BMT v Bank of Queensland Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BMT v Bank of Queensland Ltd [2023] NSWPIC 519
APPLICANT:	BMT
RESPONDENT:	Bank of Queensland Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	29 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in respect of psychological injury; worker stood down following allegations of misconduct; whether pressure to resign before disciplinary investigation concluded; credibility; whether injury pursuant to section 4 and section 11A(3); whether defence pursuant to section 11A(1) made out; Held – the applicant sustained a psychological injury which was predominantly caused by reasonable action with respect to discipline; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

BMT (the applicant) was employed by Bank of Queensland Ltd (the respondent) between January 2021 and March 2022. The applicant claims to have sustained a psychological injury arising out of or in the course of his employment with the respondent.
Liability for the injury was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 18 October 2022.
The decision to dispute liability was maintained in further notices issued on 20 December 2022 and 20 February 2023.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 27 June 2023.
The applicant seeks weekly compensation for the period from 29 March 2022 to
13 September 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 5 September 2023 in Sydney. The applicant was represented by Mr Ross Stanton of counsel, instructed by Ms Katherine Elias. The respondent was represented by Mr Justin Hart of counsel, instructed by Ms Stella Kwang. A representative from the insurer was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a psychological injury pursuant to ss 4 and 11A(3) of the Workers Compensation Act 1987 (the 1987 Act);
(b) if so, whether that 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 discipline and / or dismissal pursuant to s 11A(1) of the 1987 Act, and
(c) the extent and quantification of incapacity resulting from injury during the period from 29 March 2022 to 13 September 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Applicant’s written evidence

The applicant’s evidence is set out in a written statement made by him on 24 May 2023.
The applicant disclosed a number of pre-existing medical conditions but said he was generally in good health and “had no pre-existing psychiatric problems” prior to the subject injury.
The applicant said that in early 2022, he was on leave from his employment, but doing some work remotely. The applicant received communication from his manager to stop work and not to contact one of his assistants, as she had gone on leave. The applicant was confused about the situation and contacted another assistant to enquire about it. The applicant was told that his assistant was not actually on leave.
Later on, the applicant received a call from his manager telling him not to turn up for work as he had been stood down with pay. At the time he received the call, the applicant had already gotten ready for work and was about to leave for the day.
The applicant said,
“My manager did not conduct any welfare checks after h[er] phone call and did not refer me to any organisations that could provide me with some psychological support.
My manager, later-on, provided me with a list of false allegations regarding bullying and harassment that had been made by my assistant. I was intending to challenge those allegations in the meeting.
My manager told me that if I was to be found guilty, my career with any bank would be over as I would be "blacklisted" and that it was in my best interest to resign as I could not be proven guilty.
The subject incident resulted in the deterioration of my mental state because of the unreasonable manner of the employer in dealing with this situation.”
The applicant described a number of symptoms and disabilities resulting from the injury. The applicant said he was prescribed antidepressants such as mirtazapine but was no longer taking any medication. The applicant was also referred to a psychiatrist but did not end up attending any consultations. The applicant had attended his general practitioner for treatment.
The applicant resumed employment with a different employer in January 2023.

Applicant’s oral evidence

The applicant gave oral evidence under oath during cross-examination at the arbitration hearing on 5 September 2023.
The applicant was referred to his written statement and confirmed that he believed it to be true and correct. Asked about his evidence that he had no pre-existing psychiatric problems, the applicant said he did once see a doctor but it was nothing major. The applicant had a chat with the doctor and said he wasn’t feeling too good mentally. The applicant was referred to a psychiatrist but did not go ahead with the appointment as he did not see the need.
The applicant agreed that this should have been disclosed in his statement evidence but said he had just gone to the doctor for a check-up when this came up and he did not see it as a major issue. The applicant said his lawyers had access to his health records and he did not set out every occasion on which he had been to the doctor in the statement.
The applicant did not recall whether he was prescribed anti-depressant medication prior to the work injury.
The applicant was referred to his evidence that when he was contacted about the work complaints no-one told him he could access psychological support. The applicant agreed that he was told about the Employee Assistance Program (EAP) but only after he had resigned. The applicant said his manager did not tell him he could access psychological support or conduct any welfare checks before he resigned although the organisation did later give him a number he could call.
On further questioning, the applicant conceded that he did in fact contact the EAP service but did not recall how he came to know about it, saying it was possibly through Human Resources.
The applicant maintained that his statement was correct as his manager did not tell him about the EAP service. The applicant did not agree that his statement was misleading insofar as it gave the impression that he did not receive any psychological support.
The applicant was referred to an email from his manager, dated 18 March 2022, which stated that the EAP provider, Benestar, would remain available to him for four weeks after separating from the company. The applicant said this email was sent after the conversation with his manager in which she said it was in his best interests to resign.
The applicant was asked whether he agreed that he did not resign until 29 March 2022. The applicant said he had verbally resigned in the phone call with his manager immediately before the email was sent. He then sat on it for a while before resigning in writing.
It was put to the applicant that his evidence that his manager told him to resign or he would be blacklisted was not true. The applicant responded that his manager never said he would be blacklisted but basically persuaded him to resign because there was a good chance he would be blacklisted if the matter went to hearing.
The applicant was asked whether he agreed that his account of the conversation was different to what was recorded in the manager’s email. The applicant responded that his manager was just covering her bases. The applicant denied making up the evidence that his manager said he would be blacklisted.
The applicant agreed that he had sent an email thanking the company when he resigned. The applicant said he was under the impression at that time that he was going to be looked after by the bank after he resigned.

Treating medical evidence

The clinical records of Clemton Park Family Medical Centre are in evidence.
On 9 April 2021, the applicant was seen, amongst other things, in respect a short period of very heavy drinking of “up to 20 drinks per day”.
On 1 October 2021, a consultation with Dr Quoc Dang was recorded as follows:
“binge drinking
lives byself,
need psychologist r/w”
The applicant’s alcohol consumption was discussed with Dr Dang again on
17 November 2021 although on 1 December 2021, it was noted that the applicant was doing better. The notes on that date recorded:
“r/w next year d/c psycholo r/w poor concentration ?/ learnning disorder”
On 28 January 2022, Dr Dang prescribed Mirtanza and prepared a referral to Dr Dorgival Caetano for psychiatric review, following a consultation in which he recorded:
“binge drinking, self destructive behavoiur
didn't do well in school
now passionate in jobs, took long time to pick up
work now for bank of queesland
lockdown ,poor sleep
…
feeling low depressed ,lockdown
insomnia
d/c psychia r/w”
In a consultation on 16 February 2022, Dr Thi Mai Thao Nguyen recorded:
“Request med cert
Stood down from work due to false allegation last tuesday
Meant to have work meeting this morning but feels like couldn't attend as too stressed - tired, 'run down'
Lawyer involved
Mood down, no ahedonia
Going to the gym
Sleep disturbed
Appettite reduced
Memory good
Concentration ok
Support from friends, lives alone
No past mental health issues
Psychologist through work - spoke last week, another check in call today”
Dr Nguyen gave the applicant a medical certificate certifying him as unfit to attend work from 16 February 2022 to 18 February 2022.
On 23 February 2022, Dr Vincent Nguy recorded:
“has been stood down from work about 2 weeks pending
feeling down and feels anxiety
feels depression a whole heap of worries
feeling worse compared to last week
passing thoughts of suicide but no plans
no self harm
can't sleep
waking up frequently throughout the night
feeling energy levels are low, feels run down
hasn't been eating
lost 10kg
has been trying to go for a walk but finding it hard
self help
- tries to get out of the house
- has a friend that has been supportive”
Dr Nguy issued a medical certificate certifying the applicant as unfit to attend work until
4 March 2022.
Dr Nguy recorded on 4 March 2022 that the applicant’s mental health was improving. Similarly, on 8 March 2022, Dr Annalise Szyc recorded that the applicant was feeling well and ready to return to work. Dr Szyc gave the applicant a letter certifying him as medically cleared to return to work.
On 11 March 2022, a general practitioner at a different practice, Kingsgrove Medical Centre, Dr Akash Goyal, prepared a letter addressed to the applicant’s manager, BLW, which stated:
“(1) BMT is not currently fit to partake in a virtual meeting to discuss his response to allegations of misconduct in the workplace as of today.
(2) It is my view following todays consultation that BMT is going experiencing reactive generalised anxiety disorder and reactive mood disorder, triggered by the stress of the allegations of misconduct. He will be referred to a psychologist to recieve counselling and support. I would expect him to be fit enough to participate in a meeting to review the allegations within a timeframe of 4-6 weeks.”
In a clinical note recorded on the same day, Dr Goyal noted:
“complex work situation
has been stood down
patinet states allegations against him
at work-texting/ touching inappropriately
also use of inappropriate words
co-worker-assistant”
On 13 April 2022, Dr Nguyen recorded:
“Lives alone
Drunk daily on own - 18 montsh drinks 8 - 9 hours continuously
Last alcohol sunday
Depressed since losing job 2 weeks ago”
The applicant was referred to “WellBe Counselling & Psychology”. A mental health care plan was prepared and the applicant prescribed Valium. A diagnosis of depression was recorded and the applicant referred to the James Blogg Drug and Alcohol Clinic.
On 27 April 2022, Dr Nguyen recorded:
“Sleeping well, eating ow
No further alcohol
3 job offers
Getting into routine now
Mood better, no ahedonia
Used valium with effect for sleep
…
Psychologist appointment early July”
On 19 July 2022 Dr Nguyen noted:
“Did not return to work as planned - was getting rejected
Anxiety worse with not working
Alcohol 4 days a week, binge drinks”
The applicant was prescribed mirtazapine and again referred to the James Blogg Drug and Alcohol Clinic.
On 9 August 2022, Dr Dang recorded a consultation as follows:
“lost job in march, stress out
insomnia ,poor concentration
Imo on antidepressant
unable to get job, was in medical finaces
was told to resign from manager, has met with solicitor >?? advise to look at worker compensation exercise
advise i don't do worker comp
recomemnd dr han thai”
The applicant consulted with Dr Han Thai on 15 August 2022, who prepared a SIRA certificate of capacity certifying the applicant as having no current work capacity from
16 February 2022 to 15 August 2022. The certificate gave a diagnosis of “alleged workplace bullying and harassment”. The injury was said to be related to work as follows:
“Stated that he was stood down from work due to false allegations - documented in clinical records.”
Dr Thai issued a further certificate on 26 September 2022, certifying the applicant as having no current work capacity until 13 September 2022. Dr Thai certified the applicant as fit to return to his pre-injury duties from 14 September 2022.

Dr Khan

The applicant relies on a medicolegal report prepared by consultant psychiatrist, Dr Abdal W Khan, dated 29 March 2023.
Dr Khan took a history that was broadly consistent with the applicant’s statement evidence, including:
“BMT said that he was not offered a formal meeting to have this discussion with his manager and he did not consider his manager’s unexpected phone call, which turned out to be disciplinary in nature, to have been reasonable. He reported how he had gotten ready for work and was about to attend that day. His manager did not conduct any welfare checks after this phone call and did not refer him for psychological support. BMT said that his manager later provided him with a list of allegations regarding bullying and harassment that had been made by his assistant. BMT maintained that the allegations were not true and he intended to fight the allegations in a meeting that had been planned with HR. He reported how the meeting date was set but then his manager called him for an “off the record” discussion. BMT said that his manager told him that if he was to be found guilty, his career with any bank would be over as he would be “blacklisted” and that it was in his best interests to resign as he could not be proven guilty. He reflected on how his entire career had been in various finance and banking roles and he could not comprehend how he would re-establish his career in another field. BMT said that he felt he had no option other than to resign.”
Dr Khan said that as a result of these aforementioned work-related stressors, the applicant experienced a gradual deterioration in his mental state.
Dr Khan noted that the applicant had been diagnosed by his general practitioner with an adjustment disorder with depressed mood due to alleged workplace bullying and harassment. The applicant was referred for psychological treatment but did not attend any consultations. The applicant was prescribed an antidepressant medication which he briefly trialled but ceased as it was his preference not to take any psychotropic medication.
Dr Khan said the applicant denied any pre-existing past psychiatric history. Dr Khan recorded that prior to the subject injury, the applicant consumed alcohol regularly with a pattern of drinking on weekends, mostly in a controlled manner with intermittent binges. Following the subject injury, the applicant’s alcohol use increased.
Dr Khan diagnosed a major depressive disorder with anxious distress in accordance with DSM-V diagnostic criteria. The condition was in partial remission. Dr Khan also diagnosed an aggravation of a pre-existing alcohol use disorder, also considered to be in remission.
With regard to the cause of the applicant’s condition, Dr Khan gave the opinion:
“In summary, he was subjected to allegations of bullying and harassment, which he considered to be false. BMT was confronted with this disciplinary matter by his manager who did not organise a formal meeting with a support person and did not provide him appropriate notice but instead contacted him via an unplanned phone call. When he intended to fight the allegations, BMT felt that his manager pressured him to resign otherwise he could be found guilty of the allegations and would likely be blacklisted from any employment in the banking sector. It is my opinion that the bullying and harassment BMT endured from his manager in relation to his manager’s dealing of an alleged disciplinary matter caused his psychiatric/psychological injury. I do not consider the actions of his manager to be reasonable as he was ambushed with allegations without an appropriate meeting and appropriate notice, he was not provided any welfare checks or psychological support, and he felt pressured to resign as he did not consider he had a reasonable chance to prove that the allegations against him were false.”
Dr Khan expressed disagreement with the opinion of the respondent’s independent medical examiner, Dr Judith Clarke, and stated that he did not find the applicant to be an unreliable historian.
Dr Khan noted that at the time of his report, the applicant had returned to full-time work in a position similar to his pre-injury employment and did not have any incapacity for work.

Respondent’s witness evidence

BNS

The respondent relies on statement evidence given by BNS, a Senior Employee Relations Specialist, People and Culture, dated 12 October 2022. BNS stated that she was not involved in managing the applicant but was able to provide details of company policy and processes regarding the handling of such complaints.
BNS stated that once a complaint is received, it is forwarded to the People and Culture section. The complaint is reviewed and an initial interview with the complainant conducted to determine whether a formal investigation is warranted. If a formal investigation is required, enquiries are made as to potential witnesses to the allegations. Witnesses are then interviewed. All employees, including the applicant, were aware of the assistance which the EAP could offer.
If an investigation is required, decisions need to be made with regard to the suspension or standing down of an employee until the investigation is finalised. This decision is not taken without thoughtful and appropriate consideration of all aspects of the investigation, including the seriousness of the nature of the allegations and the risk or concerns of the individuals involved.
In the present case, the applicant was the direct manager of the complainant and they worked in a close environment. They were in constant contact prior to the allegations coming to light.

If a decision is made to stand down an employee, the employee is informed that the standing down does not equate to the allegations being substantiated.
In the present case, the applicant was given the opportunity to respond to the allegations made against him prior to his resignation.

BLW

The respondent also relies on statement evidence prepared by BLW, the applicant’s manager, dated 15 December 2022.
BLW stated that BQM commenced employment as an assistant reporting directly to the applicant as her direct line manager in November 2021. BQM made a number of serious allegations against the applicant in relation to a range of issues including, sexual harassment, harassment and inappropriate behaviour. Management considered these allegations to be of an extremely serious nature and an internal investigation of the assertions was undertaken by the People and Culture section.
BLW said she was aware that the People and Culture section interviewed BQM and a number of other potential witnesses who had knowledge of the allegations.
In accordance with the respondent’s policy and procedures, the applicant was invited to meetings to review his written responses to the allegations and answer questions as part of the investigation. The applicant was informed of his ability to have a support person attend. The applicant did not attend any of the meetings.
Due to the seriousness of the allegations, it was determined that the applicant would be stood down. The applicant was suspended on full pay until the investigation was completed. BLW said she was aware that the applicant was provided with details of the EAP.
BLW said that although she did not make the decision, she believed that standing the applicant down with full pay was appropriate in all the circumstances and in accordance with the respondent’s policies and procedures.
BLW stated,
“Sometime thereafter, BMT brought to my attention that he intended to resign from BOQ and he asked me if I could give him a reference in relation to his employment with BOQ. I believed that it was not appropriate for me to give him a reference and accordingly I advised him that I was not willing to do so.”
BLW said that she advised the applicant that it would not be appropriate or proper for her to advise him further with regard to his intention to resign. BLW said this was confirmed in an email she sent to the applicant on 18 March 2022, which stated,
“Hi BMT,
Nice to hear from you BMT.
I would like to emphasise that it is entirely your decision if you would like to resign. No findings have been made on the allegations regarding your conduct and we would need to meet with you, when you are fit, before making findings and reaching an outcome.
If you do choose to resign from your employment prior, we would be comfortable to waive your notice period at your request meaning your employment would end effective immediately. You would be paid out any remaining annual leave entitlements.
Your separation would be recorded as a resignation on our records.
As well, our EAP provider, Benestar, will remain available to you for four weeks after you separate from the Company.
Please take the time to consider your decision and if you choose to resign, you will need to send a resignation letter to me for processing.
I hope this helps. Feel free to reach out if you have any questions."
BLW said she received an email from the applicant on 29 March 2022, which stated:
“Dear BLW
Hope you are well and keeping safe
I would like to resign from BOQS
I appreciate everything you and the business has done for me
Regards
BMT”
With regard to a number of comments made by the applicant, BLW responded,
“I am advised that BMT has made the assertion that I said to him, ‘Just resign’. In relation to this comment, this is not correct; I did not make that comment to BMT at any time and it would have been inappropriate for me to make a decision for him. I had clearly indicated to BMT, and he would have been fully aware that any decision he made in relation to his resignation would have to be made of his own volition, without any interference or outside advice.
BMT has also made the assertion that I said to him, ‘Just stand down now’. Again, in relation to this comment, I say that this is not correct; I did not make that comment to him at any time and it would have been inappropriate for me to do so as I have mentioned.
I have also been asked to comment on the following, ‘My Boss turned against me’. This is incorrect. I had an open mind as to the procedural investigation of the matter which had not come to a conclusion. I also reference BMT's resignation to me where he specifically thanked me and that he appreciated everything that I, and BOQ, had done for him.
I have also been asked to comment on the alleged conversation which he states I had with him concerning the EAP in which I said, ‘Once you have finished with them, you are gone’. Again, I did not have a conversation with him in relation to those words, and I did not say anything which could have been construed in that regard.
I have also been asked to comment on the conversation which BMT states I had with him concerning a reference in which I allegedly said to him, ‘I will give you the best reference in the world’. This is not true.”
BLW expressed the belief that the applicant was treated appropriately and with compassion during the entirety of the investigation.

BPE

In a written statement dated 12 December 2022, a Senior Wellbeing, Health and Safety Advisor, BPE, stated that she became aware of the allegations against the applicant and the subsequent investigation after the applicant submitted his workers compensation claim.
BPE stated that the applicant sent a text message/email to BLW on
18 March 2022 which read:
“From: BMT sss […]@hotmail.com
Sent: Friday, March 18, 202212:43pm
To: BLW […]@boq.com.au
Subject: BMT
Dear BLW
Hope your well and keeping safe
I would like to confirm the process and details if I was to resign from BOQS as I note there has been allegations made against me
Regards
Sent from my iPhone”
BLW sent an email in response in the same terms as set out in her own written statement.
BPE said the applicant was provided with contact details in relation to the EAP.
BPE expressed her belief that the respondent’s policies and procedures relating to harassment, sexual harassment, inappropriate conduct and bullying, which were in place at the time of the internal investigation of the matter, were properly adhered to.

Respondent’s records

Complaint

Amongst the materials attached to the Reply is an undated written complaint made by BQM. BQM stated that a couple of weeks to a month after she commenced employment with the respondent, the applicant began to make more regular, consistent and inappropriate comments to her. BQM initially brushed off the comments but began to feel frustrated and drained and tried to address the behaviour by diverting conversations, ignoring comments and eventually having a conversation with the applicant to make clear that she felt uncomfortable. Following that conversation, in January 2022, the applicant stopped making sexual/flirtatious comments but continued to call BQM excessively.
BQM listed specific examples and dates of inappropriate communications and attached screenshots of text message conversations and call logs.

Interview – BQM

A confidential file note of an interview with BQM on 31 January 2022 indicated that
BQM had contacted the People and Culture team the previous week to discuss concerns about the applicant making inappropriate comments. The complaints were being taken seriously and an investigation was being conducted to confirm the nature of the allegations and establish whether, if the allegations were substantiated, any misconduct had taken place. Recommendations would be made on the appropriate course of action based on the findings of the investigation.

Interview – BQT

A further confidential file note of an interview with BQT on 4 February 2022 is attached to the Reply.
BQT confirmed that the applicant had behaved unprofessionally at a lunch on 17 December 2021 by drinking excessively. BQT said the applicant did not behave inappropriately towards herself or call her excessively. BQT said she had not witnessed the applicant making inappropriate comments to BQM or anyone else at work.

Correspondence to applicant, 8 February 2022

On 8 February 2022, a letter marked private and confidential was sent to the applicant from BGY, Senior Employee Relations Specialist. The letter referred to a conversation with BLW on the same day in which in which the applicant was informed that the respondent had received a formal complaint of harassment and inappropriate behaviours against him. The applicant was advised that a formal investigation to gather information and evidence in relation to the complaint was being conducted in accordance with the Harassment, Discrimination and Bullying Standard.
The applicant was advised that he was required to attend a formal meeting to discuss and respond to these issues.
Details of the allegations were provided. In particular, it was alleged that the applicant had made a number of inappropriate comments of a sexual nature towards BQM. Seven examples of such comments were provided. It was alleged that following a conversation where BQM expressed that she felt uncomfortable, the applicant continued to engage in unwelcome and unprofessional conduct. Examples of such conduct, including the dates on which relevant events occurred, were listed. It was alleged that the applicant had behaved inappropriately during a work lunch on 17 December 2021 and had attended work while under the influence of alcohol, impacting on his ability to perform his role on four occasions. It was alleged that the applicant had sent BQM multiple inappropriate text messages since December 2021. The dates of the text messages and extracts from the text messages were provided.
The letter indicated that, if substantiated, the issues would constitute a breach of the respondent’s policies and procedures. The particular policies were identified.
The applicant was advised that the respondent considered the matters raised in the letter to be serious and, if substantiated, may result in formal disciplinary action, up to and including termination of employment.
The applicant was asked to respond to the allegations in writing and also attend a formal meeting to discuss the issues. The applicant was asked to email a written response prior to the meeting by 10am on Thursday 10 February 2022. The meeting was proposed to take place via Microsoft Teams at 3pm on 10 February 2022.
The applicant was advised that BLW would be attending the meeting and that the applicant could bring a support person.
The applicant was advised that in order to allow time to appropriately respond in writing to the allegations, the applicant was not required to attend the workplace until the formal meeting. The letter stated that the applicant would remain on full pay during this time. The applicant was advised that this direction was not a determination of the finding in this matter.
The applicant was asked to maintain confidentiality in relation to the matters and asked not to discuss them with anyone other than BGY, BLW, People and Culture or his support person.
The applicant was reminded of the confidential counselling service provided by the EAP and provided with the telephone number.

Written response to allegations

An undated, unauthored document contains written responses to the allegations contained in the letter dated 8 February 2022. In that document, the applicant appears to indicate his belief that the majority of allegations were false. The applicant said it was not unusual for him to call BQM or vice versa many times as BQM was new to her role and was his assistant. As they had been working from home, continuous communication was necessary.

Interview – BSU

A confidential file note of an interview with BSU on 14 February 2022, indicates that BSU had been identified as a potential witness. BSU said the applicant had had a fair bit to drink at the lunch on 17 December 2021 and she had taken his access pass from him as she was worried he would lose it and she didn’t want him to go back to the office.
BSU was asked whether she had noticed the applicant appearing under the influence of alcohol at work. BSU said she had been worried about the applicant and had asked the state manager to give the applicant a call. There were times where he just wasn’t himself on the phone.
BSU denied noticing the applicant make inappropriate comments to BQM or anybody else in the workplace.

Correspondence to Dr Szyc, 11 March 2022

On 11 March 2022, BLW wrote to Dr Annalise Syzc, stating:
“On 8 February 2022, BMT was informed that BOQ Group were commencing an investigation into allegations of misconduct in the workplace and he was provided with the details of the allegations. BMT has been unwell since 11 February 2022 and unable to participate in a meeting to discuss his responses to the allegations. On 8 March 2022, you provided a medical certificate to confirm that BMT was fit to return to work and we rescheduled a meeting with him for 11 March 2022. BMT has advised he is unwell and unable to participate in our scheduled meeting.”
Dr Syzc was asked to prepare a report, at the respondent’s expense, with regard to the applicant’s fitness to participate in a virtual meeting to discuss the allegations of misconduct. If the applicant was fit to participate in the meeting, Dr Syzc was asked to identify any symptoms or triggers that the respondent should be aware of as part of that process.

Resignation email

On 29 March 2022 at 6:57am, the applicant sent an email to BLW communicating his resignation and expressing appreciation for everything BLW and the business had done for him.

Policy document

Also attached to the Reply was a copy of the respondent’s Harassment, Discrimination and Bullying Standard.

Dr Clarke

The respondent relies on medicolegal reports prepared by consultant psychiatrist, Dr Judith Clarke, dated 2 December 2022 and 13 February 2023.
In her first report, Dr Clarke reported that the applicant gave a history of being contacted on
8 February 2022 to advise of a formal meeting on 10 February 2022 in relation to allegations of sexual harassment and attending work intoxicated. The applicant strongly and repeatedly denied the allegations. Dr Clarke recorded:
“He reported that after being advised of the meeting, ‘my head was just going into overdrive’, and he experienced middle insomnia, as a result he didn’t attend the meeting. Over the next weeks he was briefly certified fit for work but was stood down at the time so didn’t return to work and then deteriorated prior to the rescheduled meeting such that he was unfit again. He later resigned, which he said was because he was told to.
…
He described the allegations against him as ‘heartbreaking’ and said that they were ‘still affecting me mentally’, and he was seeking ‘justice’.”
Dr Clarke recorded that the applicant repeatedly stated that he did not have problems with alcohol and that concerns expressed by others in relation to his alcohol use were unwarranted:
“He denied alcohol ever being a problem for him and said the motivation to stop drinking was for a healthier lifestyle overall and was combined with a change in diet, rather than specific alcohol-related concerns.”
The applicant denied any mental health history.
Dr Clarke gave the opinion that the applicant had described a cluster of symptoms associated with work related stress, increased by being subject to serious allegations which he maintained were false and the impact of those on his livelihood and career.
Dr Clarke commented:
“The subpoenaed General Practice notes document significant alcohol use problems, most significantly those by Dr Nguyen on 13th April 2022 which include documentation of “18 months drinks 8-9 hours continuously”, scleral jaundice, and symptoms of alcohol withdrawal. At this time, he was referred to drug and alcohol specialist Dr J Blogg, a referral that was reissued in July. The included blood results are also suggestive of alcohol misuse, which when combined with the workplace allegations relating to alcohol raise serious concern about the veracity of the information provided by BMT on examination.
Whilst it is possible that the only misrepresentation relates to alcohol use, I am not able to assume this and thus am unable to rely on any history provided by BMT. Furthermore, alcohol use disorder can both cause and exacerbate the symptoms described today and I am unable to attribute the described symptoms to his employment.”
Dr Clarke gave the opinion that an alcohol use disorder predated any subsequent injury that may have arisen. The history given by the applicant prevented confirmation of him having any injury.
In her supplementary report dated 13 February 2023, Dr Clarke was asked whether, in the event it was determined that the applicant suffered a work-related injury, such injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the employer with respect to any of the actions under s 11A(1) of the 1987 Act. Dr Clarke responded:
“Were such a finding to be made by the Personal Injury Commission, this would confirm that my detailed concerns about the veracity of his provided history were warranted as such a finding is not consistent with the history BMT provided during my examination.
Within these limitations, it is my opinion that the predominant work-related stressor was actions taken under section 11A. This is because during my examination,
BMT detailed experiencing acute distress when advised of the allegations made about him and repeatedly referenced embarrassment and a sense of injustice about the consequences of these allegations and how they were managed.”

Respondent’s submissions

The respondent identified the critical issue in the proceedings as whether the s 11A(1) defence was discharged. The respondent noted that no reliance was placed on action with respect to dismissal as it was clear on the evidence that the applicant resigned and was not dismissed.
With respect to discipline, the respondent referred to the comments of Sackville J in Northern New South Wales Local Health Network v Heggie[1] (Heggie) that the whole of the process was to be considered. The applicant’s perceptions of whether the process was reasonable or not reasonable were irrelevant. The test was an objective one. The disciplinary process did not have to reach the standard of perfection just reasonableness.
[1] (2013) 12 DDCR 95; [2013] NSWCA 255; BC201311746.
The respondent submitted that the materials before the Commission demonstrated that the applicant was afforded natural justice. A junior staff member made serious allegations against her superior, the applicant. The complaint was sufficient to give rise to the disciplinary process that followed.
The written communication with the applicant did not indicate that any finding of misconduct had already been made. After the complaint was made and a series of confidential interviews conducted, detailed allegations were put to applicant. The applicant was notified of the process that would be followed and what the potential outcomes could be. The applicant was asked to respond in writing, advised he could have a support person and reminded of his ability to contact the EAP service.
On receiving this correspondence, the applicant contacted his general practitioner, and later resigned, sending his employer an email thanking them. Nothing in that procedure was flawed.
Although the applicant had given evidence that he was told he should resign, that evidence was contradicted by the respondent’s witnesses.
The respondent submitted that the applicant was not a witness of credit and his evidence should not be believed unless corroborated. The respondent submitted that the applicant’s evidence under cross-examination was that before the injury he consulted a general practitioner and was referred to a psychiatrist. The applicant’s denial of having any previous mental health problems in his written statement did not sit well with the treating evidence.

The respondent noted that the applicant had claimed in his statement that he was not referred to the EAP. Under cross-examination, however, he accepted that he was referred to the EAP and in fact consulted them. The applicant’s statement was silent as to that fact. The applicant’s oral evidence was that his manager did not tell him about the EAP. However, on being shown the email dated 18 March 2022, the applicant accepted that he had received the email and that it referred him to the counselling service.
Regarding the claim that the applicant’s manager told him he would be blacklisted and should resign, the respondent submitted that given the omissions and incorrect evidence in his statement, the applicant’s evidence would not be believed. The applicant’s evidence was refuted by his manager and inconsistent with his own email thanking the business.
The respondent submitted that all of the medical evidence suggested that the injury arose from the disciplinary process. There was no real dispute regarding the whole or predominant cause of the injury. The real issue was the reasonableness of the disciplinary action.
No finding had ever been made that the applicant engaged in the things he has been accused of. The respondent need not establish misconduct. It was enough that there was a complaint which was appropriate to investigate.
The respondent referred to the statement evidence of BNS that if evidence was provided which identified a breach of policy and a formal investigation was required, inquiries would be made as to potential witnesses to the allegations of breach of policy. During the investigation, the applicant was stood down without prejudice on full pay. The respondent submitted that it was appropriate, having regard to the allegations, that the applicant was stood down and removed from the work environment.
The witness statement of BLW indicated that management considered the allegations to be of an extremely serious nature and accordingly an internal investigation was undertaken by the People and Culture section.
The respondent submitted that the high point of the applicant’s case was that he was told he would be blacklisted if he did not resign. BLW’s evidence was that the decision to resign was the applicant’s own decision. No findings had been made at this point and nothing in the contemporaneous documents indicated that the applicant was being pressured to resign. The respondent submitted that the Commission would prefer BLW’s evidence over that of the applicant.
BLW’s evidence was consistent with the contemporaneous material, including the applicant’s own response. No attempt had been made by the applicant to have BLW cross-examined, despite being on notice of her written evidence.
The respondent referred to the letter to the applicant dated 8 February 2022 and submitted that it detailed, in specific terms, all of the allegations and who made the allegations. The applicant was on notice of what was said against him.
The letter explained why each allegation would, if founded, constitute a breach of the employer’s policy. The applicant was put on notice that the allegations were serious and what would happen if he was found to have engaged in the relevant conduct. The applicant was asked to respond in writing, attend a meeting in two days and told he could have a support person. The applicant was reminded of the EAP service. The respondent submitted that no deficiency in the process could be identified and it was unimpeachable.
The applicant never returned to work because he resigned.
If there was a work-related injury, it was caused by a disciplinary process that was entirely reasonable.
Turning to the medicolegal evidence on the question of injury, the respondent submitted that the Commission would prefer Dr Clarke over Dr Khan. Dr Khan took a history that denied any diagnosed pre-existing psychological condition. The respondent submitted that the climate in which Dr Khan gave his opinion was flawed. Dr Khan descended into the Commission’s arena in giving a view as to reasonableness of the disciplinary action. This indicated that
Dr Khan was lacking objectivity.
Dr Clarke suggested there was a pre-existing alcohol use disorder. The clinical notes in January 2022 disclosed that the applicant was feeling low and depressed. The applicant was prescribed Mirtanza. The applicant received notice of the complaint less than two weeks later on 8 February 2022. That history was not disclosed to Dr Khan.
The respondent submitted that the applicant would not be able to discharge his onus of establishing a work injury based on a history that was false and incomplete. The respondent submitted that the Commission would not place weight on Dr Khan’s report and prefer the view that the applicant’s pre-existing disorder was not impacted by work.

Applicant’s submissions

The applicant noted the respondent’s submission that he was not a witness of truth was based on two aspects of his statement.
In relation to the evidence that his manager did not conduct any welfare checks or refer him to any organisations that could provide him with psychological support, the applicant had clarified under cross examination that he was referring to BLW. The information about the EAP came from people other than BLW. The applicant never asserted that he did not receive assistance. He simply stated that he did not receive that advice from BLW before he resigned. It was a step too far to suggest that the applicant was lacking in credibility based on this aspect of his evidence.
In relation to his statement that he had no pre-existing psychiatric problems, the applicant submitted that the word “problems” connoted something ongoing or of significance. The applicant recalled discussing feeling depressed with his general practitioner on one, isolated occasion. He received a referral for specialist review but never acted on the referral. The reference to “problems” suggested something recurring or persisting and not transient. The respondent was drawing a long bow to impugn the applicant’s evidence as a whole, based on one consultation with a general practitioner on one occasion.
The applicant noted that Dr Khan’s opinion had been attacked on the ground that it was not given in a fair climate. The applicant submitted that the history was not required to be perfect. Dr Khan was aware of the pre-existing problem with alcohol use. The prior history was apparent from the general practitioner’s records.
The applicant noted that Dr Clarke diagnosed an alcohol use disorder rather than a major depressive disorder. Dr Clarke had failed to grapple with the fact that the applicant was working full time and functioning until the workplace events in 2022. Rather than giving proper weight to the facts, Dr Clarke had seized upon an issue and her opinion would not find favour with the Commission.
In relation to the issue of incapacity, the applicant noted that although the certificate of capacity issued by Dr Thai was backdated, it extracted the general practitioners’ notes over the course of the previous six months. These disclosed symptoms of depression and an increase in the applicant’s alcohol use. The circumstance was explained by the fact that the applicant’s previous doctor did not do workers compensation matters. Dr Thai engaged in forensic diligence in giving his opinion as to the applicant’s past capacity for work.
The applicant submitted that the report from Dr Goyal would also be accepted.
The applicant had resumed employment by the time he was seen by Dr Khan and Dr Clarke. The applicant submitted that the Commission would be guided by the treating evidence and find the applicant was entitled to weekly compensation pursuant to ss 36 and 37 of the 1987 Act at the statutory maximum rate.
The applicant submitted that the only significant issue in the case was the s 11A(1) defence. The applicant submitted that the quality of the disciplinary process was in issue. Although the process started off commendably and envisaged that a meeting would take place, where the applicant would have an opportunity of responding to the allegations, the process was not allowed to run its proper course. The meeting never took place because the applicant resigned after a telephone call with BLW. BLW’s own email sent after that conversation confirmed that resignation had been discussed. The Commission would have no difficulty in accepting the applicant’s account of being given the unpalatable option of proceeding down the proper process path or just resigning to avoid future problems.
Referring to BLW’s email of 18 March 2022, the applicant submitted that there was clearly a conversation about resignation prior to any meeting to discuss the allegations. The email was entirely consistent with the applicant’s account of the conversation. If resignation had not been discussed, it was unclear why BLW would refer to it.
It was at this point that the disciplinary process fell apart. The employer put the applicant under sufficient pressure that he resigned. That did not constitute reasonable action. In effect, punishment was meted out before the meeting could be held or any determinations made. The disciplinary process became unreasonable and the s 11A(1) defence would fail.

Respondent’s submissions in reply

The respondent submitted that there was a factual dispute between the parties as to whether the applicant was pressured to resign. The respondent accepted that there was a discussion between the applicant and BLW but disputed that she placed pressure on the applicant to resign.
The respondent submitted that the applicant’s version of events would not be believed owing to his lack of credibility. The applicant’s statement evidence was clearly misleading in its attempt to give the impression that he had not been provided with any opportunity to use the EAP service. The applicant did not resign until well after the email in which BLW herself referred the applicant to the EAP. To the extent of any conflict, the Commission would not prefer the applicant’s account.

FINDINGS AND REASONS

Injury

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
In Attorney General's Department v K[2] (K) Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
“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.”
[2] [2010] NSWWCCPD 76.
It is the applicant who bears the onus of establishing on the balance of probabilities that
he sustained an injury which satisfies the requirements of ss 4 and 11A(3) of the 1987 Act.
The applicant has provided evidence in the form of clinical records, certificates of capacity, reports from his general practitioners and a medicolegal report from a consultant psychiatrist in support of his claim to have sustained a psychological injury in the course of or arising out of his employment with the respondent.
The contemporaneous treating evidence does confirm that the applicant reported increasing psychological symptoms around the time that he was stood down on 8 February 2022 and was required to attend a meeting to discuss the allegations that had been made against him.
The applicant’s statement evidence and the histories provided to the medicolegal experts did not disclose a history of prior psychological symptoms. It is evident from the clinical records, however, that shortly prior to the events in February 2022, the applicant consulted his general practitioner, reporting symptoms of depression and had been prescribed antidepressant medication and referred for psychiatric review. The records also confirm that the applicant had previously discussed his alcohol use with his general practitioners.
The applicant’s own expert, Dr Khan, was aware of the pre-existing history of alcohol misuse and diagnosed an aggravation of a pre-existing alcohol use disorder as well as a major depressive disorder with anxious distress in accordance with DSM-V diagnostic criteria.
The respondent’s expert, Dr Clarke, declined to diagnose an injury on the basis of what she considered an unreliable history provided to her by the applicant. In particular, Dr Clarke considered the applicant’s denial of any alcohol misuse to be unreliable in light of the clinical records of his general practitioner. Dr Clarke agreed that the applicant had an alcohol use disorder, which predated the workplace events. Although she was not prepared to find an injury caused by the workplace events, she did report that the applicant had described increased psychological symptoms in response to those events. Dr Clarke was not prepared to attribute the increased symptoms to employment as opposed to the alcohol use disorder.
The respondent has submitted that Dr Clarke’s opinion with regard to injury would be preferred over that given by Dr Khan on the basis that Dr Khan’s opinion was founded upon an incorrect history with regard to pre-existing psychological symptoms. The applicant’s credibility was impugned generally with the respondent identifying potential inconsistencies between the applicant’s oral and statement evidence and the documentary evidence in relation to this and other issues.
After weighing the evidence, I have considerable hesitation in accepting Dr Khan’s diagnosis of a major depressive disorder in the absence of the history of a referral for psychiatric review and the prescription of medication only a few weeks prior to the relevant workplace events. Although the applicant gave oral evidence that he did not attend any consultation with the psychiatrist and could not recall being prescribed medication, the fact that a referral and prescription were made suggests some significance to the symptoms reported to the general practitioner. Temporally, those symptoms were relevant. The factual evidence in the proceedings also suggested that concerns about the applicant’s behaviour or demeanour had been noted by others including, BQM and BSU prior to the workplace events.
The contemporaneous medical evidence does, however, support a finding that the applicant experienced an identifiable increase, intensification or change in his psychological symptoms after being stood down on 8 February 2022. The applicant was certified unfit to attend work or a meeting to discuss the allegations, which had not been the case previously. The applicant commenced a trial of medication. The symptoms described in the clinical notes included new symptoms not previously recorded. A mental health care plan was prepared.
The contemporaneous materials consistently identify the workplace events on and from
8 February 2022 as the trigger for the increased or intensified symptoms. No other causative factor is identifiable on the evidence.
In these circumstances I am satisfied that there was, at least, an aggravation of a pre-existing alcohol use disorder, to which the workplace events on and from 8 February 2022 were the main contributing factor for the purposes of s 4(b)(ii) of the 1987 Act.
I It is probable that the increased or new symptoms also gave rise to a new psychological condition or aggravation of some other pre-existing psychological condition. I note, for example, that the applicant was diagnosed with a generalised anxiety disorder and reactive mood disorder by Dr Goyal in March 2022. The clinical notes and mental health care plans of Dr Nguyen included a diagnosis of “depression” in addition to “alcohol misuse” in the context of the applicant “losing” his job. Without a proper history of the pre-existing symptoms, however, I am not satisfied that Dr Khan’s second diagnosis of a major depressive disorder is reliable.
It is not necessary, however, for precise findings to be made as to a secondary diagnosis. It is sufficient for present purposes that I am satisfied that the applicant sustained a psychological injury which satisfied the requirements of ss 4 and 11A(3).

Section 11A(1)

A psychological injury which meets the statutory definitions will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:
“(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.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[3]
[3] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Hamad v Q Catering Ltd[4] (Hamad), Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[4] [2017] NSWWCCPD 6.

The test of reasonableness is an objective one.[5] In Commissioner of Police v Minehan[6] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[7]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[5] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[6] [2003] NSWCA 239.
[7] (unreported 18 June 1998).
In Heggie, Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii)If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
There is no dispute between the parties that the events which were causative of the applicant’s injury are appropriately characterised as action taken or proposed to be taken by or on behalf of the employer with respect to discipline.
The evidence indicates that the symptoms of injury commenced around the time the applicant was stood down and advised of the allegations made against him. The first medical evidence of the injury in the clinical note of 16 February 2022 referred to the applicant requesting a medical certificate after being stood down from work due to false allegations the previous Tuesday. Elsewhere in the respondent’s factual evidence, there is reference to the applicant being unwell since 11 February 2022.
The applicant has described the circumstances in which he was stood down and advised of the allegations in his statement evidence. The applicant’s evidence suggested that he was confused and surprised by a call received from his manager as he was about to leave for work, in which he was advised that he had been stood down with pay. The applicant complained of the manager not conducting any welfare checks or referring him to organisations that could provide him with psychological support. The applicant also referred to being provided with a list of allegations of bullying and harassment, which he considered to be false and which he intended to challenge.
The respondent’s evidence confirms that the applicant did have a telephone conversation with his manager on 8 February 2022 in which he was informed that the respondent had received a formal complaint of harassment and inappropriate behaviours against him. Nothing in the respondent’s evidence indicates that the applicant’s manager conducted welfare checks thereafter or referred to the applicant to any psychological support service in the course of that phone call.
I am satisfied, however, that the very same day, the applicant was sent a letter from
BGY, which did refer the applicant to the EAP counselling service and provided him with their telephone number.
That same letter advised the applicant that an investigation to gather information and evidence in relation to the complaint was being conducted in accordance with the employer’s policy. Clear particulars of the allegations, with sufficient detail to enable a meaningful response, were provided. The applicant was invited to respond to the allegations both in writing and at a formal meeting. The applicant was advised he could bring a support person to the meeting. The applicant was advised that he was not required to attend for work so as to give him time to prepare a response.
The applicant was advised of the manner in which the allegations, if substantiated, would constitute a breach of the respondent’s policies and the consequences of such a finding. The letter made clear that the applicant would remain on full pay and that this direction was not a determination of the complaint.
It appears from the materials that the applicant did prepare a written response to this letter in which he denied the allegations. The formal meeting did not, however, take place due to the applicant being unwell and later, resigning.
The materials lodged by the respondent indicate that the employer responded flexibly to the applicant’s psychological condition, postponing the meeting until he was well enough to attend. Enquiries were made of the applicant’s general practitioner as to how the applicant could be supported if he was able to attend.
Although the applicant considered the allegations made against him were false, the respondent’s evidence demonstrates that the allegations were put to the applicant after a detailed complaint supported by documentary evidence was made. The complainant and at least one other witness were interviewed before a determination was made to commence an investigation.
The allegations were, objectively viewed, of such a nature as to warrant an investigation. The decision to stand the applicant down on full pay was also reasonable having regard to the nature of the complaint and the working relationship between the applicant and the complainant.
The respondent’s evidence demonstrates that the handling of the complaint took place generally in accordance with the respondent’s documented policy for handling such complaints.
Whilst the applicant may well have perceived that he was ambushed by the allegations and the decision to stand him down, that the allegations were false, that the respondent’s actions were unreasonable and that his manager could have done more to support him, I am satisfied that the respondent has demonstrated that the disciplinary process up to this point was objectively reasonable.
The applicant submitted at arbitration that the process fell apart during a phone call between the applicant and his manager, BLW, in which the applicant was put under pressure or encouraged to resign before the disciplinary investigation was allowed to run its course.
The evidence confirms that there were communications between the applicant and BLW on or around 18 March 2022 in which the prospect of the applicant resigning was discussed.
The evidence from BPE, which has not been challenged by the applicant, indicates, however, that the applicant sent BLW an email at 12.43pm on 18 March 2022 in which he indicated that he wished to confirm the process and details if he were to resign.
BLW responded to the applicant’s email indicating that it was entirely the applicant’s decision if he would like to resign and that no findings had been made on the allegations. It was indicated that if the applicant did resign his separation would be recorded as a resignation on the respondent’s records. The applicant was advised that if he did choose to resign, he would need to send a resignation letter. The applicant was advised that the EAP service would remain available to the applicant for four weeks after the separation.
It is not clear whether the telephone conversation described by the applicant took place before or after these email communications. However, nothing on the face of these email communications indicates that the applicant was pressured or encouraged to resign.
The emails suggest that the prospect of resignation was first raised by the applicant rather than BLW and that he approached her to discuss the matter. BLW’s email in reply makes clear that the decision to resign would be applicant’s own and that no findings had been made with respect to the allegations. The applicant was advised to take time to consider his decision. A written resignation was not received until 29 March 2022.
BLW’s statement evidence appears to be consistent with there having been a telephone conversation with the applicant in response to his email. BLW has, however, denied pressuring or encouraging the applicant to resign. BLW said she told the applicant that it would not be proper or appropriate for her to advise him in this regard and that any resignation would be his own decision and choice. BLW denied saying to the applicant that he should “just resign” or “stand down now”. BLW also denied offering to give the applicant a good reference if he resigned.
The contemporaneous email communications between the applicant and BLW around this time are therefore consistent with BLW’s statement evidence.
The applicant was adamant in his oral and written evidence, as well as in the histories provided to the medicolegal experts that BLW did pressure or tell him to resign as he would be “blacklisted” if findings were made against him. It was suggested that certain offers or undertakings were made were he to do so.
There is, therefore, a factual dispute between the parties with regard to this issue. The respondent submits that BLW’s evidence would be preferred owing to the applicant’s evidence lacking credibility in other aspects.
It is possible to view the applicant’s statement evidence as technically, factually correct, if it is accepted that the word “problems” connoted a significant ongoing psychiatric condition; and if it is accepted that BLW did not refer to the applicant to the EAP before he verbally resigned on 18 March 2022. I do, however, accept the respondent’s submission that the applicant’s statement evidence is, at least, misleading insofar as it gives the impression that he had no previous psychological symptoms warranting medical intervention and that he was not offered any psychological support by the respondent.
The evidence clearly establishes that the applicant had sought medical advice in relation to psychological symptoms and alcohol misuse as recently as a few weeks before being advised of the allegations made against him. It is also clear that the applicant was both advised of the availability of the EAP service on the same day as being notified of the allegations and in fact access the EAP service. The history and opinion recorded by Dr Khan also gives the impression that the applicant was not offered any formal meeting to discuss the allegations and was not offered a support person, which is inconsistent with the contemporaneous evidence attached to the respondent’s Reply.
These significant omissions painted a misleading picture of the relevant events, which leads the Commission to doubt the reliability of the applicant’s evidence with regard to the conversation with BLW about his resignation.
Whilst I would be prepared to accept that a conversation about resignation took place in which there may have been some discussion about the possible implications of an adverse finding against the applicant as a result of the disciplinary investigation, I am not satisfied, considering the evidence as a whole, that the applicant was placed under any pressure or otherwise encouraged by BLW to resign.
I am not satisfied that any conversation between the applicant and BLW rendered the disciplinary process as a whole unreasonable.
Even if I am wrong in making this finding, I would not be persuaded that the s 11A(1) defence should fail on account of such a conversation. The contemporaneous treating evidence does not suggest that any such conversation was a significant cause of the applicant’s psychological injury. Rather, the evidence confirms that it was the applicant being notified of the allegations and being stood down while an investigation took place, which was, if not the whole, at least the predominant, cause of the psychological injury. I am satisfied that the respondent’s actions in this regard were entirely reasonable.
Before there was any communication between the applicant and BLW with regard to resignation, the applicant had already consulted general practitioners at both the Clemton Park Family Medical Centre and Kingsgrove Medical Centre and had been certified as unfit to attend work or any meeting to discuss his response to the allegations of misconduct.
Dr Goyal had already diagnosed the applicant with a psychological condition “triggered by the stress of the allegations of misconduct” and referred him to a psychologist to receive counselling and support.
After carefully weighing the evidence, I am satisfied that the respondent has established on the balance of probabilities that the applicant’s psychological injury was, at least, predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline. The defence in s 11A(1) of the 1987 Act is made out and the injury is therefore not compensable.
There will be an award for the respondent in respect of the claim for weekly compensation.

[2023] NSWPIC 519

29 September 2023