFN presented very fatigued. BFN outlined factors in her life that distressed her, including financial strain and relationship tensions. Assertiveness training was commenced to assist BFN with her relationships and communication skills.
[46] ARD at page 199.
An entry was made in the BXU Corporation clinical records on 12 December 2019 by Ms Harper.[47] Ms Harper recorded that BFN was interstate with her daughter to recuperate. BFN reported that she had been struggling and had experienced intense distress four days earlier. She also reported significant financial stress as a result of fewer work shifts. A series of further appointments in 2020 were set up for support.
[47] ARD at page 198.
An entry was made in the BXU Corporation clinical records on 9 January 2020 by Ms Harper.[48] Ms Harper recorded that BFN had suffered significant distress in respect of her work situation and reduced hours with financial implications and a strain with her work line manager. BFN reported that it was difficult to manage her finances and agreed to be referred to a financial counselling service for advice.
[48] ARD at page 198.
An entry was made in the BXU Corporation clinical records on 15 January 2020 by Ms Harper.[49] Ms Harper recorded that BFN was suffering ongoing distress in respect of her financial situation and felt overwhelmed. She recommended that BFN seek additional assistance from a social worker to assist with a range of services. Ongoing psychological support appointments were made.
[49] ARD at page 198.
An entry was made in the BXU Corporation clinical records on 22 January 2020 by Ms Harper.[50] Ms Harper recorded that BFN reported being very tired.
[50] ARD at page 198.
An entry was made in the BXU Corporation clinical records on 30 January 2020 by an unidentified social worker, who recorded that financial stress, housing options and current work-related stress were discussed with BFN. BFN advised that her psychologist would assist with ongoing work stressors.[51]
[51] ARD at pages 197-198.
Another entry was made in the BXU Corporation clinical records on 30 January 2020 by Ms Harper.[52] Ms Harper recorded that BFN reported ongoing stress. BFN disputed the outcome of her work issue and had found it hard to manage her distress. She had support from the union. She allowed BFN to debrief and explore explanations for what had occurred and for future options.
[52] ARD at page 197.
An entry was made in the BXU Corporation clinical records on 2 March 2020 by Ms Harper.[53] Ms Harper recorded that BFN reported ongoing frustration and difficulties with work and that work continued to marginalise and disadvantage her. She was struggling.
[53] ARD at page 194.
An entry was made in the BXU Corporation clinical records on 24 March 2020 by Dr Sebastian Marr.[54] Dr Marr recorded that BFN reported work stress as a result of a conflict with her acting branch manager that morning after a recent complaint had been made against her. BFN was very upset and did not feel able to return to work.
[54] ARD at pages 189-190
An entry was made in the BXU Corporation clinical records on 2 April 2020 by Dr Yuan.[55] Dr Yuan recorded that BFN was suffering from extreme stress, anxiety and depression after an incident at work on 24 March 2020. BFN reported that her manager yelled at her and told her that she had been doing things wrong for years. There had been ongoing issues with work. BFN was so upset that she almost had a car accident on the way home. Dr Yuan issued BFN with a certificate.
[55] ARD at page 189.
Another entry was made in the BXU Corporation clinical records on
2 April 2020 by Ms Harper.[56] Ms Harper recorded that BFN reported by telephone that she was really struggling at present. She was overwhelmed and unable to manage her life and life tasks. Ms Harper explored strategies that could assist BFN during her period of intense stress and scheduled another appointment with her.[56] ARD page 189.
An entry was made in the BXU Corporation clinical records on 5 August 2020 by Dr Yuan.[57] Dr Yuan recorded that BFN was very stressed out and anxious. She had been unable to sleep properly during the past week. She had received multiple calls from Australian Unity wanting her to return to work under the same management.
[57] ARD 165-166.
An entry was made in the BXU Corporation clinical records on 28 August 2020 by an unidentified psychiatrist.[58] The psychiatrist recorded, amongst other things, that BFN’s recent trigger for her depressive episode was work stress. She reported that staff at work were yelling at her and accused her of not doing her job well. Since the work stress, she had been feeling down with a lack of motivation, poor sleep, poor self-esteem, feeling helpless and worthless. A few months earlier her general practitioner commenced her on Mirtazapine 30mg tablets and she stated that it had helped her mood to some extent. She felt that if her work situation changed, her mood would improve. The psychiatrist opined that BFN currently presented with depressive and anxiety symptoms. It was noted that she seemed to have some cluster B and C mixed personality disorder. The advice was to continue on her current medication and to focus the ongoing counselling on distress tolerance, positive coping skills and mindfulness.
[58] ARD at page 160-161.
The remainder of the BXU Corporation clinical records revealed that BFN regularly underwent sessions with Ms Harper and regularly mainly consulted Dr Yuan, who issued her with certificates of capacity.
On 31 January 2022, Ms Jocelyn Harper, psychologist of BXU Corporation, reported to BFN’s lawyers.[59]
[59] ARD at pages 124-125.
Ms Harper reported that BFN had been consulting her for psychological counselling assistance and support since 17 July 2019. BFN had attended 39 sessions with Ms Harper between 17 July 2019 and January 2022 following referrals from the BXU Corporation general practitioner staff. BFN had also been supported by the [redacted] Social and Emotional Team, which consisted of a social worker and other support workers.
Ms Harper reported that, in 2016, a mental health care plan outlined depression, anxiety and significant losses including, the deaths of BFN’s mother, father and a close friend and the breakdown of her marriage of 28 years. Ms Harper reported that there was no evidence in the BXU Corporation clinical records that BFN undertook any psychological assistance at that time.
Ms Harper reported that the diagnosis provided in the next mental health care plan in
July 2019 was one of depression and anxiety, external stressors with work, finances and bereavement. A mental health care plan review on 2 April 2020 provided a diagnosis of anxiety, depression and stress, referencing poor memory and reduced concentration amongst other issues. A new mental health care plan on 4 March 2021 provided a diagnosis of extremely severe levels of anxiety, depression and stress, referencing poor memory and reduced concentration with workplace issues with bullying in the previous year, which greatly impacted on her mental health. The most recent mental health care plan on 21 June 2021 provided a diagnosis of depression and anxiety, both within severe range.Ms Harper reported:
“During our sessions, we have reviewed her social and family background, as well as interpersonal and communication issues, her difficult work environment, reduced work hours and subsequent financial strain and its effects on her health and mental health. Over time from December 2019, BFN described work issues, and later outlined a toxic work situation. She reported a work environment of favouritism for some workers, and a long and gradual deterioration of her work situation and significant deliberate disadvantaging of her by her line manager. She experienced marginalisation, and disrespect for her care and honesty, for her commitment and conscientiousness to her clients, and her work ethic.”[60]
[60] ARD at page 124.
Ms Harper reported that, at times during 2020, it had become clear to her that BFN was significantly unwell. There were occasions when she contacted her general practitioner to prioritise appointments for rapid medical assessment and management.
Ms Harper reported that it had become more apparent over the duration of her sessions with BFN that she could not undertake any work and could not perform any roles that relied on good judgement and undertook any responsibility. Since July 2019, Ms Harper had observed BFN’s deterioration and was concerned that there were organic medical issues underlying the rapid mental and health deterioration. Such concerns were raised with BFN’s medical practitioners. Until the diagnosis of a small lung cancer cell in late October 2021, there were no medical evidence or grounds for the significant deterioration of her mental capacity.
Ms Harper opined that the deterioration in BFN’s mental capacity was linked to chronic stressors over a long period of time. This appeared to have a cascade of effects, namely, high levels of distress; her work loss; her financial insecurity and vulnerability to regular employment; the loss of the work role that she enjoyed and was keen to undertake and which gave her a sense of contribution; and that this significant loss led to the erosion of her confidence and ultimately, poor ability to self-manage.
On 7 July 2022, Dr Allison Thorn, general practitioner of BXU Corporation, reported to BFN’s lawyers.[61]
[61] ARD at page 127.
Dr Thorn reported a history that included BFN having been reviewed dozens of times since 24 March 2020 in respect of a psychological injury sustained by her during the course of her employment. BFN experienced symptoms of anxiety and depression including tiredness, poor concentration and memory issues. Dr Thorn noted that BFN had been reviewed by multiple general practitioners at BXU Corporation and that she, Dr Thorn, commenced consulting BFN in respect of the above-mentioned issues in August 2021.
Dr Thorn opined that BFN had symptoms consistent with depression and anxiety, which were ongoing. Dr Thorn’s diagnosis was one of depression and anxiety.
Dr Thorn reported that she was not the treating doctor at the initial presentation but that BFN was reviewed by other doctors at BXU Corporation with symptoms of depression and anxiety after experiencing workplace conflict. Dr Thorn opined that the workplace was a contributor to BFN’s psychological symptoms.
Dr Thorn reported that BFN experienced ongoing issues with sleep, poor concentration and poor memory.
In respect of prognosis, Dr Thorn reported that it was difficult to determine with mental illness. She noted that BFN was certainly doing her best and was engaging with her psychologist regularly. BFN remained on antidepressant medication.
On 22 July 2022, Dr Thorn provided a short supplementary report to BFN’s lawyers.[62]
[62] ARD at page 128.
Dr Thorn acknowledged that she had read the reports of Dr Ben Teoh (engaged by icare) and Dr Christopher Canaris (engaged by BFN’s lawyers), psychiatrists. Dr Thorn reported that she did not agree with Dr Teoh’s conclusions and reiterated that BFN’s psychiatric symptoms were triggered by a workplace injury that continued to plague her to date, despite treatment. Dr Thorn opined that BFN’s lung cancer was not the primary cause of her psychiatric symptoms. Dr Thorn agreed with Dr Canaris’ assessment and the “support letter” of Ms Harper (presumably, the report dated 31 January 2022).
On 17 August 2022, Ms Harper reported to BFN’s lawyers.[63]
[63] ARD at page 126.
Ms Harper reported that BFN had attended 49 sessions with her between July 2019 and August 2022. In BFN’s August 2022 mental health care plan there were diagnoses including severe depression, anxiety and stress, isolation and a recent diagnosis of lung cancer.
Ms Harper reported that it had been clear to her that BFN had been significantly unwell and that such status continued to date. BFN continued to have poor organisational skills and was functioning poorly with poor memory and planning capability, as well as low energy. Ms Harper opined that BFN was not fit for work and could not perform any roles that relied on good judgement and undertook any responsibility.
The forensic medical evidence
Dr Ben Teoh: 15 July 2020
On 10 July 2020, BFN consulted Dr Ben Teoh, psychiatrist, at the request of icare. In evidence, there is a report by Dr Teoh dated 15 July 2020.[64] I will now refer to the relevant parts of that report.
[64] Reply at pages 17-24.
Dr Teoh took a history that BFN had worked as a community case worker in Campbelltown for five years and had ceased work three months ago. She had been consulting a psychologist weekly to fortnightly and had been prescribed antidepressant medication, Mirtazapine 30mg, by her general practitioner. She had been certified unfit for work by her general practitioner and had submitted a workers compensation claim. She had not attended a rehabilitation program. BFN stated that she had been feeling anxious and depressed. She had been socially isolated and leaving her house only to get food, attend doctors’ appointments and to go to the chemist. She felt lethargic and had insomnia. She had been worried about her employment and her future. BFN stated that people in the office had lied at work. A new branch manager had taken over. She had a six-month contract, three days off work and three days in the office. There had been an incident at work where staff were often exposed to indecent exposure. The manager had yelled at her. Management had tried to get rid of her. BFN’s hours of work were reduced. She had submitted a compensation claim eight years ago in Brisbane as a result of a conflict with a staff member.
By way of background, Dr Teoh noted that BFN was an only child, who left school at the age of 15 years and worked in the showgrounds and carnivals for 25 years. She had also worked in a butcher shop and in upholstery. There was no history of drug or alcohol abuse. She underwent a period of counselling as a result of her marital breakup. She had worked as a nurse in Tasmania and Sydney. She had three children.
Dr Teoh reported that he had read the Quantumcorp factual investigation report dated
9 June 2020; BFN’s statement dated 19 May 2020; BJL’s statement dated
15 May 2020; and BIU’s statement dated 25 May 2020. He referred to parts of those statements.On mental state examination, Dr Teoh observed that BFN’s speech was coherent and that she was not thought disordered. He noted that she reported feeling anxious and had lost her confidence. She reported insomnia and social isolation. He also noted that she had alleged that she was bullied and unfairly treated at work. She had been worrying about her employment and about her future. She was angry that she had been unfairly treated. Dr Teoh observed that there was no evidence of psychotic symptoms or suicidal ideation. BFN’s cognitive functions were intact. There was no evidence of short or long-term memory impairment.
In respect of the onset of BFN’s psychological symptoms, Dr Teoh reported that BFN stated that she had started to experience significant anxiety symptoms at work in 2019 as a result of various allegations of bullying and harassment.
Dr Teoh opined that BFN’s presentation was consistent with a diagnosis of acute stress reaction.
As to whether BFN had suffered an aggravation of a pre-existing or underlying condition, Dr Teoh noted that she had a past history of psychiatric illness but had stated that her condition had improved. Dr Teoh opined that it was likely that BFN was vulnerable to developing a stress reaction and that employment was the main contributing factor to the stress reaction as a result of industrial issues and grievances.
On the basis that the psychological condition was not pre-existing, Dr Teoh opined that employment was a substantial contributing factor to BFN’s psychiatric condition.
In his letter of instructions, it was put to Dr Teoh that BFN was undergoing performance management. In response to the question as to whether the reasonable actions of the employer were the whole or predominant cause of BFN’s diagnosable condition, Dr Teoh stated that she had performance management issues and opined that such performance issues were a reasonable action by her employer and were “a predominant cause of her acute stress reaction”.[65]
[65] Reply at page 21 at [5].
The next question put to Dr Teoh was that, if the actions of the employer in relation to performance management were not the whole or predominant cause of BFN’s diagnosable condition, what was the cause? [66] Dr Teoh stated that BFN’s acute stress reaction was predominantly related to performance management.
[66] Reply at page 22 at [6].
Dr Teoh opined that BFN was fit for suitable duties and that she could benefit from a rehabilitation program, five hours per day, three days per week. She would also benefit from seeing a psychologist fortnightly to monthly for a further three months. BFN would benefit from her current medication for a further 12 months. The main barrier for her recovery and return to work were the grievances and unresolved industrial issues.
In respect of other factors that may have negatively impacted on BFN’s treatment progress, Dr Teoh opined that she could be vulnerable to interpersonal relationships and that she was affected by the way she was treated at work.
Dr Teoh opined that BFN’s work-related injury had not resolved and her symptoms had persisted. She had persistent work-related industrial issues and performance issues that had not been resolved.
Dr Teoh opined that BFN had a good short and long-term prognosis.
Dr Christopher Canaris: 11 December 2020
On 11 December 2020, BFN consulted Dr Christopher Canaris, psychiatrist, at the request of her lawyers. In evidence, there is a report by Dr Canaris dated 11 December 2020.[67] I will now refer to the relevant parts of that report.
[67] ARD at pages 107-112.
Dr Canaris listed the documents that had been provided to him and they included a number of certificates of capacity, a medical certificate from Dr Yuan, BFN’s statement dated 19 May 2020, Dr Teoh’s report dated 15 July 2020, the dispute notice under s 78 of the 1998 Act dated 20 August 2020 and BFN’s clinical records from BXU Corporation.
Dr Canaris recorded a detailed history obtained from BFN that was, in the main, consistent with her evidence. The history included, but was not limited to, the following:
(a) BFN was a care worker, occupational health and safety representative and union delegate based at the Campbelltown office of Australian Unity, where she had worked for five years;
(b) BFN enjoyed her work;
(c) BFN came under a new office manager (BEW) in 2018;
(d) BFN had commenced working three days in the office and two days on the road (as a care worker) at about the same time BEW came on board;
(e) BFN had a roster going forward for three months working three days in the office and two days as a care worker and had only undergone six days of training for the position when BEW pulled her off the roster and put her back as a care worker five days per week;
(f) BFN formed the view that BEW did not like her and she thought what he had done was unfair and she complained to the union;
(g) BFN’s complaint resulted in a meeting with BEW and the human resources manager on an unspecified date wherein BEW shouted at her resulting in the meeting being stopped for 20 minutes because of BFN’s distress;
(h) BFN, in her capacity as the occupational health and safety representative, advised a fellow care worker to put in an incident report in respect of a situation where a client’s family member exposed himself to the care worker and the incident was repeated a week later;
(i) BFN was aware that, on an unspecified date, a meeting occurred with the branch manager (BEW) and the care worker referred to in the incidents above where BEW stated that he did not want BFN involved as she was a troublemaker and it was not her business;
(j) BFN was picked on in staff meetings;
(k) BFN had been working up to 70 hours per fortnight and found herself put back to 30 hours per fortnight in accordance with her original contract;
(l) BFN’s alleged performance issues consisted of complaints that were lies and included showering a client with a mobile phone in her hand and contacting clients;
(m) BFN received an email on 13 December 2019 setting out the allegations of complaint and a meeting was held on 17 December 2019 with her union representative to address the allegations;
(n) BFN received a first warning letter on 24 January 2020;
(o) BFN, with the assistance of her union representative, sent an email to Australian Unity disputing the allegations made against her but received no reply;
(p) BFN was called into a staff supervision meeting in February or March 2020 and requested a copy of the minutes of the staff meeting on 4 October 2019 and subsequently repeated the request in a number of emails but they were never provided to her;
(q) BFN left work with Australian Unity in March 2020 in the setting of a reported workplace psychological injury following a complaint by a client after being screamed and yelled at (by BJL) that she was worthless and that she did not know her job, and
(r) BFN felt useless, shattered and broken by it all and had cried out for help many times.
On 7 July 2022, Dr Thorn opined that BFN had ongoing symptoms consistent with depression and anxiety after experiencing workplace conflict. Dr Thorn opined that the workplace was a contributor to BFN’s psychological symptoms.
In a supplementary report dated 22 July 2022, Dr Thorn reported that she did not agree with Dr Teoh’s conclusions and reiterated that BFN’s psychiatric symptoms were triggered by a workplace injury that continued to plague her to date, despite treatment. Further, Dr Thorn opined that BFN’s lung cancer was not the primary cause of her psychiatric symptoms.
Turning to the forensic medical evidence in this case, the principles in relation to the acceptance of expert opinions in the Commission are well known. Rule 73(c) of the Personal Injury Commission Rules 2021 provides that “evidence based on speculation or unsubstantiated assumptions is unacceptable”. Rule 73(d) of the Personal Injury Commission Rules 2021 provides that “unqualified opinions are unacceptable”. The case law makes it clear that the Evidence Act 1995 does not apply to proceedings in the Commission. Hancock v East Coast Timbers Products Pty Ltd[109] (Hancock) is authority for the proposition that in a non-evidence-based jurisdiction such as the Commission, the question of acceptability of expert evidence will not be one of admissibility but one of weight.
[109] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
Further, it is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd,[110] Makita (Australia) Pty Ltd v Sprowles[111] (Makita); South Western Sydney Area Health Service v Edmonds[112] (Edmonds); and Hancock; that there must be a “fair climate” on which a doctor can base an opinion. Exact correspondence between the history in a medical report and what is proved in evidence is not necessary for the validity of the medical opinion. All that is required both as a matter of principle and common sense is that there be real correspondence between the two.
[110] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
[111] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.
[112] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
The relevant principles from Makita and onward are a guide to the weight to be given to experts’ reports. Makita set out that the requirement for the admissibility of an expert opinion is that it must be established on the facts on which the opinion is based on a proper foundation for the opinion. The opinion of an expert requires demonstration of the examination of the scientific or other intellectual basis of the conclusions reached. The expert’s evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study or experience and in which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded. The reasoning must be exposed demonstrating a particular specialised knowledge.
Medical experts must explain the actual path of reasoning by which they arrived at the opinion.
In NSW Police Force v Hahn, [113] DP King SC observed that the line of authority commencing with Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[114] makes it clear that Heydon J in Makita should be regarded as having enunciated a counsel of perfection and that doctors, in expressing an opinion, rely, on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length. Whilst it is accepted that medical experts do not need to provide elaborate or detailed explanations for their conclusions, more than an assertion without proof is required.
[113] NSW Police Force v Hahn [2017] NSWWCCPD 51 at [60].
[114] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157.
Bearing in mind the legal principles referred to above, I will now consider the evidence of Dr Teoh and Dr Canaris.
At times, I found Dr Teoh’s reports difficult to follow and contradictory. In his report dated 15 July 2020, Dr Teoh acknowledged his letter of instructions and the documents provided therewith, being the Quantumcorp factual investigation report dated 9 June 2020 and its attachments. He made no reference to having received and reviewed BFN’s BXU Corporation clinical records. Dr Teoh reported a history which fell far short of the detail one would expect in this type of case. Dr Teoh opined that BFN’s presentation was consistent with a diagnosis of acute stress reaction and that employment was a substantial contributing factor to BFN’s psychiatric condition. Dr Teoh acknowledged that BFN had a past history of psychiatric illness and accepted BFN’s statement that her condition had improved in this regard. He opined that it was likely that BFN was vulnerable to developing a stress reaction and that employment was the main contributing factor to the stress reaction as a result of industrial issues and grievances.
In his report dated 13 May 2022, Dr Teoh altered his diagnosis and opined that BFN’s presentation was consistent with a diagnosis of chronic adjustment disorder with mixed anxious and depressed mood. Dr Teoh opined that BFN’s condition was no longer significantly attributed to the compensable work injury. However, later in his report he opined that BFN’s work-related condition had resolved. Towards the end of his report, Dr Teoh opined that, in relation to her work-related injury, he would expect BFN to improve within the next six months. These three opinions were contradictory. Further, Dr Teoh opined that BFN’s condition had been aggravated by her recent diagnosis of lung cancer and that her condition was likely to be perpetuated by her medical problems (lung cancer). Dr Teoh did not expose his path of reasoning in respect of the latter opinion. The opinion was a mere assertion without proof.
In his report dated 4 July 2022, Dr Teoh opined that BFN’s work injury had abated but that she had not fully recovered and that her condition had been heightened by external factors with her diagnosis of cancer. Dr Teoh opined that BFN’s impairment was caused by her work injury, aggravated by her recent diagnosis of cancer.
In his report dated 1 December 2022, Dr Teoh assessed BFN’s whole person impairment at 15% as a result of his diagnosis of a chronic adjustment disorder with mixed anxious and depressed mood. Dr Teoh made a deduction of 2% for BFN’s lung cancer diagnosis contributing to her psychiatric treatment. As a result, Dr Teoh assessed the final work-related whole person impairment at 13%.
In his report dated 11 December 2020, Dr Canaris acknowledged that he had received and considered the documents provided to him and referred to in [186] above. Unlike Dr Teoh, Dr Canaris recorded the detailed history referred to in [187] above. Dr Canaris’ diagnosis was one of major depressive disorder with anxious distress and opined that, assuming the broad accuracy of the history on offer, BFN’s workplace was a substantial contributor to her injury. Dr Canaris acknowledged that BFN had a depressive illness between 2016 and 2017 from which she claimed to have recovered. He opined that, in the circumstances, the present injury may well comprise a re-emergence of a prior condition and if so, the workplace difficulties appeared to be the main contributor to the recurrence of her illness and to her ongoing incapacity.
In his report dated 8 February 2022, Dr Canaris took an updated history which included BFN’s diagnosis with a small cell carcinoma in her lower left lung that had required treatment in the form of chemotherapy and radiation therapy. Dr Canaris’ diagnosis was now one of persistent depressive disorder (dysthymia) with a persisting major depressive episode. Dr Canaris opined that BFN’s psychological injury remained linked to her workplace experience as was apparent from her continuing distrust for people. Dr Canaris assessed BFN’s work-related whole person impairment at 22%.
In his report dated 22 August 2022, Dr Canaris acknowledged receiving and reviewing the documents referred to in [226] above. He disagreed with Dr Teoh’s opinion that BFN’s work-related condition had resolved and that with the passage of time should have improved. Dr Canaris noted that, in his experience, many work-related psychological injuries do not improve and do not conform to the notion that a patient move on and get over it. In this regard, Dr Canaris observed that BFN continued to articulate significant difficulties related to workplace experiences and quoted relevant parts of her statement dated 16 August 2022. Dr Canaris opined that the continuing presence of such cognitions suggested the continuing impact of her workplace difficulties. Dr Canaris opined that BFN appeared to continue to suffer from a predominantly work-related psychological injury characterised by chronic depressive and anxiety symptoms associated with considerable impairment.
I prefer the evidence of Dr Canaris over that of Dr Teoh. Despite Dr Teoh having concluded that BQB had sustained a work-related primary psychological injury, I give his evidence little weight due to the issues I have raised in respect of inconsistencies, the very brief reporting of the relevant history and inadequate exposure of his path of reasoning. Dr Canaris’ evidence was supported by BFN’s current treating general practitioner, Dr Thorn and her treating psychologist, Ms Harper. I reject Australian Unity’s submission that I ought to give little weight to Dr Canaris’ evidence because he failed to engage with the BXU Corporation clinical records for the reasons stated above.
I accept that, in the circumstances described above, BFN perceived that she had been unsupported, bullied, victimised, marginalised, missed out on new roles and opportunities within the organisation and that the managers were trying to get rid of her. BFN’s perception was one of real events. Those events were not external. BFN’s perception was one of a hostile work environment from the time of BEW’s arrival and continued after he left in about December 2019.
I am satisfied and find that BFN suffered a work-related primary psychological injury that was contracted and/or aggravated, accelerated, exacerbated or deteriorated in the course of her employment with Australian Unity.
I will now consider whether her employment with Australian Unity was the main contributing factor to her psychological injury, bearing in mind that the test is one of causation.
I have considered the causal factors, both work and non-work related to the contraction and/or aggravation, acceleration, exacerbation or deterioration of BFN’s psychological condition. The non-work related factors include the death of BFN’s mother, father, sister and best friend; the end of her 25 year marriage; and ongoing interpersonal conflict with her daughters and other relatives. The work-related factors include the matters already detailed above.
BFN’s diagnosis of a small lung cancer cell in late October 2021 occurred well after she had decompensated and last worked for Australian Unity. The other non-work related factors had resulted in diagnoses of depression in 2016 and 2017.
By 18 December 2017, the BXU Corporation clinical records noted, amongst other things, that BFN was working full-time and loved her job. She reported that she had been feeling better. The next entry in the clinical records in respect of the state of BFN’s mental health was dated 8 March 2019, by which time BEW had removed her from the role of acting administrator at [redacted], she was again under financial distress and perceived that she had been unsupported, bullied, victimised, marginalised and missed out on new roles and opportunities within the organisation.
I accept BFN’s evidence that, by the end of 2017, she found that her work had helped her depression and that everything was great until the work-related issues referred to above arose in 2019 and continued through to 24 March 2020. Accordingly, I find that BFN’s employment was the main contributing factor to her primary psychological injury that was contracted and/or aggravated, accelerated, exacerbated or deteriorated in the course of her employment with Australian Unity.
I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that BFN suffered a work-related primary psychological injury within the meaning of s 4(b) of the 1987 Act and that her employment with Australian Unity was the main contributing factor to the contraction and/or aggravation, acceleration, exacerbation or deterioration of the condition.
The defence under s 11A(1) of the 1987 Act
The legislation and legal principles
Australian Unity raises the defence available to it under s 11A(1) of the 1987 Act, which provides:
“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.”
Australian Unity submitted at the arbitration hearing that BFN’s alleged primary psychological injury was predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline.
Australian Unity bears the onus of establishing on the balance of probabilities both that the “action” was, at least, the predominant cause of BFN’s alleged primary psychological injury and that such an action was reasonable.[115] If both these elements are established, then BFN’s entitlement to compensation is extinguished by s 11A(1) of the 1987 Act.
[115] Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair).
Section 11A(1) of the 1987 Act uses the words “wholly or predominantly”. It is important to appreciate that “wholly” and “predominantly” are separate concepts and a finding of one or the other needs to be considered.[116] The test of causation to be applied is that described in Kooragang; Ponnan v George Weston Foods Ltd[117] (Ponnan); Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[118] (Temelkov); and Smith v Roads and Traffic Authority of NSW[119] (Smith).
[116] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[117] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92.
[118] Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd [2008] NSWCCPD 96.
[119] Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
In ISS Property Services Pty Ltd v Milovanovic[120] (Milovanovic) at [67], it was held that where none of the actions of the employer were found to be reasonable and the worker’s psychological condition arose from those actions, it was not necessary to determine by which of the actions the injury was “wholly or predominantly” caused. Candy ADP went on to state at [89] that what is required by s 11A(1) “is comparison between all of the employment related contributions to injury and those contributions as a result of reasonable actions by the employer”.
[120] ISS Property Services Pty Ltd v Milovanovic [2009] NSWCCPD 27.
The meaning of “predominantly caused” was considered in Ponnan in which Handley ADP at [24] applied the dictionary meaning of “mainly or principally caused”. Roche DP agreed with this view in McCarthy v Department of Corrective Services[121] (McCarthy).
[121] McCarthy v Department of Corrective Services [2010] NSWCCPD 27 at [157].
Section 11A(1) of the 1987 Act refers to “reasonable action”. In considering the issue of reasonableness, Geraghty J in Irwin v Director General of School Education[122] (Irwin) said:
“… 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.”
[122] Irwin v Director General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998, unreported).
In Ivanisevic v Laudet Pty Ltd[123] (Ivanisevic), Truss CCJ said:
“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.”
[123] Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998).
The passages quoted above in Irwin and Ivanisevic were quoted with approval by Foster AJA in Commissioner of Police v Minahan[124] (Minahan) where his Honour said:
“I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgement and in his Honour’s judgement. The words ‘reasonable action’, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.”[125]
[124] Commissioner of Police v Minahan (2003) 1 DDCR 57; [2003] NSWCA 239.
[125] Commissioner of Police v Minahan (2003) 1 DDCR 57; [2003] NSWCA 239 at [42].
The question of whether the action is reasonable is one of fact involving an objective test and is not a matter of law.
In Sinclair[126], Spigelman CJ observed that one must look at the entire process to see if it was reasonable action within s 11A of the 1987 Act and that includes looking at the circumstances surrounding the action, both before and after the action.[127]
[126] Department of Education and Training v Sinclair [2005] NSWCA 465.
[127] Burton v Bi-Lo Pty Ltd [1998] NSWCC 13; Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454 at 458.
In Director General, Department of Education and Training v Pembroke[128] (Pembroke), Handley AP stated:
“In determining whether conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer (Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWCCPD 66 at [82]). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation.”[129]
[128] Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182.
[129] Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182 at [26].
An employer cannot rely on s 11A(1) of the 1987 Act because it held a genuine belief that its action was reasonable if, in all the circumstances, the Commission determines the action not to be reasonable.[130]
[130] Jeffery v Linitipal Pty Ltd [2008] NSWCA 138.
It is not for the Commission to consider whether the employer’s actions could have included other options or taken a different course. It is for the Commission to consider whether the action taken by the employer was “reasonable action” taking into consideration all relevant factors.[131]
[131] Hartley v Dux Manufacturing [2008] NSWWCCPD 55.
In Greater Southern Area Health Service v Walsh[132] (Walsh), it was argued by the respondent that its actions were mandated by law and were thus “reasonable”. O’Grady DP held “that legislation and guidelines may require and/or authorise certain action does not, alone, render action as being reasonable”.[133] A threshold question of whether such action is required must be answered based on proper exercise of judgement and assessment of facts.
[132] Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98.
[133] Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98at [102].
The reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken.[134]
[134] Northern NSW Local Health Network v Heggie [2013] NSWCA 225 (Heggie).
In Balranald Shire Council v Walsh,[135] an employer’s failure to follow its own procedures in relation to a matter of discipline led to a finding that the employer’s actions were not proven to be reasonable.
[135] Balranald Shire Council v Walsh [2013] NSWWCCPD 47.
The meaning of the word “discipline” was considered in Kushwaha.[136] Neilson J held that the employer’s process of drawing the worker’s unsatisfactory work performance to her attention, asking her to improve her performance and suggesting ways of doing so and of offering assistance in training was “discipline”. The meaning of “discipline” was approved by Candy ADP in Milovanovic[137]. In Milovanovic, reprimands about standard of work were held to come within the primary meaning of “discipline”.
[136] Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339.
[137] ISS Property Services Pty Ltd v Milovanovic [2009] NSWCCPD 27 at [83].
“Discipline” includes “punishment inflicted by way of correction and training”: McCarthy[138] relying on Kushwaha.[139]
[138] McCarthy v Department of Corrective Services [2010] NSWCCPD 27 at [155].
[139] Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339 at [151].
In Sinclair[140], Spigelman CJ considered “action” with respect to discipline stating:
“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 with respect to, relevantly, discipline.”
[140] Department of Education and Training v Sinclair [2005] NSWCA 465 at [96].
I will not deal with the legal principles relating to “performance appraisal” within the meaning of s 11A(1) of the 1987 Act because at the arbitration hearing and in subsequent written submissions, Australian Unity relied on discipline and not performance appraisal.
Consideration and findings
Australian Unity relied on two disciplinary processes that it submitted provided it with a defence under s 11A(1) of the 1987 Act.
The first process included its formal meeting request letter dated 13 December 2019, the meeting on 17 December 2019 and its first written warning letter dated 24 January 2020.
The second process was BJL’s telephone conversations with BFN on 24 March 2020.
In respect of the first process, I am satisfied that it was with respect to discipline, in that, it drew BFN’s alleged unsatisfactory work performance to her attention and ultimately reprimanded her about her standard of work.
In respect of the first process, I am not satisfied that the action taken by Australian Unity was reasonable for the following reasons.
Australian Unity’s formal meeting request letter dated 13 December 2019 listed six matters that related to alleged performance and conduct concerns in respect of BFN. There were no specifics in respect of any of the six allegations. As a result, BFN was in no position to properly prepare herself to respond to the allegations in advance of the meeting on 17 December 2019. BFP of United Workers Union made a request that particulars of the allegations be provided prior to the meeting but this was denied by Australian Unity. In this respect, the process commenced in an unreasonable manner and denied BFN procedural fairness. This part of the process was unreasonable action with respect to discipline.
Australian Unity only confronted BFN with the specifics in respect of the six allegations at the formal meeting on 17 December 2019. BFN was not provided with any witness statements or documents to substantiate any of the six allegations. Such action was procedurally unfair and unreasonable action with respect to discipline.
The first process culminated with the issue of Australian Unity’s first written warning letter dated 24 January 2020. I find that the entire process was unreasonable.
In respect of the second process, I am not satisfied that the action was with respect to discipline. I agree with counsel for BFN that BJL was exercising her managerial authority to have a discussion to seek information regarding BFN’s interaction with the client, who was the subject of the two telephone conversations on 24 March 2020. Whilst BIU’s evidence was that the same process was being adopted as those in the first process, BJL was her superior. There was no documentary evidence to support that the same process had been adopted. Further, BJL conceded that she would probably not have given BFN a warning in respect of the incident. She took the view that BFN obviously did not know that her actions were wrong.
If I am wrong about the second process not being an action with respect to discipline, then I find that it was unreasonable, in that, I accept BFN’s evidence that BJL raised her voice at her during one or both of the telephone conversations and that, combined with the unreasonable disciplinary action in the first process, contributed to the manner in which BFN reacted to BJL’s telephone call on 24 March 2020. In the event that I am wrong about the second process being unreasonable, I will now consider the issue as to whether BFN’s primary psychological injury was predominantly caused by Australian Unity’s actions, although arguably, I need not do so based on my initial findings (Milovanovic).
I am not satisfied that BFN’s primary psychological injury was predominantly caused by Australian Unity’s actions after having conducted a comparison between all of the employment related contributions to injury and those contributions as a result of the actions relied on by Australian Unity.
The evidence demonstrated that, in 2019, well prior to the first and second processes actioned by Australian Unity, BFN had suffered the symptoms referred to in my summary of the medical evidence in respect of the events and the evidence that led to her perception that she had been unsupported, bullied, victimised, marginalised and missed out on new roles and opportunities in the workplace. The events included limiting her work hours and delaying their review; BEW removing her from the role of acting administrator at [redacted] resulting in financial distress; BEW removing BFN from the role of occupational health and safety officer; BEW’s refusal to approve BFN accompanying a client on a cruise and stating that if she went on the cruise, her employment would be terminated; management’s failure to provide BFN with copies of minutes of meetings; BEW raising his voice at BFN at a meeting; BEW’s failure to inform BFN of upcoming positions in the organisation as agreed following the latter mentioned meeting; BFN being belittled by office staff; and tension between BEW and BFN in the workplace.
Whilst BFN stated that she was a mess when she received Australian Unity’s first written warning letter dated 24 January 2020, she continued working as a care worker. However, she stated that management was making it difficult for her and that she could feel the tension every time she walked into the office. She was petrified of receiving another complaint and being sacked.
In the words of BFN’s counsel, the telephone discussion between BJL and BFN on 24 March 2020 was the “final straw” in the long series of work-related issues she had experienced and resulted in her reacting the way she did, consulting a doctor and not returning to work thereafter.
In his report dated 15 July 2020, Dr Teoh initially opined that BFN’s employment was a main contributing factor to her stress reaction as a result of industrial issues and grievances. He did not specifically identify those industrial issues and grievances. He subsequently stated that BFN had performance management issues and opined that such performance issues were a reasonable action by her employer and were a predominant cause of her acute stress reaction. Again, he did not specifically identify the performance issues. Dr Teoh then opined that BFN’s stress reaction was predominantly related to performance management. Again, he did not specifically identify the performance management to which he was referring. I found Dr Teoh’s opinions in this regard inconsistent. An expert must engage with the issue at hand. I found Dr Teoh’s report unhelpful in relation to this issue.
In his report dated 13 May 2022, Dr Teoh opined that the predominant cause of BFN’s acute stress reaction was initially due to the work-related stress with the allegations that she raised. Accordingly, it appeared that Dr Teoh was no longer of the opinion that the predominant cause of BFN’s symptoms were industrial issues and grievances, performance issues or performance management issues.
In his reports dated 11 December 2020, 8 February 2022 and 22 August 2022, Dr Canaris did not specifically address the issue, although he did note that s 11A(1) of the 1987 Act had been raised as a defence.[141]
[141] ARD at page 111.
BFN’s workplace issues were multifactorial as described in [400] above and included Australian Unity’s actions in December 2019/January 2020 and 24 March 2020. Further, between January 2020 and 24 March 2020, there were the difficulties BFN was experiencing with management. I find that Australian Unity’s actions in December 2019/January 2020 and 24 March 2020 were not the predominant cause of BFN’s primary psychological injury.
Australian Unity has not discharged its onus of establishing on the balance of probabilities that BFN’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline within the meaning of s 11A(1) of the 1987 Act.
CONCLUSION
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.
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