BlueScope Steel Ltd v Markovski - [2013] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69
APPELLANT:	BlueScope Steel Ltd
RESPONDENT:	Mile Markovski
INSURER:	Self-insured
FILE NUMBER:	A1-10177/12
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	11 September 2013
DATE OF APPEAL HEARNG:	10 December 2013
DATE OF APPEAL DECISION:	17 December 2013
SUBJECT MATTER OF DECISION:	Psychological injury; whether injury wholly or predominantly caused by reasonable action with respect to transfer; s 11A of the Workers Compensation Act 1987; right to cross appeal
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Malouf, instructed by Bartier Perry
Respondent:	Mr S Moffet, instructed by Nikolovski Lawyers
ORDERS MADE ON APPEAL:	1. For the reasons given in this decision, the Arbitrator’s determination of 11 September 2013 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

The respondent worker, Mile Markovski, works with the appellant employer, BlueScope Steel Ltd (BlueScope), as a level 3 operator driving cranes in BlueScope’s Slab Yard. He alleged that he suffered a psychological injury (Adjustment Disorder with anxiety) on 5 January 2012 as a result of being “treated less favourably than other workers following a work injury”. The work injury referred to was an injury to Mr Markovski’s right shoulder in November 2004, which required surgery on 24 February 2010 and extensive rehabilitation.
Two months after the surgery Mr Markovski returned to work on selected duties, but was unable to operate all cranes. BlueScope held several meetings in 2010 and 2011 to assist Mr Markovski return to his pre-injury duties. Certain issues arose during those meetings, with Mr Markovski believing that he was being treated differently and unfairly compared to other injured workers. After modifications to one of the cranes in about December 2011, which were made to accommodate Mr Markovski’s restrictions, he was able to operate all cranes, though he did not have a formal medical clearance to do so.
Meanwhile, in August 2011, BlueScope announced that steel production would decrease and there would be a loss of jobs. Sufficient workers took voluntary redundancy to avoid any forced retrenchments. However, the redundancies were not even across the company and it was necessary to distribute the remaining workers across the four crews (designated A crew to D crew) in the Slab Yard.
The company called for a volunteer to transfer from B crew, where Mr Markovski worked, to C crew. Though a qualified worker volunteered for the transfer, BlueScope’s manager decided to transfer Mr Markovski. The manger informed him of that decision at a meeting on 5 January 2012. On being informed of the decision to transfer him, Mr Markovski immediately became anxious and developed chest pains, jaw pain, limb weakness, sweating and shaking. An ambulance took him to Wollongong Hospital where he was kept under observation for several hours but allowed home without being admitted. He returned to work on 6 February 2012 when, after arbitration, he worked in C crew.
BlueScope disputed liability on the ground that Mr Markovski had not suffered a psychological injury to which his employment was a substantial contributing factor. In the alternative, if Mr Markovski had suffered such an injury, BlueScope argued that the injury was wholly or predominantly caused by reasonable action taken, or proposed to be taken, by or on behalf of it with respect to the transfer of Mr Markovski from B crew to C crew (s 11A Workers Compensation Act 1987 (the 1987 Act)).
After an arbitration hearing at which the parties’ legal representatives made lengthy submissions, but called no oral evidence, the Arbitrator delivered a reserved decision in which he determined:
(a)     Mr Markovski had sustained a psychological injury on 5 January 2012 in the course of his employment with BlueScope and to which his employment was a substantial contributing factor;
(b)     the moving from one crew to another position within the same organisation constituted a transfer, notwithstanding that there was no physical change in location;
(c) he was not satisfied that the actions of BlueScope with respect to the proposed transfer were the whole or predominant cause of the onset of the psychological injury and, as a result, the s 11A defence failed, and
(d)     the action taken by BlueScope with respect to the transfer of Mr Markovski was not unreasonable.
The Commission issued a Certificate of Determination on 11 September 2013 in the following terms:
“The Commission determines:
1. The respondent is to pay the applicant weekly payments in the sum of $1701.80 per week for the period 5 January 2012 to 6 February 2012 pursuant to section 36 of the Workers Compensation Act 1987 (as then in force).

2.   The award in paragraph 1 shall be deemed to be satisfied if the respondent credits the sick leave entitlement of the applicant with the entitlement expended during the period 5 January 2012 to 16 [sic] February 2012.

3.   The respondent is to pay the applicant’s reasonably necessary treatment expenses in respect of psychological injury incurred between 5 January 2012 and 6 February 2012.

4.   The respondent is to pay the applicant’s costs as agreed or assessed.

5. I certify this matter as complex for the purposes of Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2010; there is to be a 25 per cent increase applied to the costs applicable to each party.”
BlueScope has only challenged the Arbitrator’s finding in point (c) of [6] above, namely, the finding on causation. Mr Markovski has filed submissions in support of that finding and, in addition, has argued that the Arbitrator erred in finding that BlueScope’s actions with respect to the transfer were not unreasonable.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) not considering the relevant case law on the meaning of “predominantly” in s 11A;
(b) failing to apply the relevant case law on the meaning of “predominantly” as used in s 11A;
(c) finding that BlueScope’s action with regard to the transfer did not predominantly cause Mr Markovski’s injury, and
(d) in finding that the s 11A defence was not made out.
Essentially, there are two issues on appeal, first, whether the Arbitrator erred in his conclusion that BlueScope had not established that the whole or predominant cause of Mr Markovski’s psychological injury was the action taken, or proposed to be taken, with respect to his transfer and, second, whether the action taken, or proposed to be taken, was reasonable.
The second issue arises from Mr Markovski’s Notice of Opposition. While that notice has raised an issue (reasonableness) that a respondent to an appeal might normally raise in a cross appeal, the Commission’s rules have no provision for a cross appeal. This creates a dilemma for respondents to s 352 appeals who have succeeded before an Arbitrator on a critical issue but contend that the Arbitrator wrongly decided another issue, which only becomes relevant if the appeal succeeds.
In this case, having decided that BlueScope had not established that the injury had been wholly or predominantly caused by action with respect to transfer, it was not necessary for the Arbitrator to consider whether that action was reasonable. However, having considered that issue, and having found that the action with respect to transfer was not unreasonable, Mr Markovski has argued that, if BlueScope’s appeal against the causation issue succeeds, he is still entitled to retain the award in his favour because the Arbitrator erred on the reasonableness issue. BlueScope has opposed Mr Markovski arguing the reasonableness issue, primarily because it is not an issue in “reply” to the appeal.
While there is no provision for a cross appeal in the Commission’s rules, proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits (s 354(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)). In addition, the Commission has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act). Moreover, a respondent to an appeal can, on appeal, support the decision below on any good legal ground appearing on the evidence (David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 420E-421D; 426F; 428G). That is effectively what Mr Markovski is seeking to do, in the event that BlueScope succeeds on the causation issue.
In circumstances where BlueScope has had reasonable notice (in the Notice of Opposition) that Mr Markovski has challenged the Arbitrator’s finding on reasonableness, and his arguments in support of that challenge, and every opportunity to respond to them, it is appropriate that I deal with it on appeal even though Mr Markovski has not filed an Application – Appeal Against Decision of Arbitrator (Form 9). That is especially so in circumstances where BlueScope has pointed to no prejudice it would suffer if the issue is argued. To the extent that it is necessary to dispense with the filing and service of a Form 9 by Mr Markovski, I make that order under Pt 1 r 1.6(2) of the Workers Compensation Commission Rules 2011.
Both parties consented to me re-determining the matter in the event that I found that the Arbitrator erred.

BACKGROUND TO THE CLAIM

To understand fully the issues in dispute, it is necessary to set out the background leading up to Mr Markovski stopping work on 5 January 2012. This requires consideration of a series of events in 2010 and 2011 that involved several people. In addition to the worker, Mr Markovski, the main participants in those events were:
(a)     Andrew Gripton: the manager of the Slab Yard from August 2008 to January 2011;
(b)     Done Martinoski: the Slab Yard manager from January 2011 and the acting manager, in Mr Gripton’s absence, in December 2010;
(c)     Sue Davies: Mr Markovski’s rehabilitation co-ordinator in 2010 and 2011;
(d)     Sharene Qualye: a rehabilitation specialist, presumably with BlueScope;
(e)     Norm Aschenwald: Mr Markovski’s team leader in B crew;
(f)      Dr Tague: a rehabilitation doctor retained by BlueScope to assist in rehabilitation of injured workers;
(g)     Michael Agim: Mr Markovski’s team leader at the time of the meeting on 5 January 2012;
(h)     Boris Baraldi: a union official who attended the rehabilitation meeting with Mr Markovski on 11 February 2011;
(i)      Frank Renko: a level 3 operator on B crew who volunteered to transfer to C crew, and
(j)      Peter Petrovksi: Mr Markovski’s brother-in-law, who worked in the same crew as Mr Markovski and was, ultimately, also transferred to C crew.
Mr Markovski started work with BlueScope, or one of its various predecessors in title, at the Port Kembla steelworks in 1981. Though he was made redundant in 1983, he returned to work for BlueScope (then Lysaghts) in 1984 and remains with it to this day.
Since 1984, Mr Markovski has worked in different departments. On an unidentified date, he was moved to CRM, then to the stainless steel division at Unanderra up to 1997, when he was returned to CRM, where he worked until that department closed in 2006 and he was transferred to the Slab Yard.
In November 2004, Mr Markovski injured his right shoulder in the course of his employment. On 24 February 2010, he had surgery on that shoulder and was off work for two months. Though he returned to work as a level 3 operator in the Slab Yard, because of his shoulder injury, he was not able to drive the number 8 crane because of the position of the controls. There is also a suggestion that he had difficulties with cranes number 2 and 6, which are discussed in more detail below.
Mr Aschenwald said that, in 2010, he had problems with Mr Markovski’s behaviour because, on occasions, he would refuse to attend toolbox meetings and would not listen and walk away before he had finished telling him something. Mr Aschenwald offered assistance with Mr Markovski’s “anger issues”, but he would not listen.
On 29 June 2010, Mr Aschenwald spoke to Mr Gripton about Mr Markovski making accusations against him (Mr Aschenwald). He told Mr Gripton that he was concerned about Mr Markovski’s mental state because he was verbally aggressive, making accusations with no substance. He was concerned about Mr Markovski’s well-being and that of his fellow workers.
On 30 June 2010, Mr Aschenwald had a toolbox meeting that Mr Markovski refused to attend. After that meeting, Mr Aschenwald asked Mr Markovski to attend his office. He told Mr Markovski that he did not appreciate his behaviour and offered him help, if he needed it. He offered Mr Markovski an employee support pamphlet, which Mr Markovski did not accept. Mr Aschenwald said that Mr Markovski complained that he was not being properly treated, as far as his return to work plan was concerned, and that “sneaky stuff was going on which he could not figure out”. Mr Markovski blamed Mr Aschenwald for all his problems, saying that Mr Aschenwald had been saying things, and relaying things, that Mr Markovski had not said. Mr Aschenwald tried to ask Mr Markovski to listen, but Mr Markovski replied that Mr Aschenwald was the cause of all his problems and stormed out of the office.
At a meeting on 17 December 2010 with the worker, Mr Martinoski, Dr Tague, Ms Davies, and Mr Agim, Dr Tague indicated that Mr Markovski would have permanent restrictions on the number 6 and 8 cranes, but the restrictions did not apply to the number 2 crane. (The issue with the number 6 and 8 cranes was that the controls were behind the worker’s shoulders.) According to Mr Martinoski’s notes of this meeting, the worker did not agree with Dr Tague about the number 2 crane. The worker said he found the work on that crane too stressful, which caused him to stiffen and caused his shoulder to hurt. In some conditions, it was okay but when the volume increased, he became stressed. This statement was essentially consistent with the worker’s evidence on this point.
Mr Martinoski said (in respect of the problem with the number 2 crane) “it was not a physical limitation but the stress acerbating [sic] the injury”. The worker interpreted this statement as an allegation that he was faking his injury, which caused him great offence, though Mr Martinoski firmly denied making such an allegation. Mr Martinoski talked about the worker’s restrictions and the need for him to drive all cranes. The worker reacted angrily to this, saying that half the yard was on restrictions, something Mr Martinoski said was not even close to the truth. Mr Martinoski added that the individual cases were not up for discussion, just as the worker’s case was not for others to discuss. It was agreed the worker would try hydrotherapy and, for the next month, stay off the number 6 and 8 cranes. His work on the number 2 crane would be monitored.
There were several meetings on 11 January 2011.
The worker, Mr Gripton, Sue Davies, and Mr Aschenwald attended the first meeting on 11 January 2011 (notably, Mr Martinoski did not attend this meeting). In summary, minutes for this meeting (prepared by an unidentified author) state that:
(a)     the worker said he thought that, at the last meeting (presumably the meeting on 17 December 2010), Mr Martinoski had said he was faking his injury because it was not a medical problem;
(b)     Mr Gripton said that maybe Mr Martinoski was referring to the limitation of movement;
(c)     Ms Davies thought that Mr Martinoski was referring to the restriction with the number 2 crane not being physical;
(d)     the worker said he experienced physical pain and was not avoiding cranes deliberately;
(e)     Mr Gripton asked how the worker’s shoulder was and the worker said “OK but I can’t move past [sic] back”;
(f)      Mr Gripton said that the number 2 and 8 cranes were inherent to the role. To address that, they were looking to move the controllers on the number 6 and 8 cranes;
(g)     Mr Gripton said that, if the worker was worried that he was not getting better, and concerned he may have issues down the track, he should consider other roles;
(h)     the worker asked “are re you telling me to find ~~get~~ another job” (emphasis in original notes), to which Mr Gripton replied “No”, but was not able to continue (to explain) further, and
(i)      the worker said “you are threatening me” and abruptly stormed out of the meeting room.
Mr Markovski interpreted Mr Gripton’s comments as telling him to start looking for another job because he did not have a job for him in the Slab Yard. Mr Markovski said he asked Mr Gripton to stop, because it was inappropriate with three against him (Mr Gripton, Sue Davies and Norm Aschenwald) and nobody with him.
Mr Aschenwald followed Mr Markovski from the office, told him it was rude of him to leave the meeting, and asked him to go back and apologise. Mr Markovski felt that Mr Gripton should apologise, as he had not advised Mr Markovski beforehand of the subject of the meeting. As Ms Davies was present, Mr Markovski thought it was a “rehab meeting”. Mr Markovski spoke to Ms Davies and asked her why she did not give him a courtesy call to say she was coming to the plant. She replied, according to Mr Markovski, that she was too busy to call but he should be grateful that she took time off to see him, which the manager wanted her to do.
At the second meeting on 11 January 2011, held at about 2.30 pm, and attended by the worker, Ms Qualye, Ms Davies, Mr Gripton, and Mr Aschenwald, the worker repeated what he had said at the earlier meeting that day about Mr Martinoski’s comments. Mr Gripton said there had been a meeting (with people not directly involved in the claim) about the ergonomics of the number 6 and 8 cranes to see about moving the controllers 100mm. The worker acknowledged that that would be a good idea. (I note that, with no explanation, there is no further reference to the number 6 crane in the evidence after this meeting.)
Mr Gripton reiterated that people were putting a lot of effort into the worker’s well-being and rehabilitation. He added that the other solution to the problem was to replace the crane cabins, but the cost for that was over $1 million. The worker again spoke about how unhappy he was about things Mr Martinoski had said at an earlier meeting (presumably on 17 December 2011). He said that all restrictions should be lifted and, when his shoulder gets sore, he should just get his bag and go home.
Mr Gripton talked about Mr Markovski’s injury and explained that they were coming to the end of the rehabilitation period and that if Mr Markovski felt his shoulder was not going to get better he should think about another role for the long term. The notes of this meeting record that:
“at this point [Mr Markovski] jumped up & asked whether Andrew was asking him to look for a job elsewhere & Andrew said no & was about to explain to him what he was saying but did not get the opportunity as [Mr Markovski] just abruptly stormed out of the office & on his way out said he did not want to talk anymore & was going to ring the union.”
At about 4 pm on 11 January 2011, Mr Aschenwald again spoke to Mr Markovski, this time at the request of Mr Gripton. Mr Aschenwald’s notes of this meeting record that he told Mr Markovski that walking out of the meeting was not good behaviour and did not give Mr Gripton a chance to complete what he was saying. Mr Markovski said he felt like he was being told to go and look for another job and that he did not trust Mr Gripton or, for that matter, anyone in management, as he thought that he was alone and that the rest of the people in the room were ganging up on him. Mr Markovski added that he was very disappointed with Mr Gripton, as he had previously had a discussion with him and asked him to tell him if he was making things official. The worker said it was all Mr Gripton’s fault and again raised the Mr Martinoski “issue” (presumably, this was a reference to Mr Martinoski’s comments at the meeting on 17 December 2010). Mr Aschenwald suggested the worker apologise to Mr Gripton. Though he initially refused, saying it was all Mr Gripton’s fault, he agreed to talk to Mr Gripton and give him a chance to finish what he had to say.

Mr Markovski then rang Mr Gripton from the crib room and asked to see him “one on one”. The two men met that afternoon. Mr Markovski said that Mr Gripton conceded that he had said some things that were probably inappropriate. Mr Markovski said there were other workers across the four cranes at the time with greater restrictions than his were and they were not being treated the same as he was being treated. If the others were treated the same as him he had no problem with what Mr Gripton was doing, as it was then equal. He said he could do 80 to 90 per cent of his job and other workers on restrictions were not even doing 60 per cent of their work. Mr Markovski asked why Mr Gripton was concerned about him and what he could do, but was not concerned with other workers who were doing less than he was. Mr Gripton allegedly replied that he would work across all of that. Mr Markovski said Mr Gripton had started with him. Mr Markovski said that two workers with restrictions only worked one position and another person in his crew was not going to four positions so he was only doing half of the rotation on the job.
Mr Markovski added in his statement that his work colleagues had told him “management was picking on” him and they could not understand that. They added that they could help him with the 10 to 20 per cent of jobs he could not do because of his shoulder. The statement has been so poorly drafted that it is unclear if Mr Markovski told Mr Gripton of these matters at their one-on-one meeting or at another meeting. Mr Markovski said that he was able to do the full range of duties except for operating the number 8 crane. Mr Gripton did not mention this meeting in his statement and Mr Markovski’s evidence has not been challenged.
At a meeting on 4 February 2011, which I assume, based on a comparison of the handwriting in the notes produced, was between the worker and Mr Martinoski, Mr Martinoski spoke with the worker about organising the next case conference. The worker said he was not happy and that “we’re [presumably referring to the management] never happy”. In response to Mr Martinoski asking if he wanted an interpreter, the worker said that he understood, but always seemed to misinterpret what was said, or he said something that “seems to get used against him somehow”. Mr Martinoski explained that they had a legal obligation to provide an interpreter if he needed one. The worker replied that maybe he needed a union official or delegate instead, someone to inform him of what Mr Martinoski said. Mr Martinoski agreed that was a good idea.
Mr Martinoski said that, at the next case conference, they would be discussing the worker’s restrictions and what impact they may have on his work. The worker said he did not like the sound of that and that he would like to raise an EEO (equal employment opportunity) issue because it seemed he was being treated differently to others in the yard who only did one job while he could do 90 per cent of the jobs. Mr Martinoski said that if the worker had an EEO complaint, he could process it immediately. The worker said he was being treated differently to others and that was unfair. The worker did not press an EEO complaint, but said he would wait to see how the next meeting went. The worker asked who would be present at the meeting and said he respected Mr Martinoski’s role and only wanted to be treated respectfully. Mr Martinoski agreed that was the right thing and trusted that he was doing that. The worker agreed “so far”.
At the case conference meeting on 11 February 2011 about the worker’s rehabilitation, and at which the worker was accompanied by a union official (Boris Baraldi) and another operator, Joe Da Silva, Mr Martinoski said that the worker asserted he was not being treated fairly in regard to his rehabilitation plan and was being singled out compared to others (in regard to medical restrictions) who were not going through the same process. Mr Martinoski said that each case was different and treated on its merits and that the information (about rehabilitation plans for each worker) was confidential. He did not know of anyone who had reached the worker’s point of being deemed to have a permanent restriction. The worker said he no longer had problems with the number 2 crane. They discussed the possibility of modifying the cranes with which the worker was having problems. Mr Martinoski said the “outcomes of the meeting were positive”. The worker had started hydrotherapy and was doing his exercises. The worker said he felt a lot better. Mr Martinoski made it clear that he expected every crane driver to be able to drive all cranes.
In June or July 2011, the worker approached Mr Martinoski and asked how the (modifications to) the number 8 crane were progressing. Mr Martinoski replied that he would come around but he was very busy due to the downturn in the industry.
On 22 August 2011, BlueScope announced that steel production would decrease and there would be a loss of jobs throughout the company, including the Slab Yard, with the company reducing operations to one blast furnace. Three workers would be removed from each shift, thus reducing the numbers for each crew from 14 to 11. Mr Agim was told that each crew had to have a skill balance taking into account what each employee could do in regard to the operation’s needs. When Mr Markovski heard about the reductions, he was concerned, because of his injury, and because he was not able to operate the number 8 crane. He said that workers started to speak about the people on medical restrictions probably being the first to be tapped on the shoulder. He recalled Mr Martinoski saying that whoever wanted to stay in the Slab Yard would have to do all the functions in the Yard. In addition, the worker had been told that fixing the controls on the number 8 crane was not a priority, but, for him, it could mean losing his job. He asked the union to enquire about the proposed change to the controls on the number 8 crane.
Sufficient workers took voluntary redundancy to avoid any forced retrenchments. However, as these were unevenly spread across the crews, it was necessary to distribute the remaining workers across the four crews working in the Slab Yard in a manner consistent with guidelines issued by BlueScope. Mr Markovski was a member of B crew, which had 12 members that had to be reduced by one by the transfer of one member to another crew.
A working group was set up and Mr Martinoski presented two updates to the crews about the consultation. He emphasised that the decision on movements between the crews would include a request for volunteers, but would ultimately be based on crew skill balance and business requirements.
In October 2011, BlueScope held a meeting with the worker, Dr Tague, and Mr Martinoski, to discuss proposals for changing the controls on the number 8 crane. The worker asked Mr Martinoski who was to be moved to a different crew and was told that no decision had been made.
Also in October 2011, workers were told that the skill levels on all crews had to be “even”, to run the business. Mr Markovski acknowledged that the award under which he was employed provides that if a person has a skill required on another shift and nobody else has that skill, BlueScope can move that person to another crew on 48 hours’ notice.
The crew staffing levels in the second half of 2011 were, according to Mr Markovski, as follows: A crew was two short, B crew (Mr Markovski’s crew) had one extra, C crew was one short, and D crew had two extras. Mr Markovski said he discussed among his crew the best moves for the business, looking at skill levels. His crew (B crew) was short of two Gega (spelt “Giga” in some documents) operators and C crew was short of two control room operators, but had four Gega operators. Therefore, Mr Markovski’s crew thought one of C crew’s Gega operators could move to B crew and two people (a plate controller and any other skilled person who was suitable) could go to C crew. This would leave B and C crews with equal skills to run the business smoothly.
At about this time, meetings were held and steps taken to modify the controls on the number 8 crane to accommodate Mr Markovski and all other workers. A dummy chair and controls were set up in one of the conference rooms for workers, Dr Tague, and an ergonomist to examine and test. A toolbox meeting was held with all crew members going into the conference room to look at the proposed set up. A proposal was put forward for changes that suited everyone.
At some stage, (unidentified) workers told Mr Markovski that he was to be moved to C crew. He could not understand why that should be so because C crew was short of plate controllers and he did not have that skill. He said he was confused. He approached Mr Martinoski, on a few occasions, both one-to-one and in front of members of B Crew, and asked who was to be moved. He was told that no decision had been made about the transfer and that, so long as the volunteer was suitable, he would rather have a volunteer than have to tap someone on the shoulder.
Mr Martinoski discussed the process with team leaders and co-ordinators and, prior to Christmas 2011, had decided on an arrangement that he felt achieved “the right balance across crew[s] taking into consideration skills, flexibility, teamwork, also strengths and limitations”. He was confident “we had it worked out prior to Christmas 2011 but held off as [he] did not want to upset anyone through the festive season and wanted the incumbent team leader to observe his new crew”.
Mr Martinoski moved another worker from C crew to A crew in mid to late December 2011, as he was a volunteer who met BlueScope’s business needs because A crew needed a high quality crane driver, as it was losing four crane drivers.
Though Frank Renko had volunteered to move to C crew (exactly when is unclear), as it would allow him to be with his brother, Mr Martinoski said that this proposal did not meet BlueScope’s business needs, but he “agreed to re-analyse” it to see if he could facilitate the request. In his initial analysis, Mr Renko was “deemed as someone we needed to keep on Crew B”.
Mr Martinoski looked at the factors needed for B crew; those needed for C crew, and assessed each person on B crew against those factors. Having conducted this analysis, he decided that Mr Markovski was the person most suited for the transfer. Exactly when he formed this view is unclear, but it appears to have been in December 2011.
In December 2011, (Mr Markovski said it was after 16 December 2011), the controls in the number 8 crane were modified. Mr Markovski sat in the chair and tried the controls, which he was able to use without any problems with his shoulder. While he said he was very pleased with the results, he did not say if he worked a shift or part of a shift with the new controls. After the changes to the number 8 crane, the worker met Mr Martinoski to discuss having his work restrictions lifted. Mr Martinoski said that medical advice, or advice from Ms Davies, would be required before the restrictions could be removed and the worker classified as able to drive all cranes. There is no evidence that the restrictions were lifted, but the worker saw no reason why that should not happen, as the controls on the number 8 crane were now in a position “like the other cranes” (he made no comment about the number 6 crane).
At about this time, late December 2011, Mr Markovski learned that another worker had volunteered to transfer to C crew, though he did not know that person’s name. He again asked Mr Martinoski who the volunteer was and Mr Martinoski said that, because of privacy reasons, he could not say. Mr Markovski went on a normal four-day roster and took one-day annual leave, returning to work on 5 January 2012 on dayshift.
At about midday on 5 January 2012, the worker was asked, via the public address system, to see his team leader, Mr Agim, in his office. When he attended the office, the worker was surprised and confused to see that Mr Martinoski and Mr Renko, as well as Mr Agim, were present. It was Mr Martinoski’s intention to explain why he had selected the worker to be transferred, and that the move would be made in mid-February 2012, which would give time to resolve any issues or circumstances of which he was not aware.
Mr Martinoski said that he explained to Mr Renko that he would not be transferred “due to business requirements including the positive impact he has had on Crew B with his flexibility and ability on all the cranes”. He then told Mr Markovski that he had been selected to move from B crew and started to explain the criteria that he used for selection. He said that, for example, he could not consider any Gega operators and preferred to spread the ability of people who could drive all cranes. He was then interrupted mid-sentence by the worker who was shouting aggressively and finger pointing.
In his hand written notes about this meeting, Mr Martinoski said that he explained to Mr Renko that, when he analysed things “from a skills and crew balance perspective”, he felt it better if he stayed on B crew. He told the worker that he had been selected to move crews and started to mention that B crew had a weakness through a lack of Gega operators and that not everyone could currently drive all cranes. The worker then cut him off and started shouting that Mr Martinoski was discriminating against him; that that started six months ago when Mr Martinoski threatened him with his job; that he had written it all down, and had a solicitor, and would sort him out. The worker wanted to speak to someone from EEO.
Mr Martinoski tried to complete his explanation, but was again interrupted by the worker who repeated his previous comments and left the room, saying he was going home and that Mr Martinoski would be responsible if he hurt himself on the way home. Mr Martinoski said he should not be driving and they would arrange for someone to drive him. The worker then accused Mr Martinoski of stabbing him in the back, trying to get rid of him, and having a secret plan for him. The worker then left the room.
Mr Martinoski apologised to Mr Renko and hoped he understood that the decision was based around the all-round strength he provided the crew with his flexibility and consistent skills on all machines. The worker returned, made similar comments about discrimination and having been stabbed in the back, and again left. Mr Martinoski and Mr Aschenwald found the worker in the crib room when he repeated his previous complaints, and added that it (the transfer) should be based on seniority. Mr Martinoski again offered to arrange for someone to drive the worker home. The conversation continued in another crib room and the worker said there should have been three before him (to be transferred).
Mr Martinoski explained that it was a business decision (based) on crew balance across the crews and complementary skills. The worker said he no longer had any restrictions, to which Mr Martinoski explained that driving all cranes was only one factor and that they had made modifications that, over the next couple of months, would hopefully result in him driving all cranes. The worker said that Mr Martinoski could have mentioned it earlier and not just stabbed him in the back. Mr Martinoski said it (presumably, the meeting) was part of the process and agreed to leave it at that.
In his notes, Mr Martinoski recalled an earlier conversation with the worker (exactly when was not identified) after they had looked at the number 8 crane, where the worker said that “Terry” should be transferred because he was slow on all the cranes and he was last on the crew. Mr Martinoski said that everyone was being considered, including the worker. He added that two of the significant factors for B crew were the limited number of Gega operators and that not everyone could drive all cranes. For C crew, a forklift driver would be beneficial and possibly a plate controller. These, among other crew balance/skills issues, would be considered and the most suitable candidate selected.
Mr Martinoski said he had addressed B crew (and all the other crews) twice as part of the changes to the Slab Yard as a result of going to one blast furnace. On both occasions he pointed out that one person would need to leave B crew and two people would need to leave D crew. When asked about the selection process, he said that volunteers would be welcome but the decision was ultimately going to be a business decision based on skills and crew balance.
Mr Martinoski then conducted a “walk the floor” (presumably after the worker had left the premises) to see how everyone was on the crew. He spoke with Peter Petrovski about the decision process. Mr Petrovski felt that, there being a volunteer, and seniority (presumably this was a reference to the worker’s seniority compared to others in B crew), the worker should not have been selected. Mr Martinoski said he thought he made the right decision and that there were many considerations, including plate controller requirements for C crew. He also mentioned the issue of only two Gega operators and one almost accredited Gega operator on B crew. Mr Petrovski also mentioned that the worker had no more restrictions. Mr Martinoski explained that the changes to the number 8 crane were hopefully going to be successful, but they would expose the worker to the number 8 crane in short bursts and take medical advice, so they took care of him, before they considered lifting the restrictions. They also talked about the state of the business.
Mr Martinoski added in his note that the worker’s aggression and threats towards him were excessive and unacceptable behaviour that he would not accept if directed towards another employee, and he would need to address this with him when he settled down and returned to work.
Mr Agim also gave evidence about the meeting on 5 January 2012. He said that Mr Martinoski said Mr Renko would not be transferred because “on the criteria he would be better value added staying on B Crew as he was flexible and [had] the potential to be trained as a Giga [sic] Operator” (Mr Agim was aware that B crew lacked Gega operators and he believed that Mr Renko had the potential to move to that position.) He said that Mr Martinoski then turned to the worker and said that he was to be moved. The worker became upset and said, while standing, and in a raised voice, “[w]hy am I being made to move without being consulted, I’m being victimized and treated differently”. Mr Martinoski tried to explain how he came to his decision, but the worker was not listening and kept saying that he was (being) treated unfairly and that Mr Martinoski, and previous management, had targeted him. The worker said “I will not listen to what you’re saying I am too upset” and that he wanted to speak to somebody from EEO. Mr Martinoski said he could organise that and asked the worker to calm down. The worker then left the office saying he was going home.
Mr Agim said he was shocked by the worker’s response and that Mr Martinoski had spoken in a calm manner and not raised his voice. A few minutes later, as they were concerned for the worker’s welfare, Mr Markovski and Mr Agim followed the worker to the crib room and found him talking to Frank Hughes, a member of his crew, and a union delegate. The worker said he was too upset to talk and kept asking why Mr Martinoski was moving him when there were three other people on the crew who should be moved. He said there was a rule on the crew that the last person on was the first to go. He said he was going home. There was then a discussion about how the worker would get home. The worker said he was going to drive home and that if something happened to him while going home he would blame Mr Martinoski, because he had created the tension.
Mr Markovski’s evidence about this meeting was that, when told that he was to be transferred, he asked why Mr Renko was not suitable for the transfer, when they were both level 3 operators and on the same skill level, and that the following exchange occurred:
“Done said to me he had people with restrictions in our crew and I replied I did not have a restriction, I am clear. He also said he wanted Frank to grow in B Crew which really confused me how he wanted Frank to grow in B Crew when he had been knocked back before from learning plate controller. I asked Done if Frank was smarter than me, I felt he was saying I was stupid and dumb, that is the way I took it. Done said he had made a decision which is best for the business.”

The worker felt that he had been “singled out and isolated” by these comments by Mr Martinoski. In his view, the meeting should not have happened with Mr Renko and Mr Agim present, as their presence made him feel “uneasy and uncomfortable to discuss in front of them”. He did not know why his privacy was not respected to have a one-on-one conversation with his manager, as he had done many times before. He felt “humiliated and downgraded” because Mr Martinoski was talking about Mr Renko wanting to grow but not considering giving him an opportunity. He felt his jaw getting stiff and pain in his chest. His hands started to shake and he felt “anxious and embarrassed”. He told Mr Martinoski that he was unable to go back to his job and needed to go home. He said he was very upset and did not want to compromise his safety or the safety of other workers. He said that if anything happened to him on the way home Mr Martinoski would be responsible.
Mr Markovski left the meeting and went to the crib room where he spoke with some of his shift mates. They said they could not understand why the manger had done that to him. He went back to the office to ask Mr Martinoski if he could get somebody involved, like HR or equal opportunity, so they could resolve the matter. He told Mr Martinoski that it was not right and that Mr Martinoski was not treating him with respect. He also spoke with a union representative.
Mr Markovski returned to the crib room where Mr Agim and Mr Martinoski again spoke to him. Frank Hughes told them to go away because they were making Mr Markovski uncomfortable and nervous. Mr Markovski attended the medical centre, where his blood pressure was taken. His next recollection was being in Wollongong Hospital where he was examined and released that evening.
On 6 January 2012, Mr Markovski rang his union, having been unable to sleep the previous evening. He said that “everything about the meeting with [his] manager was going around and around in [his] head”. He was thinking that “it was not justice”.
Mr Markovski saw his general practitioner, Dr Aly, on 9 January 2012, who diagnosed a psychological disorder and certified him unfit. He remained off work until 6 February 2012.
On his return to work on 6 February 2012, the transfer issue went through arbitration, though exactly when the arbitration took place, and what was involved, is not disclosed in the evidence. The worker requested that his brother-in-law, Peter Petrovski, with whom he drove to work, could also be moved from B crew to C crew. Mr Martinoski said that one of the outcomes of the arbitration was that he would facilitate and move Mr Petrovski to C crew, as long as a suitable volunteer could be found on C crew (presumably to move to B crew to take Mr Petrovski’s place) and Mr Petrovski trained another plate controller for that crew. Mr Martinoski said that, at the arbitration, it was “agreed that the move from Crew B to Crew C for Mile Markovski was legal and fair”. Who reached this agreement is not disclosed in the evidence.
Mr Markovski said, with respect to the cause of his condition:
“The present position I am in being off work is a direct result of what has happened over what I went through with my right shoulder. Working hard to get to a position of being able to do all full duties which I have achieved even though it took a lot longer than 3 months to fix No 8 crane. Then when things seemed to start to be good I had a situation when I firmly believe I was treated unfairly by my manager in regards to the issue of what I have stated in this statement of moving me out of the crew without consulting me in private. The manager could have met me in private to see if a move onto another shift will have any affect [sic] on me and my family. Also to be taken into consideration a member of our crew, who is a level 3 has medical restrictions and I believe a greater injury who cannot cover all skills is being left on our crew. I say to myself where is it fair and I believe I was singled out because of my right shoulder. I have not been treated equally or fairly.”
BlueScope’s position is that moving Mr Renko to C crew did not meet its business needs because he would be better value added staying in B crew, as he was flexible and had potential to be trained as a Gega operator, something B crew lacked.

MEDICAL EVIDENCE

Wollongong Hospital

The “Discharge Referral ED” from Wollongong Hospital, prepared by Dr Flinn, junior medical officer, stated that Mr Markovski had presented on 5 January 2012 with “central to left squeezing chest pain, jaw pain, sweating, shaking and limb weakness post an altercation with his manager at work”.

Dr Aly

Mr Markovski saw Dr Aly on Monday 9 January 2012. He took a history that, on being told of the transfer, Mr Markovski was upset, sweaty and suffered palpitations. His blood pressure was checked (either at work or by an ambulance officer) and was 180/110. He then collapsed and was in Wollongong Hospital. Dr Aly referred Mr Markovski to a psychologist, Marcelo Di Martino. (The Arbitrator recorded, and it has not been disputed on appeal, that there did not appear to be any relevant entry in Dr Aly’s notes prior to January 2012.)
Dr Aly issued a WorkCover medical certificate on 9 January 2012 in which he diagnosed Mr Markovski to have an “Adjustment Disorder causing anxiety due to abnormal working conditions”. Under “How the injury occurred”, he recorded “altercation with manager at work”. He recorded the date of injury as 5 January 2012.
Also on 9 January 2012, Dr Aly responded (in handwriting) to a questionnaire from BlueScope as follows:
“1. Can you please provide a history of the psychological injury as stated by the worker?
On 5-1-12 Mile Markovski, while at work was called by [the] manager and told, in [the] presence of two people, that [he] was to [be] shifted from [his] existing team to another team. Mr Markovski was upset, sweaty and had palpitations then collapsed. He was admitted in Wollongong Hospital, checked in Hospital and after a few hours discharged.
2. Your diagnosis?
Adjustment disorder causing anxiety and depression due to abnormal working conditions.
3. In your opinion, is his employment with Bluescope [sic] Steel a substantial contributing factor to his injury?
Yes. Major and substantial factor causing the injury.
4. Do you agree that the psychological injury is primarily due to the reasonable actions of an employer (i.e. management actions regarding transfer, demotion, promotion, performance, discipline, retrenchment or dismissal)? If not, can you please provide your reasons.
Employer was unreasonable. He should should [sic] have called Mr Markovski privately not in [the] presence of two other persons and [indecipherable] and inform him [of] the reason [indecipherable].
5. …”

Mr Di Martino

Mr Di Martino faxed a report to Dr Aly on 10 January 2012. He recorded:
“Thanks for referring the above named patient to me in order to be provided with psychological services. We have seen each other on two occasions (yesterday and today) and we discussed the consequences of an incident (occurred during a work related meeting that took place on the 05/01/2012) in which [Mr Markovski] felt both intimidated and discriminated upon [sic].
As a result of my assessment, I would like to confirm that [Mr Markovski] meets the DSM IV criteria for an adjustment disorder with anxiety as a result of the stress caused by the above mentioned incident. This has produced severe levels of anxiety and severe levels of stress and the symptoms became extremely physical to the point that [Mr Markovski] was admitted to Wollongong hospital with chest pains, jaw pain, limb weakness sweating and shaking.”
Mr Di Martino said he discussed with Mr Markovski strategies to better cope with the situation and treatment options.
In a further report sent to Dr Aly on 27 January 2012, Mr Di Martino said he had discussed with Mr Markovski “ongoing abnormal working conditions and the appearance of symptomatology as a consequence”.

Dr Potter

At the request of BlueScope, Mr Markovski saw Dr Brian Potter, psychiatrist, on 14 February 2012. In his report of 23 February 2012, Dr Potter recorded a detailed history of the events on 5 January 2012. Mr Markovski had been called to the office over the “radio PA” to see his team leader. When he arrived, he felt a shock to see the manager, the team leader and one more colleague. The manager asked him to sit so he could explain the circumstances and Mr Markovski protested, “I said, shocked, no way”. Mr Markovski described experiencing an escalation of threatened anxiety. He was told he was going to be moved into another crew. He then described to Dr Potter the symptoms he felt at that time.
With regard to his feelings since 5 January 2012, Mr Markovski said he was “still struggling and not feeling the way I should. It stuck with me the way it happened” and that “the minute I close my eyes I dream about the Manager. Not fair how he did it. I can’t sit still, I have to walk”.
Dr Potter took a history of the right shoulder injury, and of the operation in February 2010. Mr Markovski said:
“A lot of pain and trouble to readjust after the operation and at the time, with the company a lot of pressure and stuff on me as not fit to do full duties after the operation.”
He added:
“And fifteen months ago, called in and said no longer a job for me because of the restrictions. I didn’t agree. People in the company with greater restrictions. The way they treated me related back to the injury.”
Dr Potter also took a history of the problem with the cranes and the modification to allow the worker to do his full duties. Dr Potter said:
“In giving these details, again, it was given within the atmosphere of a bullying belligerent company which did not listen to him and which did not show understanding and compassion in that they took so long, ‘months’, to fix the lever.
…
With his experience of the company he believes, ‘not treating me equally and fairly like others. Now wanting me to move crews. I have no problem with it for business needs, I don’t believe it. The manager says it’s for business needs.’”
Mr Markovski talked about the ongoing restructuring with the company and said “[e]verything done, done on a voluntary basis, except for me. They have someone who wants to voluntarily to [sic] move, but picked me”. With this belief, Dr Potter said Mr Markovski had been left feeling distressed.
Dr Potter recorded that Mr Markovski had worked for BlueScope, and its predecessors in title, for about 30 years and that, early in his employment, he had been retrenched and re-employed, without a break, for 27 years. In that time, he had changed his job four times without a problem. He had never been nervous “like what happened now”. He said it was always a good job and he was grateful to the company.
Dr Potter said that Mr Markovski saw the company’s changed attitude to him, in wanting to get rid of him, “since I injured my shoulder”. Mr Markovski added “[i]n four months, want to reduce the workforce again and will want to get rid of me. Even with restrictions, doing 80% of the work, others with restrictions only 50%, 60%”. From the time he injured his shoulder in 2004, he had been “on and off restrictions on other jobs”.
He added, confusingly, Dr Potter thought, that he had no problems until he transferred to the department which involved the cranes in 2007: “[w]ith the crane lever, it started getting worse. With increased difficulty restrictions and gradually worse”. After the operation, “to hell and back, a lot of pain”, “pain management”, he was on restrictions, but “has improved”. He now feels that he can perform the job without restrictions.
Mr Markovski described having felt, after the operation, “similar to now, couldn’t sleep, disturbed”, within the context of, “the company put pressure on me, tell me no job for me”. When asked if he wanted to convey the message that he felt unfairly treated, Mr Markovski replied, with some enthusiasm, “yes”. Dr Potter said Mr Markovski was preoccupied with fear of losing his job and the belief that management wished to get rid of him because of his injury, which left him worried about his role as a provider.
Under “Diagnosis”, Dr Potter wrote:
“on a background belief, that with the ongoing restructuring of his work, management wished and wishes to get rid of him because of his injury and his restricted work, he became frightened and overwhelmed with anxiety in the meeting with the Manager at the beginning of January following which he fainted.
Having recovered from the faint, he remained frightened and anxious with which he has demonstrated some features of anxiety but did not demonstrate the depth and breadth of signs and symptoms required for a formal psychiatric diagnosis.
He has returned to work but continues to remain frightened and apprehensive of losing his job without which he will lose his image and his sense of purpose in life as a provider.”
Dr Potter expanded on this opinion under “Summary and Discussion”, saying that:
“on a background sense of vulnerability with the belief of losing his job, he became overwhelmed with fear and anxiety during a meeting with his Manager following which he fainted and although recovered, he remained frightened and fearful of losing his job and identity.
His response can be seen as within the ordinary range of the average population, given the vulnerability of the belief that his workplace was attempting to get rid of him, and he was being asked to make a change that at the time he couldn’t understand.
It is reasonable to accept, that in that fear and anxious state there was significant misunderstanding and misinterpretation for him of the circumstances.
While he remains frightened and apprehensive, holding onto the belief that management wishes to get rid of him because of his injury and restriction, he did not demonstrate the depth and breadth of signs and symptoms required for a formal psychiatric diagnosis.”
As Mr Markovski did not have a psychiatric diagnosis, Dr Potter made no comment about treatment or prognosis. When asked to express an opinion on whether workplace events or issues had contributed to any psychiatric injury, Dr Potter replied “not applicable”.
In response to whether there were any factors such as pre-existing illness or condition or lifestyle considerations outside the workplace that had contributed to Mr Markovski’s condition, Dr Potter wrote:
“He demonstrated vulnerability within his belief that management wishes to get rid of him because of his injury and restrictions at work. He continues within this belief and continues to remain frightened.”
Dr Potter replied “not applicable” to questions about whether workplace issues and events were a substantial contributing factor to the alleged psychological injury and whether the injury could be said to have been wholly or predominantly the product of “transfer” or “retrenchment” or “the provision of employment benefits to workers”.

Dr Robert Hampshire

Dr Hampshire, psychiatrist, saw Mr Markovski at the request of his solicitors on 13 August 2012 and provided a medicolegal report on that date. He took a history that Mr Markovski’s work record had been exemplary, until 2010, when he was diagnosed with a work related injury, which Dr Hampshire understood to be a supraspinatus tendonitis and a sub acromial bursa, which required arthroscopy and surgical repair.
Mr Markovski had two months off work, followed by two months rehabilitation when he did light duties. His workload slowly increased over the next year to the point where there was only one machine he could not operate. He has now developed the belief that there is a possibility that he was being treated differently ever since that injury. This disheartened him greatly since he feels he has given the upmost loyalty, reliability and safety in operations. He said he had been made redundant four times in the past, in 1983, 1990, 1997, and 2005/2006 and that he accepted that that was the nature of his company’s policies. However, Mr Markovski had an experience on 5 January 2012 that appeared to have altered his view of the company and himself.
Mr Markovski was aware that, due the global financial crisis, BlueScope was planning redundancies and a sub-crew had been formed to deal with it in a manner that was least hurtful all-round. One of the decisions was that the first two “change crews” should be the first to go, and Mr Markovski’s crew needed to be reduced by one. A man on his crew volunteered to leave, since his brother was in another crew to which he could move. However, the manager interviewed the volunteer on two occasions before telling him he was not suitable for the position.
Mr Markovski said the volunteer was virtually identically skilled to himself. On the morning in question, Mr Markovski was summoned by public announcement to the team leader’s office to find the manager and the volunteer there. Mr Markovski listened while the manager announced that he would be transferred, but “became initially oppositional, and then had a Panic Attack at around the time the Manager began his speech”.
It was Mr Markovski’s belief that he had been singled out because management were disillusioned with him following his 2010 shoulder surgery. He believed there may even have been a “plot” to get rid of him. He recalled being told by a manger some weeks post-surgery that “you don’t have a job back here – you must look for another job” or words to that effect. This particularly hurt Mr Markovski since he felt he has dedicated his working life to the company and has worked devotedly, often through minor injury, when he would see work mates with similar injuries take sick leave.
On examination, Dr Hampshire said that Mr Markovski gave a history of a Panic Attack that was “textbook in its symptoms and signs”. He had “virtually the full list of symptoms and signs seen in the DSM IV TR for the condition”.
Mr Markovski had no prior history of psychiatric illnesses and, in particular, no history of Panic Attacks or of anxiety or depression. He appeared to have a high work ethic and felt proud of the fact that he had instilled that in his sons. To compound the issue of injustice by his employer, Mr Markovski said that both his older brothers worked for BHP/BlueScope for 45 years.
Under “Diagnosis, Prognosis & Treatment”, Dr Hampshire said that Mr Markovski was suffering from an Adjustment Disorder with a depressed and anxious mood with a differential diagnosis of Major Depressive Disorder. Dr Hampshire said that Mr Markovski’s statement of 11 January 2012 confirmed the history he took, that is, that Mr Markovski took the workplace experience extremely personally.
Turning to whether Mr Markovski suffered from a whole person impairment, Dr Hampshire said that the illness had only been present for the last eight months and the condition could not be considered chronic or stable.

CAUSATION

The Arbitrator’s Reasons

After reviewing the evidence in detail, the Arbitrator found (at [140]) that Mr Markovski suffered a psychological injury on 5 January 2012 by way of the onset of an Adjustment Disorder causing anxiety and that his employment was a substantial contributing factor to that injury. Those findings have not been challenged on appeal.
The Arbitrator then turned to the s 11A defence. He said (at [156]) that the defence under s 11A relies upon the psychological condition being caused “wholly or predominantly by the reasonable actions of the respondent with respect to [transfer]”. After referring to Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 (Shore), where it was held that the test of causation in s 11A is a different, and more difficult, test to satisfy than the test in s 9A, the Arbitrator said:
“160. The actions of [BlueScope] with respect to the transfer of [Mr Markovski] need to be viewed in the context of his inability to perform all the tasks expected of him in the Slab Yard, the uncertainty regarding the eleventh position on each team and the length of time over which Mr Markovski was exposed to uncertainty as to his future.
161. The news of the proposed restructuring was formally given to workers in August 2011. That news included a clear message that the eleventh position on each team was by no means certain to be ratified and was subject to a period of observation and assessment.
162. At the time the workers were informed of the proposal, Mr Markovski was on restrictions which prevented his driving all cranes. Although I accept the evidence of Andrew Gripton and Mr Martinoski that Mr Markovski was not told to look for other work, he was informed that the steelworks needed each crew member to be able to drive all cranes. (See for example the evidence of Norm Aschenwald – ‘Andrew Gripton told Mr Markovski he was coming to the end of his rehabilitation period and if Mile feels his shoulder is not going to get better he should think about another role.’).
163. The idea of finding a different role within an organisation that was about to reduce its workforce would be a daunting prospect for a 50-year-old worker with restrictions.
164. There is ample evidence that throughout 2010 and 2011 Mr Markovski was displaying behaviour suggestive of an abnormal state of mind. Dr Potter, I believe, accepts this when he reported that Mr Markovski became ‘frightened and overwhelmed with anxiety in the meeting with the manager’ on a ‘background belief, that with the ongoing restructuring [of] his work[,] Management [sic] wished and wishes to get rid of him because of his injury and his restricted work’.
165. That background state of mind appears to me to play a significant causal role in the onset of Mr Markovski's psychological injury. Absent the threat of further job losses it seems unlikely that the transfer from one crew to another would have caused anything other than irritation. The actions of the respondent with regard to the transfer of Mr Markovski could not be seen as wholly causing his psychological injury.
166. The psychologist, Mr Di Martino, recorded the history as including a perception by Mr Markovski that the respondent had acted unfairly towards him since his shoulder operation, well before the transfer proposal was suggested.
167. Having regard to the whole course of events following the operation on the shoulder in early 2010, I do not think that the actions of the respondent with regard to the transfer could be said to have predominantly caused his psychological injury. The causal chain includes restrictions that flowed from the right shoulder injury and the surgical operation, the effects of the global financial crisis, the needs of the respondent to have each member of each crew in the Slab Yard be able to operate each crane, the uncertainty regarding the eleventh crew position, the age of the respondent and his restricted ability to compete in the labour market outside the steelworks.
168. For that reason I am not satisfied that the actions of the respondent with respect to the proposed transfer were wholly or predominantly the cause of the onset of psychological injury. Accordingly, the defence under section 11A fails.”

Having regard to BlueScope’s positive experience with Mr Markovski at the meeting on 11 February 2011, after the meeting on 4 February 2011, and the problems on other occasions when Mr Markovski had not been given proper notice of meetings and did not have a support person present, it was not reasonable to summon him (over the public address system) to a meeting about a transfer, which Mr Martinoski (and therefore BlueScope) knew, or ought to have known, was a matter of great importance to him, without:
(a)     giving him reasonable notice of when the meeting would be held, which deprived him of the opportunity to prepare for it, both emotionally and in terms of any arguments he wanted to present;
(b)     giving him notice of who would be present, which exposed him to potential embarrassment in front of Mr Renko and the team leader, and led to an extremely unfair situation, which was similar to the meeting on 11 January 2011 when there were three against him and, perhaps more importantly, nobody with him;
(c)     giving him notice that the meeting was to discuss the transfer, which was unfair because it deprived him of the opportunity to prepare his arguments against the transfer and, as Mr Moffet submitted, effectively ambushed him, and
(d)     inviting him to have a union delegate and/or a co-worker present, which was unfair because there had been communication issues between Mr Markovski and management in the past, noting that English is not Mr Markovski’s first language, which were largely overcome when Mr Markovski had a support person present (and proper notice of the issue(s) to be discussed).
It may well be that, had BlueScope taken the above steps, Mr Markovski may still have suffered an adverse reaction to the decision. That is not the point. The issue is whether what was done was reasonable. Having regard to the history between parties, it was not.
It follows that, even though the decision to transfer Mr Markovski was reasonable, viewing the “whole process” (Spigelman CJ (Hodgson and Bryson JJA agreeing) in Sinclair at [97]), particularly the action with respect to the implementation of transfer on 5 January 2012, which was the predominant cause of the psychological injury, BlueScope’s action with respect to the transfer was not reasonable and the s 11A defence is not made out.

CONCLUSION

The Arbitrator erred in his conclusions on both of the issues argued on appeal. Having re-determined the matter, I have found that the whole or predominant cause of Mr Markovski’s psychological injury was the action with respect to transfer in the meeting on 5 January 2012. However, as that action was not reasonable, it follows that, for the reasons given in this decision, the result is the same as that reached by the Arbitrator, namely, BlueScope has not made out its defence under s 11A and Mr Markovski is entitled to the compensation awarded by the Arbitrator.

DECISION

For the reasons given in this decision, the Arbitrator’s determination of 11 September 2013 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Deputy President

17 December 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE