Cabot v Secretary, Department of Customer Service
[2021] NSWPIC 116
•12 May 2021
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: Cabot v Secretary, Department of Customer Service [2021] NSWPIC 116 APPLICANT: Paul Gregory Cabot RESPONDENT: Secretary, Department of Customer Service (incorrectly named Service NSW) MEMBER: Ms Kerry Haddock DATE OF DECISION: 12 May 2021 CATCHWORDS: WORKERS COMPENSATION- Claim for weekly benefits and medical expenses for conceded psychological injury; respondent relied on section 11A of the 1987 Act, being actions with respect to transfer and/or discipline; applicant disputed that injury was wholly or predominantly caused by meeting with his manager, that the meeting was a disciplinary meeting, and that the respondent’s action was reasonable; dispute as to the extent of incapacity for work; Northern NSW Local Health Network v Heggie applied; Held-the applicant’s injury was wholly or predominantly caused by the respondent’s action with respect to discipline; the respondent’s action was not reasonable; the applicant has no capacity for work; award for the applicant for weekly benefits and medical expenses.
DETERMINATIONS MADE: 1. That there is an award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $1,251.04 per week from 19 November 2020 to date and continuing.
2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.
STATEMENT OF REASONS
BACKGROUND
1.The applicant, Paul Gregory Cabot (Mr Cabot) sustained a psychological injury during the course of his employment with the respondent, Secretary, Department of Customer Service (incorrectly sued as Service NSW). The injury is claimed to be a disease, deemed to have occurred on 22 May 2020, as a result of various instances of bullying and harassment suffered by the applicant in the course of his employment.
2.Liability for the claim was accepted by the respondent’s workers’ compensation insurer, EML, which notified Mr Cabot of its decision by letter dated 4 September 2020.
3.On 27 October 2020, EML issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability for his claim.
4.EML disputed liability pursuant to section 11A of the Workers Compensation Act 1987 (the 1987 Act). EML relied on “transfer” and “discipline” as its reasons for disputing liability. It therefore disputed that Mr Cabot was entitled to payment of either weekly benefits or medical or related benefits.
5.On 22 December 2020, Mr Cabot’s solicitors requested on his behalf a review of EML’s decision to dispute liability for the claim.
6.EML confirmed its decision on 19 January 2021. In this notice, it purported to rely on “transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers…” The notice went on to state that “The question is whether the whole or predominant cause of your condition is the performance appraisal and/or disciplinary action taken on 22 May 2020 and whether that action was reasonable”.
7.The applicant filed an Application to Resolve a Dispute (the Application) on 23 February 2021. He claimed weekly benefits compensation from 19 November 2020 ongoing; and past medical expenses of $390.
8.The respondent filed its Reply on 17 March 2021.
ISSUES FOR DETERMINATION
9.The parties agree that the following issues remain in dispute:
(a) whether the applicant’s psychological injury, which is conceded, was wholly or predominantly caused by the respondent’s reasonable actions with respect to transfer or discipline, the respondent maintaining that the date of the injury was 22 May 2020; and
(b) the extent of the applicant’s incapacity for work and the reasonable necessity of medical treatment.
PROCEDURE BEFORE THE COMMISSION
10.The matter was listed for conciliation/hearing on 22 April 2021.
11.Mr McEnaney of counsel appeared for the applicant, instructed by Ms Huang. Mr Doak of counsel appeared for the respondent, instructed by Ms Bellemore. Mr Cabot was present.
12.The applicant sought a general order for medical expenses, pursuant to section 60 of the 1987 Act.
13.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
14.The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 15 April 2021, filed by the applicant and admitted by consent.
Oral Evidence
15.There was no application by either party to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence of the applicant, Paul Gregory Cabot
16.The applicant’s first statement is dated 20 June 2020.
17.The applicant is employed as a Customer Service Officer, Driver Tester (Driver Tester). He commenced work at Five Dock.
18.The applicant states that his health was generally OK up until the last six months. He feels that is when his work situation started to impact him, leading up to the incidents that occurred on 21 May 2020 and 22 May 2020.
19.Mr Cabot had previously been treated for depression after the death of his sister in 2013. He saw a doctor on a few occasions and took some time off work but had not attended a doctor for depression or anxiety until the recent events associated with his work.
20.When the applicant applied for the position of Driver Tester, at Penrith, he was provided with a list of questions he would be asked at the interview. He was “shocked” and told the person who provided them that he could pass on his own, but he kept the piece of paper.
21.The applicant commenced work at Penrith on 6 March 2015. There was overtime available, but he was told by his manager, Lynn Lee, that he was “too expensive”. There were also many issues in relation to being paid for overtime he had worked.
22.The applicant is entitled to a 10-minute morning break and 45 minutes for lunch, but having breaks was a “constant issue”. The tests he conducted were sometimes quite difficult and went over the scheduled break. They were also at times quite stressful, but that was never acknowledged. He felt he needed a small break, but there were many occasions when he was not allowed to take it. He was never given time to catch up on it, but the counter staff did get this opportunity if there was time in the afternoon. He expressed his need for the morning breaks but was mostly ignored.
23.The roster was constantly changed without any or proper notification. Mr Cabot took photos of the roster so that if this occurred, he had proof of his original roster.
24.The applicant has received formal induction, including information on the respondent’s Code of Conduct, Bullying and Harassment Policy and Grievance Procedure. He understood them and knew what to do if he had a problem at work. The respondent has an Employee Assistance Program, but he has not availed himself of it.
25.There is a lot of emphasis placed on customer feedback. “We” had to get at least 30% feedback, which placed a lot of pressure on them to ask for it. The applicant regularly achieved near the top, and the feedback was mostly positive even when the candidate failed.
26.They are expected to complete a lot of on-line training but are not given time to complete it, as they are under so much pressure to keep serving customers. The applicant has training courses back to 2018 he has been unable to complete. He tried to complete it, but as he is not a fast reader, Lynn became impatient, stood over him and ordered him to submit the answers she was giving. She eventually took over his computer and submitted them herself. He expressed his displeasure as he wasn’t learning.
27.A great deal of pressure was placed on the applicant and other Driver Testers when the benchmark for in-car monitoring of their performance was raised from 90% to 95%. He was not present at a training session, as he was on holidays. The trainer, “Tony” told another Driver Tester to “Give him a message. Tell Paul I’m ready for him”. This placed a lot of extra pressure on him, as he felt he would not get a fair and unbiased test.
28.Lynn Lee has been the applicant’s manager for about two to three years. She has completed his performance reviews and he had always received a good review. He has always reached his targets, particularly with good customer feedback. He has had minimal sick leave and does not take unnecessary leave.
29.The applicant prides himself on his work ethic and had worked very hard over many years. He thought he had a good rapport with his supervisors. Lynn often asked him technical questions that should have been directed to the Safety and Compliance Unit. This became an issue for him, as he didn’t want to give incorrect advice in case he was blamed if something went wrong.
30.Due to a combination of issues, particularly in the last 12 months, pressures had escalated, leading to the applicant’s “current situation”. He had taken some sick leave in the last three months. The pressures from work were affecting his mental health. He was bringing them home, affecting his relationship with his wife and family.
31.The applicant felt unmotivated and depressed, unable to find happiness in previously enjoyable activities. He felt irritable and anxious and had trouble sleeping. He had the occasional day off and would always attend Dr Kanaan. She was aware of his situation, but the medical certificates did not state he was stressed. He asked her not to put that down, fearing retaliation.
32.The stress went back to 2015. The applicant referred to feeling under duress from Sangeeta Saxena to sign a written warning after swearing during a driving test. “Kenny” from Panther Driving School started an online campaign against him. He was offered no support. The situation between him and Sangeeta escalated. When she left Penrith, she threatened that she would “get me back”.
33.Mr Cabot refers to many examples of being undermined and the results of his tests being overturned. He felt this reflected badly on his reputation and records. He was belittled by Area Manager Vanessa Glendenning in front of other staff during a meeting toward the end of 2019. She got quite angry, saying he had interrupted her and later in the meeting was extremely rude to him.
34.Another example of unfair treatment was when Vanessa asked if Mr Cabot would be interested in a six-month relief position at Blacktown. Lynn agreed, if a replacement could be found for him at Penrith.
35.The applicant waited a few months and then called Vanessa to ask when he could be expected to go to Blacktown. She sounded annoyed and said the transfer had been cancelled as there were no applicants for his position at Penrith, and 12 Driver Testers at Blacktown that could cover the position. He was upset as this has been promised and he was assured it was happening. When he asked Lynn about it, she replied there had been no applicants, which he knew was not true. She showed him an email from Vanessa, and there were two applicants, one of whom was a qualified Driver Tester. He felt betrayed by his Manager and Area Manager, and that they could not be trusted.
36.There was an incident between the applicant and Margie Buttigieg, when she said he had spoken to her in a bullying and intimidating manner. A customer offered to be a witness to the fact that he had been polite and professional in his manner and the accusation was false. This was very stressful and when he went home, he was very distressed and very anxious. This was one of many situations at work that caused him a great deal of stress and anxiety.
37.The following week, a meeting had been arranged for the applicant and Margie with HR. He was surprised as he did not know what it was for. He was given a last-minute option to choose a support person and chose Katie. He asked what the meeting was about, and the HR person “stumbled”. The applicant commented that he did not request the meeting and the HR person said Margie had not made a complaint about him.
38.The applicant asked “…then what are we doing here?” and left. They later became aware that the meeting had been organised by Lynn. He was upset and stressed, as he felt Lynn was using him to try to discredit Margie.
39.The applicant does not feel that the work environment is very safe. At the outbreak of the pandemic, he and the other Testers were upset and apprehensive as they were made to take out driving tests in the first couple of weeks without masks or gloves. Of the 22 counters available, only about 10 had screens and they constantly rotated between them. There was also an issue that came to a head in May 2019 with Takata “Alpha” airbags, where they had previously been made to take out high-risk vehicles on driving tests.
40.The applicant refers to another example of unfair treatment in early May 2020. He asked his supervisor to reverse a transaction that would result in a saving for a customer. To do so, she picked “staff error” from a drop-down menu. He told her she should pick “miscellaneous”, but she just shrugged it off. This happened quite often. It is unfair to have all these “error” on his record, which makes him look bad.
41.The applicant provides another example where a mistake had been made with the lunch roster and Jodie Feeney had spoken angrily to him. He explained it but she did not acknowledge her mistake or apologise and treated him quite distantly for the rest of the day. This really upset him, and he felt very agitated for the rest of the day. He was quite distressed when he got home, was not able to sleep, and felt really anxious about a situation that was not his fault.
42.Mr Cabot states that on 22 May 2020, he was treated with disrespect, bullied and belittled by Lynn during a meeting in relation to a phone conversation the previous day.
43.The applicant had been to the doctor on Tuesday 19 May 2020 about a mole on his right arm. The doctor thought it was cancer and it was removed straight away. The doctor gave him a certificate for two days. The cut was quite large, with quite a few stitches. The applicant was to return on Thursday (21 May 2020) to have the wound cleaned, checked and re-dressed.
44.On 21 May 2020, the applicant left Lynn a message at about 7:30am to advise that he was going to the doctor and might be a bit late, or might not come to work, depending on what the doctor said. She rang back about 15 or 20 minutes later; and he put the phone on speaker.
45.Lynn said she already had six people off sick that day. She sounded very annoyed. Mr Cabot asked whether those people would have certificates, as he would. Her tone of voice was quite angry, which made him more upset. He was already anxious about the possibility of having skin cancer. He would have tried to go to work had the doctor said it was OK, but his arm was still sore, and her attitude and lack of empathy upset him more. She knew his family history of cancer and “had not once bothered” to ask how he was doing.
46.He informed Lynn he would not be coming in that day. She said, “well goodbye then”, in a way that made it clear she did not care about his situation. He said goodbye and closed his phone cover. He thought the call had been disconnected by Lynn. The phone was on the coffee table between him and his wife.
47.The applicant told his wife that what Lynn had said was psychological pressure. She said it was not his problem, that if they treated people better they wouldn’t have so many people off sick. He said they could not even keep their promises, by which he was referring to the offer of the transfer. His wife said he had enough sick leave, that’s what it is for, and not to worry about it.
48.The applicant then heard Lynn’s voice saying, “you haven’t hung the phone up”. He was shocked that she had been listening and told her that “people shouldn’t be listening to people’s private conversations”. He then made sure the call was disconnected.
49.The applicant went to work the next day. He said hello to Lynn as he walked past her office and she said hello back. Later that day, at about 12:30pm, he was having lunch in the lunchroom when Lynn sat at the table near him. They talked about general things and nothing was said about the phone call.
50.At about 2:20pm that day, Jodie Feeney said that when he finished with the customer he was serving, Lynn wanted to see him in her office. He assumed it was to do with a work issue and wasn’t concerned.
51.When the applicant went to Lynn’s office, she said she was highly offended by what he had said on the phone call the day before. He said, “what are you offended by, you were listening in on a private conversation between myself and my wife.”
52.Lynn said that the applicant had called her a bitch. He said he did not know what she thought she had heard, but he did not say that. She asked why he hated her, and he said he did not. She also said she never promised him anything, to which he responded that she said it was OK for him to take the job at Blacktown if she had a replacement for six months.
53.Lynn again said she had not promised the applicant anything; and he told her she had no right to question him about the phone call, as it was a private conversation and not a work matter. She had initiated the call and said goodbye, and he had said goodbye, which was the end of the conversation. She had invaded his privacy when she failed to hang up.
54.Jodie then walked in, “with a smirk on her face”. Lynn said she was there as a support person. He said he had not been offered a support person or union rep, and Lynn had failed in her duty of care to him. Lynn said Jodie was only there as an independent witness.
55.Lynn then said the applicant had called her a bitch on the phone. The applicant asked if she had heard him say “Lynn” when she said he called her a bitch. She said she had not. He told her he was sorry whatever she thought she may have heard, but he refuted her allegations.
56.The applicant felt rising panic and that he was going to be physically ill. He felt like a caged animal and that he had been set up by Lynn and Jodie. He had to leave and told them he was not participating in the meeting any more.
57.The applicant went back to his desk. He sat for about a minute, not sure what to do next. He felt upset and anxious about what had happened and Lynn bringing Jodie in. He was shaking, felt they had “just pushed me over the edge”, and he could not take any more “of what they were putting on me”. His heart was racing, and he couldn’t bear to be there any longer. He was nearly in tears, had trouble breathing and was completely shocked.
58.The applicant started packing up, emptied his cash drawer and went into the secure area to balance. Jodie asked what he was doing. He said he was balancing, felt sick and was going to see his doctor. She asked if it was to do with his arm, to which he responded that his medical history was not her business, but to tell Lynn he was going to see his doctor and would contact her later.
59.The applicant went home but then consulted his doctor, Dr Alfred Massoud, the same day. He was diagnosed with acute stress brought on by the work environment. Dr Massoud issued a medical certificate, putting him off work from 22 May 2020 to 29 May 2020.
60.Mr Cabot called Lynn’s mobile to let her know he would not be in, but she did not answer. He then called Service NSW Penrith and told Bronwyn (Dorrian, supervisor) that he would not be at work the following week and had a certificate. He sent the certificate to work and received a text the following week, requesting a Certificate of Capacity (COC), as it was now classed as a WorkCover issue.
61.The applicant states that the situation had affected him very deeply. He was constantly on edge, anxious and feeling depressed. His “unfair treatment at work” had been building for at least 12 months, but particularly in the last six months, ending with the meeting on 22 May 2020. The meeting was “clearly a form of bullying and harassment”, belittling him once again. There was no reason for Lynn’s behaviour. He refutes that he was rude to her on the phone.
62.The applicant has provided only a few examples of how he has been unfairly treated. It was getting to the point where something was happening at work every few days, which undermined and affected him, making him feel constantly anxious and depressed. There were many times he could not face going to work. He could not sleep, was irritable all the time, and the circumstances at work were affecting his relationship with his wife and family. They were upset and “walking on eggshells” around him. He felt under enormous pressure. He considered leaving but felt he had limited options. He was also the only one working to support his wife and four children, and felt his employer used that against him. He had been having some very dark thoughts.
63.Mr Cabot was not sure if he could return to work at Penrith. He felt he had a “target on my back” and would be unfairly treated wherever he worked in the organisation and eventually forced out. He had often been told by Lynn that if somebody crosses her, she will get them back.
64.The applicant made a further statement on 19 February 2021. This statement responded to the respondent’s lay evidence.
65.The applicant states that he was looking for alternate employment because he was becoming increasingly frustrated and anxious with workplace issues. He did not let it affect his performance and Lynn admits he was managing his job well. His issue with working on Saturdays was that this was a change forced on employees without allowance for feedback. There had also been ongoing and consistent issues with rosters and hours changing with no consultation. He had also had issues with being paid overtime.
66.The applicant states he had tried many times to bring up issues, but nothing was followed up. On occasion, Lynn would respond “Do you like working here? Do you want to feed your family next week? Shut up and go and do what you’ve been told to do.” He feared retaliation if he pursued these matters.
67.The applicant’s main issue with respect to the transfer is that it was handled poorly. He was not advised of the outcome but had to follow it up. They should have advised him it was not going ahead, instead of leaving him hanging and anxious.
68.The applicant refutes Lynn’s version of the events about his issue with Margie. Lynn had her own issues with Margie, frequently calling her derogatory names behind her back.
69.As regards the phone call on 21 May 2020, the applicant disputes that he called Lynn a bitch or swore at her during his discussion with his wife after they thought the call had ended. His wife was witness to the call, and no friendly banter transpired. Lynn was never pleasant during the call and was already frustrated that five or six people had called in sick. He did not inform her about taking Thursday off sick, as he rarely took sick days.
70.When Lynn returned the applicant’s call, she was extremely cold and made him feel uncomfortable. He decided he was entitled to a day off, as his arm was still sore, and he would be covered by a medical certificate.
71.The applicant states that Vanessa’s statement suggested that he was to be reprimanded. He disputes the suggestion that he is an aggressive person. He has never engaged in aggressive conduct. He was frequently called upon to calm down aggressive customers.
72.The applicant disputes that Lynn had apologised to him. She was abrupt and rude. He disputes that he had slammed the door. This is impossible, as it is a gas door.
73.The applicant states that Lynn’s evidence that Jodie was not present as a support person is contrary to the suggestion she was “uncomfortable” meeting with him. He had no prior notice of the meeting. Jodie approached him in the afternoon while he was serving a customer and told him Lynn wanted a word with him. When he entered Lynn’s office, she told him to sit down and proceeded to verbally bully him.
74.When the meeting on 22 May 2020 commenced, Jodie was not in Lynn’s office. She had returned with a pen and paper, “and a smirk on her face”, when Lynn accused him of swearing and calling her a bitch. Lynn alleges that she did not have any conversations with him, but they sat together at lunch and had a friendly conversation.
75.The applicant states that if Lynn was uncomfortable confronting him, a proper meeting should have been organised between them and HR. He felt that he was being targeted unfairly, without the opportunity to respond and have a support person. He at least should have had sufficient notice of a meeting where he was to be addressed for his “conduct”.
76.Mr Cabot disputes Vanessa’s evidence that he had no issues with Lynn until recently. Issues with her had been occurring and getting worse for months. HR never took action to resolve them. Vanessa had suggested he was unhappy at work, and he has indicated why. He made comments about utilising his sick leave but said he wanted to do so to relieve the stress and pressure of his employment.
77.In response to the statement of Divashni (Dee) Maharaja, the applicant states he does not dispute that he got along well with Lynn at first. However, he started to witness and endure constant bullying and intimidation in the workplace.
78.The applicant did not say to Dee that Lynn did not sound happy on the phone; and did not say “I called her ‘a fucking bitch’ and I said names under the sun and when I did it went quiet all you could hear is Lynn saying ‘Paul you haven’t hung up the phone’”. Dee also did not urge him to apologise. As he did not make those comments, there was no need to apologise. He did walk past Dee as he was leaving, with tears in his eyes. She asked him what was wrong, and he replied, “I’m alright, I’m just going to see my doctor”.
79.In response to the statement of Tenielle Stephenson, the applicant states she is Lynn’s niece, and her statement therefore cannot be taken as completely accurate. He had openly admitted to problems related to the transfer but kept quiet with respect to the remainder of his issues. He does not dispute that he was quite disheartened and disappointed.
80.The applicant states that Tenielle misheard what Jodie said to him about an “update and catch up” on 22 May 2020. He admits to being agitated after the meeting but was not aggressive. He was very upset. He did not say “just watch me” as he left and had no conversation with Tenielle as he was leaving.
81.The applicant denies having made statements like “I’m going to add that to my worker’s comp or stress leave”.
82.In response to Jodie Feeney’s statement, the applicant states she had admitted there was a mistake in relation to his roster. She had downplayed much of what transpired that day.
83.The applicant refers to Jodie having been “quite shocked” that Lynn apparently overheard him calling her a “fucking bitch”, as she did not think he would say things like that. It is true that he would not, and the phone call on 21 May 2020 was no different. He was not uncomfortable because he was “caught out”, as there was nothing to be caught out. He was uncomfortable because he realised this was an official meeting and felt extremely cornered and anxious. He was shaking.
Evidence of Lynn Lee
84.Ms Lee, Service Centre Manager, states that she interacted with the applicant daily. She was aware that he had a family issue over his sister’s will. He wanted to employ a solicitor, but his wife wouldn’t let him. He had told her the solicitor who was involved, and his brother-in-law, had AVOs against him because he threatened them. She would say this situation certainly aggravated him.
85.Ms Lee had no problem with the applicant’s work ethic. He never had to be asked to help. However, since 22 May 2020, she had had a customer complaint about conversations with a customer in a vehicle. This had not been investigated because the applicant was on sick leave.
86.The applicant had constantly told her he was looking for another job. He told her he had applied for a job and asked if she would give him a good reference. She agreed. In the last 12 months there seemed to be a constant thread of him indicating that he was looking for another job.
87.Ms Lee states that as far as she was aware, the applicant was managing the job well. He did not complain about his workload. He did have an issue with working on Saturdays. He was very unhappy about it. He had never told her he was having problems at work. He did have one with a Driver Tester, but to her knowledge it had resolved.
88.The applicant had not told Ms Lee he was having a problem with the e-learning. Had he done so she would have given him time off the counter to catch up. She says that to everyone because it has to be done.
89.As regards the transfer, if the applicant went to Blacktown, she would have to fill two positions in Penrith. The replacement needed to be a Driver Tester. She told the applicant that “Steve” had applied, but he was “sort of my ongoing position”; and she had no applicant to fill his role. He responded that he had been told someone from Liverpool applied and “I’m not even sure if you’re telling me the truth Lynn”.
90.She found the email and one of the people sent by recruitment was not a Driver Tester. She really thought once she had that conversation with the applicant, he completely understood that, and the reason he hadn’t gone to Blacktown. The person who had told the applicant about someone applying from Liverpool confirmed he thought that was the case, but if he didn’t apply, then he obviously didn’t want the role.
91.She told the applicant this, and thought he understood that she couldn’t let him go unless she could replace him. Had she been able to do so, she would have let him go. She had nothing against him and was surprised he was “still going on about it”. He gets a bit vindictive when he doesn’t get what he wants.
92.Ms Lee states that the applicant and Margie did have a situation. Margie brought in PSA, he had a witness and it was discussed and resolved. Margie had requested that she not work beside the applicant. Ms Lee did not think this was a good idea, as they needed to get on. She went to HR with the request, which was refused. HR said they needed to have a mediation. A HR representative would attend and both staff were advised. The meeting was on 29 May, three weeks later. The applicant knew about it “from day dot”.
93.Mr Cabot was told he could have a union representative but refused. On the day of the meeting HR advised he also needed a representative. He chose Kate, a Customer Service Representative. He did not walk out of the meeting saying he and Margie did not have a problem. That is untrue.
94.Ms Lee states that on 21 May 2020, she was in the office by herself. She had missed a call from the applicant, so she rang him and set her phone up on her desk. The applicant said he would not be in that day, and she said he was the sixth person who had rung in. She asked him what was wrong, and he said he had had a cancer cut out of his arm. They talked about that and she said she would see him tomorrow.
95.Ms Lee’s phone was on speaker, and she had not turned around and switched it off when she heard the applicant say, she presumed to his wife, “you see what she’s like, I’m the sixth person to be off the day” [sic]. Ms Lee heard the applicant’s wife say, “oh well”; and he said “she’s an effing bitch”, and “she shouldn’t broke [sic] that promise then this wouldn’t be effing happening, the effing bitch.”
96.Ms Lee then said that the applicant needed to hang up his phone. It was quite deliberate that she said that because she wanted them to know she had heard what he said. The applicant said again “you’re an effing bitch, you should’ve hung up from me”. His wife said “shh” and he said “no, she’s an effing bitch” and hung up.
97.Ms Lee states that the applicant did not ask if the others who had rung in had medical certificates, because he did. She was shocked at his language towards her. She had thought he liked her, but then thought “oh my God, he doesn’t like me at all.”
98.Ms Lee was aware that when the applicant returned to work, he told Dee about the conversation and that he had sworn at her. Dee told her about this and said she had told the applicant to apologise.
99.Ms Lee was shocked and saddened after the phone call. She emailed her Area Manager, Vanessa Glendenning, advising her of what had occurred. Vanessa advised her to have a “chat” with the applicant about what he had said.
100.Ms Lee is usually at work early and is alone. Some of the Driver Testers, including the applicant, are also always early. She knew the other tester would not be in that day, and she told Vanessa that, for the first time, she actually felt scared. She didn’t know what to expect from the applicant. She had heard things he said about how he was going to bash people. She went into the training room to make sure somebody was there, so she could bring them out if the applicant was early.
101.The applicant did not come in until after 8:30am, when other staff was there. She just said “good morning Paul”. She was hoping he would apologise but he didn’t. She wanted to give him the opportunity to approach her first.
102.In the afternoon, Ms Lee called the applicant and said she wanted to talk to him about the phone conversation. She said she apologised if she offended him when she said he was the sixth person to call in sick. She didn’t think he would take offence, as they went on to talk about his arm, and she had said it in passing.
103.Ms Lee said she had heard the applicant tell his wife she was “an effing bitch”. He said he did not recall saying that, to which she responded “I’m sure you don’t recall it Paul but you did”. She repeated exactly what he had said and told him it was not acceptable that he said things like that about her.
104.The applicant stood up, said thank you and walked out of Ms Lee’s office. The door has a gas opening on the top, so it doesn’t close lightly. He slammed it and had to really force it for that sound to happen. He went back to his counter, continued with his balance and left the Centre.
105.Ms Lee had Jodie Feeney with her during the conversation. She was not there as a support person, but in case it escalated. Ms Lee stated that the applicant’s version of events at the meeting was totally untrue and “obviously, he’s making stories up to try and make things look bad so things go better for him”. She has refreshed her memory from notes she made at the time. He never commented about Jodie being there and never asked. He pulled a chair right up to her desk and sat directly in front of her, trying to intimidate her. He did not ask for a support person or ask why Jodie was there. There were no raised voices during the meeting.
106.When the applicant left, he did not tell Ms Lee, but rang later that afternoon and told another Coordinator he would be off the following week on stress leave.
107.Ms Lee states that in the past 12 months, there were no signs of the applicant suffering from stress or anxiety. She had noticed no change in his demeanour. He makes silly comments about what he is or is not going to do, and people tend to shrug it off. She is not surprised he has lodged a claim as it’s exactly what she would expect. He told her he was going to use his sick leave before he left. She thinks that is how it would have remained had he not said it was because of her.
108.Ms Lee states that there was no way any of her actions may have contributed to the applicant’s medical condition. He was disrespectful to her, swearing at her, and when called out on it, denying it. There is no way her interactions with him could be seen as bullying or harassment, disrespectful or belittling.
Evidence of Vanessa Glendenning
109.Ms Glendenning, Regional Manager, states that the applicant was very vocal in letting her and his own manager know he doesn’t like working for Service NSW. He has been consistently looking for other opportunities and has been on numerous interviews. He has said he would just continue to use all his sick leave.
110.Ms Glendenning knew the applicant wanted to transfer to Blacktown, as it is apparently five minutes from his home. There is not an automatic transfer, but an application process to go through. She thinks that probably six months ago, there were a couple of opportunities at Blacktown. The conversation they had with him was that if they could fill his role at Penrith, they would look at sending him to Blacktown. There were no guarantees. A position was advertised at Penrith, but only one person applied, so there wasn’t an opportunity to send the applicant to Blacktown. He didn’t like the manager there, but said it was closer to home.
111.It appeared the applicant had a good relationship with Lynn Lee, as he had commented that he would take all his sick leave if not for her. He even bought her a Christmas present, so his current behaviour to her “doesn’t add up”. If he was doing a good job each day, which it appeared he was, Ms Glendenning would not be informed about minor issues.
112.Ms Glendenning does not remember a meeting or situation where she spoke to the applicant angrily or belittled him in front of other staff. It is “certainly not” her style to speak to anyway [sic] in a forum like that. If he had an issue with her behaviour, he would have spoken to her, or at least to Lynn.
113.The transfer to Blacktown was not promised to the applicant. Ms Glendenning “can guarantee” that she did not say “I don’t want to lose you”. Any employee that continued to tell her they were looking for another role was not engaged in the business and was better off not to be there.
114.As regards the incident on 22 May 2020, Lynn called Ms Glendenning at about 9am or 9:30am, and she could tell she was a little upset. She is pretty tough, just gets on with stuff, things don’t upset her, and she normally handles her staff issues in-house. It is rare that things are escalated to Ms Glendenning.
115.Ms Glendenning asked Lynn if she was alright and she replied “no, I had a really rude conversation with Paul”. Ms Glendenning stated that rude conversations with the applicant were a general thing, as he is rude and doesn’t have respect for people in the business. Lynn told her he had called and said he was off sick. If he had two days off, it always turned into three or four.
116.Lynn said she had told the applicant, with no malice, that he was the sixth person to call in sick that day. She thought the applicant believed she had hung up, and then started saying she was “an f’ing bitch” and “I’m going to f’ing teach her a lesson for breaking her promise”. Lynn had said she was still on the phone, to which the applicant responded, “Well you should of [sic] f’ing hung up the phone”.
117.Ms Glendenning asked if Lynn was OK or needed to go home. Lynn said she was fine, just taken aback as she thought Paul liked her and they had a relationship. She was really concerned that he was potentially speaking about her behind her back and saying those type of things.
118.Lynn was “really, really distressed” and Ms Glendenning told her to document what happened and send it to her in an email, which she did. She told Lynn she would need to have a conversation with the applicant and suggested she have somebody in the room, due to his aggressive behaviour. They were not sure how he would react. She would have to tell him what he did went against all their values as an organisation, and “this is where you’re at in regards to the scorecard”.
119.When the applicant was due to come back, Lynn told Ms Glendenning she was a little bit scared to be there by herself. She was scared of what he might do if he came in. She was really concerned due to his aggression on the phone.
120.Ms Glendenning cannot recall when the applicant returned to work. She understands that Lynn had a conversation with him, with Jodie present. He denied he said any of those things to her or swearing at her. She asks, “why would Lynn ring me up and say that he said those things…if he didn’t say it?”
121.Lynn told Ms Glendenning the applicant got up, slammed the door, and Tenielle turned around. He pretty much said he “had an f’ing enough [sic] of this place, I’m going home”. She thinks he left without notifying people and hasn’t been back since.
122.If Mr Cabot had returned to work, Ms Glendenning would have gone in and had a documented formal conversation with him. She would have sent him a meeting request, to let him know she was attending, and he was within his rights to have a support person. The conversation with Lynn wasn’t a formal conversation. It would have been documented as such but not formal. If Ms Glendenning had progressed with a meeting, she would have gone back over the applicant’s behaviour, his comments and had a formal conversation with him. She would probably have taken someone from People and Culture, a HR Adviser, and the applicant would have had a right to a support person.
123.Ms Glendenning states that in the last three months, the applicant was becoming more arrogant and maybe a little bit disrespectful to her and other team members. She was not surprised he had lodged a claim citing stress and anxiety in the workplace, because “he’s pretty much told Lynn that he’s going to potentially have a job somewhere in July” and she thought he may try to play it out to see if he got another role.
124.Since this incident, the respondent has received a customer complaint about the applicant. The customer claimed the applicant was swearing at him, saying “Eff this, eff that” and talking about the company being too soft in regard to lesbians and how it handles things. The customer said he did not say anything as he was scared and didn’t want to cause a scene.
125.It had never crossed Ms Glendenning’s mind that the applicant was suffering from stress and anxiety in the workplace. It was more that he wasn’t engaged in the business, wanted a better opportunity and was looking for an out.
Evidence of Jodie Feeney
126.Ms Feeney states that she is employed as the Service Coordinator at Penrith. She would interact with the applicant daily. When she first met him, he disclosed that he wasn’t happy, wanted to get out, and wanted to get a job at the mines. He also wasn’t happy that he did not get a position at Blacktown. He did not confide that he was having problems in the workplace. He kept saying that he just wanted out, as he “hated the place”.
127.Ms Feeney recalls the occasion when there was a mistake in the applicant’s lunch roster, but it was not as he described it. It is “not in my wording” to say “where the bloody hell are you?”
128.On 22 May 20210, Lynn told her she had spoken to the applicant on the phone the previous day. She had overheard him call her “an effin’ bitch” and was quite shocked. Ms Feeney was shocked because she would not have thought he would say things like that.
129.On the day the applicant returned to work, Lynn asked Ms Feeney to come in, as she wanted to have a chat with him about the conversation. She agreed. She thinks it was at 2pm that Lynn asked her to tell the applicant she wanted to see him. He went to Lynn’s office and she followed.
130.Lynn brought up the conversation and the swearing. The applicant denied it. She believes he felt quite uncomfortable as he was caught out. Lynn went through a couple of other incidences of the conversation. The applicant still denied saying it but couldn’t confirm what he said. He said “well, you should have hung up”. He then said “is that it?”, and walked out, slamming the door.
131.Ms Feeney went out to the applicant’s desk and asked “Is all good?” He said he was going to see a doctor and repeated this when she asked if he would be in the next day. She wouldn’t say he was rattled, “he was Paul”. She told Lynn the applicant was leaving and could see she was rattled by what had occurred.
132.Ms Feeney gets on quite well with the applicant and she is not a disrespectful person, but she could see a very volatile side of him. He had told her of a family incident where there were AVOs against him, but he didn’t really care. He talks like “if anyone crosses me, I’ll just…”
133.Ms Feeney was told about the phone call by Lynn fairly early in the morning. Dee also told her that the applicant had commented to her about the call and the swearing. Lynn asked her to attend the meeting. She could see Lynn was rattled about the whole thing and about having to confront the applicant about it.
134.Ms Feeney followed the applicant into Lynn’s office. She did not come in after the conversation started. She did not have a pen and there was no paper for notetaking. It was not an official meeting. There were no raised voices. It was a bit tense, because of the context, but she felt the applicant was very uncomfortable as he couldn’t get out of it. She didn’t understand why he didn’t just apologise. At the end of the meeting he walked out, slamming the door. This is quite difficult, as it is gas operated and slow closing. He really had to put a lot of effort into slamming it.
135.Ms Feeney did not see any signs of the applicant showing stress or anxiety in the workplace. He was upset when he didn’t get the position at Blacktown but that was probably disappointment. He never actually said “I feel stressed”. It was more like “I hate the place and I want to get out”. She was surprised that he lodged a claim.
136.Ms Feeney has seen no evidence of the applicant being mistreated, belittled or bullied in the workplace, either by Lynn or another colleague. His personality is not the type to be belittled. He is very vocal. He’s quite a strong personality. She thought she had a good working relationship with him. She had never had a run-in with him, they had a joke together. They have been quite pleasant to each other, and she’s pretty easy going. It surprises her that he has had made those comments about her.
Evidence of Tenielle Stephenson
137.Ms Stephenson is employed as a Customer Service Representative, usually at Penrith, but has recently moved to Richmond. She regularly interacted with the applicant and they normally had a similar lunch break.
138.The applicant had talked to her about some family issues. His sister had passed away a few years ago, and her partner had an AVO against him. She knew he had a loving wife and “a few daughters and sons”; and his family life at home seemed fine.
139.The applicant was disappointed with some work situations, where he had wanted to move to Blacktown. This did not go forward and he was quite angry and annoyed about it. Since then, “he’s not the best attitude at work”. He wasn’t happy being there and was quite disheartened and disappointed. Ms Stephenson definitely noticed that.
140.Ms Stephenson was not involved in the meeting on 22 May 2020. She heard Jodie come over to the applicant and say they were to have a meeting with Lynn, “just an update and catchup”. She did not see the applicant go into the office, but not long after, she heard him slam Lynn’s door. It is very hard to close and it never slams. The applicant slamming the door startled her and her customer. She had not heard raised voices, which she could normally hear if that occurred in Lynn’s office, but the door was closed.
141.The applicant went back to his desk and Ms Stephenson could sense he was very aggressive and aggravated. She continued to serve her customer. She asked if he was going to leave earlier and he said “Watch me”.
142.She was genuinely concerned that the applicant was going to make a massive scene in front of the customers and staff. He can be unpredictable; and “just the way he was throwing his stuff around his desk and slamming drawers”. When he left, he did not say he was going to see his doctor.
143.After the applicant left, Ms Stephenson did not speak to Jodie or Lynn about what was occurring. Lynn looked very shaken up. She is a very strong woman and it takes a lot to shake her. She was not herself after that and Ms Stephenson could see she was not herself for a few days leading up to that day.
144.Before this, Ms Stephenson did not see any change in the applicant’s demeanour at work, other than he just wasn’t bothered and didn’t care about work. She could not see any signs that he was suffering from stress or anxiety.
145.Ms Stephenson is not surprised that the applicant lodged a claim as she thought he had it planned. She is surprised he states he was suffering from stress and anxiety in the workplace as she did not think his mental state was like that, and he showed no signs of it.
146.She did not see any incidences of the applicant being mistreated, bullied or belittled. She had always got on very well with him and had a lot of respect for him. Before the incident, he would joke that “I’m going to add that to my Workers Comp or stress leave”.
Evidence of Divashni (Dee) Maharaj
147.Ms Maharaj is employed as a Support Services Specialist at Penrith. She interacted with the applicant daily. She was aware that he had some family issues. He was very annoyed at the solicitor or person who handled his sister’s death, and with her partner. He had “a little hit list” that he talked about all the time.
148.The applicant had never really spoken about work being a problem. Ms Maharaj would say he and Lynn got along very well, and the applicant got along with the team members as well. There is one person, who is gay, and he would sometimes make comments behind her back, but otherwise he looked like he was in a happy place when he came into work.
149.The applicant mentioned frequently that he was looking for a position outside the organisation. He had a number of hours of sick leave up his sleeve and talked about using them up before he left. He has been looking for a job since she’s known him.
150.Ms Maharaj had a conversation with the applicant at about 10am on 22 May 2020. She asked how he was, and he removed the bandage on his arm to show her the stitches. He said he was doing fine but asked if she knew what happened between him and Lynn the day before.
151.Ms Maharaj said she hadn’t heard about this. The applicant said he had called Lynn and said he was not coming in. He said Lynn wasn’t really happy. Ms Maharaj said she was glad he was back. The applicant then said he put the phone down and didn’t hang up. He called Lynn a “fucking bitch and said names under the sun”. When it went quiet, he could hear Lynn saying that he hadn’t hung up. He then quickly hung up.
152.She was a bit shocked because you don’t talk to your manager like that. She asked if the applicant had gone to Lynn that morning and apologised. He shrugged and said “fuck her”. That was the end of the conversation.
153.Ms Maharaj saw the applicant in Lynn’s office later that day. She was standing at the exit door as he left and asked if he was leaving early. He said “nah I’m on stress leave”. He looked very confident as he marched out. He didn’t look upset, he was not red in the face.
154.She did not tell anyone about her conversation with the applicant. She told Jodie recently as she became aware he was on sick leave. She hadn’t told Lynn until recently. She had been told the applicant had been seen at the McDonalds near the office early in the morning. She told Lynn, as the applicant talked about his hit list a lot. She knew something had happened in the meeting room and was scared for Lynn’s safety.
155.Ms Maharaj had not noticed a change in the applicant’s demeanour during the last 12 months. He was heavily pursuing another role. She noticed he had lost interest in the role. He had lost respect for it. She did not see any evidence that he was suffering from stress or anxiety. He carries himself very well. He may be nervous or anxious inside, but his outside demeanour is carried very well. She is surprised he has lodged a claim. Everyone supports Lynn. She is not a bully and doesn’t belittle anyone. She has not seen the applicant bullied or belittled. If anything, everyone’s on the receiving end of his bullying.
Medical evidence
Edge Medical Centre
156.The clinical records of Edge Medical Centre commence on 15 June 2017.
157.On 16 March 2018, Dr Therese Kanaan recorded that the applicant “had bad day yesterday”. His sister had died and left her estate to him and the kids. Her husband and solicitor took everything. The applicant claimed they falsified the will. He took it to court but it did not turn out. There were AVOs against him. He had threatened his brother-in-law’s solicitor. He had an argument with a junior and senior solicitor and “left angry”. He could not sleep over it.
158.This is the only reference to psychological symptoms or mental health issues until 22 May 2020. Specifically, there is no reference to any of the work-related issues to which the applicant refers in his statement.
159.On 22 May 2020, Dr Massoud recorded that the applicant attended for wound review. He also recorded work problems. The applicant had been asked to speak to the manager, who had “made a throw away comment” when he called in sick that he was “letting the team down” as he was the sixth person to call in sick. He had more than 700 hours of sick leave.
160.The applicant’s manager advised him that she heard him say “that’ll show the fucking bitch” at the end of the phone call. He strongly denied this. He had had issues in the past where she lied to his face and he called her out on it. He mentioned a few other issues regarding inappropriate behaviour in the workplace. He was being bullied at work and felt belittled and harassed.
161.Dr Massoud recorded that during the meeting, another supervisor entered the office. The applicant was not aware it was a formal interview. He was not given the opportunity to bring in another representative and felt cornered and harassed. He stated he did not say what he was accused of saying. He left the room without further comment, due to being outnumbered.
162.The applicant felt “significant stress re: today’s proceedings – feels unsupported”.
Dr Massoud suggested he speak to HR and lodge a formal complaint about his treatment and the “intimidation tactics”.163.On 1 June 2020, Dr Massoud recorded that the applicant had attended with his wife, who reported that work had been getting the better of him over the past few months. The last incident was the final straw. He felt betrayed and let down, with a significant aversion to going to work.
164.On 4 June 2020, Dr Massoud reported to EML. He opined that it was difficult to comment on the duration of acute stress reaction. There were no current alternative work suggestions. The applicant was undergoing counselling.
165.Dr Massoud reported that the applicant’s symptoms were low negative mood and avoidance symptoms. He was reluctant to attend work. It caused significant anxiety when he thought of going to work and the repercussions on his employment.
166.Dr Massoud described arousal symptoms – insomnia, irritable behaviour, hypervigilance and poor concentration. The applicant had recurrent intrusive recollections and emotional lability.
167.Dr Massoud was asked by EML to provide details of the applicant’s explanation of the events that led to his current condition. He reproduced his clinical note dated 22 May 2020.
168.Dr Massoud’s diagnosis was acute stress reaction, “as per DSM-V”. He reported that the applicant did not have any pre-existing conditions. His current presentation was wholly a result of his employment with Service NSW, as he had no previous history of mental health diagnosis or stress reactions.
169.As regards the timeframe for the applicant to upgrade his capacity or return to pre-injury duties, Dr Massoud responded that it is hard to determine the timeframes for mental health recovery, for either outcome. The applicant required psychological counselling, regular review, and consideration of treatment by a psychiatrist and anti-depressants should he not improve with counselling.
170.On 29 June 2020, Dr Massoud recorded that the applicant was happy with the information after the factual investigation. He had “good days and bad days”.
171.On 1 July 2020, Dr Massoud recorded having had a case conference with the return to work coordinator, “Mansi”. The applicant was not comfortable with a plan to return to pre-injury duties at another site, as he was also known there. He felt he would be targeted and over-scrutinised to attempt to get him out of employment. He did not feel he would be able to return to work at Service NSW.
172.The applicant attended on 9 July 2020 for completion of “TPD documents”. He had had a psychology session with Sue Stern. There was mild improvement, but “early days in treatment”.
173.On 27 July 2020 Dr Massoud recorded that it was difficult to say when the applicant would be able to go back to work. “Fair Trading” was investigating as other workers had complained. He may not return at all if the same managers remained in place. He did not feel safe to return to work.
174.Dr Massoud recorded on 24 August 2020 that the applicant felt he would not be able to return to work at Service NSW. He had ongoing anxiety symptoms that were exacerbated with thoughts of returning to work.
175.On 7 September 2020, Dr Massoud recorded that the applicant was doing well with the psychologist and felt it was helping.
176.By 21 September 2020, the applicant was having fortnightly psychology sessions and
Dr Massoud recorded that he was stable. There had been no deterioration in his mood, and he was keeping himself busy at home.177.Dr Massoud recorded on 19 October 2020 that the applicant was happy with the independent medical examiner (IME) report. He remained stable, with ongoing anxiety with thoughts of returning to “RMS”. Psychologist sessions were ongoing.
178.On 6 November 2020, the applicant again attended with his wife. He had been advised that payments would cease on 19 November 2020. He had “stress and anxiety +++ re: this”. He stated there had been a fabrication of events.
179.On 16 November 2020, Dr Massoud recorded “nil changes”. The applicant remained anxious and unfit for work.
180.The applicant began to use his sick leave in December 2020. He continued to obtain medical certificates from Dr Massoud.
181.On 23 December 2020, Dr Massoud had a consultation with the IME. The question of changing sites was raised. He explained that management was involved in all sites. The applicant had worked at several in the past. He had anxiety about working at other sites. He remained depressed and was unlikely to be safe in a Driver Tester role with low concentration.
182.Dr Massoud reported to “whom it may concern” (the applicant’s solicitors) on 13 January 2021. He referred the reader to his clinical notes for the dates on which he examined the applicant and the history he obtained. His diagnosis was adjustment disorder with mixed anxiety and depression.
183.Dr Massoud opined that the applicant’s incapacity was wholly related to his psychological injury, attributed to his work. His employment with Service NSW, “and his mistreatment”, was the “predominant contributing factor to his injury”.
184.Dr Massoud was asked whether the applicant’s injury was the result of reasonable action by the respondent with respect to transfer and/or disciplinary action. He opined that it was not, as the applicant was asked to enter a meeting with his manager with no idea as to why he was being summoned. He was not offered a support person and was unaware of a disciplinary meeting, with two people in the room “in an interview style set up”. According to Dr Massoud, this does not equate to reasonable action, “rather intimidation and bullying strategies”. He opined that the applicant should have been offered a support person and been made aware of the reason for being summoned.
185.Dr Massoud opined that the applicant’s injury could have been avoided “should fair and reasonable action have been taken”. He believed the bullying/intimidation tactics used by the applicant’s manager caused his injury and his aversion to returning to his employment due to fear of repercussions with significant anxiety. The injury was foreseeable as the applicant had never been performance managed or had any issues.
186.Dr Massoud did not believe the applicant had any inherent qualities that would make him decompensate in this situation. “Regardless”, the situation arose due to the applicant’s manager not hanging [sic] and phone call that had been terminated and alleging remarks the applicant strongly denies.
187.Dr Massoud disagreed with Dr Bisht’s opinion that the applicant’s psychological injury was a result of reasonable action by Service NSW. He was “curious” as to why Dr Bisht had changed his opinion.
188.Dr Massoud believed the applicant would not return to work at Service NSW. He developed significant anxiety when thinking of returning to work. Returning to Service NSW would continue to trigger this anxiety and was not recommended. He would require vocational rehabilitation. He had a previous security licence but was reluctant to work in security, given his age, family and fear of physical injury or assault.
189.Dr Massoud concluded that the applicant was not fit to work and remained anxious and depressed. It was difficult to give a prognosis with regard to mental health recovery, given the mechanism of injury and “the ongoing appeal”. This question may be better suited to a psychiatrist.
190.Dr Massoud recorded on 21 January 2021 that the applicant’s solicitor wanted his full medical record. He advised having previously given them all the notes relating to the WorkCover case. He called the solicitor, who confirmed that the complete file was required.
191.The applicant relies on COCs issued by Dr Massoud, which certify him with no work capacity up to 23 April 2021.
Ms Susan Stern – Psychologist
192.Ms Stern reported first on 5 August 2020. She diagnosed the applicant with acute stress reaction to situation.
193.Ms Stern was unable to provide either a prognosis or an expected timeframe for the applicant’s rehabilitation. She reported that discussions with him were continuing and “we hope to have an answer to this question soon”.
194.The applicant’s symptoms were anxiety, depression and broken sleep. Ms Stern opined that he would benefit from weekly counselling sessions. He had been prescribed self-management sessions to maintain his recovery at home. He had demonstrated excellent engagement in therapy.
195.Ms Stern opined that it was too early to establish a timeframe for the applicant to return to work. She was uncertain as to the hours he could work, or how many days per week he could work; and the type of work he could undertake had not been discussed, so she could not comment on restrictions. His return to work would be positively affected by evidence that management was adhering to workplace bullying policies.
196.On 19 November 2020. Ms Stern reported to the applicant’s solicitors. She had examined the applicant on many occasions between 11 June 2020 and 7 November 2020.
197.Ms Stern noted that the applicant had reported that his workplace incident occurred on 21 May 2020 and 22 May 2020, but “there have been many incidents of bullying and harassment” that had contributed to his stress.
198.Ms Stern recorded the incidents complained of by the applicant in his evidence, including not being given overtime; not being permitted to take breaks; the rise in benchmarks; being issued with a warning; an online media campaign; having a test result overturned; being “belittled” by Ms Glendenning in a meeting; being “pushed” to take a position at Blacktown, which was “promised” to him but did not eventuate; the incident with Ms Buttigieg; concerns about safety as a result of the pandemic and airbags; the “staff error” incident; and the incident with Ms Feeney.
199.Ms Stern also recorded the incident on 21 May 2020 and 22 May 2020, when the applicant was “treated with disrespect and was bullied and belittled” by Ms Lee. Her “aggressive attitude” on the phone increased his feelings of anxiousness, particularly about the possibility of having skin cancer.
200.The applicant denied having called Ms Lee a “bitch”. He had told her she had no right to question him as the phone call was a private conversation between him and his wife and not a work matter. He was not offered a support person or union representative at the meeting with Ms Lee, and the incident left him shaking and in shock.
201.Ms Stern reported having observed the applicant to have severe anxiety; overthinking; constant worrying; feelings of helplessness, being lost, being trapped, guilt, betrayal, resentment, disappointment, disbelief and nervousness; low motivation; loss of interest in leisure activities; lack of self-care; social withdrawal; sleep disturbance; and difficulty focusing and concentrating.
202.Ms Stern diagnosed the applicant with adjustment disorder with anxious and depressed mood. His incapacity was wholly the result of his employment with the respondent and the injuries suffered at work; and his employment was a substantial contributing factor to his injuries. She did not believe the actions of the employer were reasonable. The injury was a consequence of prolonged bullying and harassment regarding a variety of issues over a period of time.
203.Ms Stern opined that the applicant would not have the capacity to return to the level of capacity [sic] for his pre-injury duties, “now or in the future”. It was too early to establish a timeframe for his return to work or any restrictions that may be appropriate.
Dr Yajuvendra Bisht – Psychiatrist
204.Dr Bisht was qualified by the respondent and reported first on 28 August 2020.
205.Dr Bisht recorded a history that at the meeting on 22 May 2020, the applicant “felt like a bird in a cage and that the wild cats were about to get me.”
206.The applicant told Dr Bisht that Ms Lee had invaded his privacy and taken the issue to the workplace. At the meeting he told her she hadn’t offered him a support person or a union delegate. He refuted having said the things she referred to. He was “sick of being bullied and intimidated over the years”.
207.Dr Bisht recorded a history of the applicant’s past complaints that is consistent with his evidence, including that his transfer to Blacktown was cancelled because there was no one to replace him at Penrith, but he later found out there were applicants who could have done so.
208.The applicant told Dr Bisht that he started to experience psychological symptoms in about mid-2019. They included preoccupation with the stressful workplace events; feeling constantly edgy at his workplace; lack of motivation towards socialising and previously enjoyable activities; poor sleep; feeling anxious around people; persistent flat or irritable mood; and lack of enjoyment in previously pleasurable activities. The symptoms became gradually worse, and significantly worsened after the events in late May.
209.Dr Bisht recorded only partial improvement in the applicant’s condition over the last few months. He still had trouble getting to sleep and recurring thoughts about what was going to happen at the workplace. He felt very anxious when he thought about going back to work with the same employer. He said that even if he changed location, he was worried about information being passed to the managers at his new location.
210.The applicant described his concentration as up and down, depending on whether he was feeling anxious. He sat at home and did not do much. He did a bit of gardening and tried to help with the housework. He was apprehensive about talking to people as he felt they might belittle him. Many people had harassed and abused him over the years.
211.Dr Bisht recorded a history that suggested adjustment disorder in 2013, when the applicant’s sister passed away and his children were deprived of $1 million to $1.5 million. He threatened to kill the solicitor involved, and as a result an AVO was placed on him for one year. When it lapsed, he again threatened the solicitor, as well as his family, and the AVO was renewed for about two years. He was able to move on from the disappointment. He had a few counselling sessions but was not put on medication.
212.Dr Bisht diagnosed the applicant with adjustment disorder with mixed anxious and depressed mood. The injury had not resolved, and adjustment disorder often requires up to six months to start resolving. Based on the applicant’s description, Dr Bisht opined that the predominant cause of his condition was not performance management and/or discipline. Based on the history, there was not one particular incident that could be identified as the predominant cause.
213.Dr Bisht opined that the applicant was not fit for pre-injury duties. He would not be able to work with the respondent. He would be able to work for 20 hours per week, performing duties that did not require him to make complex decisions or sustain intense concentration for long periods, with an alternate employer. His prognosis was uncertain, as he had made only partial improvement, but the treatment options had not been sufficiently exhausted.
214.On 14 September 2020, Dr Bisht provided a supplementary report, having been provided with the factual investigation, which included the witness statements.
215.Dr Bisht opined that, based on the factual investigation, it appeared there was not sufficient evidence in support of the applicant’s allegations of being spoken to rudely. The main contributing factors to his psychological condition would be the actions taken with respect to performance management and discipline, arising from the phone call between him and
Ms Lee, as well as the actions taken by the respondent regarding the transfer.216.Dr Bisht provided a further report dated 9 October 2020. He opined that, based on the evidence of Ms Lee, Ms Glendenning, Ms Stephenson, Ms Feeney and Ms Maharaj, the applicant’s psychological condition was predominantly caused by actions taken by the respondent in relation to performance management and discipline arising from the phone call between him and Ms Lee.
Dr Abdal W. Khan – Psychiatrist
217.Dr Khan was qualified by the applicant and reported on 14 December 2020.
218.Dr Khan recorded a consistent history of the applicant’s complaints of “bullying and harassment from management”. Any attempts to raise his concerns with management were ignored and dismissed. He expressed his disappointment at being promised a position at Blacktown, which was not supported by Ms Lee.
219.Dr Khan also recorded a history of the phone call with Ms Lee, who was “abrupt” during the call. Mr Cabot believed he had hung up but heard her saying he had not. When he returned to work the next day, Ms Lee alleged he had called her names. She did not seem to have had an issue with him earlier in the day. When he was called into the meeting, he “felt like a caged animal”.
220.Dr Khan reported that as a result of these numerous work-related stressors, the applicant experienced gradual deterioration in his mental state. On many occasions he “dreaded going to work”. He had last worked on 22 May 2020.
221.Dr Khan noted that the applicant continued to experience pervasive depressive and anxious cognitions. He struggled with self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace and employability. He was being treated by his general practitioner and psychologist but had not been referred for psychiatric treatment.
222.The applicant had first experienced mental health difficulties in about 2013, developing symptoms of grief, depression and anxiety in the context of his sister’s death and challenges with her will. He engaged in counselling with Beyond Blue and his mental state stabilised. He denied any other pre-existing psychiatric history.
223.Dr Khan diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood. He opined that the applicant was totally incapacitated for work as a result of psychiatric/psychological injury sustained during his employment with the respondent. His employment was the main contributing factor to the injury.
224.Dr Khan opined that the injury was not caused by reasonable action taken by the respondent with respect to transfer and/or discipline. It was “evident” that the applicant had suffered workplace stressors whereby he was bullied, harassed, targeted, undermined and unsupported, resulting in a gradual deterioration of his mental state. The incident on 22 May 2020 merely perpetuated his already deteriorating state and rendered him totally incapacitated for work. Dr Khan opined that “none of these aforementioned actions…can be considered reasonable”.
225.Dr Khan disagreed with Dr Bisht regarding the cause of the applicant’s condition. He regarded it as important that Dr Bisht was not asked about whether the employer’s actions were reasonable. He was, of course, quite properly not asked by the respondent’s solicitors to opine on this matter.
Dr Samuel Lim – Psychiatrist
226.Dr Lim reported on 24 December 2020 to the respondent, having been requested to assess the applicant’s fitness to continue in his position.
227.Dr Lim recorded a history that the applicant enjoyed his position for a while but had difficulties working with “SG” and submitted a complaint about her to HR in 2015. As a result, he was moved to Blacktown for a period.
228.While the applicant was at Blacktown, a complaint about him was made by a candidate who had failed her test. The result was overturned. During a meeting about this, he made “a number of off the cuff remarks” to the effect that he hoped the candidate would go on to run over 10 people and the resulting police investigation would vindicate him. His colleagues expressed their shock at his remarks.
229.The applicant told Dr Lim that SG began to work in the pay office, after which he had problems with his pay. He had no proof, but suspected she was involved. She subsequently received an award and he described significant grievance over this. He expressed emotional distress while describing it.
230.Dr Lim recorded that the applicant started to develop “dark thoughts”, and sometimes while driving to work he wanted his car to break down. He described a number of unpleasant experiences and referred to the statement he had made to the factual investigator.
231.The applicant described in detail the events leading up to his last day at work. He stated that “LL” (Ms Lee) berated him for going to the doctor and complained about other staff also taking sick leave. Assuming she had terminated the call, he expressed a perception to his wife that LL was pressuring him to return to work. He denied making any derogatory remarks about her. She then informed him that he had not hung up. He accused her of invading his privacy before he terminated the call.
232.Dr Lim recorded that when the applicant returned to work he spoke casually to LL on a number of occasions and she sat beside him at lunch and spoke about some personal difficulties his wife was having, of which she was aware. At no point did she make any comments about the phone call.
233.The applicant told Dr Lim that at about 2pm he was advised that LL wanted to speak to him. His description of the meeting is broadly consistent with his statement. He refuted the allegations made by LL. The supervisor was writing on a form that was similar to that used when he was previously given a written warning, and he believed he would be given another warning, which would have a negative impact on his employment.
234.Dr Lim recorded that LL had assumed the role of manager at Penrith after only a few months of experience. She had to be supported by the staff, including the applicant. His relationship with her became more tense later.
235.After the meeting, the applicant felt “stressed”, shaken and upset. He left work, consulted his treating doctor and was diagnosed with acute stress reaction brought on by his work experiences. He said he had previously discussed his difficulties at work with another doctor in the practice, but this was in passing when he attended to discuss other health issues.
236.The applicant had had treatment, which ceased when his claim was declined. He felt his trajectory of recovery had been disrupted. He had experienced financial hardship, which had also impacted his family.
237.Dr Lim recorded a history that the applicant’s mood difficulties had commenced before the incident in May 2020. The “dark thoughts” had become worse after his claim was declined. He was aware that he would have to return to work at some point but was adamant that he would not be able to do so with the respondent in any capacity. He had had difficulties with six managers, a trainer and an area supervisor. This made him concerned that he would be targeted. He did not think he could work in alternative centres, either because he would still have contact with colleagues with whom he did not feel safe working, or the centres were too far from home.
238.Dr Lim discussed the applicant’s condition with Dr Massoud. Dr Massoud opined that the applicant was permanently unfit for all duties. His current mental state was not compatible with vocational retraining. If it improved, he might be able to participate in redeployment, but this would have to be with the goal of a different job and different employer.
285.I will deal first with the issue of “wholly or predominantly caused”. It has been held to mean “mainly or principally caused” – Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan).
286.Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSSWCCPD 96. In the same case, Roche DP dealt with the causation issue, on the basis that Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, as “the leading authority on causation in workers’ compensation claims”, applied. He said, “causation is a question of fact to be determined on the evidence in each case”.
287.The applicant has given evidence in his statement in June 2020 of numerous events in the past six months, so from about the beginning of 2020, in the course of his employment, that he claims had an impact on his health.
288.The applicant stated that he had taken some sick leave, as a result of pressures at work, in the three months before he made his first statement. He also stated that he rarely took days off, has had minimal sick leave and did not take unnecessary leave. His general practitioner recorded on 22 May 2020 that he had 700 hours of sick leave.
289.There is no reference in the general practitioner’s clinical records to any of what the applicant’s counsel referred to as a “laundry list” of issues. Before 22 May 2020, the only reference to anything that may be even remotely related to a psychological condition was on 16 March 2018. The applicant had threatened a solicitor and was issued with an AVO.
290.It was only on 22 May 2020 that Dr Massoud recorded a history of the other work issues of which the applicant has now given evidence.
291.I have had regard to cases such as Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; Daniel Fitzgibbon v The Water Ways Authority & Ors [2003] NSWCA 294; and Mason v Demasi [2009] NSWCA 227 that caution against the use of medical records and the histories contained in medical reports to undermine the credibility of a witness. However, the evidence in this matter is such that I have approached the applicant’s evidence with some caution.
292.The applicant has stated that he always attended Dr Kanaan when he had the occasional day off because he was stressed, but he asked her not to note this on the medical certificates. As the respondent submits, there would be no reason for her not to record the reason for the sick leave in her clinical notes.
293.Dr Lim recorded a history that the applicant had discussed his difficulties at work with another doctor in the practice (assumed to be Dr Kanaan), but this was in passing when he attended to discuss other health issues. If she was not being asked to issue a medical certificate, there again appears to be no reason for Dr Kanaan not to record these complaints in her clinical notes.
294.There is no evidence from Dr Kanaan, apart from the practice’s clinical records. It would have been a simple matter to request a report from her, but there is no evidence that any such request was made, and no reason provided for the lack of evidence from her.
295.The applicant has also given evidence that he was bringing the pressures from work home, and they were affecting his relationship with his wife and family. After the incident with
Ms Buttigieg, he was very distressed and anxious when he went home; and after the incident with Ms Feeney he was quite distressed when he got home. The applicant’s family was upset and “walking on eggshells” around him.296.If, as the applicant claims, his family was aware of the effect on him of the circumstances at work before 22 May 2020, there were witnesses who could provide contemporaneous lay evidence, at least, of his condition. He lives with his wife and four children, three of whom are adults. There is no explanation as to why none of his family has provided any evidence of his demeanour at home before the meeting on 22 May 2020.
297.The applicant made it very clear that he disliked his job and was trying to find work elsewhere. He was obviously a disgruntled employee and felt he was entitled to a transfer to Blacktown. He made his feelings known to others who worked with him. His disaffection with his job does not mean he had a psychological injury. I have placed no weight on the lay opinions of his colleagues that he did not appear to be suffering from stress or anxiety. That is not a conclusion they are qualified to draw.
298.I am mindful that Dr Bisht initially accepted that the predominant cause of the applicant’s injury was not one particular incident. However, he also reported that his opinion was based on the applicant’s description and on the history. It may be accepted that the events of which the applicant complained were real events, but there is no contemporaneous evidence that they caused him to suffer a psychological injury.
299.In circumstances where I have reason to doubt the applicant’s credit and where his evidence that his psychological condition had manifested itself before the meeting on 22 May 2020 is not supported by any contemporaneous medical or lay evidence, and there is no satisfactory explanation of its absence, I determine that the whole or predominant cause of his psychological injury was the meeting with Ms Lee on 22 May 2020.
300.It is therefore unnecessary that I consider whether the respondent’s actions with respect to the applicant’s wish to transfer to Blacktown were reasonable.
301.It is now necessary to consider whether the meeting on 22 May 2020 was an action with respect to discipline.
302.The events leading up to the meeting are the subject of contradictory evidence. I do not accept the applicant’s evidence that he did not call Ms Lee “a fucking bitch” and I find that he did.
303.Ms Lee’s evidence is confirmed by Ms Glendenning, who stated she could tell Ms Lee was a little upset when she rang on 22 May 2020. In response to her query, Ms Lee responded that she had had a really rude conversation with the applicant, who had called her a “f’ing bitch”. She was “really, really distressed”, and Ms Glendenning asked her to document the conversation in an email. Ms Glendenning was not surprised to hear of a rude conversation with the applicant, because they were a general thing.
304.Ms Lee also told Ms Feeney on 22 May 2020 that she had overheard the applicant call her an “effin bitch”. Ms Lee was quite shocked, as was Ms Feeney.
305.Ms Maharaj’s evidence is that the applicant told her on 22 May 2020 that he had not hung up the phone and called Ms Lee a “fucking bitch and said names under the sun”. She was a bit shocked and asked if the applicant had apologised to Ms Lee. He responded, “fuck her”.
306.The applicant’s written warning in 2015 was issued because he swore during a driving test. Ms Glendenning has given evidence that since he ceased work, a customer has complained that he was swearing at him, saying “eff this” and “eff that”. He clearly has the propensity to use the type of language of which Ms Lee has given evidence, apparently without regard to the context in which he does so.
307.The applicant has stated that he asked Ms Lee if she had heard him say “Lynn” when she claims that he called her a bitch. That is disingenuous, to say the least. He denied saying it but was apparently suggesting at the same time that it may not have been directed at
Ms Lee. There was no one else at whom it could have been directed.308.It defies belief that Ms Lee would accuse the applicant of saying something he had not said, report it to her manager and tell Ms Feeney about it the same day. Ms Maharaj has no interest in the matter and would have no way of knowing what the applicant was accused of saying unless she heard it from him. She was not present at the meeting on 22 May 2020. I accept the evidence of these witnesses and of Ms Glendenning.
309.The applicant has described his wife as a witness to the telephone call. It therefore appears that she could provide evidence of what was said, at least by him. As the only other person present during the call, she would be the obvious choice to provide a statement corroborating his version of events. Ms Lee’s evidence, which I accept, is that she heard the applicant’s wife say “shh”, so she obviously heard what the applicant said.
310.The applicant submitted that, if he had been given notice of the meeting to discuss the call, he may have been able to provide evidence, which may have been a statement from his wife. He had an opportunity to provide that evidence in this Application but has not done so. The applicant’s wife is recorded as accompanying him to some consultations with
Dr Massoud, which suggests she is supportive of him. The failure to provide a statement from her is unexplained.311.I do not accept the applicant’s submission that he was not in the course of his employment after Ms Lee had apparently hung up the phone, and that therefore she had improperly attempted to bring the call into the workplace and make it part of a disciplinary process.
312.Ms Lee, the applicant’s manager, had returned his call to her, and their discussion involved his attendance at work. It was clearly work related. Ms Lee’s evidence is that her phone was on speaker and she had not turned around to switch it off before the applicant had the conversation with his wife. The fact that the applicant thought this was a private conversation did not take it out of the course of his employment. I accept that he had made disparaging comments about his manager, she had heard them, she would need to continue managing him, and therefore she would need to address the issue.
313.Turning to whether the meeting on 22 May 2020 falls within the description of discipline, I have had regard to the decision of the Court of Appeal in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie).
314.In Heggie, Sackville AJA made the following general observations [at 59]:
“(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which those rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact”. (Emphasis in original).
315.In Mascaro v Inner West Council [2018] NSWWCCPD 29 (Mascaro), Acting President Snell (as he then was), noted that in Sinclair, Spigelman CJ (Hodgson and Bryson JJA agreeing) said:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation”.
316.The respondent submits that Kushwaha is still good law. In Mascaro, Snell AP said that Kushwaha has been applied in the Commission, but Roche DP in George Weston Foods Ltd v Bogdanoski [2011] NSWWCCPD 62 [at 173], said that its correctness was “open to serious doubt in light of recent authorities on statutory interpretation”. However, he applied Kushwaha in that decision, in circumstances where he found the actions did not in any event fall within that meaning of “discipline”.
317.I do not believe it is necessary in this case to consider whether the definition of “discipline” in Kushwaha is too broad.
318.As Sackville AJA observed in Heggie (consistent with Sinclair), a broad view is to be taken of “action with respect to discipline”. It may extend to the entire process involved in disciplinary action, including the investigation. In my view, when Ms Lee asked the applicant to attend a meeting (even if it were framed as “wanting a word” with him), this was the first step in investigating his conduct towards her, his immediate manager. It was part of the entire process. Whether or not that process ended in punishment or chastisement, it first required an enquiry or investigation; and the applicant had to be given the opportunity to participate in that process.
319.As to whether the respondent’s actions were reasonable, once again Heggie is instructive. It is not enough that the respondent believed it was acting reasonably, or that it felt compelled to do so in the interests of discipline in the workplace. The assessment of reasonableness should take into account the employee’s rights, but the extent to which they are to be given weight in a particular case depends on the circumstances.
320.As I have noted, a disciplinary process must necessarily start somewhere. However, the respondent bears the onus of proof that its actions were reasonable. Ms Glendenning’s evidence is of assistance in this regard.
321.Ms Glendenning stated that, had the applicant returned to work after 22 May 2020, she would have gone in and had a formal documented conversation with him, Before doing so, she would have sent him a formal meeting request, so he would know she was attending, and that he was “within his rights” to have a support person attend with him.
322.Ms Glendenning also stated that, at the meeting, she would have gone back over the applicant’s behaviour and comments, and there would have been a formal conversation. She probably would have taken someone from People and Culture and a HR adviser. She reiterated that the applicant would have been entitled to bring a support person.
323.None of what Ms Glendenning has described in fact occurred. Instead, the applicant was called into a meeting with his manager at short notice and found that she was supported by the Service Coordinator. There was no one present from People and Culture or HR, employees who would be assumed to have some expertise in disciplinary matters and who may be relied upon to ensure fairness to all parties. Had a formal meeting been arranged, the applicant would have been on notice that Ms Glendenning, to whom his manager reported, would attend. I infer that if representatives from People and Culture and HR had been invited to the meeting, he would have been made aware of this.
324.The applicant may have been expected to have some idea of what Ms Lee wanted to discuss with him, given the events of the day before, which I have found did occur. However, his evidence is that Ms Lee said good morning to him and sat near him at lunch, without issue. She has confirmed that she did say good morning to him, and she wanted to give him the chance to apologise. I accept that may have been the case, and perhaps had that occurred, the outcome would have been very different. However, this must be taken into account in assessing the reasonableness of the respondent’s actions.
325.I have considerable sympathy for Ms Lee, who was placed in a difficult situation. She felt the issue needed to be addressed, and this was Ms Glendenning’s advice to her. I also accept that she may have felt uncomfortable meeting alone with the applicant, who had been verbally abusive to her; had a history of making threats of violence when he felt aggrieved (of which she was aware); and had said things about “bashing people”. It was understandable that she asked a colleague to also be present at the meeting. However, her belief in the reasonableness of her actions, or the fact that she felt compelled to act as she did, is not necessarily enough to establish reasonableness (Heggie).
326.In summary, the applicant was not provided with the formal meeting request to which
Ms Glendenning referred; not given any advance notice of the meeting and what was to be discussed; not given notice that Ms Feeney would also be in attendance; not given the opportunity and time to respond in writing to the allegations; not given the opportunity to bring a support person to the meeting, which may have involved seeking assistance from his union; and not give the opportunity to provide any evidence on which he may have sought to rely in response to the allegations against him.327.The applicant had already been given one written warning, albeit that it was five years before. Dr Lim recorded that he believed he would be given another warning, which would have a negative effect on his employment. In circumstances where the applicant may well have been subject to sanction had Ms Lee’s allegations been accepted, the respondent, if acting reasonably, should have followed the procedure described by Ms Glendenning. That procedure appears to have been followed when the applicant had an issue with Ms Buttigieg, although he disagrees that this occurred.
328.The respondent submits that it would not have changed matters had the applicant been given prior notice of the meeting. That may be the case, but there is no way of knowing whether he would have reacted differently, or whether he would have developed a psychological condition in any event. I am required to deal with what did happen, and not a theoretical different scenario.
329.I therefore conclude that the applicant’s psychological injury was wholly or predominantly caused by the respondent’s action taken or proposed to be taken with respect to discipline, but the respondent’s action was not reasonable. The respondent has failed to establish a defence to the claim pursuant to section 11A of the 1987 Act; and the applicant is entitled to compensation for his injury.
Weekly benefits and medical expenses
330.The applicant submits that he has had no capacity for work throughout the entire period. He relies on his COCs and the evidence of Dr Khan.
331.The applicant has consistently been certified by Dr Massoud as having no current capacity for work. Dr Massoud’s most recent COC is dated 7 April 2021. It certifies that the applicant had no current capacity for work until 23 April 2021. His treatment consisted of review by a psychologist and ongoing counselling. He had insomnia and was waking with headaches. He was to trial a SpinalEze pillow.
332.In December 2020, Dr Khan opined that the applicant was totally incapacitated for work. Also in December 2020, Dr Lim opined that the applicant was not able to return to work with the respondent in any capacity. He would benefit from a return to employment, but Dr Lim did not express any opinion as to what form that employment may take.
333.The respondent submits that, in accordance with Dr Bisht’s evidence in August 2020, the applicant has the capacity to work for 20 hours per week, with restrictions, for an employer other than the respondent. Those restrictions were that the duties did not require the applicant to make complex decisions or sustain intense concentration for long periods. The respondent made no submission as to the employment that may be suitable for the applicant.
334.Dr Bisht recorded only a partial improvement in the applicant’s condition over the last few months. He still had trouble sleeping and felt very anxious about going back to work for the respondent. His concentration was up and down; and he sat at home, not doing much.
335.I prefer the more recent evidence of Drs Massoud, Khan and Lim; and accept that the applicant has had no capacity for work since 22 May 2020.
336.Even had I accepted Dr Bisht’s opinion I do not believe there is any employment that is suitable for the applicant.
337.Section 32A of the 1987 Act provides:
“suitable employment”, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
338.In Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, Roche DP discussed the application of section 32A of the 1987 Act.
339.Roche DP said [at 48]:
“The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’”.
340.Roche DP went on to say [at 58]:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis in original).
341.Roche DP also said [at 70]:
“It is a matter for the parties how they conduct the next arbitration. However, I would have thought that, at a minimum, it would be necessary to tender relevant evidence as to the kinds of jobs Mrs Dewar is now fit to perform…”
342.The applicant’s first statement provides some evidence about his occupational background. He had held a security licence, which has lapsed. He has an excavator licence and a skid steer licence. He has completed training to drive all classes of vehicles. Apart from a few years in the automotive trade after he left school, that is the totality of his work experience before working with the respondent. He is almost 55 years old.
343.I do not believe security work would be suitable for the applicant, even if he held a current licence. Such employment, even as a static guard, would necessarily require him to make complex decisions and sustain concentration for long periods. The fact that he was having difficulty sleeping and was unable to concentrate for long periods would mean driving heavy machinery may potentially endanger him and others. Dr Bisht accepted that he was unable to return to work for the respondent. I have been unable to identify any suitable employment for the applicant, even if it were to be accepted that he had capacity for work.
344.I find that the applicant has had no current work capacity since 22 May 2020 and is entitled to an award of weekly benefits pursuant to section 37 of the 1987 Act from 19 November 2020 to date and continuing.
345.The parties have agreed on the PIAWE of $1,563.80. As the applicant has no current work capacity, he is entitled to weekly benefits at the rate of 80% of his PIAWE, that is $1,251.04 per week.
346.The respondent concedes that there is no evidence that traverses the necessity for medical treatment. It follows that there will be an award for the applicant pursuant to section 60 of the 1987 Act for medical expenses.
347.In summary, the following findings and orders are made:
(a) The applicant’s psychological injury, which is conceded by the respondent, was wholly or predominantly caused by the respondent’s action with respect to discipline.
(b) The respondent’s action with respect to discipline was not reasonable.
(c) The respondent has not established a defence to the claim pursuant to section 11A of the 1987 Act.
(d) The applicant has at all relevant times had no current work capacity.
(e) The respondent is to pay to the applicant weekly benefits pursuant to section 37 of the 1987 Act at the rate of $1,251.04 per week from 19 November 2020 to date and continuing.
(f) The respondent is to pay the applicant’s medical expenses, pursuant to section 60 of the 1987 Act.
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