Bunnings Group Limited v Collins
[2022] NSWPICPD 24
•30 June 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Bunnings Group Limited v Collins [2022] NSWPICPD 24 |
APPELLANT: | Bunnings Group Limited |
RESPONDENT: | Mellissa Collins |
INSURER: | Wesfarmers Retail Holdings Pty Limited |
FILE NUMBER: | A1-W2149/21 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 30 June 2022 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 30 August 2021 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Section 11A(1) of the Workers Compensation Act 1987 – reasonable action with respect to proposed transfer: Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered, Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 – test of reasonableness is objective |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Perry, counsel | |
| Bartier Perry Lawyers | |
| Respondent: | |
| Ms E Grotte, counsel | |
| Turner Freeman Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr G Capel |
DATE OF MEMBER’S DECISION: | 30 August 2021 |
INTRODUCTION
This is a matter involving consideration of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). Mellissa Collins, the respondent to this appeal (the respondent), commenced employment with Bunnings Group Limited (the appellant) on 20 October 2007. The respondent’s initial position was that of team member at the appellant’s Norwest store before subsequently being transferred to the appellant’s Rouse Hill premises. On 28 October 2019 the respondent commenced in a position described as team member SSA (stock shortage allowance) which involved travelling to multiple stores.
The respondent made a claim for workers compensation for a psychological injury as a result of her employment, arising from a number of interpersonal work-related difficulties with her supervisor, ultimately culminating on 3 November 2020 following a telephone call during which the suggestion of a transfer was made.
Provisional payments were made by the appellant until 25 January 2021. Shortly after this date, by a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 27 January 2021, the appellant disputed the respondent’s claim on a number of bases, including s 11A of the 1987 Act.
At the hearing of this matter before Senior Member Capel (as he then was), the only issue in dispute was a consideration of s 11A(1) of the 1987 Act. There was no dispute that the respondent suffered a psychological injury as a result of her work. The Senior Member found that the action taken by the appellant in respect of a proposed transfer was not reasonable and made orders in favour of the respondent. It is from these orders that the appellant has filed this appeal.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The Senior Member extensively reviewed the evidence at [12]–[112] of his Statement of Reasons.[1] A review of the evidence reveals that the respondent had been struggling during 2020 with various health problems. These problems were exacerbated by various issues at work, which the Senior Member recounted from reasons [12]–[41]. Additionally, during this year the respondent suffered the sad loss of her mother and cousin, which the evidence showed had affected her quite badly. The issues at work included difficulties dealing with her supervisor Ms Jana Da Silva. The events recounted by the respondent involved feeling unsupported after her mother’s death, being excluded from a team reward of a coffee card, and commentary around the older age of staff members posing a risk of injury.
[1] Collins v Bunnings Group Ltd [2021] NSWPIC 313 (reasons).
While evidence was posited in respect of these other events, the issue that ultimately had to be determined by the Senior Member revolved around a discussion which took place between the respondent and Ms Da Silva, on 3 November 2020. The question for determination was whether or not the appellant’s conduct, through its employee Ms Da Silva, was the whole and predominant cause of the respondent’s injury, whether the conduct constituted an action under s 11A(1) of the 1987 Act (namely, transfer), and whether this action was reasonable.
In terms of the events of 3 November 2020, the respondent’s evidence was described by the Senior Member as follows.
“25. The [respondent] stated that she was still ill the next morning, so she sent a text to Ms Da Silva and advised that she would not be in and was going to see her doctor. She spoke to Ms Da Silva at 9.04 am and told her that her doctor was concerned that she had diverticulitis. She had a certificate and hoped to be back at work that Thursday.
26. The [respondent] stated that Ms Da Silva said that she did not think that she was suitable for the SSA role anymore and she wanted her to think about transferring back into a store. The [respondent] told her that she was happy with her current role and she did not want to go back to a store. Ms Da Silva stated that in the opinion of the business, people like her with such conditions posed a high risk of injury, so she and the [appellant] would prefer that she not work in the SSA role.
27. The [respondent] stated that she told Ms Da Silva that she had been in a store for 12 years. She loved her job and she felt that she could still perform her work safely. Ms Da Silva responded that she could organise the paperwork and email it to her. She could organise a position in store close to her home. Ms Da Silva kept pushing and pushing her and tried to coerce her over an eight-minute telephone call. This caused the [respondent] to become upset.
28. The [respondent] stated that she apologised for the time that she had taken off work due to the deaths of her mother and cousin, and the three bouts of illness. She had not taken any time off work due to her arthritis.
29. The [respondent] stated that Ms Da Silva had never previously mentioned any concerns about her condition or its impact on her ability to fulfil her role. At her performance appraisal, she had received a very good review. Ms Da Silva was aware of her past psychological issues.
30. The [respondent] stated that she asked Ms Da Silva to support her for the rest of the year and she would try to regain her strength over the holiday break. The [respondent] told her that travel had never been a problem. Ms Da Silva asked her to complete a capacity assessment regarding her arthritis with her doctor’s comments before returning to her role.
31. The [respondent] stated that she thought that she was going to lose her job. When her partner called her, she was crying and shaking. She called Aaron Fisher in HR and told him that her boss was trying to push her out of her role. Mr Fisher said that this could not be done, and her job was safe.
32. The [respondent] stated that she returned to see her doctor. She was shaking and crying, and her blood pressure was elevated. Her doctor issued a WorkCover certificate for a couple of days. She later spoke to Margo McHugh of HR and she was told that she could not be forced out of her role. She sent the certificate to Ms McHugh, who indicated that she would speak to Ms Da Silva.
33. The [respondent] stated that Ms McHugh told her that she had two options, namely mediation, or making a formal complaint. She gave a statement over the telephone to Ms McHugh, and she was told that she could not be provided with a copy.”
At reasons [77], the Senior Member set out the contents of an email sent by the respondent to Ms McHugh on 4 November 2020:
“… my concerns are that I feel Jana has discriminated against me for having an arthritic condition and I felt bullied and coerced into leaving my SSA role to go back into store after I asked Jana for understanding and consideration with my current health status and recent loss of my mother and cousin. Jana made it very clear that she wanted me out of SSA as I am (according to her), a risk factor for injury and both herself and the company (BUNNINGS), do not want team members performing roles when they are a risk of injury, because of my arthritis. Jana pressured me to agree for her to get paperwork ready for me to sign to transfer back to a store against my wishes. I feel very undervalued as a team member and bullied by Jana. There have been other comments from Jana Da Silva which have concerned me in the past which I am happy to discuss with you in a meeting …”
Ms Da Silva’s version of what occurred on 3 November 2020 was summarised by the Senior Member as follows:
“88. Ms Da Silva stated that the [respondent] called her at about 9 am on 3 November 2020 and told her that she was sick with stomach cramps and she was going to see her doctor. She seemed to think that this related to the stress following the deaths of her mother and a cousin. Ms Da Silva commented to the [respondent] that she had had a really tough year. The [respondent] kept saying that she felt that she was letting the team down, but Ms Da Silva assured her that this was not the case and told her to take some time off.
89. The [respondent] told Ms Da Silva that she was not sleeping and that she was on medication. Her arthritis was flaring up and she was not in a good state physically. Ms Da Silva told her to see what her doctor said.
90. Ms Da Silva stated that she was concerned about the [respondent’s] lack of sleep and the need to travel to different stores, so she asked her whether going back to a store would be an option, which would limit her driving. Ms Da Silva asked the [respondent] whether they should look at her hours and see how they could help if her work was too much for her. The [respondent] became hysterical and asked if she could wait until the end of the year and see how she felt. The [respondent] said that she did not feel that she would be supported in a store, as it was hard to take time off or be limited when she could work.
91. Ms Da Silva expressed her concerns about the [respondent’s] safety and asked if she could obtain a capacity form from her doctor so that they could have some idea of what her restrictions were. The [respondent] said that she could not really lift things with the flare up of the arthritis. The [respondent] agreed to take the form to her doctor.
92. Ms Da Silva indicated that they could review her work duties if her doctor imposed some restrictions, and she offered the [respondent] access to annual leave to cover any of her sick days, because she had no sick leave left. The [respondent] thanked her for this, and Ms Da Silva emailed the capacity form to her. This was later returned.
93. Ms Da Silva stated that about 20 to 30 minutes later, she received a telephone call from Ms McHugh, who advised that she had received a frantic call from the [respondent]. She was distressed, crying, and very emotional. The [respondent] had said that Ms Da Silva was trying to tell her that she needed to transfer and that she did not support her. Ms Da Silva denied that she had mentioned transferring out of SSA.”
In terms of the medical evidence, Dr Das, consultant psychiatrist who examined the respondent at the request of the appellant, provided a report dated 21 January 2021. The doctor’s report was summarised by the Senior Member in the following paragraphs:
“73. Dr Da[s] reported that the [respondent] had a new manager and she felt discriminated over a period of six months because of her condition, and she tried to get her to leave her role. The [respondent] told the doctor that when she spoke to her manager on 3 November 2020 and informed her about her diagnosis of possible diverticulitis, her manager kept saying to her that she was at risk and she wanted her to sign a paper that was emailed to her.
74. The [respondent] told the doctor that it was humiliating and distressing to be spoken to like that and she never recovered from this. She claimed that her manager kept pushing her to leave because of her health issues. This telephone call came as a shock to her, and she was afraid of losing her job. She made a formal complaint to HR and she continued to work until 13 November 2020, however, she felt anxious and stressed about the complaint and investigation. She hoped for a resolution where her boss apologised for what she had said, but she was completely broken, felt worthless and thoroughly invalidated when she was advised of the outcome on 20 November 2020. She was offered mediation but was told her manager would not participate. She consulted her doctor who certified that she was unfit for work after she had been told that her allegations had been unsubstantiated.
75. Dr Das was provided with the factual investigation and was aware of the nature of the telephone call and the [respondent’s] request for support and understanding because of the loss of her mother and cousin. She believed that she had been discriminated against due to being a high risk because of her arthritis. Her manager had also made inappropriate comments and said that older team members were a high risk for injury. She had been offered EAP counselling, but the [respondent] declined.
76. Dr Das diagnosed a recurrent Major Depressive Disorder of moderate severity on the background of recent family grief. [He] recommended medication in the context of her multifactorial problems and a referral to a psychiatrist. He stated that the recent recurrence was perhaps precipitated by grief following her mother’s death, but there was an exacerbation following the event on 3 November 2020, and she became further unwell when advised of the outcome of her grievance. He stated that she was unfit for any work, but once her condition became stable, she could be considered for part time work elsewhere.”
Clinical records were also supplied in the proceedings before the Senior Member, which recounted a history of a psychological condition, with her symptoms in respect of work primarily arising following the interaction on 3 November 2020.
In summary, the respondent had been contending with a number of issues during 2020 to do with her own health and two family bereavements. The Senior Member summarised the evidence and concluded that the psychological injury was “wholly and predominantly caused by the event on 3 November 2020”.[2] Having made this finding, the Senior Member then proceeded to consider whether or not the action proposed to have been taken by the appellant with respect to transfer was reasonable, and found it was not.
[2] Reasons, [236].
THE SENIOR MEMBER’S REASONS
In coming to the determination, the Senior Member posed three questions in his reasoning:
(a) Was the [respondent] exposed to real events that she perceived as bullying, harassment, discrimination and intimidation?
(b) Did the [respondent] suffer an injury as a result of real events?
(c) Was the [respondent’s] psychological injury wholly or predominantly caused by reasonable action taken or proposed to be taken by the [appellant] with respect to transfer?
In answer to the first question, the Senior Member considered the evidence surrounding alleged events occurring throughout the course of the respondent’s employment, namely the difficulties dealing with Ms Da Silva. These events involved feeling unsupported after her mother’s death, being excluded from a team reward of a coffee card, commentary around the older age of staff members, and the discussion on 3 November 2020. In considering the evidence as a whole, the Senior Member was satisfied that the events raised by the respondent “did in fact occur and were not imaginary” and that he “had no reason to doubt the veracity of her evidence or her perception of these real events”. The Senior Member referred to the “final straw” being the telephone discussion on 3 November 2020.[3]
[3] Reasons, [212].
In turning to the second question, the Senior Member affirmed that there was no dispute that employment was the main contributing factor to the respondent’s injury pursuant to s 4(b)(ii) of the 1987 Act, although a question for assessment was ascertaining the event which caused the aggravation of her psychological condition with reference to the common-sense evaluation of the casual chain in Kooragang Cement Pty Ltd v Bates.[4] In this regard, while the Senior Member noted the occurrence of real events, he was not satisfied of psychological sequalae arising from those events until the telephone discussion between the respondent and Ms Da Silva on 3 November 2020. The Senior Member found that the “lack of report of any psychological symptoms arising from the work events prior to November 2020 is in my view of some significance”, particularly in circumstances where the respondent was regularly receiving psychological treatment, and the medical opinion of Dr Das that the respondent’s Major Depressive Disorder was exacerbated following the event of 3 November 2020.
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796, reasons [214].
On this basis, the Senior Member determined that the whole and predominant cause of the respondent’s injury was the incident of 3 November 2020, or, as interpreted by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd,[5] the main or principal cause. It did not matter that the medical opinion did not use the words “wholly or predominantly”.[6]
[5] [2008] NSWWCCPD 96.
[6] Reasons [234]–[235].
In answering the last question, the Senior Member was required to determine whether the action of the appellant on 3 November 2020 consituted a proposed ‘transfer’, and whether that action was ‘reasonable’. The Senior Member asserted there was “little doubt that Ms Da Silva raised the option of a transfer during an informal discussion. This was only a suggestion and nothing more. No decision had been made.”[7] Following consideration of the Macquarie Dictionary definition of ‘propose’ (being “to put forward or suggest something be done”), the Senior Member determined that the action of Ms Da Silva on 3 November 2020 was action proposed to be taken with respect to a transfer within the meaning of s 11A(1) of the 1987 Act.[8] However, the Senior Member was not satisfied that the action proposed to be taken in respect of the transfer was reasonable, and thus, the s 11A(1) defence failed.
[7] Reasons [239].
[8] Reasons [243].
In coming to this finding, the Senior Member referred to the circumstances surrounding the proposed transfer, including that it arose in the context of the respondent seeking a few days of leave, without warning, and on the background of bereavement and health issues. The respondent’s reaction and unpreparedness to consider a transfer was thus unsurprising. The Senior Member referred to authority relating to reasonableness in the context of s 11A(1) of the 1987 Act[9] noting it required an objective assessment of the rights of a worker, the question of fairness, and the manner in which the action is undertaken notwithstanding an employer acting in good faith.[10] Ultimately, the Senior Member was not satisfied that the appellant had “proper regard to the [respondent’s] rights, and it failed to treat her fairly.”[11] Whilst the Senior Member did not doubt that Ms Da Silva had good intentions, the manner in which the suggestion of transfer was made, and its timing, could not be seen as reasonable.
[9] Irwin v Director-General of School Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported) (Irwin), Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie).
[10] Reasons [245]–[246].
[11] Reasons [251].
The Senior Member reflected that a reasonable employer would not have pressed the transfer at that time and would have provided the respondent with notice of a meeting to address the difficulties and obtain a medical opinion on her capacity to continue her usual duties. At that point, a reasonable employer would have undertaken an assessment to identify what duties would be suitable, and to allow an opportunity for both parties to make an informed decision regarding the respondent’s employment.[12]
[12] Reasons [252]–[254].
As the Senior Member was not satisfied that the respondent’s injury was wholly or predominantly caused by reasonable action in respect of the proposed transfer pursuant to s 11A(1) of the 1987 Act, orders were made in favour of the respondent in respect of weekly compensation and medical expenses.
The Certificate of Determination issued on 30 August 2021 records:
“The Commission determines:
1. The [respondent] sustained a psychological injury arising out of or in the course of her employment with the [appellant] on 3 November 2020 (deemed).
2. The [respondent’s] employment was the main contributing factor to her injury.
3. The [respondent’s] psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the [appellant] with respect to transfer.
4. The [respondent] was paid weekly compensation and medical expenses from 3 November 2020 to 26 January 2021.
5. The [respondent] has had no current work capacity since 3 November 2020.
6. The [respondent] requires medical treatment as a consequence of her injury and the [appellant] is liable to pay reasonably necessary medical expenses.
The Commission orders:
7. The [appellant] to pay the [respondent] weekly compensation as follows:
(a)$779.51 per week from 26 January 2021 to 1 February 2021 pursuant to section 36(1) of the Workers Compensation Act 1987, and
(b)$656.43 per week as adjusted from 2 February 2021 to date and continuing pursuant to section 37(1) of the Workers Compensation Act 1987.
8. The [appellant] to pay the [respondent’s] reasonably necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987.”
GROUNDS OF APPEAL
The appellant relies upon the following grounds of appeal:
Ground One: The Senior Member erred in law in failing to observe that the test of reasonableness is objective, not subjective, from the point of view of the injured worker.
Ground Two: The Senior Member made a critical error of fact in concluding there was evidence permitting him to find the employer's representative, Ms Jana Da Silva, was aware or ought to have been aware prior to making the suggestion, that for her to suggest a transfer would cause the worker emotional distress.
Ground Three: The Senior Member, in considering the reasonableness of the employer’s action, neither identified nor restricted himself to the facts giving rise to the transfer.
LEGISLATION
Section 11A(1) of the 1987 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.”
NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
For the appellant to succeed, error must be established. Section 352(5) of the 1998 Act provides as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The nature of an appeal has been reviewed in various decisions. Perhaps the most well-known and uncontroversial description of the appellate task is described by Roche DP in Raulston v Toll Pty Ltd.[13] I refer to and rely on that decision, in particular paragraph [19].
[13] [2011] NSWWCCPD 25; 10 DDCR 156.
THE APPROACH TO SECTION 11A OF THE 1987 ACT
Section 11A of the 1987 Act has been the subject of extensive judicial consideration. The appellant at [17] of its submissions sets out an extract from Heggie, setting out the observations of Sackville AJA at [59].
Additionally, the approach to s 11A was considered in Commissioner of Police v Minahan[14] where Foster AJA (Sheller JA and Santow JA agreeing) said as follows:
“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.”[15]
[14] [2003] NSWCA 239 (Minahan).
[15] Minahan, [27], citing Irwin.
In Minahan, Foster AJA also referred to the decision of Truss CCJ in Ivanisevic v Laudet Pty Limited[16] where her Honour said as follows:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[16] Unreported, 24 November 1998 (Ivanisevic).
This passage was quoted with approval by Foster AJA in Minahan at [42].
In Jeffery v Lintipal Pty Ltd,[17] Basten JA was dealing with the concept of “transfer” in s 11A(1) of the 1987 Act and said as follows:
“There is a clear distinction to be drawn between a statutory test which requires an objective assessment by the Commission of the reasonableness of the action of the employer and a test by which it is sufficient for the employer to demonstrate to the Commission that, in all the circumstances, the action appeared to it to be reasonable. In my view, the present statutory provision engages the former test … If it were sufficient that the employer took action because it appeared to the employer, on grounds upon which it was reasonable to rely, to be reasonable action, the legislature could have said so. However, it did not. In my view, if, in the view of the Commission, the action taken by the employer in transferring an employee is not reasonable in all the circumstances, the employer cannot rely upon s 11A because it held a genuine belief, based on reasonable grounds, that its action was reasonable.”[18]
[17] [2008] NSWCA 138 (Jeffery).
[18] Jeffery, [50].
Finally, in Department of Education & Training v Sinclair,[19] Spigelman CJ said as follows when considering a defence under s 11A(1) based on the concept of discipline:
“Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”[20]
[19] [2005] NSWCA 465 (Sinclair).
[20] Sinclair, [96].
In short, Sinclair stands for the proposition that a course of conduct may constitute reasonable action even if particular steps are not.
Having considered the submissions of both parties, I do not consider that there is any dispute about the principles to be applied to the deciding of this dispute.
SUBMISSIONS
I will deal with the detail of what is submitted with respect to each of the three appeal points in the discussion section below.
The appellant, if successful, seeks orders revoking the decision of the Senior Member and further seeks that an order be made in favour of the appellant employer.[21]
[21] Section 352(6A) of the 1998 Act.
The respondent contends that the Senior Member’s decision is not affected by any error and as a consequence the decision ought be confirmed.
DISCUSSION
As to Ground One
In this ground the appellant alleges that the Senior Member erred in law by applying the wrong test, namely that the test of reasonableness is objective and not subjective from the point of view of the injured worker. The error the appellant asserts is to be found in the first two sentences of reasons [249] which provide as follows:
“There seems little doubt that Ms Da Silva had good intentions, given the issues that had troubled the [respondent] over the previous six months or so, and it might be said that she was sensitive in the manner that she spoke to her, but that was not how the [respondent] perceived their discussion. She felt that she was being coerced and in her fragile state, this led to her decompensation.” (emphasis added by appellant at submissions [13])
I note that the appellant’s extract from reasons [249] does not profess to be a complete extract. The final sentence in [249], which does not appear in the appellant’s submissions, reads as follows:
“Whilst it might well have been in the [respondent’s] interests, the manner in which it was made should not be considered and its timing could not be seen as reasonable.”
At appellant’s submissions [15], the asserted error is framed in the following way:
“Objectively, there would seem every reason for a sensitive employer to ask the worker whether she might be better suited by work that involved less driving and less physical activity. Subjectively, the suggestion was perceived as something that it was not. This has clearly formed a part of the senior member’s approach to the question of reasonableness, and in that he has fallen into error.”
The appellant goes on to assert that how the worker perceived Ms Da Silva’s action was not relevant in determining reasonableness.[22]
[22] Appellant’s submissions, [18].
The respondent worker contends that no error as alleged, or at all, was made. In response the respondent points to a number of other paragraphs in the Senior Member’s decision which support that the Senior Member acted in accordance with the correct test.[23] It is to be noted that the material relied upon by the respondent in her submissions at [10] does represent a more complete and full reading of the Senior Member’s reasons rather than the appellant’s concentration on not only one sentence, but part of that sentence.
[23] Respondent’s submissions, [10].
The submission that how the worker perceived Ms Da Silva’s suggestion as a transfer has somehow infected the Senior Member’s reasoning that the appellant’s action was not reasonable cannot be sustained. It is clear that in the sentence immediately following the alleged error pointed to by the appellant,[24] the Senior Member made the finding that the manner in which the suggestion was made and its timing could not be seen to be reasonable. The Senior Member then goes on to discuss why this is so.[25]
[24] At reasons, [249].
[25] Reasons, [250]–[252].
In these passages of the Senior Member’s decision, the Senior Member is precisely engaging with the principled approach to considering the test of reasonableness. In particular, the Senior Member is engaged with the passages from Sackville AJA in Heggie at [59(iv), (v), (vi)]. The appellant, both below and on appeal, has emphasised the reasonableness of Ms Da Silva’s actions and intentions in defending its position.[26] The problem for the appellant is that the Senior Member has made a number of findings which are not challenged on appeal, namely that its action was not reasonable and this is a finding of fact.[27] Clearly the Senior Member was most concerned about the manner in which the option of transfer was raised with the worker.[28] The Senior Member made unchallenged factual findings that the manner in which the proposal about a possible transfer was made was not reasonable. These considerations of the Senior Member are consistent with the extract appearing at [31] above citing Truss CCJ in Ivanisevic, which was cited with approval by Foster AJA in Minahan. Namely, that when considering the concept of reasonable action, regard is had to not only the end result but to the manner in which it was effected. This is precisely what the Senior Member was undertaking in these passages of the decision.
[26] Appellant’s submissions, [11], [12], [15].
[27] See Heggie [59(vii)].
[28] Reasons, [249], [251].
The Senior Member found that what transpired on 3 November 2020 was this:
“The [respondent] had called to advise that she was sick and needed a few days off. Ms Da Silva took the opportunity to discuss the [respondent’s] employment when the [respondent] was not in a fit state to do so. Any discussion about a transfer should have been done in a more formal context and in person.”[29]
[29] Reasons, [250].
It is the unchallenged evidence of Ms Da Silva that she was aware of the difficulties that the respondent had been contending with during the year, and that when she called on 3 November 2020 “she wasn’t in a good state at all”.[30] It was within this context that the Senior Member then proceeded to make the finding that he did at reasons [252] that “a reasonable employer would not have even raised, let alone pressed, the option of a transfer …”. The fact that as a result of this the respondent decompensated has in no way affected the objective task of assessing the reasonableness of the appellant employer’s actions.
[30] Reply, pp 42–43.
At reasons [206] the Senior Member extracted a quote from Attorney General’s Department v K,[31] a decision of Deputy President Roche which deals with workers’ perceptions of real events at work. On the appellant’s evidence, there is no doubt about what transpired during the telephone call of 3 November 2020. They were real events and a psychological injury resulted. This however is not to be confused with the task undertaken by the Senior Member in assessing the reasonableness of that action. The findings of fact made by the Senior Member regarding the reasonableness of the appellant employer’s actions are not under challenge on this appeal, and these considerations were not infected by the respondent’s reaction to the proposal that her employment be transferred.
[31] [2010] NSWWCCPD 76.
The alleged error has not been made out, and as a consequence, Ground One is dismissed.
As to Ground Two
The error complained of by the appellant in this appeal ground is identified as appearing at reasons [247]. This section of the Senior Member’s decision reads as follows:
“The evidence shows that Ms Da Silva was aware that the [respondent] had experienced bereavement and health problems since May 2020, and there were no performance issues. The [respondent] said that she had not required any time off work due to her arthritis. Therefore, it is not surprising that the [respondent] was not prepared to move to a store.”
The appellant alleges that the statement appearing in the final sentence at reasons [247] had “absolutely no evidence to support it”. Namely, the appellant complains that there was no evidence that supports the statement that Ms Da Silva ought to have been aware that the suggestion of a transfer of location would be strongly resisted by the worker. This, the appellant says, was a conclusion which clearly affected the outcome of the case. The appellant proceeds to submit as follows:
“There is nothing in the evidence to support the senior member’s conclusion that Ms Da Silva would, or should, have been aware that the worker would be distressed, rather than pleased, by the proposal that Ms Da Silva put forward.”[32]
[32] Appellant’s submissions, [30].
The respondent submits as follows:
“A fair reading of the whole of the decision of the Senior Member does not disclose that this statement by the Senior Member was determinative of the issue. It is respectfully submitted that a fair reading of this conclusion was simply a statement as to the state of mind of the injured worker given that her evidence was that she had not required time off work due to her arthritis, and so the suggestion that she should move to a store came ‘out of the blue’ as noted by the Senior Member in the following paragraph at [248]. It was a reasonable inference to draw from all of the evidence.”[33]
[33] Respondent’s submissions, [16].
The respondent alleges that no relevant error for the purposes of intervention on appeal has been made out.
Procedure before the Commission is set out at s 43 of the 2020 Act. The rules of evidence do not apply, and the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The statutory predecessor of this provision, s 354 of the 1998 Act, was examined by the Court of Appeal in Onesteel Reinforcing Pty Ltd v Sutton.[34] In Sutton, Allsop P (McColl JA agreeing), in describing the fact that the then Workers Compensation Commission was not bound by the rules of evidence, said as follows:
“… the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material”.[35]
[34] [2012] NSWCA 282 (Sutton).
[35] Sutton, [2].
The appellant in this matter charges the Senior Member with making the finding at reasons [247] “without foundational material”. I however do not read the whole of [247] as suffering from this deficiency, rather it is the conclusion reached in the final sentence that is impugned by the appellant.
It is therefore necessary to examine the state of the evidence that was before the Senior Member. Further, this enquiry needs to be directed to the state of the evidence surrounding the events that transpired on 3 November 2020 and the state of knowledge of Ms Da Silva in order to assess the merit or not of this ground of appeal.
The appellant instructed Malcolm Cowie and Associates Pty Ltd to investigate this matter. A factual investigation was undertaken and a report dated 4 January 2021 was supplied to the appellant.[36]
[36] Reply, p 26.
The investigator formally interviewed three witnesses: the respondent worker, Ms Da Silva and Ms McHugh.
The investigator recorded the following information being provided by Ms Da Silva:
“I was aware Mellissa Collins (Mellissa) was absent due to her mother's death. I spoke to Mellissa she called me I think the day after her mum passed away. This was pretty much the week I started. I was sympathetic and told her she could have all the time off that she needed.
The death of Mellissa's mother affected Mellissa quite severely, you could really see it. I offered her counselling probably about four or five times throughout the course of that first couple of months but she always declined, saying she was very comfortable with her GP. She never once mentioned to me that she wasn't getting support from Michelle.”[37] (emphasis in original)
[37] Reply, p 32.
The investigator then took instructions from Ms Da Silva regarding her response or version of the events of 3 November 2020.[38] In particular, the following is recorded:
“I remember on Tuesday, 3rd November 2020, Mellissa called me around 9am. I was working with a team out in the dock so it was a little bit loud. Her phone was ‘crackling’ in and out so I was trying to move to a quieter area.
Essentially Mellissa was calling in sick due to stomach cramps, she was going to go and see her doctor for some blood tests. She seemed to think it was all related to stress with her mother’s passing and a cousin passing away.
I said to Mellissa you have had a really tough year, all she kept saying was I feel like I am letting the team down. I went back and forth reassuring her a couple of times this was not the case. I told her to take time off and let’s just see what the doctor says, you and I aren’t doctors, let the doctor see and they will come out with an outcome once they have made an assessment.
She then said she was stressed, she wasn't sleeping at all or very well, she is on medication to try and help her with that as well. She said her arthritis is flaring up and it hurts her and physically she wasn't in a good state at all.
All of a sudden it went from calling in sick with a stomach cramp to now she is not sleeping, she is very stressed, she has got arthritis, she was just in a really bad state. I again said to her see what your doctor says, the issue of not sleeping and the thought of her having to drive to all these different stores was alarming to me.”[39] (emphasis in original)
[38] Reply, pp 42–44.
[39] Reply, pp 42–43.
Ms Da Silva then recounted to the investigator the following exchange with Ms McHugh, the appellant’s employee relations specialist:
“Around 20 to 30 minutes after speaking with Mellissa, I received a phone call from Margo McHugh, she said she had received a frantic call from Mellissa, she was distressed, crying, very emotional. I said I have just spoken to her, what's wrong, I couldn't believe it. She said Melissa said I am trying to tell her that she needs to transfer, I said transfer, I have never mentioned transferring out of SSA. She said Mellissa was quite upset, she doesn't think she was getting support from you. I said no, that is not the case at all.”[40]
[40] Reply, pp 43–44.
Ms Da Silva provided the investigator with a file note of her conversation of 3 November 2020 with the respondent worker, which is attachment 4 to the investigator’s report.[41] The contents of this document are consistent with Ms Da Silva’s instructions and statement to the investigator.
[41] Reply, p 52.
The statement of Ms Da Silva from which the extracts in the report were taken commences at reply p 79.
Ms McHugh’s statement confirms what transpired in her telephone discussion with the respondent worker on 3 November 2020, noting as follows:
“Mellissa was quite upset when I called her, she said that she was at her doctor's surgery waiting to see her doctor to have the capacity assessment form completed. I advised Mellissa that I would speak with [Ms Da Silva] as possibly there had been a misunderstanding between them in their telephone discussion.
I offered Mellissa Bunnings’ EAP counselling service and said we will discuss her concerns further after she had seen her doctor. Mellissa declined my offer of the EAP counselling service.”[42]
[42] Reply, p 93, [5]–[6].
The Senior Member also had before him the medical notes and reports pertaining to the respondent’s various conditions. In particular, he has set out in his decision his review of the clinical notes and doctors’ reports. This medical material described the respondent’s complaints upon presentation to the doctors, as well as the treatment history prior to the event of 3 November 2020.[43]
[43] Reasons, [43]–[76].
As a result of the Senior Member’s consideration of the lay evidence of the respondent worker, Ms Da Silva, Ms McHugh and the medical evidence, the following finding was made at reasons [252]:
“I consider that armed with the knowledge of the [respondent’s] recent health issues, a reasonable employer would not have even raised, let alone pressed, the option of a transfer and would have acceded to the [respondent’s] request for a couple of days off work.”
It is to be noted that no issue is taken by the appellant with respect to this finding.
Returning to reasons [247], which is the subject of challenge on appeal, it is to be noted that it comprises of three sentences. In relation to the first sentence, Ms Da Silva’s evidence confirms that this was the case. Additionally, the evidence was that there were no performance issues with respect to the respondent worker. With regards to the second sentence of reasons [247], this was the respondent’s evidence and it was not challenged. In relation to the final sentence, I do not consider that this constitutes a factual finding, rather it was an inference available to the Senior Member to draw based upon the facts as found. Contrary to the appellant’s submission, there was “foundational material” for this conclusion to be drawn. The problem with this appeal point is clear. Ms Da Silva on her own evidence was well aware of the respondent’s problems with her recent bereavement. Indeed Ms Da Silva had offered the respondent counselling on 4 or 5 occasions, which in itself evidences an awareness of the respondent’s fragility. However Ms Da Silva is then given further information in the telephone call of 3 November 2020 (outlined at [61] above) which in Ms Da Silva’s mind was a significant escalation of the respondent’s plight describing it thus: “She was just in a really bad state.”
On the basis of the evidence, this was an available inference or conclusion to be drawn with respect to the first limb of this appeal ground.
The appellant however proceeds to rely upon an alternate ground which appears in the appellant’s submissions at [33]. This ground is based upon the decision of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd.[44]
[44] [2001] FCA 1833 (Branir), [28]–[29].
In light of my conclusion with respect to what I describe as the first limb of this appeal ground, the alternate argument cannot succeed. For the reasons that I have described above, the Senior Member was not wrong in reaching the conclusion that he did, which was that the respondent worker would not be prepared to move back into a store. Ms Da Silva had knowledge, which I have set out above, with respect to the respondent’s fragility at the time the conversation on 3 November 2020 started. Tellingly, Ms Da Silva recounts the escalation in the severity of the respondent’s condition during the course of that call (see [61] above, extract from reply pp 42–43). Ms Da Silva’s evidence was that the respondent was “in a really bad state”.
This conclusion is asserted to be an error of fact. It is not. Rather, it is a conclusion which the Senior Member has drawn from established facts and as a consequence it had the necessary basis. The Senior Member was not wrong and as a consequence the alternative basis advanced in reliance upon Branir is not established.
I would remark that the real difficulty for the appellant on this appeal is the finding at reasons [252], which strikes at the heart of a defence to the s 11A claim, and which is subject to no challenge on this appeal.
Ground Two is not made out and is as a consequence dismissed.
As to Ground Three
In Ground Three the appellant relies upon an extract from Jeffery.[45] The appellant asserts that consistent with Jeffery, the Senior Member should have had regard to the following facts:
(a) the disclosed illness of the worker;
(b) the physical demands of the duties required of an SSA member, and
(c) Ms Da Silva’s responsibility for the worker’s safety and wellbeing.
[45] Appellant’s submissions, [34].
The appellant asserts that, in accordance with what Basten JA said in Jeffery (which I will extract below), these matters should have been considered and were not. The relevant section from Jeffery highlighted by the appellant is as follows:
“The reasonableness of the action should properly be assessed by reference to the facts giving rise to the transfer …”[46]
[46] Jeffery, [44].
The appellant also criticises the Senior Member for allowing the respondent’s subjective response to influence his reasoning, as has been asserted in Ground One. Pausing here, I would remark that this submission in Ground One has not been upheld.
The appellant finally asserts that the conduct of the telephone call on 3 November 2020 “must be assessed in the light of what was known to Ms Da Silva at the time”.[47]
[47] Appellant’s submissions, [37].
The respondent maintains that this ground is without basis and that the Senior Member was well aware of all of the relevant facts before reaching his finding that the appellant’s actions were unreasonable.
The appellant under this ground pursues a very clear complaint against the Senior Member. Namely, that the three factual matters giving rise to the suggestion of transfer were not referred to by the Senior Member.[48]
[48] Appellant’s submissions, [36].
The section of the Senior Member’s decision entitled “Reasons” commences at [180]. I set out below each of the factual allegations made by the appellant in which it is said that the Senior Member did not make reference to them.
Factual allegation one: The disclosed illness of the worker
At reasons [200] the Senior Member recounted the following:
“In her statement, Ms Da Silva confirmed that she was aware that the [respondent] had emotional issues following her mother’s death as well as health concerns. When the [respondent] called her on 3 November 2020, she said that she was letting the team down. Ms Da Silva assured [her] that this was not the case and suggested that she take time off. The [respondent] told her that she was not sleeping, her arthritis was flaring up and she was not in a good state physically.”
At reasons [247] the Senior Member found as follows:
“The evidence shows that Ms Da Silva was aware that the [respondent] had experienced bereavement and health problems since May 2020, and there were no performance issues.”
Contrary to the submission under this ground, the Senior Member has in fact referred to the “disclosed illness of the worker”.
Factual allegation two: The physical demands of the duties required of an SSA member
The following sections of the decision refer to the physical demands of the duties required of an SSA member.
At reasons [195] the Senior Member recorded as follows:
“On 2 November 2020, the [respondent] called Ms Da Silva and informed her that she had stomach cramps and would be seeing her doctor. She alleges that when she called on 3 November 2020, Ms Da Silva said that she did not think that she was suitable for the SSA role anymore and she wanted her to think about transferring back into a store, which would minimise her travel. She claimed that Ms Da Silva stated that the business felt that people like her with such conditions posed a high risk of injury, so she and the [appellant] would prefer that she not work in the SSA role. The [respondent] had not expressed any concerns about her condition and her ability to perform her role.” (emphasis added)
At reasons [253] and [254], in considering the reasonableness of the appellant’s actions, the Senior Member discussed the capacity assessment which would have assessed whether the respondent could undertake her usual duties.
These findings were made in the context of the Senior Member recording the following evidence at reasons [104], which was from Ms McHugh’s minutes of her discussion with the respondent on 6 November 2020.[49] In this extract, the Senior Member reproduced the notes in full, but for present purposes I will extract the relevant section:
“Jana said: ‘maybe SSA isn’t right for you and you should think about a transfer. If you ask for reduced hours then SSA couldn’t accommodate that’. I said ‘I don’t want to reduce my hours.’
Jana then also said ‘If I couldn’t perform duties of lifting then it would be fair [sic] for the rest of the team and would compromise/put pressure on the team.’
I said ‘thank you and I’ll go back to my doctor.’”
[49] Application to Admit Late Documents, 11 August 2021, pp 65–67.
The Senior Member was thus aware of the physical demands of the SSA role. The only reason why the appellant, through Ms Da Silva, suggested a capacity assessment was to discern whether or not the respondent could continue to perform those duties. A fair reading of the Senior Member’s decision, read as a whole, discerns that contrary to the appellant’s submission in this part of Ground Three, the Senior Member was aware of and did refer to these matters.
Factual allegation three: Ms Da Silva’s responsibility for the worker’s safety and wellbeing
At reasons [91], the Senior Member extracted the following from the statement of Ms Da Silva:
“Ms Da Silva expressed her concerns about the [respondent’s] safety and asked if she could obtain a capacity form from her doctor so that they could have some idea of what her restrictions were. The [respondent] said that she could not really lift things with the flare up of the arthritis. The [respondent] agreed to take the form to her doctor.”
At reasons [152], the Senior Member summarises counsel for the appellant’s submission which was to the following effect:
“Mr Perry submits that Ms Da Silva was concerned about the [respondent’s] safety, and she said to the [respondent] ‘would going back to a store be an option, being a bit closer to home, limiting your driving, especially with fatigue’.”
At reasons [198] the Senior Member found as follows:
“In her email to Ms McHugh on 4 November 2020, the [respondent] expressed her concerns. She stated that she felt that she had been discriminated against because of her arthritic condition and that she felt bullied, pressured, and coerced into leaving her position. She complained that Ms Da Silva had described her as a risk factor, and she did not want team members performing roles if they were a risk of injury. The [respondent] said that she was anxious and felt that she had been bullied and discriminated against by Ms Da Silva. She repeated this in other emails.” (emphasis added)
And further, at reasons [199] the following appears:
“The minutes of the interview with Ms McHugh are consistent with the [respondent’s] statement. She claimed that Ms Da Silva said that it was in her interests if she let her move back to a store because someone like her posed a high risk of injury.”
And at reasons [201]:
“Ms Da Silva was concerned about the [respondent’s] condition, so she asked her whether going back to a store and being a bit closer to home would be an option.”
In my view, what these extracts show is statements, which were not challenged, all of which exhibit Ms Da Silva demonstrating care and concern for the respondent worker’s safety and wellbeing. Not only was the Senior Member aware of these matters, he has specifically referred to them.
Ground Three conclusion
The appellant makes a very specific allegation that the Senior Member failed to reference three specific factual circumstances. These are the three factual scenarios said to give rise to the proposal of the transfer, and that the Senior Member’s failure to reference them is an error. As can be seen from the extracts above, the specific complaint raised in Ground Three has not only failed, it is incorrect. The Senior Member was clearly aware of these matters at the time that he made his finding that the appellant’s conduct, through its servant Ms Da Silva, was unreasonable. All three factual scenarios were specifically addressed by the Senior Member.
No error has been established. Ground Three is dismissed.
DECISION
As is evident, the appellant’s appeal has been dismissed. It is a very common circumstance in s 11A cases that employers, like the appellant, consider that their actions in regard to an employee were reasonable. In this case, that view is not well founded. Objectively, when one considers the events of 3 November 2020, what occurred was this. The respondent worker was known by the appellant’s servant, Ms Da Silva, to have been quite severely affected by the deaths in her family. Indeed Ms Da Silva had been so concerned she had offered counselling on a number of occasions during the year. During the telephone call of 3 November 2020, further information was relayed by the respondent to Ms Da Silva, leading Ms Da Silva to become very concerned. Ms Da Silva described the circumstances as “alarming to me”.[50] In this call initiated by the respondent, the respondent was simply seeking to advise the appellant of her situation and her need to take time off work. This conversation then developed, at the appellant’s instigation, into a discussion about the respondent’s capacity to perform her role and a transfer is then suggested or proposed. The Senior Member has made objective findings about this transaction on 3 November 2020, finding that it was not reasonable. This was an available, almost compelling, factual finding and involved the Senior Member in no error either of law, discretion or of fact.
[50] Reply, p 43.
Accordingly this appeal fails and the Certificate of Determination dated 30 August 2021 is confirmed.
Judge Phillips
PRESIDENT
30 June 2022
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