Brennan v BWP

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brennan v BWP [2024] NSWPIC 165
APPLICANT:	Michelle Brennan
RESPONDENT:	BWP
MEMBER:	Diana Benk
DATE OF DECISION:	4 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly compensation; causation; whether injury the result of discipline; section 11A; Held– the respondent has not satisfied its onus; the definition of discipline in Kushwaha v Queanbeyan City Council also not relevant in the circumstances of this case; actions of the respondent not deemed to be ‘discipline’ and/or in the alternatively were not reasonable; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37 and section 60 medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of her employment with the respondent with a deemed date of injury of 21 November 2022. 2. The injury referred to [1] above, was not caused by the reasonable actions of the respondent with regards to discipline. 3. As at the date of injury, the applicant’s pre-injury average weekly earnings were $1,640 per week. 4. As a result of the injury referred to in [1] above, the applicant has and continues to be totally incapacitated for employment from 21 November 2022. 5. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 from 16 June 2023 to date and continuing. 6. The respondent is to pay the applicant’s reasonable medical expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Michelle Brennan (the applicant), a return to work co-ordinator for (BWP) the respondent, claims weekly compensation and medical expenses arising from psychological injury deemed to have occurred on 21 November 2022 (adjustment disorder with anxiety and panic attacks) which she alleges resulted largely from bullying and harassment by her Regional Workplace Health & Safety Manager amongst other matters.
In disputing the claim, the respondent maintained it had no workers compensation liability maintaining its reasonable action with respect to discipline was the whole or predominant cause for the psychological injury and incapacity, relying exclusively on s 11A of the Workers Compensation Act (1987) (the Act). This triggered an application to the Personal Injury Commission (Commission). The matter underwent the usual case management pathway. Following conciliation impasse, I was requested to arbitrate the dispute.
The respondent was represented by Mr Hart of Counsel instructed by Ms Singh. The applicant was represented by Mr Beran of Counsel instructed by Mr Sawyer. Ms Harris was insurer representative. No oral evidence was adduced. In determining the matter I considered oral submissions from counsel; the documents attached to the Application to Resolve a Dispute (ARD); the Reply, an Application to Admit Late Documents (AALD) filed by the respondent on 22 February 2024, (the admission of which was unopposed by the applicant) and the law found in the Act.

CONSIDERATION

I have been asked to determine whether the undisputed psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline s 11A of the Act.

Applicant’s evidence

The applicant provided an extensive statement. Key grievances claimed to be the genesis of her psychological injury are summarised as follows;
Grievance one (the handling of a complaint made against her)
·        in the week commencing 11 November 2022 she was diagnosed with rhinovirus which resulted in headache, fatigue and flu like symptoms;
·        her supervisor contacted her on 11 November 2022 to inform her that one of her injured workers “did not like my conversation with her”. The applicant recollected the conversation and the history and recalled there were some problems with reception during the conversation as the complainant was driving, using blue tooth and so perceptions of the conversation may have been skewed. Her supervisor unilaterally removed the case from her management and the applicant maintains she was not given a fair opportunity to respond to the complaint;[1]
[1] Folio 13 of the ARD.
·        the applicant acknowledges that she told her supervisor that she was going to get a medical certificate following that discussion and has not returned to work since that time.
Grievance two (contact whilst on sick leave)
·        the applicant maintains her mental health deteriorated in the week commencing 14 November 2022 as whilst she was on sick leave she received numerous contacts from her supervisor both on her personal mobile and email in relation to work related matters and pending return to work. The applicant maintains she felt harassed and bullied whilst she was trying to “recover from her virus, stay out of hospital and off a ventilator;”[2]
·        her absence in the week commencing 14 November 2022 was the result of symptoms associated with rhinovirus which included diarrhoea, vomiting, weakness, shortness of breath and her anxiety related to the conversation had with her supervisor on 11 November 2022;
·        this continued harassment by way of phone calls and even a statement that her supervisor would contact the police to conduct a welfare check regarding her absence was claimed to be overwhelming, threatening and unnecessary and was viewed by the applicant as micromanagement. The applicant maintains she did attempt to contact her supervisor in response to the numerous calls but was subjected to telephone tag. She did however send through a plain medical certificate to her supervisor on 17 November 2022.
Generally
·        she has never been the subject of performance management or discipline since commencing employment with the respondent on 14 June 2022;
·        she did not have the opportunity to complete key induction and training and so was largely unaware of baseline policies;
·        there was a heavy workload;
·        she has not been able to return to work on account of her psychological symptoms which have included anxiety attacks and palpations. She has not experienced such symptoms in the past, and
·        there had been tension with her immediate supervisor and she felt conversations were generally conducted in a condescending and abrupt manner.
[2] Folio 16 of the ARD.

Supervisor’s evidence

In a statement dated 18 January 2023, the supervisor responded to the grievances as follows:
Grievance one – (the handling of a complaint made against the applicant)
·        a complaint had been escalated to her as the supervisor of the applicant by an injured worker on 10 November 2022 in relation to the applicant’s communication style. The redress sought by the complainant was for the applicant’s “demeanour to be nicer” as she did not like her tone or demeanour.[3] The supervisor confirmed that it was at the telephone discussion that she made the decision to case manage that injured worker personally (a decision that was made prior to allowing the applicant to respond to the complaint);
·        the conversation on 11 November 2022 was confirmed and related to the above complaint on 10 November 2022. The supervisor records that the applicant informed her that there was poor reception with the complainant as the call was taken on a mobile whilst driving. During the discussion she also reminded the applicant about her need to not show frustration with injured workers and to remain empathetic;
·        following informing the applicant that she was taking over the management of the claim as a result of the complaint on the basis of a “duty of care” she was advised by the applicant that she would be obtaining a medical certificate and was then hung up upon.[4]

Grievance two (contact whilst on sick leave)

[3] Folio 106 of the ARD.

[4] Folio 107 of the ARD.

In the same statement, the supervisor confirmed the following contacts:[5]
[5] Folios 108 and 109 of the ARD.
·        14 November 2022 at 11.50am (the call was returned by the applicant at 1.16pm but missed by the supervisor);
·        14 November 2022 at 1.29pm. As she was unable to connect with the applicant an email was sent reminding her of leave policies;
·        14 November 2022 at 1.59pm, she connected with the applicant who provided a medical certificate for 14 and 15 November 2022;
·        16 November 2022 at 9.14am her call to the applicant went unanswered;
·        17 November 2022 at 10.36am her call to the applicant went unanswered, a message was left that if call was not returned she would approach the nominated contact emergency contact or police to complete a welfare check;
·        17 November 2022 at 1.44pm further voice message on applicant’s personal mobile asking for an update on health circumstances and confirming the applicant’s text that she would be absent up to 18 November 2022;
·        17 November 2022 at 4.17pm she received a medical certificate from the applicant verifying absence until 18 November 2022;
·        On 18 November 2022, she emailed the applicant’s personal email with copies of emails relating to the conversation on 11 November 2022 as “the claimant’s work email was full and I wanted to ensure the Claimant received copies of my correspondence. My email also provided the claimant with an update regarding her personal leave balances”, and
·        again on 18 November 2022, a further email was sent to the applicant regarding discussion on 17 November 2022 and a reminder about her obligation to advise her absences.
The statement implies that the above contacts seven telephone contacts and several email contacts over a period of four working days were motivated by genuine welfare for the applicant’s wellbeing and a need to know about her whereabouts so that work could be reorganised if the leave was indefinite.

Generally

The same statement confirms:
·        the applicant had not been the subject of performance management or disciplinary action whilst employed by the respondent;[6]
·        the applicant’s primary duties are to coordinate the return to work of injured workers, liaise with the workers compensation insurer and undertake administration associated with such tasks, and
·        the applicant was under her direct supervision and the claims of micromanagement are denied;

[6] Folio 100 of the ARD.

Medical evidence

Medical records of the treating general practitioner form the bulk of the ARD. Dr Kumar of the Macquarie Family Practice[7] diagnosed the applicant as having “adjustment disorder with anxiety and previous rhinovirus infection” and continued to certify the applicant as being totally unfit for work.[8] A Depression Anxiety Stress Scale Questionnaire (DASS) undated but presumably November 2022 resulted in a depression score of 1 (normal), anxiety score of 12 (severe) and a stress score of 8 (mild).[9]
[7] Folios 127 to 138 of the ARD.
[8] Folio 128 of the ARD.
[9] Folio 132 of the ARD.
As of 19 January 2023, medical management was transferred to Dr Mehta of Cardiff who also continued to certify the applicant as totally unfit for work on account of adjustment disorder, the most recent certificate expiring on 15 July 2023, presumably, due to the denial of liability.[10]
[10] Folio 370 of the ARD.
Dr Kumagaya, consultant psychiatrist was qualified by the applicant and reported on 9 June 2023.[11] He diagnosed the applicant with adjustment disorder with anxiety and panic attacks sustained as a result of her employment with the respondent. He opined she did not have a current work capacity either for pre-injury duties or jobs in her recent employment history and required treatment, without which the symptoms would likely become chronic. Improvement was forecast but only with psychological therapy. The doctor disagreed with the respondent’s qualified evidence of Dr Kaplan who suggested the applicant could return to work on a graduated basis commencing at 20 hours per week for three weeks before resuming full duties, as his observation of the applicant’s presentation was that she did not have the requisite capacity to engage in return to work.
[11] Folios 139 to 149 of the ARD.
The respondent qualified Dr Kaplan, psychiatrist. In his report dated 16 February 2023[12] he diagnosed adjustment disorder with depression and anxiety, there were no pre-existing conditions and there were no other factors causing symptoms. He noted the applicant had no treatment but despite this was fit to engage in a graded return to work program.
[12] Folio 153 of the ARD.
In a supplementary report dated 20 February 2024, Dr Kaplan, following review of the factual statements reported;
“…that her alleged injury, incapacity and need for treatment was wholly or predominantly caused by the actions taken by her employer with respect to discipline, including but not limited to (a) the complaint made against her, and actions to address same; (b) The applicant’s failure to advise management of her whereabouts and actions taken to address same”.[13]
[13] Folio 4 of the Reply.

Submissions

The respondent’s submissions were extensive but when summarised were;
(a) injury is not in dispute. The respondent accepts the applicant sustained an injury within the definition of s 4 of the Act but seeks to rely on the defence found in s 11A of the Act particularly with regard to discipline and the definition found in Kushwaha v Queanbeyan City Council (Kushwaha);[14]
(b)    the respondent understands that it bears the onus of establishing that employment was the whole or predominant cause to injury and also that its conduct was reasonable and is satisfied that it can easily meet that onus;
(c)    the statement of the supervisor is compelling and given that issues had been raised about the applicant’s conduct by another employee, the respondent was obligated to meet and address those issues with the applicant and such action formed part of the “discipline” process;
(d)    the medical evidence shows that the whole or predominant factors that give rise to the applicant’s injuries was the interaction with her supervisor on 11 November 2022 and her failure to respond to messages from her supervisor regarding her unexplained absence from the workplace, all falling within the definition of “discipline”;
(e)    the actions taken by the respondent are objective and reasonable and the way the respondent dealt with the situation was fair;
(f)    as to the claim for incapacity, Dr Kaplan considered the applicant was fit to return to work at least 20 hours per week on a graduated basis then upgrading to full time hours, and
(g)    pre-injury average weekly earnings (PIAWE) at $1,640 per week is not disputed.
[14] Kushwaha v Queanbeyan City Council[2002] NSWCC 25; (2002) 23 NSWCCR 339 (Kushwaha).
The submissions of the applicant were also extensive; relevantly;
(a)    given that the respondent’s own key witness (the applicant’s immediate supervisor) confirmed there was no performance management or discipline, why are we here?
(b)    the respondent acknowledges the applicant had not completed her induction training and it can be assumed that she was unaware of the protocols regarding absences;
(c)    the respondents conduct does not constitute discipline within the true definition of the word and even if it did, it was not reasonable conduct as the applicant was not given an opportunity to put forward her case, that is, procedural fairness was denied, a unilateral decision was made by her supervisor to remove her from the case management of the complainant’s workers compensation matter despite the applicant offering that there were reception difficulties during the contact to explain any misperception or miscommunication;
(d) the discussion with the supervisor was merely feedback, and there was no discussion about discipline or any impact moving forward. This does not fall into s 11A. Failing which, if it is considered discipline, it cannot be considered reasonable;
(e)    there was some tension between the applicant and her supervisor which led the applicant to feel she was micromanaged, harassed and bullied;
(f)    the feedback relating to the complaint by one of the applicant’s injured workers was isolated, there have been no other complaints;
(g)    repeated contact and attempted contact of the applicant by the respondent including via her private email and mobile number whilst it was known she was unwell and on leave was not reasonable;
(h)     the applicant was denied procedural fairness in responding to the complaint made against her and it was unreasonable for her to respond to the respondent’s repeated calls or emailed complaint whilst she was on personal leave, and
(i)    the definition of discipline in Kushwaha is outdated and has no relevance in modern work practices. I was referred to previous decisions I had made in this jurisdiction dealing with this definition. Even if it does, it was submitted that definition refers to “learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition is part of the primary meaning of discipline”. This is not the case here. The respondent made a unilateral decision and failed to impart any training on how the applicant could conduct herself better apart from reinforcing communication protocols which the applicant was fully aware of but did not have a proper opportunity to respond to. An attempt to explain any miscommunication appears to have been dismissed by the supervisor.

The submissions in reply by the respondent were;
(a) the definition of discipline in Kushwaha remains good law and has been approved at the presidential level in Mascaro and Inner West Council 2018 NSW CCPD 29 at [118] and is binding. To the extent that I may have expressed a view that disagreed with that definition in previous decisions is of no consequence and not binding, and
(b) procedural fairness varies in its context and I must look at the matter objectively.

APPLICATION OF THE LAW, FINDINGS AND REASONS

Section 11A (1) of the Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.” (my emphasis)
At this juncture, it is prudent to unpack s 11A, easier said than done and no mean feat.

What is a psychological injury?

Fortunately, this is defined in s 11A (3A) of the Act as;
“‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”

What does “wholly or predominantly” mean?

Unfortunately, this term is not defined by the Act. Review of the case law establishes the following;
i)     “wholly” and “predominantly” are separate concepts and only one of the definitions needs to be satisfied. The words are independent of each other;
ii)     it is generally accepted that it means “mainly or principally caused”;[15]
iii)    the question of causation must be addressed by medical evidence, and[16]
iv)    causation is a question of fact to be determined on the evidence in each case.[17]
[15] Ponnan v George Weston Foods Ltd[2007] NSWWCCPD 92 (Ponnan).
[16] Hamad v Q Catering Limited [2017] NSWWCCPD 6.
[17] Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452.

What does “reasonable action” mean?

Again, not defined by the Act and difficult to succinctly define, however the following non exhaustive summary of key principles has been extracted from case law;
i)     in determining whether conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer;[18]
ii)     the test is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all circumstances, by questions of fairness;[19]
iii)    when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected;[20]
iv)    the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken;[21]
v)     procedural and policy documents of the employer will be relevant evidence to consider. However, reasonableness will not be established simply because the employer complied with their own protocols if those protocols were not reasonable, and[22]
vi)    the concept of reasonablenessdoes not require a counsel of perfection. It requires, that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.
[18] Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWCCPD 66 at [82].
[19] Irwin v Director General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998, unreported).
[20] Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998).
[21] Northern NSW Local Health Network v Heggie[2013] NSWCA 225.
[22] Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 at [81].

What does “discipline” mean?

Again, this is not defined in the Act. The case law suggests that the definition is broad relevantly;
i)     a broad view is to be taken of the expression “action with respect todiscipline”. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation;[23]
ii)     an employer’s process of drawing the worker’s unsatisfactory work performance to her attention, asking her to improve her performance and suggesting ways of doing so and of offering assistance in training has been defined as discipline. Further, learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition is part of the primary meaning of discipline. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. (Kushwaha);[24]
iii)    reprimands about standard of work were held to come within the primary meaning of “discipline”;[25]
iv)    discipline includes “punishment inflicted by way of correction and training”, and[26]
v)     the fact that there was a potential for action with respect to discipline is not sufficient to establish that the action conducted by the respondent in calling the meeting and investigating the complaint could be categorised as disciplinary.[27]
[23] Northern NSW Local Health Network v Heggie[2013] NSWCA 255 (Heggie).
[24] Kushwaha v Queanbeyan City Council[2002] NSWCC 25; (2002) 23 NSWCCR 339 (Kushwaha).
[25] ISS Property Services Pty Ltd v Milovanovic [2009] NSWCCPD 27 at [83].
[26] McCarthy v Department of Corrective Services [2010] NSWCCPD 27 at [155].
[27] Webb v State of New South Wales [2019] NSWWCCPD 50 at [102].
The above list is not exhaustive and my review of the case law reveals (quite surprisingly) the definition appears to have remained undisturbed for decades. In previous decisions before the Commission, I have expressed doubt that Kushwaha’s discipline definition has practical application in modern day work practices. I focus on ‘Kushwaha’ as this was the respondent’s key contention. I have in the past opined it was good law at the time but that the definition has little current utility given the vast and significant industrial relations reforms over the two decades following the 2002 decision, including the evolution of work practices, entitlements, workplace culture, codes of conduct and various other employment protections (for both employer and employee) and more importantly specific internal Human Resource (HR) policies of an employer, all of which have somewhat distorted or extended the modern day definition of “discipline”.
The Kushwaha discipline definition is broad and suggests that “learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition is part of the primary meaning of discipline”. In today’s workforce, “learning or instruction, maintenance with training or repetition” would most likely at first instance be labelled/defined a development plan, performance plan or coaching improvement plan designed to remedy shortfalls in performance or behaviour. Should desired outcomes of the plans not be met, punitive measures such as “discipline” are then generally invoked, resulting (once certain procedural steps are taken) in reprimand or punishment with defined consequences on the contractual employment relationship. This differs to performance management which is another kettle of fish. No doubt given the evolution of the workplace landscape including changes in workplace practices/culture and behaviour, the desire to retain staff due to costs of recruitment and turnover, increasing expectations of employees and employers, greater awareness of neurodiversity and personality types of the workforce, technological advancement and adaptions to remote work, my views on this definition are likely to be considered outdated before the ink on this decision dries! Simply put workplace expectations and culture in 2002 when Kushwaha defined “discipline” differ significantly to the current work environment, and whilst I long for yesterday once more, asking me to apply Kushwaha uncritically is like asking me to commit to working on a dial up platform in a 5G world!
However, since my previous decisions and on further contemplation, I have become increasingly troubled about the Kushwaha discipline definition particularly from a statutory interpretation standpoint. Fortunately, I discovered I was not Robinson Crusoe in my discernment with Roche DP in 2011 considering the definition was “open to serious doubt in light of recent authorities on statutory interpretation”.[28] Regrettably, despite the observation, Roche DP did not poke the proverbial bear.
[28] [2011] NSWWCCPD 62.
It is very tempting to abandon discussion on this point here in the acknowledgement that poking the bear would likely promote controversy and scrutiny of a definition that has had an extended hibernation. If Roche DP opted to not explore the statutory interpretation with reference to s 11A at the Presidential level, certainly my view, given my standing on the decision-making totem pole is of little consequence. However, after reflection, I determined it would be remiss of me to fail to agitate the argument. Certainly, I appreciate the definition has not been disturbed by higher levels, but the continual adoption of it without critical analysis is not why I am here and realistically the discussion is long overdue.
The fundamental rule of statutory interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. As Spiegelman CJ has said “the courts (tribunals) can no longer approach a statute with scissors in one hand and a dictionary in the other”.[29]
[29] R v Campbell[2008] NSWCCA 214; (2008) 73 NSWLR 272 at [49].
Although it can be difficult to ascertain a positive intention where there has been legislative inadvertence (ambiguous construction), courts and tribunals may use the effect, or outcome to work out what was not intended. Specifically, where there are two meanings or interpretations open, it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.[30]
[30] Public Transport Commissioner of NSW v J Murray-More (NSW) Pty Ltd[1975] HCA 28; (1975) 132 CLR 336 at [350].
Further, statutory interpretation, specifically concerning definitions such as this, require a decision maker to assess the inconvenience of the result, or improbability of result, to assist it in concluding that an alternate construction which is reasonably open is to be preferred to the literal meaning because the alternate interpretation more closely conforms to the legislative intention discernible from other provisions in the statute.[31]
[31] See judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at [320]-[321].
I will return to how the Kushwaha definition of discipline fits into the overall context of s 11A with an attempt to navigate the complex principles of statutory interpretation with brevity. Section 11A nominates seven different employment situations, relevantly; “transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal”. The definitions of transfer, demotion, promotion, performance appraisal, retrenchment and dismissal are largely unambiguous. It goes without saying that each event is serious and has punitive consequences impacting the original employment contract. Each of these employment situations start with a process (either documented or undocumented) and follow a certain pathway either in accordance with internal protocols/policies and/or Fair Work practices, with parties put on notice of potential outcomes, obligations, timeframes and financial repercussions and tenure on/of the employment relationship.
Kushwaha says that learning or instruction along with maintenance of that instruction constitute the primary definition of discipline. However, I find the threshold of conduct either by the employee or employer using this definition is largely out of sync compared with the thresholds/actions/definitions required of the other six events/categories of s 11A, which all have punitive outcomes on the employment relationship. Without labouring the point, it is well established that correct statutory interpretation requires that the wording and definition of provisions within a section should operate coherently and in harmony.[32] Overall, I consider the broad definition of discipline in Kushwaha is not in harmony with the thresholds required of the other six categories, as it does not share the essential feature of an end result, that is because demotion, promotion, performance appraisal, retrenchment and dismissal result in an inevitable disruption to the original employment contract, yet the Kushwaha definition is diluted and somewhat inconsequential with no real outcome or impact on the employment relationship articulated. The broad approach definition, in my view, allows discipline to almost act as a miscellaneous category for any behaviour that does not fit within the other specific six categories. I doubt this to be the intention of the legislation when the section is read as a whole. (This is evident in this case as the key witness in her statement confirmed the applicant was not subject to any discipline or performance management!).
[32] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [381]-[382].
So the upshot of the global discussion above is that I share Roach DP’s “serious doubt” over the definition and consider it beggars belief that the definition has not been formally challenged over the decades both for its relevancy in the current workplace context and in the statutory interpretation context. Discussion on this point could continue indefinitely, as realistically I have not even scratched the surface, however, I must in the interests of brevity return to the primary issue that I am burdened with determining.
As indicated above, injury is not disputed. However, causation and incapacity are. The respondent bears the onus of establishing the s 11A defence.
Overall, I find on the basis of the evidence before me that the defence has not been made out with respect to either of the above grievances raised. This is because;
Grievance one:
(1)    the respondent’s key witness, the applicant’s supervisor confirmed there was no performance management or discipline of the applicant;
(2)    further I find the events on 11 November 2022 and the repeated contacts in the week commencing 14 November 2022, cannot be classified as discipline regardless of which definition is adopted (see paragraphs 23 above). At best, I find the discussion on 11 November 2022 raised an isolated employment issue relating to communication with another party, where a unilateral decision had been made by the applicant’s supervisor prior to the applicant being given an opportunity to respond. Simply put, whilst there may have been some instruction imparted to the applicant there was no maintenance of that learning by training, by exercise or repetition. Further that opportunity had been removed from the applicant, and even if she had mis stepped in her communications, she was not given an opportunity to correct her behaviour as the management of the file had been removed from her. This is significant in this factual circumstance as there was an undercurrent of tension between the applicant and her supervisor. It is also significant in this case as the applicant is a return to work co-ordinator in workers compensation, an area where tensions inadvertently escalate due to the impacts of injury; inevitable delays due to the involvement of multiple stakeholders and of course financial implications. The applicant claims she was micromanaged. Removing the applicant from the management of the case not only would have caused her to feel a vote of no confidence from her supervisor but would also presumably have been conveyed to the multiple other stakeholders in the complainant’s management, thereby eroding the applicant’s case management role and causing the perception of micromanagement. This cannot be said to be reasonable action in the absence of proper consultation. It is also unreasonable as she was not given a proper opportunity to explain her version of events;
(3)    throughout the course of the submissions the respondent repeatedly queried what else could it have done? It is not my role to give advice on process or procedure, but in such a circumstance, to satisfy me that its conduct was reasonable action, as a bare minimum, I would have expected the respondent (who is a large scale employer) to have given the applicant a proper opportunity to respond to the complaint when she was physically well enough to do so. I then would have expected that her explanation of possible miscommunication be investigated as both the applicant and the complainant acknowledge that the conversation that led to the complaint was done in an environment in which there was poor reception. I understand that the respondent felt it had to take action, but it did not need to be so immediate?. There was no urgency established in the evidence. Allowing the applicant a proper opportunity to respond would have been the most basic of steps required to satisfy me of “reasonable action”. This did not occur and I find the respondent’s action to not be reasonable in respect of this grievance. This is especially so as it is a large employer and the supervisor is well versed in workplace policies. My findings would have possibly been different if the respondent was not so large and sophisticated;
(4)    I acknowledge the applicant’s submissions that she had not completed her induction and so was not aware of the employer’s policy relating to leave. The applicant is a workers compensation return to work co-ordinator, and as a base line would be well versed on key employment entitlements. I do not accept this submission but nothing turns on this, and
(5)    whilst I have expressed concerns about the broad definition of “discipline” in Kushwaha, even applying that definition does not satisfy me that the process undertaken on 11 November 2022 was “discipline” as it was a one off isolated event with no real follow up or opportunity to respond. However, even if I am wrong on this point, I find the actions in relation to grievance one are not “reasonable action” for the reasons given.
In relation to grievance two, I further find that the actions of the respondent were not reasonable. This is because:
(1)    the respondent was aware the applicant was unwell and had been certified unfit for work with a non-workers compensation medical certificate;
(2)    the constant contacts, (at least seven telephone contacts) and several email contacts over a four day period was not reasonable especially as the applicant was on sick leave/personal leave, an entitlement available to her under her contract of employment;
(3)    the respondent emphasised the applicant being absent without leave (AWOL) was a breach of employment policy and her failure to advise of her whereabouts frustrated its business and the contacts were properly defined as ‘discipline’. Again, the question was posed what more could the respondent do? It is not my role to advise but it would have been appropriate to allow the applicant time to recover and perhaps indicate that it would reach out say within 5-10 days but invite the applicant to contact sooner if able at which time further action could be contemplated;
(4)    I find the barrage of communication including on the applicant’s private devices when the respondent had knowledge the applicant was unwell to be excessive. This is because there were no matters of workplace urgency that had to be attended to; her contract of employment allows for personal leave and the employer was aware the applicant was unwell. Further there had been attempts by the applicant to respond to the multiple contacts despite her illness;
(5)    I also further find that sending the applicant an email to her personal address regarding the complaint made against her whilst she was on leave to be highly inappropriate on many levels. Firstly, the transmission of such personal data on a private email address that may or may not be secure and/or accessed by others not only jeopardises the complainant’s privacy but also that of the applicant and the employer; secondly; there was nothing urgent about the communication that could not have waited until the applicant recovered from her illness and was ready to return to work. Sending such a sensitive communication to a worker whilst on sick leave is not reasonable by any standard, particularly given that it was not a matter of urgency as the management of the file had already been unilaterally assumed by her supervisor. Further, this action also failed to take into account any potential psychological impact on the applicant particularly when she was already unwell or ‘down and out’ and I find this action was not reasonable.
(6)    the respondent claims it needed to know how long the applicant was going to be away so arrangements could be made relating to file/case management to prevent business interruption. However, given that it had already shown it could remove a case without notice, I do not accept this;
(7)    I further find that the nature of the contacts to be somewhat hostile. The applicant had been in touch with the supervisor but admittedly there was some telephone tag. The applicant was not entirely AWOL, the respondent knew she was unwell and so the suggestion of contacting her emergency contact or alternatively the threatened escalation to the cops was not reasonable action;
(8)    importantly, I cannot ignore the acknowledged tensions between the applicant and her supervisor. Why is it then that the supervisor chose to continue the dialogue when sensitivities were already heightened? Why didn’t the supervisor delegate contact or welfare management to another staff member? This was certainly an option in such a large organisation and I note that the HR Manager did become involved but only several weeks after;
(9)    I do not accept that the process of reaching out to the applicant to find out her whereabouts was a continual process of “discipline” for failure to adhere to policies. I cannot find that it is reasonable action to continue any “disciplinary” process when the applicant is on leave or away from the workplace in these circumstances;
(10)    the respondent may disagree, but I am not alone in my views that continued attempts to contact the applicant whilst she was on leave (whether sick/personal or other) was not reasonable action. This is because at the beginning of 2024 the Federal Government sought to initiate “right to disconnect legislation”, allowing for employers to be penalised if they contact staff outside of core working hours (including periods of leave). My opinion on such proposed legislation matters little, however, clearly the issue is of national importance resulting in federal parliamentary debate and proposed legislation to protect the “right to disconnect”, and
(11)    it is important that I acknowledge the respondent’s frustration. Standing in its shoes I would have experienced a similar level of frustration. It did not have a clear line of contact with the applicant and was unaware of when and if she would return to work. There was “telephone tag” frustrating contact and the applicant was unwell, which all followed a tense conversation on 11 November 2022.   I find it is not unreasonable for an employer to know where a staff member is and as an employer I would expect a staff member to notify of any arrangements. However, in this case, the contact was excessive and inappropriately done on both private and employment devices for the reasons discussed above. The warning that the matter may be escalated to the cops can be seen as threatening particularly to an individual who is already unwell. (Why such a large employer would even contemplate exhausting the limited resources of the police force when it has a number of welfare officers available to it beggars belief.)

Overall, I find that the actions were not ‘discipline’, but failing that, even if they could be considered by some stretch of the most broadest definition and imagination, I find they were not “reasonable action”.
I must now return to the issue of capacity. The medical evidence (both general medical practitioner’s and the qualified medical opinion) overwhelmingly certify the applicant as having a total incapacity for work arising from the above workplace events, Dr Kaplan’s opinion was consistent with this. I agree and so find. Further, I note that Dr Kaplan considered the applicant was fit for 20 hours of work say for a period of three weeks and he was of the view that she had an ability to upgrade to full time duties thereafter. Dr Kumagaya acknowledged this opinion but maintained the applicant required treatment to progress and improve, failing which he expressed concerns about the development of a chronic condition. As the applicant has not had sustained treatment, I agree with the opinions expressed by her general practitioner and Dr Kumagaya that she has been totally incapacitated from the date of her claim and remains so incapacitated.
I note that the applicant’s PIAWE was $1,640 and that the period claimed by the applicant is pursuant to s 37 of the Act. This being so, weekly compensation payable is 80% of PIAWE as indexed.
The respondent is therefore ordered to pay the applicant weekly compensation from 16 June 2023 to date and continuing pursuant to s 37.
As regards the claim for treatment expenses, given my findings, it follows the respondent is to pay the applicant’s reasonably necessary treatment expenses.
Finally, having regards to submissions made by the respondent (unopposed by the applicant at Arbitration), and which I found to be compelling, I direct that the respondent be de-identified from this decision pursuant to rule 132(1)(a) of the Personal Injury Commission Rules 2021.

SUMMARY

For the above reasons, I made the findings and orders as set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 165

4 April 2024