BFZ v Inner West Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BFZ v Inner West Council [2024] NSWPIC 167
APPLICANT:	BFZ
RESPONDENT:	Inner West Council
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	5 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant relied on a series of events at work; many of the events occurred; perception by worker that they were directed at her; applicant suffered from an underlying psychiatric condition which included symptoms of paranoia; misperception; Application of A-G v K; finding of injury pursuant to section 4(b)(ii); discussion of AV v AW; respondent failed to discharge onus that actions with respect to discipline wholly or predominantly caused injury; medical opinion did not consider other work events which were causative of injury; Held – finding of injury pursuant to section 4(b)(ii); section 11A defence failed; section 66 claim remitted to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: Findings 1. The employment was the main contributing factor to the aggravation of the disease within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant’s injury was not wholly or predominantly caused by action with respect to discipline under s 11A of the 1987 Act. Orders 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment as a result of psychological injury deemed to have occurred on 11 December 2019. The material set out at paragraph 36 of these Reasons is to be provided to the Medical Assessor with a copy of these Reasons. 4. The matter may be relisted following the provision of a Medical Assessment Certificate or the determination of any appeal to a Medical Appeal Panel.

STATEMENT OF REASONS

BACKGROUND

BFZ (the applicant) was employed as a Parking Officer and then Senior Parking Officer by Inner West Council (the respondent) from 3 April 2018. She alleges that a number of incidents at work either caused or aggravated a psychological condition.
The allegation of injury was pleaded in the Application to Resolve a Dispute (the Application) as occurring from 1 April 2018 to 11 December 2019 with the following injury description:
“Nature and conditions of employment as a Parking Officer from 1 April 2018 to 11 December 2019 involving incidents of bullying, harassment and verbal abuse by co-workers and incidents of verbal threats, intimidation and stalking by members of the public”.
During the arbitration hearing the applicant specified a series of events causing the injury from 3 April 2018 to 11 December 2019.[1]
[1] Transcript (T), p 20.
A direction dated 6 November 2023 noted the Application was amended to plead a deemed date of injury on 11 December 2019 based on s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). Weekly compensation was claimed until the expiry of the s 37 period of the 1987 Act.
At the hearing the applicant requested leave to also rely on s 4(b)(i) of the 1987 Act.[2] The respondent asserted it was prejudiced by the amendment and either suggested the matter be struck out or an adjournment sought.[3] Subsequently, the respondent did not oppose the amendment and did not seek an adjournment.[4]
[2] T, p 101.
[3] T, p 106.
[4] T, p 167.
The s 11A defence was based on a notice issued pursuant to s 78 of the Workplace Injury Management & Workers Compensation Act 1998 (the 1998 Act) dated 30 March 2020, specifically a letter with respect to discipline dated 28 November 2019 and provided to the applicant on 9 December 2019.[5] The applicant provided a written response dated 11 December 2019 and ceased work shortly thereafter.
[5] Reply, pp 19-20.

PREVIOUS ORDERS AND DECISIONS

The applicant brought proceedings in matter number 2314/20 which resolved based on a three-month payment of weekly compensation benefits, an award thereafter and the applicant resigning her employment.[6]
[6] Application, p 38.
In March 2021 the applicant made a claim for permanent impairment compensation. The insurer denied that claim in August 2021.
In February 2022 the applicant filed the present proceedings. On 22 July 2022 the other Principal Member determined that the respondent was estopped from “relying” on various provisions of the 1987 Act.
The respondent successfully appealed the order of the Principal Member.[7] The essential reasoning of the Acting Deputy President was that the Principal Member erred in determining that it was sufficient that the estoppel applied to the general finding of a psychological injury rather than a specific psychiatric diagnosis in circumstances where the diagnosis relied upon by the applicant had changed since the previous consent orders.[8]
[7] Inner West Council v BFZ [2023] NSWPICPD 62 (BFZ).
[8] BFZ at [150].
The applicant is required to show that she has sustained an injury within the meaning of s 4 of the 1987 Act. In respect of the assessment of permanent impairment for psychological and psychiatric injury (s 65A of the 1987 Act), a worker must have sustained a primary psychological injury which is defined as “not a secondary psychological injury” (s 65A(5)).
There is no issue in the present case that, if the worker has sustained a psychological injury, it is a primary psychological injury. It is otherwise not controversial that the psychological condition is a disease.
The legislation does not require that a Member make a specific diagnosis of the psychological injury.
The approach is consistent with observations of the Victorian Court of Appeal in Murray Goulburn Co-op Co Ltd v Filliponi[9] applying previous Court of Appeal authority that it is not necessary that a precise medical diagnosis be provided.
[9] [2012] VSCA 230 at [25].
The approach is consistent with observations of the previous Workers Compensation Commission in Kempsey Shire Council v Kirkman[10] that it is “not essential as a matter of law, that the Commission determines the precise nature of the injury received by a worker”.
[10] [2010] NSWWCCPD 104 at [82].
As Roche DP stated in AP v New South Wales Police Force (AP):[11]
“The first point to note is that it is of no consequence that the diagnoses are slightly different. Though it is preferable that a diagnosis be determined, it is not essential for that to happen before causation can be established (Grace v Elmasri [2009] VSCA 111 at [131]–[137]) and a finding made on injury (Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104 at [82]). Diagnosis in a psychiatric injury case is never an exact science and will always depend on the symptoms with which the patient presents at the time of examination.”
[11] [2013] NSWWCCPD 11 at [243].
I completely agree with those observations.
In Jaffarie v Quality Castings Pty Ltd[12] Roche DP noted that the Arbitrator (now Member) did not “need” to make a determination about the precise nature of the injury adopting the observations of Emmett JA in Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd.[13] Those comments were applied by Snell DP in Inghams Enterprises Pty Limited v Belokoski.[14]
[12] [2014] NSWWCCPD 79 at [259].
[13] [2014] NSWCA 264 at [119].
[14] [2017] NSWWCCPD 15 at [222].
The assessment of permanent impairment is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[15] The fourth edition guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth edition guidelines prevail.[16]
[15] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[16] Clause 1.1 of the fourth edition guidelines.
Clause 11.4 of the Guidelines requires the Medical Assessor (and any Appeal Panel) to make a psychiatric diagnosis. The Medical Assessor must make that determination at the time of assessment based on his or her clinical expertise. Accordingly, the Medical Assessor is not bound by a psychiatric diagnosis made by a Member.
In State of New South Wales (NSW Department of Education) v Kaur[17] Campbell J observed that the question of whether an injury is a secondary or primary psychological injury is one for the Personal Injury Commission (Commission) to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act.
[17] [2016] NSWSC 346 at [22].
The observations of Roche DP in AP set out above are relevant to this. In any case concerning psychiatric injury there will often be disagreement by treating and qualified psychiatrists as to the precise psychiatric diagnosis. This case is no different and makes the task of providing a specific diagnosis difficult given that the matter is argued on the papers with no cross-examination.
The parties made submissions on a specific psychiatric diagnosis which would or would not constitute an injury pursuant to s 4(b) of the 1987 Act. I do not accept that I am required to make a finding of a specific diagnosis based on the above authorities and the fact that the fourth edition guidelines provide that a Medical Assessor is required to make their own diagnosis of psychiatric injury when assessing impairment.
The making of a specific diagnosis for a psychological injury in this matter is even more difficult when treating psychiatrists make a diagnosis and purport to make a differential diagnosis.
Despite the finding of the Acting Deputy President that there was no estoppel from the original consent orders, I do not accept that I am required to make a specific psychiatric diagnosis. It is unfortunate that the above authorities were not brought to the attention of the Acting Deputy President when this matter was argued in the first appeal.
In any event, the issue raised on appeal, that is whether there was an estoppel from the original consent orders, does not bind me on the issue of how I determine whether the applicant has established that she sustained a psychological injury within the meaning of s 4 of the 1987 Act.

ISSUES

The respondent denies that many of the incidents occurred, that the applicant otherwise suffered a psychological condition and that the events did not cause or aggravate a psychological injury. This determination required a finding of whether the employment was the “main contributing factor” to either the contraction (s 4(b)(i)) or the “aggravation, acceleration, exacerbation or deterioration” (s 4(b)(ii)) of the disease.
At the arbitration hearing the applicant also sought leave to rely on s 4(b)(i) of the 1987 Act.[18]
[18] T, p 101.
The applicant accepted that the pleaded s 11A actions were discipline within the meaning of that section[19] and that the actions were causative of injury but did not satisfy the test of “wholly or predominantly”.[20]
[19] Walsh v Inner West Council,18 December 2023, T, p 1.
[20] T, pp 9-10.
The parties accepted that I would determine the issues of injury and s 11A, and, if the Applicant was successful, the matter would be referred to a Medical Assessor prior to the determination of weekly compensation.[21]
[21] T, p 1.
The parties were advised that I would only consider evidence referenced in submissions.[22] This approach is consistent with the observations of the High Court in Gamester Pty Ltd v Lockhart[23] where it was observed that a Court is not required to “search for supportive evidence to support a claim”. The High Court stated:[24]
“In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.”
[22] T, p 2.
[23] [1993] HCA 79; (1993) 112 ALR 623 (Gamester).
[24] Gamestar at [8].
These observations have been applied in the Workers Compensation Commission.[25] There is every reason to apply this principle in the Commission particularly when the material is extensive, and the parties are on notice. The principle is otherwise consistent with the objects of the Personal Injury Commission Act2020 (the PIC Act) which provide that the Commission is to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[26]
[25] See Jaffarie v Quality Castings Pty Limited [2017] NSWWCCPD 2 at [208]; Carter v Star Track Express Pty Ltd [2015] NSWWCCPD 60 at [34].
[26] See s 3 of the Personal Injury Commission Act, 2020.
This observation is relevant in this matter because there was other evidence pertaining to the nature of the events relied upon by the applicant which is contained in the filed documents but which the parties advised was not going to be the subject of submission.
I note that the legislation provides that a brief statement is required for the reasons for determination.[27] The way this matter has been contested means that the reasons are far from brief.
[27] Section 294(2) of the 1998 Act.

EVIDENCE

The matter was listed for arbitration hearing on 18 December 2023 when Mr Horan of counsel appeared for the applicant and Mr Baran appeared for the respondent.
The following material was admitted into evidence without objection:[28]
(a)    the Application and attachments,
(b)    the Reply and attachments,
(c)    two Applications to Admit Late Documents filed by the applicant, and
(d)    three Applications to Admit Late Documents filed by the respondent.
[28] T, pp 2-3.
There was no request to call oral evidence although leave had previously been granted for cross-examination.
The matter was heard over a day just prior to the prior Christmas holiday period and submissions were far from complete. Due to the (understandable) absence of counsel over the holiday period, a delayed timetable for the filing of submissions was scheduled. Following the provision of the submissions, the following direction was issued on 28 February 2024.
“1.     The respondent in its oral submissions referred to complaints of sexual assault referenced by hospital records on 9 January 2019 (Reply, p 320) and on 30 May 2019 (Reply, pp 659-660) and submitted (T, p 191):
‘These events also occurred if you accept her evidence and, of course, nothing could be more serious and she’s gone to a psychologist because of it.’
2. It is understood that these events are raised as a defence to an allegation of injury under s 4(b)(ii) of the 1987 Act because they occurred during the period of employment alleged to be causative of injury. This submission was made by the respondent at the outset of the hearing. It is understood that these events are raised as a defence that the employment was not the main contributing factor to any aggravation of the disease: see AV v AW [2020] NSWWCCPD 9 at [102]-[103]. I cannot identify and was not referred to any medical evidence concerning the causative relevance of these events.
3.      The respondent is to file and serve submissions by close of business 1 March 2024 if the above characterisation is correct and/or file a very brief submission of the relevance of those events.
4.      The applicant has not replied to this submission. It is directed to respond only to this issue and any further submission, by close of business, 5 March 2024.”
The timetable required further submissions in response to this direction. The respondent objected to the short period allowed for filing further submissions and the timetable was slightly extended. In its supplementary submissions the respondent raised issues with the summary provided in the direction.
The respondent’s supplementary submissions were contrary to what it had submitted at the arbitration hearing and are inconsistent with the decision of AV v AW[29] concerning whether the worker had established that the employment was the main contributing factor to the aggravation etc of the disease. This is discussed later in these Reasons although I reference them at this stage.
[29] [2020] NSWWCCPD 9 (AV v AW).
The supplementary written submissions were requested in response to the further direction on s 4(b)(ii) set out at paragraph 38 above. The respondent’s written submissions asserted that I mischaracterised its defence then proceeded to address the pre-existing condition and Dr Lee’s opinion about the prior psychiatric condition. The error is exemplified in the following submission (bold in submission):[30]
“The respondent says the Commission ought to accept the conclusion of Dr Lee that her psychological disorder was present before she commenced employment with the Council and is likely to have caused the majority of her difficulties with her former Council employment. If it is accepted that the pre-existing disorder is likely to have caused the majority of the applicant’s difficulties during her employment with Council, then the pre-existing disorder would have been the main contributing factor to any possible psychological disorder or aggravation of a pre-existing personality or psychiatric disorder sustained during her employment with Council.”
[30] Supplementary written submission, [19].
The submission states that the pre-existing condition is the main contributing factor to any possible aggravation of the psychological disorder. This is the opposite of what was stated by Snell DP in AV v AW on cases of aggravation and to which I requested submissions, that is the issue is what is the main contributing factor to the aggravation, as opposed to the underlying disease.
I considered bringing the matter back for further submissions in light of the deficiencies with respect to the submissions on the issue of “main contributing factor to the aggravation of the disease” and the application of the principles discussed in AV v AW[31] by Snell DP. The Deputy President identified the following issues under s 4(b)(ii) when he stated:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[31] AV v AW at [78].
The principles in AV v AW were discussed at the hearing and the subsequent direction sought assistance from the parties on the s 4(b)(ii) issue. That the respondent then made submissions inconsistent with the application of the decision by referring to the underlying disease to defeat the allegation of aggravation had been brought to its attention.

Events relied upon by the applicant

The applicant referenced multiple events as causative of injury. I summarise these events individually conscious of the respondent’s overall submission that I could not accept the applicant’s evidence given the opinion of Dr Lee that the applicant was delusional, paranoid and unreliable and suffered from a Borderline Personality Disorder.
The applicant submitted that the principles in Attorney-General’s Department v K (A-G v K)[32] applied to the facts in this case. In A-G v K Deputy President Roche stated:[33]
“The following conclusions can be drawn from the above authorities:
(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)    a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)    if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)    so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)    there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)    it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[32] [2010] NSWWCCPD 76.
[33] at [52].

The respondent did not contest these legal principles.
The respondent orally submitted that despite the absence of contradiction by witnesses, it denied many events occurred because of Dr Lee’s opinion that the applicant was paranoid and delusional.[34] In written submissions it referred to Dr Lee’s opinion that the applicant had a borderline personality disorder with symptoms of exaggeration and chronic paranoia.[35]
[34] T, p 100.
[35] Respondent’s supplementary written submissions, par 9.
I will address this issue again later although I am conscious that the respondent has made it relevant to the issue of whether the events occurred. The difficulty with how I have addressed this submission is that deciding whether the events occurred depends on an analysis of the acceptance of Dr Lee’s opinion that there is such a delusional aspect to the applicant’s personality and that she is unreliable. Dr Lee concluded that many of the events were not substantiated in forming the conclusion on diagnosis and his opinion that the applicant is unreliable.
My reasons for rejecting portions (not all) of Dr Lee’s opinion is that he has concluded that many of the events did not occur, then used this as a basis for concluding that the applicant has a Borderline Personality Disorder and is unreliable. The respondent, then makes the overall submission that I would not accept various events because of Dr Lee’s diagnosis, which was dependent upon the applicant being unreliable because many of the events did not occur.
Dr Lee has provided an opinion that many of the events did not occur, or they were misinterpreted by the applicant. It is clear from Dr Lee’s opinion that he does not understand the principles discussed in State Transit Authority of New South Wales v Fritzi Chemler (Chemler)[36]and A-G v K. Dr Lee has, in his conclusions, used descriptions like “unsubstantiated” to describe the applicant’s allegation in making the conclusion that many of the events were made up and that in turn is used by the doctor in his conclusion on diagnosis. He has also used descriptions such as events being misinterpreted as supporting his conclusion that the majority of her claims against the Inner West Council are “unsubstantiated”. This later phrase was emphasised by the respondent in its supplementary written submissions.[37]
[36] [2007] NSWCA 249.
[37] Respondent’s supplementary written submissions, par 16 quoting Dr Lee in a report dated 17 June 2021.
My analysis of the material about whether events occurred differ substantially from Dr Lee’s conclusion. The doctor’s conclusion about proof of an event seemed to require corroboration of the applicant’s account or acceptance by the respondent that the event occurred. This is plainly wrong. The doctor also does not understand that a real event that is misinterpreted by a worker is still an event that is causally relevant to the issue of injury.
Dr Lee also referred to the applicant’s symptoms of paranoia and delusion. I accept, on the material before me that the applicant had a pre-existing psychiatric illness which included paranoid delusions. That conclusion is clear from the pre-existing records and some histories provided by the applicant to doctors. The existence of paranoia and delusion mean that many innocuous events that occurred and because of the applicant’s underlying condition, she perceived certain events as being directed at her. However, I accept that the applicant’s underlying condition, particularly with regard to the delusional aspects, means that the applicant’s version is treated with some caution.
The applicant also referenced an email dated 1 April 2019 sent by her to the respondent raising “bullying behaviour, harassment and threats” and submitted that it was an “important document … created during the time the worker was at work”.[38] In accordance with the applicant’s submission I have, where necessary, cross-referenced the allegations in that email with the events set out below noting that the date of the email preceded some of the events relied upon by the applicant.
[38] T, p 85.

1 June 2018 makeup comment

The applicant stated that CGD sent a series of memes on her mobile phone on 1 June 2018 which included a statement that “you should put on some face with that make up”. This picture was then printed and posted up on the office wall.
The applicant stated that she felt that this was “an insult to me as I did wear makeup to work to try to present myself well at work”.[39]
[39] Application, p 1
CGD provided a statement dated 28 April 2020 which did not address this allegation.[40] In that statement CGD addressed other allegations made by the applicant.
[40] Reply, p 118.
CRO provided a statement dated 16 February 2022.[41] CRO was a team leader of parking services and stated:[42]
“I recall being present at the first team meeting in mid-2019 that BFZ attended after being at the Parking Rangers office where there was a discussion with her and her colleagues to reintroduce her back into the team. From memory CGD said to BFZ that she was unaware that BFZ was feeling that way and said she said she was sorry for anything she may have done in the past that had hurt her, but she didn’t mean it and was just trying to get BFZ involved in what they were doing and some of the things they did was put up funny pictures on the wall. I think CGD may have apologised if BFZ did feel hurt from it. CGD was trying to make sure BFZ didn’t feel that way again going forward. I thought it was a good meeting and the air was cleared.”
[41] Reply, p 151.
[42] Reply, pp 156-157.
The respondent submitted that there was no acrimonious relationship between the applicant and CGD and therefore the event was not real.[43] It was also submitted that “even though it’s not expressly denied, doesn’t mean it must be expressly accepted” and suggested an analogy with the authorities concerning the absence of cross-examination and whether a witness should be believed.[44]
[43] T, pp 109-110.
[44] T, p 111.
I accept the applicant’s account. CGD did not respond to the account in circumstances where she replied to other allegations. Furthermore, the applicant’s account is corroborated in part by CRO’s statement. The respondent’s submission is speculative in circumstances where the absence of a response is unexplained, and a statement was provided by that co-worker on other matters. The respondent’s submission that there was no acrimonious relationship and therefore the event was not real is otherwise not logically based.
The respondent’s submission is otherwise inconsistent with the principles in Chemler and AG v K. I otherwise accept that the applicant’s perception that the words spoken were offensive.

Applicant addressed as “BFZ”

The applicant stated:[45]
“When I first started CGD referred to me as BFZ. She said ‘Can I call you BFZ’. I said ‘No’. CGD said, ‘well I’m going to call you BFZ’ and she did, she continued to do so for several weeks. This was after I had finished my initial training partner up with a senior and had started working on my own about 8 weeks after my commencement at Council which was 3rd April 2018.”
[45] Application, p 1, par 6.
CGD did not respond to this allegation.
I accept the allegation given the absence of a response by CGD.

Action by co-worker – CIF

The applicant stated that from approximately three months after she started working up until approximately February 2019, every time CIF walked past her, he would grab himself on his crotch. The applicant stated that this was noted and commented by CMJ and the actions made her feel uncomfortable.
CIF provided a statement dated 16 April 2020.[46] He stated:
“I deny that I touched myself in the crotch area specifically when BFZ was around. It is possible that I could have to just [sic] myself at times.”
[46] Reply, p 111.
CMJ stated:[47]
“I do not recall any occasion on which I observed Parking Officer CIF touch his crotch whilst he was walking past BFZ or bring it to BFZ’s attention.
CIF has a strange gait and does at times sort his underpants when he walks. I explained this to CTQ when he enquired about it with me when BFZ had apparently made a list of complaints against staff. I do not recall the date. I explained to CTQ and HR, that I have not observed CIF do this intentionally in front of BFZ or any other staff member.”
[47] Reply, p 108.
The applicant’s counsel submitted that this is probably a real event which was, at the very least, misconstrued by the applicant.[48]
[48] T, p 40.
The respondent submitted:[49]
“So we say simply that you would be entitled to draw the inference that when a female was around like the applicant that this man, although he had a habit of adjusting himself, didn’t do so in her presence.”
[49] T, p 112.
CMJ observed the co-worker sorting “his underpants when he walks”. That CMJ observed this behaviour suggests the applicant also noticed it otherwise she could not know about it. When asked about this, the respondent’s counsel responded that this was “speculative”.[50] It is hardly speculative when the applicant stated that she observed something which was observed by another co-worker.
[50] T, p 113.
The respondent also submitted that the co-worker said that CIF didn’t adjust his pants in front of the applicant.[51] That submission misstates the evidence. What the co-worker stated was that he did not observe CIF doing so in front of BFZ which is not the same thing as it did not occur. The submission otherwise assumes that the co-worker is watching CIF every time he walks past the applicant, something which is inherently unlikely.
[51] T, p 113.
For these reasons, I accept that the applicant noticed CIF adjusting his pants.
I do not accept that CIF intentionally adjusted his pants in front of the applicant. I am satisfied that the event occurred because the applicant noticed it and another worker noticed the unusual gait, and understandably, the applicant was uncomfortable with the situation.

Comment by CNK

The applicant stated:[52]
“On Wednesday, 15th August 2018 I was sitting at the lunch table in the office and CNK said ‘I was about to say something but I won’t’. I said what was it? He said ‘I shouldn’t’. I said ‘why what was it?’. He then said I was ‘a dog on heat’. He then sent me a text message at 2:48 PM saying ‘Pardon my crude joke, I sometimes can’t help my cheeky nature.’”
[52] Application, p 2, par 10.
CNK provided a statement dated 28 April 2020.[53] He stated that he “vaguely” recalled a discussion possibly around late 2018 with the applicant when he may have spoken a phrase like “a dog on heat” or something similar. CNK could not recall what he had been discussing and said he “certainly did not direct that comment at BFZ herself”.
[53] Reply, p 132.
CNK stated that he recalled sending a text message around that time when he made it clear to the applicant that the comment was not directed at her.
The respondent submitted:[54]
“So that - that is a little bit concerning in that we’re not too sure whether the witness is, in fact, saying that he didn’t say it or if he said it, it wasn’t being directed at her or she wasn’t in the room. The best we can put is that it’s a phrase he may have said but he certainly did not direct it at her.”
[54] T, p 114.
It is clear from the evidence that CNK made a joke about a dog on heat. The applicant said he did, CNK said he may have spoken a phrase and followed up with a text message that CNK remembered sending. It is likely and makes commonsense, as the applicant alleges and CNK does not deny, that CNK was apologising for the joke.
CNK may not have directed the joke at the applicant although the fact that the applicant thought the joke was directed at her is understandable. The respondent’s submission that CNK “did not direct [it] to her” is irrelevant and again ignores the principles in A-G v K. The comment was said to the applicant, and she clearly perceived it as disparaging which it probably was.

Text of whale emoji

On 15 October 2019 the applicant was working with CNK who sent her a text message of a whale. The applicant stated that she had previously been bullied by CNK in relation to the comment of “dog on heat” and therefore interpreted the text as a fat shaming because it referred to her as a whale as she had recently put on several kilograms and had been open about this in the lunchroom.
The applicant immediately responded by text to CNK stating that the message was a bit rude, and to please refrain from sending unnecessary emojis and to keep it professional.[55]
[55] Application, p 9, par 50.
CNK stated that he sent the applicant a text message in late 2019 with a thumbs up in a blue simile whale emoji squirting water which was in response to a situation they had with the car at a depot that needed fixing.
CNK stated that he recalled the applicant responded by stating that he was calling her a whale and stated that he was “unhappy about this and thought it was ridiculous” and absolutely denied that he was fat shaming the applicant.[56]
[56] Reply, pp 133-134.
The respondent submitted, that the two emojis indicated everything was “cool”,[57] submitted that the event had to be looked at in the context of what preceded it, that is the applicant had gained a few kilograms and there were comments about eating chips.
[57] T, p 116.
The following interaction then occurred about this matter:[58]
[58] T, pp 118-120.
“MR BARAN: We say it’s - the event has to be looked at in the context of what precedes it and what occurs when it actually occurs and thereafter and what - what occurs when it’s preceded as her saying that this man was present when there was something going on regarding the provision of food. She said she gained extra kilos - -
PRINCIPAL MEMBER: O.K. Well, that - well, let’s - O.K. If you say it’s that - if you say it’s that narrow where is the fat, hot chips denied? It’s not. Where is it denied that the applicant put on weight before this occurred?
MR BARAN: I don’t think he has to because the thrust of it is, is that the emoji is the fat-shaming thing.
PRINCIPAL MEMBER: Exactly, I agree with you.
MR BARAN: O.K. So - - -
PRINCIPAL MEMBER: See, Mr Baran, you think I’m - I agree with you but another person could say this was an entirely innocent emoji.
MR BARAN: Yes.
PRINCIPAL MEMBER: And I might think that but that’s not the test. Isn’t the event this gentleman sent her on what he would say was an innocent thing?
MR BARAN: Yes.

PRINCIPAL MEMBER: The applicant has interpreted it as fat-shaming.
MR BARAN: Yes.
PRINCIPAL MEMBER: And on balance I might agree with you but - - -
MR BARAN: And then you apply Chemler.
PRINCIPAL MEMBER: - - - the whale - the whale picture was sent. The applicant says, I’ve just put on weight, this is how I interpreted it. And with respect, it’s consistent, as I understand it, with the applicant’s underlying personality of suspicion and the like.
MR BARAN: Yes.
PRINCIPAL MEMBER: So - - -
MR BARAN: I accept that it can be narrowed in the way you say, Member, with respect.”

The respondent accepted that the emoji had been sent but the text wasn’t before the Commission and would have added some context. The difficulty with accepting that submission is that the sending of the text wasn’t denied by the co-worker.
In subsequent submissions, the respondent returned to its investigation on the “whale incident”.[59] The following is the respondent’s investigation summary of this incident.[60]
“BFZ response also details her dissatisfaction of the then, Managers handling of her complaint of CNK sending an inappropriate emoji that BFZ contents was intended to ‘fat shame’ her.
In investigating this complaint, I have been provided with the text trail for the conversation that BFZ has taken offence to. BFZ directly addresses her concerns with CNK, and he advises her that the whale is ‘cool and happy’.
When the matter is brought up with her Manager, BFZ alleges that he laughed which the Manager concedes, as ‘I laughed at the stupidity of some people as I couldn't understand why he would send emojis to colleagues’.
This matter was later raised by BFZ at another meeting with the Manager and a HR representative where CTQ explained his actions.
Whilst there is a discrepancy in the responses of the Manager and witness, neither account indicates that the Manager was aware of the meaning BFZ had associated ‘fat shaming’ with the emoji at the time of his laughter. So, I see no reason to disbelieve the account he has provided, on multiple occasions.”
[59] T, p 138.
[60] Reply, p 56.
After the respondent’s counsel referred to this summary, the following interaction occurred.[61]
“PRINCIPAL MEMBER: You see, let’s look at the last paragraph and this is what we talked about before. I mean, this is quite a good example. I agree that I don’t think the manager fat-shamed her but based on this further evidence it’s absolutely crystal clear what happened. Your own document now proves it, and the applicant interpreted it to be fat-shamed.
MR BARAN: Yes, I accept that.”
[61] T, p 139.
Following this interaction, the respondent did not reference its investigation in respect of any other allegation. The examples listed below occurred prior to the above interaction. I make this observation because at the commencement of the hearing I stated that evidence would not be addressed which was not the subject of express submission. Indeed, following the above submission the respondent’s counsel asked me not to look at its investigation.[62]
[62] T, p 141.
This event occurred and the applicant responded to it in accordance with her statement. The respondent’s submissions were confusing and initially contrary to the principles in A-G v K. The transcript shows that the respondent ultimately accepted, consistent with the authorities, that a real event occurred, and the applicant perceived that she had been “fat-shamed”. That the respondent’s employee did not intend to fat-shame the applicant is irrelevant.

Spastic comment by COL and CNK

The applicant stated that on 8 and 9 November 2018 COL called her “spastic”. It is alleged by the applicant that CNK joined in on 9 November 2018 “mentioning spastic in a derogatory way as well”.[63]
[63] Application, p 3, par 19.
The allegation is also contained in the 1 April 2019 email.[64]
[64] Application, p 15.
COL denied these allegations.[65]
[65] Reply, p 122.
The respondent noted COL’s statement that when the applicant started working “there was not any issue with BFZ’s demeanour or behaviour”.[66] Later in its submissions the respondent noted that COL stated:[67]
“From the time she became a Senior Parking Officer until late 2019, BFZ’s behaviour deteriorated. She became increasingly snappy in the way she communicated with staff.”
[66] Reply, p 123
[67] Reply, p 124.
The respondent noted that it would address this and similar passages when it commented on the medical opinion.
CNK did not traverse this statement. The applicant submitted that the absence of traversal in circumstances where CNK was said to have joined in on the comments was sufficient to satisfy the onus of proof.[68]
[68] T, p 68.
The respondent submitted that despite the absence of CNK’s response, the applicant had not satisfied the onus on the balance of probabilities.
The allegation is quite serious and there is no suggestion of underlying malice by COL. Whilst I have some reservations because CNK did not respond, I agree with the respondent’s submission and do not accept that on balance this event occurred. In respect of this event, I have been cautious in accepting portions of the applicant’s evidence based on an acceptance of medical evidence that the applicant had an underlying psychiatric illness with symptoms of paranoia and delusion.

Other comments by COL

The applicant stated that on 17 February 2019 COL stated “Hi BFZ in a rude derogatory tone, sounding like someone who is slow and cannot talk properly”[69] and then said:
“Have you ever thought that all these men that do horrible things to you, is because of you, cause there is something wrong with you?”
[69] Application, p 4, par 22.

The applicant said that she was confused by these comments and found them “extremely threatening”.
COL agreed that he said the applicant’s name “in an extended manner sometimes” but did not make the above comment.[70]
[70] Reply, p 123, pars 9-10.
The respondent also referenced this evidence.[71]
[71] T, p 142.
The applicant stated that she was called “Misery” by staff members instigated by COL.[72] On 22 March 2019 COL showed the applicant a text message from CQN saying, “the misery is about to get deeper”.
[72] Application, p 6, par 39.
COL stated:[73]
“I did not refer to BFZ as ‘Misery’. The term is used in the unit to address unpleasant situations not fellow workers.”
[73] Reply, p 124, par 13.
The applicant submitted that the term “misery” would have been used but it was not directed at her.[74]
[74] T, p 64.
The respondent submitted that this was not a real event as COL’s evidence is that it was not directed at the applicant.[75]
[75] T, p 143.
The respondent’s submission is again a misinterpretation of the principles set out in A-G v K.
The applicant stated that on 31 March 2019 COL was making grunting noises at her continuously throughout the shift which made her uncomfortable. The applicant stated that she asked him to stop.[76]
[76] Application, p 5, par 28.
COL stated that he did not make these noises at BFZ and “avoided contact with her”. He said that “[a]s I am a smoker, I do clear my throat.”[77]
[77] Reply, p 124, par 12.
The applicant submitted that some of these were real events that had been at least misinterpreted by the applicant.[78]
[78] T, p 65.
The respondent submitted:[79]
“That cannot be elevated, in our respectful submission, to a real event. It’s one thing to grunt like a pig, another thing to cough.”
[79] T, p 143,
I am satisfied on balance that the various events occurred (subject to the comment in par 113) although none were directed at the applicant. The evidence by the co-workers show that the events occurred such as saying BFZ in an extended manner, referring to misery and coughing.
I do not accept on the balance of probabilities that COL made the statement referenced above at paragraph 99.

Comments by CPM

The applicant stated that CPM came into her office on 30 January 2019 during the evening shift, sat at the desk and said, “are they working you too hard are they, Good you deserve it”.[80]
[80] Application, p 4, par 21.
The allegation is contained in the 1 April 2019 email.[81]
[81] Application, p 16.
CPM provided a statement dated 16 April 2020 wherein she referred to the allegation and said she didn’t “recall any incident” and “may have said BFZ you deserve a reward or a comment of that nature”, CPM stated that she “never tried to provoke or make BFZ unhappy”.[82]
[82] Reply, p 116.
The applicant submitted that the conversation was not denied and otherwise occurred and was a real event.[83]
[83] T, pp 45-48.
I am not satisfied that the applicant correctly recorded what CPM said to her. The critical comment is that CPM was supposedly derogatory to the applicant by saying “Good you deserve it”.
The applicant submitted that it is a real event because there was a conversation between the applicant and CPM.
I do not accept that the concept of “real event” is satisfied if the essence of the cause of the derogatory comment is not present. In my view the concept of a real event must be considered in the context of what is said to be perceived as the cause of the offensive or hostile working environment.
On 13 August 2019 another person was promoted (CVS) and verbally congratulated by the team. CPM came up to that team member and said:
“Congratulations on the position CVS, now you can do what you want, you can sack people, hang people, kill people.”
The applicant said she was very taken back by these comments.[84]
[84] Application, p 7, par 43.
On 19 April 2019 CPM responded to the applicant by text saying “OK no worry sir, will do that cheers.” The applicant said CPM was “mocking me referring to me as a man.”[85]
[85] Application, p ,7 par 43.
CPM provided a statement dated 16 April 2020.
The applicant submitted that the allegations were not traversed.[86]
[86] T, p 75.
The respondent referred to CPM’s evidence that when the applicant first started working, she “had a reasonably calm demeanour and she communicated normally” and after she was promoted, she behaved arrogantly.[87]
[87] Reply, p 116.
The respondent otherwise submitted that there were two competing versions and there “is sufficient doubt there that the actual event or the real event, as the applicant would ask you to accept, hasn’t been proven on the balance of probabilities”.[88]
[88] T, p 127.
The respondent referenced the following evidence from CPM.[89]
“I have not observed anyone to be bullying or harassing BFZ in any way. She used to bully other staff and treat them with an aggressive attitude speaking abruptly to them. Some officers were scared to talk to her.
I was not present at our Leichhardt site on 22nd November 2019, for a discussion amongst some staff about paedophiles. I was also not present for any comments BFZ may have made to any staff members at work that day.
In late 2019, I was cautious about talking to BFZ as she was unpredictable. Sometimes she was okay and other times she was sometimes abrupt in her communication with staff. I limited my communication with her to avoid unnecessary problems.”
[89] Reply, p 117.
The respondent submitted that the applicant was worse in late 2019 and submitted that the applicant was unreliable.[90] It relied on CPM’s general statement that “I have never tried to provoke or make BFZ unhappy” as a general traversal of the applicant’s evidence which it described in its submissions as “about as high as it goes”.[91]
[90] T, p 154.
[91] T, p 156.
Some people may view CPM’s comments and the text set out at paragraph 121 as a joke. I infer that the comment was stated in jest. I reject the respondent’s submission that there were “competing versions” as none were provided.
This is an example of the applicant’s pre-existing mental state perceiving that comments like this were directed at her. They clearly were not as it concerned a comment from one person to a co-worker. However, consistent with the legal principles, the applicant perceived that the comment was directed at her and took offence.

Vomit noises

The applicant stated:[92]
“On 20^th February 2019 I walked past CGD who was sitting at her usual desk and CJG was sitting at the desk beside her. As I walked past both CJG and CGD and CGD started making vomit noises. I quickly turned thinking that someone was sick, and I saw nothing, so I asked CGD with concern ‘are you okay, what’s the matter’, CGD said ‘Nothing’. Then CGD and CJG started to laugh.”
[92] Application, p 4, par 23.
CGD stated that she did not recall that incident and stated that it was “possible that I could have made vomit noises in a discussion with CJG, however even if that was the case, I would not know why BFZ would assume it was relating to her”.[93]
[93] Reply, pp 119-120.
CJG did not traverse this allegation but commented on other allegations made by the applicant.[94]
[94] T, p 52.
The respondent submitted that the witnesses were not trying to evade, by the absence of a denial given the statement is dated 20 April 2020 and the event supposedly occurred in February 2019 with no contemporaneous complaint.[95]
[95] T, pp 128-129.
The event was referenced in the applicant’s email dated 1 April 2019 when it was stated:[96]
“20^th February 2019. I walked past CGD who was sitting at her usual desk and CJG was sitting at the desk beside her. As I walked past both CJG and CGD and CGD started making vomit noises at me. I quickly turned thinking that someone was sick, and I saw nothing, so I asked CGD if she was OK, what was the matter, CGD said ‘Nothing’. Then CGD and CJG started to laugh at me.”
[96] Application, p 17.
When this was brought to counsel’s attention the submission was that there was “no complaint on that day”.[97]
[97] T, p 129.
As the respondent correctly noted, there was a “bit more drama” in the statement version then the email version.[98]
[98] T, p 133.
Applying logic and commonsense, the event probably occurred, more likely in accordance with the milder version in the email. The applicant thought the action was directed at her when it probably was not, as CJG and CGD were talking to each other.
Again, the applicant perceived by reason of underlying illness, that the noises were directed at her.

Comment by CGD

In 2019 there were issues in Wharf Road Birchgrove concerning parking on footpaths with a high level of complaints made by the public. The applicant stated that she had escalated a draft response that could be used for these complaints to CRO and CSP for approval. The applicant heard CGD talking about a Wharf Road complaint to a co-worker and stated that she was checking with CSP and CRO about a standard response. The applicant said that CGD yelled at her “No one asked you”.[99]
[99] Application, p 4, par 26.
CGD recalled speaking about this complaint with a co-worker and stated:[100]
“It is possible that I said to BFZ something like ‘No one asked you’. I do not know why BFZ was listening to other people’s conversations.”
[100] Reply, p 120.
On 31 March 2019 the applicant said that she had a conversation with CGD about rostering and a period of 30 minutes where there was no co-worker. The applicant advised CGD what she would do in that situation to which CGD responded, “Yea well that’s you”.[101]
[101] Application, p 4, par 29.
CGD did not traverse this allegation in her statement.[102]
[102] T, p 52.
I am satisfied on the balance that these events occurred as alleged. There is no traverse by CGD. These events generally support the applicant’s evidence and perception that she was not liked by co-workers.

Comments by CJG

The applicant stated that CJG would walk over to the applicant and state, “someone smells” and on 27 March 2019 said, “There is only one person that smells around here”.[103] CJG called the applicant “cat hair” for a period of time towards the end of 2018 as well as making “fart noises” and saying “oh what smells”.
[103] Application, p 4, pars 24-25.
In her statement CJG said that she did not recall the details of these conversations and that she had previously given her recollections of details to CTQ as well as a woman from Human Resources.[104]
[104] Reply, p 127, par 7.
The respondent otherwise referred to CJG’s statement that in the early days they got on well and were both cat lovers, but the relationship subsequently changed.[105]
[105] Reply, p 127.
The respondent then referred[106] to the following conclusion by its investigator:[107]
“In response to point 1, CJG does not recall the conversation and does not profess to know anyone who works in the city.”
[106] T, p 137.
[107] Reply, p 54 third paragraph.
The respondent submitted “that basically each and every one of them are expressing in one form or another either (not transcribable) to recollect or express denial”,[108] that the respondent was relying on its own findings in the investigation even though the original statements were not before me (or certainly not the subject of express submission), and the findings were “another layer of evidence” which contradicts the applicant’s version.[109]
[108] T, p 137.
[109] T, p 138.
The respondent’s submission on this event were unclear. The portion relied upon by it referenced a statement by CJG that she “does not profess to know anyone who works in the city”. When this statement is compared to the allegation on the previous page of the investigator’s report, it related to the comment “she’s a bitch and she’s getting fired”.[110]
[110] Reply, p 53, first allegation.
The respondent addressed an allegation by referencing a finding on another allegation without reference to the primary source, that is the co-worker’s initial statement. The respondent’s findings that the respondent relied on as another layer “that contradicts” the applicant did not in fact relate to the precise allegation.
In relation to this allegation, I accept the applicant’s account. The respondent’s submissions were confusing and misquoted its own findings.
The applicant asserted that CJG said to CLI on 10 December 2019 that “she’s a bitch and she’s getting fired”.[111]
[111] Application, p 11, par 61.
In her statement CJG denied this conversation.[112]
[112] Reply, p 127, par 10.
The respondent referred to this evidence in the investigator’s report under another allegation (the cat smells allegation). In the investigator’s report the summary was that “CJG does not recall the conversation and does not profess to know anyone who works in the city”.
The original version was a “do not recall” as opposed to a denial.
I do not accept this allegation as being satisfied on the balance of probabilities.
On 11 December 2019 the applicant stated that CJG said to CLI about staff that used to work there:[113]
“CJG emphasized the sentence ‘they used to work here but aren’t here anymore.’ CLI then said, ‘Yes they are gone’. CJG then said in a mocking tone of voice ‘bye bye’.”
[113] Application, p 11, par 62.
CJG stated:[114]
“In early January 2020, I was questioned by our Acting Manager COG about an allegation that sometime on or around 11th December 2019, I made a comment which BFZ overhead such as ‘they used to work here but they aren't anymore,’ or ‘bye bye.’
I explained to COG that I had been speaking to a colleague who was a Senior Officer when we worked for Leichhardt Council about a former Senior Parking Officer from Leichhardt Council that she worked with and I was referring to him as she speaks to him regularly and occasionally visits him. It appears BFZ may have overheard and interpreted it the wrong way. I do not recall the precise words or phrase I used in that conversation.”
[114] Reply, p 128, pars 11-12.
CLI did not provide a statement.[115]
[115] T, p 59.
The applicant’s counsel submitted that this was a real event on the last day of her employment immediately prior to the applicant consulting her GP and saying 40 people were against her. I accept the merit of that submission.
I accept that the comments were not directed to the applicant as disclosed by CJG’s statement. However, the comments were real events, the applicant perceived them as hostile, and they informed her comment to the GP in December 2019 that 40 people were against her.

Comment by CKH

On 3 July 2019 the applicant was speaking with CHE when CKH mouthed very clearly to CHE, “I hate that fucking bitch”.[116]
[116] Application, p 7, par 40.
There was no statement from either CKH or CHE.[117]
[117] T, p 69.
The respondent noted the absence of evidence from CKH and CHE and submitted that it relied on its ultimate submission “namely that the applicant is unreliable.”[118]
[118] T, p 148.
On the balance of probabilities, I accept that the statement was made, and that the applicant perceived the comment as directed at her.
I find the respondent’s submission that the applicant is unreliable unconvincing. The respondent’s submission is based upon a medical opinion that has a distorted view of proof of facts.

Comments by CMJ

On 3 July 2019 the applicant said hello to CMJ who replied by making a dog bark whoof sound.
The following day the applicant said “Bye, see you tomorrow” to CMJ who replied, “God willing, you never know when your number is up”. The applicant asked if that was a threat to which he replied, “No, you can walk out the door and get hit by a car”,[119] The applicant said she felt threatened by this.
[119] Application, p 7, par 41.
CMJ said he did not recall making any dog barking noises to BFZ “either on 3rd July 2019 or at any time.”[120]
[120] Reply, p 108, par 8.
CMJ agreed that he often said, “God willing” in response to a comment from people leaving as “you can’t take anything for granted” especially as he was the “oldest officer in the Team”.
CMJ said he did not recall making the other comment as it is not a phrase he uses, and he did not at any stage threaten the applicant.
The respondent referred to the following portions of CMJ’s statement.[121]
“I have known BFZ since she started working at Council sometime in 2018. She has worked as a parking officer on a full-time basis and later became a Senior Parking Officer not long after completing her probation.
When she started working BFZ blended in quite well. However, when I worked with her, she was a bit fiery and was not short of letting a few expletives go. I did not find her to be experienced enough to be a senior at that time.”
[121] Reply, p 108.
The respondent submitted that the words used by CMJ “or at any other time” is “effectively a denial”, an “emphatic statement” and the man is “obviously being very cautious”.[122] Other portions of CMJ’s statement where he said he did not recall were described by the respondent as “in the nature of a denial” and the suggestion that he threatened BFZ was “an absolute denial”.[123]
[122] T, p 150.
[123] T, p 151.
I accept the applicant’s account. The “God willing” part is accepted. Another part was not denied, and the explanation given by CMJ is similar to the applicant’s account of what was allegedly said, that is “you never know when your number is up”. The fact that it was not a normal phrase he used doesn’t mean that it was not said. People do not always speak in phrases that they normally use.
I accept that the comment was not a threat, but the applicant, given her underlying condition, perceived it as one.

Comment by CQN

In October 2018 CQN came back to the office and said to the applicant:[124]
“You need a beating” and “I was supposed to be doing the Enmore Meters tonight and drove all the way there from Balmain and they were already done.”
[124] Application, p 3, par 17.
The applicant said that this was a new procedure which she was not aware of so she did the meters as per usual. The applicant understandably said that she felt very threatened by the comment.
The applicant referenced this matter in an email to the respondent dated 1 April 2019.[125]
[125] Application, p 15.
CTQ was a Manager within the employ of the respondent. He admitted that there was a witness to CQN’s statement and CQN was subsequently terminated.[126]
[126] Reply, p 97, par 15.
CQN did not respond to this allegation[127] and the respondent made no submission on this allegation.
[127] T, p 84.
Based on this evidence I accept this event is proved.

Request by management to provide a letter to CQN

On 13 September 2019 the applicant’s supervisor (CSP) rang the applicant and requested her to collect an important document from her locker and give it to CQN over the weekend.[128] CQN only worked on the weekends.
[128] Application, p 8, par 46.
The applicant stated:[129]
“Saturday came and I gave him the letter, he was reading it to himself and went extremely quiet after reading it, looking at me with a very angry look and displaying angry body language, before storming out of the office. Alarm bells rang as to what was in the letter. I knew he was still the subject of an investigation into the complaint I made to HR about what he said to me, as Harry from industrial relations had told me that they were taking this complaint about him very seriously. I immediately feared that the investigation had resulted in his termination and that I had been given his letter of termination to give to him. I couldn’t imagine that council would put me in danger of CQN and have me do this, again I was shocked, and thought it is not possible that they would have me do this.”
[129] Application, p 8, par 46.
The applicant stated that she found out that CQN had been terminated a short time later and believed she had given him the termination letter. She said her depression worsened in late September and early October when she “would come home from work and cry uncontrollably”.[130]
[130] Application, p 17, par 49.
CSP is the team leader of a staff of forty including casuals, full time and part-time employees and provided a statement dated 15 April 2020.[131]
[131] Reply, p 89.

The applicant submitted that CSP did not address this matter.[132]
[132] T, p 83, p 86.
Mr Quinn, Manager of Industrial Relations, provided a statement dated 30 April 2020.[133] He stated that the respondent met with CQN on 11 September 2019 after which he was not rostered “as a result of unsatisfactory things said” by him during that meeting. The show cause letter was dated 26 September 2019. Proceedings were commenced in the Industrial Relations Commission in October 2019. At a conciliation conference on 16 October 2019 a settlement occurred and CQN’s employment was terminated on that day.
[133] Reply, p 130.
The respondent referred to CTQ’s evidence where he stated he could not confirm the circumstances of how CQN was provided his termination letter and that he could not confirm the applicant’s version of events.[134] I do not accept that this evidence adds anything to the circumstances of what occurred.
[134] Reply, p 149.
The applicant submitted that “the event occurred, the worker misperceived that it was the notice of termination”.[135] Later in her submissions, the applicant submitted that the letter handed to CQN by her had “something to do with the disciplinary process”.[136]
[135] T, p 16.
[136] T, p 90.
The respondent initially submitted that there may have been an envelope handed to CQN[137] although there is no evidence of what was in it. It then accepted that the evidence was clear that CSP rang the applicant and asked here to give CQN a document.
[137] T, p 156.
I am not required to find what the letter contained, and I am being asked to speculate about its contents. The timeline provided by the Manager suggests that the letter did not relate to discipline despite the applicant submitting that the facial expression of the co-worker suggested that the letter had some relationship to discipline. I regard that submission as speculative.
Other matters were stated in submissions that the letter could have been related to pay. This was not the subject of specific submissions or evidence supporting that proposition.
It is clear that the event occurred, that is, the applicant handed CQN a letter and the applicant believed she was providing a document in relation to his termination. Not that it is relevant, given the timeline of what occurred shortly thereafter, such a view held by the applicant is not unreasonable as the timeline provided by the manager supports the fact that events relating to CQN’s discipline were occurring at that time.
This event also formed part of matters referred to in the clinical records as causative of the applicant’s psychological condition.

Meeting with management – November 2019

The applicant stated that CTQ and CSP met with her on 8 November 2019 for a welfare check. The applicant agreed that she said she was “Ok” but said that she was far from “Ok”.[138] The applicant then alleged ongoing bullying and harassment.
[138] Application, p 10, par 54.
CTQ provided a statement dated 15 April 2020 in relation to this meeting.[139] He said that in October 2019 staff had raised allegations about the applicant’s behaviour. On 8 November 2019 CSP and CTQ met with the applicant and put allegations to her. The applicant then complained that the bullying had not ceased, and that other staff blamed her for CQN’s termination. She had not raised it previously because “the first time nothing had happened”.[140]
[139] Reply, p 95.
[140] Reply, p 98.
I note that Dr Lee relied on the applicant’s response to management at this time when she said that she was okay in support of his ultimate conclusion on causation. Dr Lee failed to consider the applicant’s response as to why she said she was okay, and he failed to consider the clear account in the clinical records of a deteriorating psychological condition. This is one reason why I do not accept Dr Lee’s opinion on the causes of the applicant’s aggravation of her pre-existing illness.

Disciplinary action

The applicant was provided with a letter on 9 December 2019 referencing events in November 2019. These events are set out in more detail later.
The applicant relied on the disciplinary events as causative of injury[141] and in her written submissions stated that they were “a small part of the causal chain”.[142]
[141] T, p 147.
[142] Applicant’s written submissions, par 16.
The applicant reported to Dr Allan in March 2020 that she was “stunned when allegations were raised against her in regard to ‘things I apparently said’.”[143]
[143] Application, p 94.
It is common ground that the disciplinary action occurred.
The respondent’s position is that the nothing at work aggravated her underlying psychological condition but if anything did, then the disciplinary process was the whole or predominant cause of injury.

Complaints by public

The applicant described two incidents when she was abused by members of the public. The first incident occurred on 11 February 2019 and what was described as the more serious one on 17 July 2019. The applicants set out these events in some detail.[144] I do not intend to summarise these events save to note that the applicant stated in the second incident that the person threatened to kill her.
[144] Application, pp12-13.
The applicant referred to the police reports.[145] In the July 2019 incident the applicant reported the member of the public as saying “fuck off you fucking bitch” and “If I see you around I’ll fucking kill you” and then gesturing a throat cut moving his right hand across his neck about five or six times. The matter was immediately reported to the police.[146]
[145] Applicant’s Application to Admit Late Documents, pp 11-18.
[146] Applicant’s Application to Admit Late Documents, p 16.
CSP said that in July 2019 the applicant was crying and distressed as she had been abused by an owner of a vehicle who received a parking infringement. The matter was reported to the police.[147]
[147] Reply, p 91.
The respondent accepted there were two police reports of abuse by members of the public and submitted:[148]
“[A]ll I can submit to you is that there are police reports which have a narrative, both occasions she did not want to take it further.”
[148] T, p 145.
Subsequently the respondent submitted that it had “nothing to say”.[149]
[149] T, p 161.
I am satisfied that the applicant suffered abuse on two separate occasions from members of the public. The second incident in July 2019 was quite distressful as evidenced by the applicant’s contemporaneous police complaint and the applicant’s reaction observed by CSP.
Despite the respondent’s concession recorded above, Dr Lee suggested that the abuse the applicant received in June 2019 (should be July 2019) from the owner of the four-wheel-drive was “something which affects all the parking officers from time to time”.[150] In my view this was an unsatisfactory comment by the doctor and does not represent my views that this type of conduct is either normal or satisfactory. Even if the abuse represented the norm, that does not mean that it did not have deleterious effect on the applicant’s health.
[150] Reply, p 188.
This is another example of why I do not accept Dr Lee’s opinion on the causes of the aggravation of the psychiatric illness.
I accept that the abuse occurred, and the applicant was significantly distressed by it, particularly the event in July 2019. That conclusion is clear from the applicant’s evidence and the effects witnessed by a co-worker.

Effects of comments

The applicant said that behaviour of her work colleagues “was starting to take a serious toll on my health” and she was “depressed”, “stressed” and “anxious”.[151] She said that on 31 March 2019 she “broke down in tears at a work desk”.
[151] Application, p 4, par 31.
In July 2019 the applicant’s distress following the abuse by a member of the public was observed by CSP.
The applicant stated the depression became severe in late September [2019] when she would come home from work and cry uncontrollably, feeling worthless and deeply depressed. On her days off the applicant said that “was unable to get up and do anything”.[152] The applicant stated:[153]
“The behaviour towards me at work was really taking a toll on me and I was suffering from depression which became severe late September early October, whereby I would come home from work and cry uncontrollably, feeling hopeless that these people would be so nasty day in day out for no reason, feeling helpless that there was no way for this to end. Every day I would come home feeling worthless and deeply distressed. On my days off I was unable to get up and do anything, all I could do was sleep and lay on the lounge in silence staring at the ceiling.”
[152] Application, p 9, par 49.
[153] Application, p 9, par 49.
It was around this time that the applicant consulted her GP complaining of depressive symptoms. In August 2019 she told her GP about allegations of bullying at work associated with psychological symptoms.
The applicant’s evidence of a deterioration in symptoms is corroborated by the clinical notes of the GP. Those entries are powerful evidence supporting the applicant’s case on causation in that there was a deterioration of the applicant’s psychological condition. The notes were either ignored by Dr Lee or given insufficient consideration. Indeed, Dr Lee’s suggestion that the applicant’s complaints “suggests false imputation and retrospective blaming” and “her records are inconsistent with their allegations with regard to causation”[154] is misconceived and incorrect.
[154] Reply, p 174.
This is a significant reason why I do not accept Dr Lee’s opinion on the work causes of the aggravation of the applicant’s pre-existing illness.
The applicant submitted that the staff numbers referenced in the GP’s clinical note in December 2019 are also corroborated by CSP’s evidence[155] that is, she was subject to bullying by the forty people in her office.
[155] T, p 82.
In November 2019 employees had raised allegations of the applicant’s behaviour. When questioned, the applicant said that the bullying had not ceased.[156]
[156] Reply, p 98, par 21.
For reasons discussed later, I am satisfied that the various work events accepted above aggravated and exacerbated the applicant’s pre-existing psychological condition. I subsequently address the issue of main contributing factor to any aggravation.

Previous psychological history

In February 2003 the applicant was referred for an assessment of a possible eating disorder.[157] The history is that the disorder began in 1998 and the psychiatric history included being prescribed the antidepressant, Zoloft. Family history included a difficult relationship with her stepfather who had lived with the applicant since two years of age and with a demand that she leave the family home at 18 years of age.[158]
[157] Reply, p 256.
[158] This is a sufficient summary of a more detailed history set out at Reply, p 258.
On 20 March 2003 the applicant reported feeling suicidal and the Western Sydney Mental Health team recommended that the applicant attend hospital.[159] The following week the applicant was reported as having “irrational beliefs”.[160] On 2 April 2003 there was a family report of recent suicidal ideation related to recent weight gain.[161]
[159] Reply, p 261.
[160] Reply, p 263.
[161] Reply, p 264.
On 3 April 2003 the applicant discussed the ideation and various treatment occurred.[162]
[162] Reply, pp 264-266.
In a letter dated 7 April 2003 the psychologist noted the eating disorder which had been chronic impacting negatively on the applicant’s employment and life in general. The psychologist also opined that the applicant also suffered from a Major Depressive Disorder.[163]
[163] Reply, p 268.
The respondent referred to a grief reaction in 2006 due to the death of a close family member. The source of that submission was not identified.[164]
[164] Respondent’s written submissions, par 18.
In 2011 the respondent attended Royal Prince Alfred Hospital for bulimia and binge eating.[165]
[165] Reply, pp 371-374.
On 30 May 2014 the Psychiatric Registrar noted binge eating and the development of a psychotic disorder in the presence of extreme stress due to severe domestic violence.[166] The applicant’s insight surrounding the problem was described as “poor and engagement is tenuous”.
[166] Reply, p 379.
In May 2014 hospital records indicate a history of overdoses and cutting[167] and a recent abusive domestic relationship.[168] The current employer was reported as restricting the applicant from seeing clients for the last eight weeks.
[167] Reply, p 398.
[168] Reply, p 401.
The applicant resigned her employment on 28 May 2014.[169] Other reporting included embarrassment at going outside, shamed from going outside in the context of “distributed content”, her iPhone was hacked, people coughing at the applicant with a fake cough in public and at work and she did not “feel comfortable leaving the house”.[170]
[169] Reply, pp 405-406.
[170] Reply, pp 406-407.
The clinical notes then refer to the applicant suffering “paranoid delusions” from pornographic and derogatory content being disseminated widely over the internet with a belief that the ex-partner had hacked the applicant’s iPhone to remote control the video function and broadcast images of the applicant bingeing.[171] The impression formed was of “schizophreniform psychosis in context of sig. stress” and the applicant was prescribed Risperidone.[172]
[171] Reply, p 407.
[172] Reply, p 408.
In June 2014 the clinical notes show the applicant’s condition was ongoing, that she was acutely distressed and crying throughout the consultation and saw “no solution other than suicide”.[173] The applicant was then scheduled under the provisions of the Mental Health Act.
[173] Reply, p 409.
In a report dated 6 June 2014, Dr Thomas Hance, psychiatrist, observed that the applicant presented with a “paranoid delusional system of being followed” and of videos spread through a group of friends. The psychiatrist diagnosed a psychotic episode with risk of suicide and required hospital treatment for her own safety.[174]
[174] Reply, p 438.
On 11 June 2014 Dr Hance diagnosed the applicant with schizophreniform (paranoid) psychosis following severe stress with a longstanding comorbid eating disorder.[175]
[175] Reply, p 450.
On 14 August 2014 the Psychiatry Registrar diagnosed an eating disorder complicated by a psychotic disorder with the applicant reporting a policy of harassment by her ex-partner. The doctor stated:[176]
“As a result of these delusional beliefs, she has been distressed, self-isolating, and has been having binges of food.”
[176] Reply, p 381.
Medication included Risperidone and Fluvoxamine. The respondent, referred to Risperidone as being well known antipsychotic medication used for illnesses such as schizophrenia.[177] I infer that some of the medication would be for the applicant’s psychosis including the applicant’s recent diagnosis by Dr Hance.
[177] Respondent’s written submissions, par 20.
The doctor noted recent hospitalisation after expression of more overt delusional content and suicidal ideation and recommended ongoing psychiatric care.
On 9 January 2017 the GP noted the reason for contact was anxiety/depression and that the history was “suggestive of bipolar disorder”.[178]
[178] Reply, p 716.
On 22 January 2017 the psychologist noted that the applicant presented with anxiety and depressed mood.[179]
[179] Reply, p 810.
The respondent referenced GP records in 2017 which noted other sexual assault allegations and online bullying during this period.[180]
[180] Respondent’s written submissions, pars 29-30.
On 17 September 2017 the psychologist recorded:[181]
“Was raped twice by another man, claims drinks was spiked (total of three rapes all with spiked drinks).”
[181] Application, p 215.
A report from the psychologist dated 12 November 2017, noted spiked drinks and sexual assaults on three occasions in 2017 although had “no recollections of the assaults taking place”.[182] In September 2017 there were reported signs of Acute Stress Disorder with symptoms then decreasing to a “more manageable level”.
[182] Reply, p 795.
The clinical note of the psychologist dated 12 November 2017 referred to a text message from one of the perpetrators which re-fuelled online bullying against her and noted that the applicant believed people look at her in public places and they coughed twice to let her know that they have seen what is online. The psychologist recorded:[183]
“Sounds paranoid and possibly delusional.”
[183] Reply, p 720.
The psychologist then noted that the applicant was engaging in suicide reports such as “this isn’t worth living” but denied an intent or plan.[184]
[184] Reply, p 720.
On 18 February 2018 the psychologist reported that the applicant “was sexually assaulted again by the same perpetrator after Christmas, followed by a ‘hate campaign’ online”.[185]
[185] Application, p 211.

Non-work events during period of employment

During oral submissions the respondent referred to two events which it submitted was relevant to the issue of “s 4(b)(ii)”. The events were said to have occurred just prior to 9 January 2019 and the other on or around 30 May 2019. The direction issued on 28 February 2024 requested clarification of that submission.
The applicant attended hospital on 9 January 2019 with the following history:[186]
“Reports drug facilitated SA either last Thursday evening or Friday. Unsure of exact timing – but now outside of forensic specimen timeframe collection guidelines.
Discussed forensic guidelines with patient and advised her to keep underwear and other objects related to assault to provide to police as she is planning to report SA to them….
Very distressed and crying freely. No thoughts of self-harm. Just wants everything to be over and to go home and sleep….
Has post-assault symptoms suggestive of UTI.”
[186] Reply, p 320.
The second event relied upon is based upon the history recorded by Psychcentral on 30 May 2019. That history is as follows.[187]
“Her drink was spiked and she was raped. Believes that her ex-partner (CUR) organised it, but she didn’t know that in that time. She confided in him and he convinced her to move in with him. He kept spiking her drinks and sexually assaulting her. She believes that he was allowing others to sexually assault her too. When she realized what was happening she moved out, He had bought her a cat, who got sick and she had to put it down, so called him over and he did it to her again. Few months ago, she had come home from work, and noticed that some things had been moved. He spiked her water bottle in the fridge and has been sneaking into her house after she is knocked out.
She has moved again since then.
Has been in a relationship 2.5 years.
First assault happened 1.5 years.
Is on antidepressants – Pristiq. Says they are helping her.
….
Says she is bullied at work, feel some colleagues know what she went through. They make rape jokes etc.
She has made a complaint to HR about the bullying, but now she feels there is retribution.”
[187] Reply, p 659.
During submissions I indicated that the allegations reported to Psychcentral in May 2019 did not appear as recent as the respondent submitted. The respondent noted that the material required explanation by the applicant which had not occurred[188] and submitted:[189]
“These events also occurred if you accept her evidence and, of course, nothing could be more serious and she has gone to a psychologist because of it.”
[188] T, p 190.
[189] T, p 191.
During submissions I queried with the respondent the relevance of prior events noting they had occurred before the period of employment. The respondent submitted that these events related to “main contributing factor”.[190]
[190] T, pp 194-195.
The respondent provided further written submissions substantially expanding on what it submitted during oral submissions concerning the prior history. This is addressed elsewhere.

Medical reports (after commencing of employment on 3 April 2018)

General practitioner

On 8 April 2018 the GP noted a history of depression and anxiety, and the applicant was putting on weight from Prozac and wished to try Bupropion.[191]
[191] Reply, p 716.

The GP records associate the increase in psychological symptoms with incidents at work. The doctor otherwise increased the dosage of Pristiq on 20 November 2019 to 100 mg per day. Notably this increase in the medication occurred prior to the disciplinary process.
The clinical note on 11 December 2019 list a variety of events including the bullying by the parking officer from the Leichhardt area and being blamed for his termination. In the report dated 6 February 2020 the GP noted events since early 2019 and attendance at the surgery since August 2019. The GP associated the workplace issues with the applicant’s current mental health condition.[333]
[333] See par 263 herein.
Ms Ali, psychologist in early 2020 referred to a number of work incidents causative of injury (see at par 264 herein). One of those events was the disciplinary letter.
Dr Lee, in an alternative opinion relied upon by the respondent on the s 11A defence, concluded that the disciplinary events in late November and early December 2019 were causative of the injury. Logically, Dr Lee accepts that it is plausible that stressful work events can aggravate the underlying psychological condition.
Dr Lee’s opinion is deficient in that regard because he has disregarded the contemporaneous notes on the causes of the aggravation whereas I give particular weight to the GP records. Indeed, Dr Lee’s comment that the lack of documented complaints in the GP records “suggest false imputation and retrospective blaming” and the records are “inconsistent with her allegations with regards to causation” is plainly wrong.[334]
[334] See par 309 herein.
Dr Allan provided an opinion supportive of work events either aggravating or causing the psychological condition. I have rejected Dr Allan’s opinion that the applicant contracted the disease (s 4(b)(i)) due to deficiencies in his history. However, I accept Dr Allan’s earlier expressed opinion that work events aggravated the underlying illness as it accords with the clinical records of the GP, the GP’s opinion and the opinion of Ms Ali who was the treating psychologist in 2020.
For these reasons I am satisfied that the various work events caused an aggravation etc of the underlying psychological condition.
Having accepted that the work events aggravated etc the disease, the applicant must show that the employment was the main contributing factor to that aggravation etc of the disease.
The parties acknowledge that medical evidence is not essential on this issue.
The issue of causation was referenced by Gleeson JA in Secretary, Department of Education v Dawking[335] that “causation of injury is in general a question of fact”. In the context of the test of causation in s 4(b)(i), his Honour stated:[336]
“The requirement in s 4(b)(i) of the 1987 Act that applies to ‘disease’ injuries was introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW). A finding that the employment is ‘the main contributing factor to the injury’ involves a more stringent connection with the employment than the requirement that the employment concerned be ‘a substantial contributing factor’, that applied to ‘disease’ injuries prior to the 2012 amendments to the 1987 Act. However, like the requirement in s 9A of the 1987 Act, the requirement in s 4(b)(i) is an evaluative matter involving questions of impression and degree, and it is also a finding of fact.”
[335] [2024] NSWCA 4 (Mitchelmore & Kirk JJA agreeing).
[336] Dawkings at [44].
Similarly, the test under s 4(b)(ii) “involves questions of impression and degree”.
The parties accepted the principles discussed in AV v AW. However, the respondent’s submission repeatedly misapplied that decision. The respondent’s submissions set out at paragraphs 394, 398 and 399 are examples where it has used the underlying psychological condition as a basis for asserting that the employment was not the main contributing factor to the aggravation of the disease. The paragraph at 394 particularly shows that both the respondent and Dr Lee have not applied the correct test to the determination of the issue of whether employment was the main contributing factor to the aggravation of the disease.
In AV v AW Snell DP stated that “it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[337]
[337] AV v AW at [78].
In Murray v Shillingsworth[338] the Court of Appeal discussed the interaction of s 4(b)(ii) in its previous form and s 9A of the 1987 Act. In that case, Einstein J stated:[339]
“These submissions are misconceived. They fail to recognise that in the circumstances concerning an integer dealt with by s 4(b)(ii) [such as an aggravation of a disease], the only compensation is to the effect of the aggravation and not to the effects of the original non‑aggravated disease.
His Honour approached the question of construction or upon the basis that the case was put as an acceleration or aggravation or deterioration of a pre‑existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition. There was no error in this approach. The fact that the work caused dehydration was sufficient to ‘tip the balance’ and was on the evidence, found to satisfy the requirement that it be shown that the employment concerned was a substantial contributing factor to the injury.”
[338] [2006] NSWCA 367.
[339] At [63]-[64].
Similar observation had previously been made by Burke CCJ in Reed v Commissioner of Police.[340]
[340] [2001] 22 NSWCCR 385.
What was settled in these cases is that in determining the s 9A issue involving an aggravation of a disease, the issue is whether the employment concerned was a substantial contributing factor to the injury as found, and not to the overall pathology.
Whilst it is self-evident that the interaction of s 9A and the former s 4(b)(ii) is not the same as the issue in this case, the observations in those decisions tend to support the interpretation of the s 4(b)(ii) as articulated in AV v AW.
The opening words of the amended s 4(b)(ii) relate to the aggravation, acceleration, exacerbation or deterioration ‘in the course of employment of any disease’. Those words therefore direct attention to the work-related component of the ‘aggravation, acceleration, exacerbation or deterioration’. The following words of clause (ii) then state ‘but if only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’. The concluding words of clause (ii) requires an examination of whether the employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process.
In its oral submissions the respondent referred to two concurrent non work factors (sexual assaults) as defeating the applicant’s allegation of injury under s 4(b)(ii).[341] When asked to confirm this submission, the written submissions asserted that the direction was a “mischaracterisation of the respondent’s submission”.[342]
[341] T, p 186.
[342] Respondent’s supplementary submission, par 5.
In its written submissions the respondent then questioned whether these events occurred “as it is consistent with the explanation of borderline personality disorder”.[343] The applicant provided no assistance in response to this submission.
[343] Respondent’s supplementary submission, par 9.
As I noted during oral submissions, the history recorded in May 2019 is unclear whether it is referring to a recent or historical allegation of sexual assault. That history is set out earlier.[344] The record is unclear as to when events occurred, and it does not state that they were recent events. Unlike the January 2019 record, which was reported to hospital, the history in May 2019 is part of treatment records. The relevant history in May 2019 reads as historical rather than as recent events and is consistent with earlier sexual assault allegations made by the applicant in late 2017. I do not accept that the May 2019 record refers to a recent sexual assault.
[344] At par 249 herein.
The respondent submits that the events may be imagined and there is no assistance from the applicant in her statements or submissions by her counsel on these events.
The version in January 2019 refers to a drug facilitated sexual assault from the previous week. The respondent’s submission during the hearing was that it occurred and “nothing could be more serious”.[345]
[345] At par 250 herein.
In written submissions the respondent suggested that this event may have been imagined. The applicant did not address the issue save as to assert that they were not causally significant.
The respondent referred to the report dated 22 November 2023 and emphasised the opinion of Dr Lee that the applicant was depressed during the employment with the respondent due to non-work related issues. Those non-work related issues were based on an opinion of Dr Menendez which describe major depression in the context of past eating disorders and relationship traumatic events, compounded by the death of her brother 12 years previously. These events pre-existed the period of employment with the respondent.
Accordingly, I am left with alternative submissions from the respondent with an inadequate reply from the applicant as to whether the event occurred.
Whilst I accept that there were delusional features as part of the applicant’s illness, in the absence of proper submissions, I conclude that the contemporaneous complaint in January 2019 represents an event that could cause stress and aggravate the underlying psychological condition.
The applicant submitted that there was no medical evidence that this event “was a relevant causal factor to the aggravation/exacerbation of the disease”.[346]
[346] Applicant’s supplementary submissions, par 2.
The respondent submitted that pre-existing psychological condition was “likely to have caused the majority of her difficulties with her former Council employment”.[347]
[347] Respondent’s supplementary submissions, par 19.
The respondent has relied on the pre-existing condition which is contrary to the principle that I am required to examine the causes of the aggravation of the underlying disease as opposed to the underlying disease.
Dr Allan’s opinion on this issue is deficient. He initially opined that the work was an aggravation of the disease, then opined that it caused the disease in the absence of a proper history. Whilst his earlier opinion of aggravation accords with my conclusion, I have not solely determined this issue based on his opinion although accept his earlier opinion that work events aggravated the condition.
The clinical records of the GP in late 2019 and the reports in early 2020 refer to various work matters that work events aggravated the underlying disease. The sexual assault is not mentioned in the context of the applicant suffering deteriorating psychological symptoms. The applicant’s statement evidence of the deteriorating condition is consistent with the histories recorded in those records.[348]
[348] See at par 216 herein.
I accept the respondent’s oral submission that the sexual assault would have been stressful. However, I am required to evaluate the entire evidence in determining whether the employment was the main contributing factor to the aggravation of the disease.
The timing of the symptoms and the complaints of the worker in the latter half of 2019 and early 2020 attribute the deteriorating psychological condition to recent work events. The applicant found, and I accept, that the various work events which occurred were causing her significant distress.
Based on the contemporaneous histories and the timing of the onset of deteriorating symptoms, I accept that the employment was the main contributing factor to the aggravation of the disease.
I mention and reject two other submissions made by the respondent.
First, the respondent referenced BGV as supporting its argument. In that decision the applicant failed because the medical evidence had no probative value. The Court in Dawking emphasise that these conclusions are questions of fact. What other cases determine on the facts do not create legal precedent: Edwards v Noble.[349]
[349] [1971] HCA 54 at [14] per Barwick CJ.
Secondly, the respondent at times confused the issue of the cause of any incapacity with the issue of injury. An example of this is the respondent’s most recent submission when it asserted that the underlying condition is the “cause of the applicant’s inability to work”.[350] This submission was made in circumstances where it was made known to the parties that the issue of capacity was not being addressed until the Medical Assessor had provided a decision of the degree, if any, of permanent impairment.
[350] Respondent’s supplementary submissions, par 13.
At times Dr Lee accepted that there may have been an aggravation of the underlying disease. He opined that if that has been determined then it was “a temporary aggravation” (see at par 351 herein). That conclusion is consistent with the opinion that the work caused an aggravation of the applicant’s underlying psychological condition.

Section 11A

The respondent bears the onus in establishing the s 11A defence.[351]
[351] Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie).
Section 11A of the 1987 Act relevantly provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The three elements in s 11A which the respondent must prove on the balance of probabilities to establish the defence pursuant to s 11A are whether the psychological injury was:
(a)    wholly or predominantly caused;
(b)    by reasonable action taken by or on behalf of the employer, and
(c)    with respect to one of the matters set out in the section.
Given the findings on the causes of psychological injury, the respondent cannot establish that the disciplinary process is the whole cause of the psychiatric injury as the applicant has established that other work events also aggravated the underlying disease.
The respondent is therefore required to establish that the whole or predominate cause of the psychiatric injury was the action with respect to discipline. The respondent made no submissions on the evaluative process of identifying the respective causes of psychological injury save as to submit that there was only one cause as identified by Dr Lee.
That approach is consistent with the observations of Snell DP in Hamad v Q Catering Ltd[352] when the Deputy President stated:
“There are a number of other findings, relevant to the causation issue, which could not, in my view, be appropriately made in the absence of medical evidence. The Arbitrator was entitled to have regard to the sequence of events; he was entitled to have regard to his common knowledge and experience of ordinary life. However, as the Arbitrator previously observed at [62] of his reasons, a series of events can have a cumulative effect, and may be causative of a psychiatric condition which does not manifest itself until a later time. That does not mean that the earlier events in the series are not causative (see the discussion in Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston [2016] NSWWCCPD 63 at [33]- [45]).”
[352] [2017] NSWWCCPD 6 at [85].
The respondent particularised the s 11A defence based on discipline arising from the letter to the applicant dated 28 November 2019 provided on 9 December 2019 concerning behaviour occurring on 22 November 2019. The applicant provided a response to these allegations on 11 December 2019[353] and left work at or shortly after providing that response.
[353] Reply, pp 19-20.
The letter dated 28 November 2019[354] raised two allegations. First, the applicant made derogatory comments in a loud and aggravated tone on 22 November 2019 which were heard by other employees who “were visibly not happy”. Secondly, shortly thereafter a co-worker coughed, and the applicant allegedly stated that she did not want to be infected with “your Indian germs”.
[354] Reply, p 35.
The applicant’s response was a denial of both allegations with specific context on the first allegation. In respect of the second allegation, the applicant’s version was that she said: “I hope you didn’t bring the flu back from India”.[355] The applicant otherwise noted other recent bullying activities and asserted that the present complaints were “vexatious, malicious and a misrepresentation of the facts”.
[355] Reply, p 39.
The respondent observed that the applicant ceased work two days after being notified of the allegations and relied on the temporal connection that any psychological injury (which was denied) was wholly or predominantly caused by action taken with respect to discipline.
On the issue of “wholly or predominantly” the respondent relied on the opinion of Dr Lee. In the report dated 27 February 2020, Dr Lee noted that it was “significant that she ceased work after being given the documents”.[356]
[356] Reply, p 174.
In a further report dated 17 June 2021 Dr Lee noted the applicant was provided with a letter on 9 December 2019 detailing workplace investigation into the applicant’s alleged behaviour on 22 November 2019 before ceasing work on 11 December 2019.
Dr Lee confirmed this opinion in a further report dated 22 November 2023.[357]
[357] Respondent’s second Application to Admit Late Documents, p 13.
There was no attempt by Dr Lee to address the other work causes of the psychological condition because he did not accept any other work event as causative of the applicant’s condition. The deficiency by Dr Lee arose because he did not properly address the clinical records of the general practitioner which, from August 2019, identified psychological symptoms caused by work events.
Whilst the proximity of the provision of the letter to the applicant on 9 December 2019 is relevant to the cessation of work on 11 December 2019, the failure by Dr Lee to address the objective records of the clinical notes preceding that event is significant.
Earlier in these Reasons I have addressed the deficiencies in Dr Lee’s opinion concerning his rejection of many of the events that the doctor did not accept as having occurred. The doctor’s error in rejecting those other events as being causative otherwise significantly undercuts his opinion on the issue of whether injury was “wholly or predominantly” caused by action with respect to discipline.
I earlier referred to contemporaneous records of complaints. The GP recorded other work events as causative of injury. The psychologist recorded a number of events, one of which was the disciplinary letter. The applicant’s dosage of medication for treatment for her psychological symptoms was increased on 20 November 2019, prior to the disciplinary events.
None of this was addressed by Dr Lee when providing his opinion that the disciplinary process was the whole or predominant cause of injury.
I agree with the applicant’s submission that Dr Lee’s opinion on s 11A ignored the important and detailed clinical note summaries taken by the GP on 19 August 2019 and particularly on 11 December 2019.[358] The opinion otherwise ignored contemporaneous evidence from the GP in a report dated 6 February 2020 and the opinion of the treating psychologist dated 11 May 2020 that associated the psychological condition with the applicant’s perception of workplace bullying from workplace events.
[358] Applicant’s written submissions, par 6.
I accept the applicant’s submission that a fair reading of Ms Ali’s opinion is that the disciplinary investigation is “minor rather than predominant or whole cause of injury”.[359]
[359] Applicant’s written submissions, par 20.

The respondent bears the onus of proof pursuant to s 11A of the 1987 Act. The respondent’s case on this point is solely based on the opinion of Dr Lee who does not accept that other work events were causative of the injury by way of aggravation. For these reasons I do not accept that the respondent has established that the action with respect to discipline was the whole or predominant cause of the psychological injury.
The respondent otherwise made detailed submissions that the disciplinary process was objectively fair.[360] Give the findings on “wholly or predominantly”, it is unnecessary to consider that aspect of the defence. However, I add that I do not accept the applicant’s submission that the allegations were “relatively minor” and required “a velvet glove” approach.[361] The allegations included an alleged racial insult directed to a co-worker which I accept could not be objectively downplayed by the employer as the applicant submitted.
[360] Respondent’s written submissions, par 110-114.
[361] Applicant’s written submissions, par 22.
Whether the co-worker misunderstood the nature of the comment does not detract from the employer’s obligations to investigate the complaint.
The respondent has failed to establish that the applicant’s injury was wholly or predominantly caused by action with respect to discipline. The s 11A defence is unsuccessful.

FINDINGS AND ORDERS

The findings and orders are set out in the Certificate of Determination which include a referral to a Medical Assessor to assess any permanent impairment.
I note that this is an interlocutory order limited to a finding of injury. The parties were aware and agreed to the referral if the applicant established injury.
The parties are also reminded that there is no leave to file any further evidence.
For that reason, I have not addressed in these Reasons the submissions and the evidence on the causes of and the degree of any incapacity.
I note the differing views as to whether there is anything other than a temporary aggravation of the underlying condition. As this conclusion is open, the matter has been referred to a Medical Assessor prior to determining the issue of weekly payments. That course avoids the problems raised in Jaffarie.[362]
[362] See Jaffarie at [269].
It is a matter for the Medical Assessor to determine whether there is any impairment as a result of injury: Haroun v Rail Corporation New South Wales.[363] Part of that process is to determine whether the aggravation of the psychological condition has ceased for the purposes of determining whether there is any permanent impairment as a result of injury.
[363] [2008] NSWCA 192 and s 326(1) of the WIM Act.

[2024] NSWPIC 167

5 April 2024