Cahill v Hume Community Housing Associated Company Ltd
[2024] NSWPIC 551
•3 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Cahill v Hume Community Housing Associated Company Ltd [2024] NSWPIC 551 |
| APPLICANT: | Catherine Cahill |
| RESPONDENT: | Hume Community Housing Associated Company Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 3 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); applicant claims weekly compensation and medical and related treatment expenses payable under the 1987 Act resulting from primary psychological injury sustained in the course of her employment with the respondent; applicant’s claim is declined with defence raised under section 11A with respect to performance appraisal and/or discipline, and capacity for work in issue; Held – the applicant’s injury is not wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance appraisal and/or discipline; the applicant has had no current work capacity during the period between 29 December 2023 and 11 March 2024; the applicant has had a current work capacity for suitable employment from 12 March 2024, with ability to earn $700 per week; the applicant has entitlement to weekly compensation payable under section 37 from 29 December 2023 ongoing in accordance with the 1987 Act. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline. 2. The applicant had no current work capacity during the period 29 December 2023 and 3. The applicant has had a current work capacity for suitable employment from (a) between 12 March 2024 and 30 March 2024 at the rate of $1,723.60 per week; (b) between 31 March 2024 and 25 May 2024 at the rate of $1,797.70 per week; (c) between 26 May 2024 and 1 June 2024 at the rate of $742.70 per week, and (d) from 2 June 2024 ongoing at the rate of $1,797.70 per week (as indexed and in accordance with the Workers Compensation Act 1987). 4. The applicant has entitlement to medical or related treatment expenses payable under s 60 of the Workers Compensation Act 1987 for her injury. |
STATEMENT OF REASONS
BACKGROUND
At the time Catherine Cahill (Ms Cahill) (the applicant) sustained injury the subject of these proceedings, she was working with Hume Community Housing Associated Co Ltd (Hume Community Housing) (the respondent). Ms Cahill commenced employment with Hume Community Housing in October 2019 and was promoted to the role of General Manager of People and Culture on 1 May 2023. Ms Cahill is currently aged 63 years.
In these proceedings Ms Cahill describes the circumstances of injury:
“The applicant sustained a disease injury in the course of their employment with a deemed date of injury of 26 July 2023. The applicant has been diagnosed with major depressive disorder with anxious distress.”
Ms Cahill claims weekly compensation payable under s 37 of the Workers Compensation Act 1987 (1987 Act) consequent on an incapacity for work resulting from her injury from
28 December 2023 ongoing. At the arbitration hearing of Ms Cahill’s claim in the Personal Injury Commission (Commission), Ms Cahill’s claim was amended by consent to include a claim for medical or related treatment expenses payable under s 60 of the 1987 Act for her injury.Ms Cahill’s claim for compensation payable under the 1987 Act is declined and she has been issued with notices dated 13 December 2023 and 13 February 2024 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998.
ISSUES FOR DETERMINATION
Hume Community Housing does not dispute Ms Cahill sustained primary psychological injury arising out of or in the course of her employment and that her employment was the main contributing factor to injury.
The parties agree Ms Cahill’s pre-injury average weekly earnings are $3,423.60 (as indexed) and any entitlement Ms Cahill has to weekly compensation resulting from the injury will be capped at the maximum rate prescribed by s 34 of the 1987 Act.
Hume Community Housing does not dispute Ms Cahill requires medical or related treatment for the injury.
The parties agree that the following issues remain in dispute:
(a) whether Ms Cahill’s injury is wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline, and in this particular matter the identified action relied on by Hume Community Housing is a meeting Ms Cahill attended with the Chief Executive Officer (CEO) with Hume Community Housing on 26 July 2023, and if not,
(b) whether Ms Cahill has an incapacity for work from 23 December 2023 resulting from the injury and has entitlement to weekly compensation payable under s 37 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
These proceedings came before me for preliminary conference on 20 June 2024 and with
Ms Cahill’s claim unresolved, these proceedings came before me for conciliation/arbitration hearing on 12 August 2024. Ms Warren of counsel appeared for Ms Cahill and Mr Parker of counsel appeared for Hume Community Housing. Ms Cahill was present.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
After considerable time spent in the conciliation phase of the listing on 12 August 2024 it was apparent that the arbitration hearing would not conclude during the day of 12 August 2024 and I issued directions for the lodgement and service of written submissions to be made on behalf of Hume Community Housing and Ms Cahill. This has now occurred.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents and attached documents dated 4 July 2024 lodged on behalf of Ms Cahill;
(d) Application to Admit Late Documents and attached documents dated
1 August 2024 lodged on behalf of Hume Community Housing;(e) Application to Admit Late Documents and attached documents dated
7 August 2024 lodged on behalf of Ms Cahill, and(f) Agreed Wages Schedule lodged on behalf of Ms Cahill on 26 August 2024 in response to my direction.
Ms Cahill sought to rely on a report of Dr Kelly dated 21 August 2024, being a document the subject of an Application to Admit Late Documents dated 22 August 2024.
Leave to admit this document into evidence was not sought at the time of the listing before me on 12 August 2024 as it is evident the document was not in existence at that time and neither was it within the knowledge of Ms Cahill’s legal representatives.
Ms Cahill says that this document was received by her legal representatives on
22 August 2024 and served on the legal representatives for Hume Community Housing that same day. Ms Cahill submits the Commission ought to be satisfied that it is in the interests of justice to admit this document into evidence and that to deny its admission will cause prejudice to Ms Cahill.Ms Cahill submits this report of Dr Kelly is relevant to the facts in issue and issues in dispute and will assist the Commission in properly assessing her current work capacity during the period of her claim. Ms Cahill submits Dr Kelly is her general practitioner and as such is “best placed” to assess her current work capacity.
In response to Ms Cahill’s application to admit Dr Kelly’s report as a late document in these proceedings, Hume Community Housing notes that following receipt of Dr Kelly’s report on 23 August 2023 the legal representatives for Hume Community Housing wrote to Ms Cahill’s legal representatives on both 27 August 2023 and 9 August 2023 raising objection to
Ms Cahill’s application to admit the document as a late document in these proceedings. I note the anomaly arising as to when the document was served on Hume Community Housing.While Hume Community Housing submit it is necessary for Ms Cahill to “re-open her case” in order for me to consider her application to admit Dr Kelly’s report as a late document, with Ms Cahill’s application dated 22 August 2024 and Ms Cahill directed to lodge and serve her submissions on 2 September 2024, I do not consider it is necessary for Ms Cahill to “re-open her case” in order for me to consider her application to admit Dr Kelly’s report as a late document in these proceedings. Hume Community Housing further submits it is prejudiced by this late document.
In considering whether or not Dr Kelly’s report is to be admitted into evidence in these proceedings, the starting point is the requirement that the parties respectively lodge with the Application to Resolve a Dispute and the Reply all documents on which they rely, with limitation of the filing and service of late documents (s 45 of the Personal Injury Commission Act 2020 and s 66 and s 67 of the Personal Injury Commission Rules 2021). The Commission operates in a front-loaded system.
The onus of establishing that it is in the interests of justice to admit Dr Kelly’s report as a late document in these proceedings is on Ms Cahill (Nelson Bay Pest Services v Morrison[1]), and in circumstances where (a) this late evidence sought to be admitted by Ms Cahill was not provided to the legal team for Hume Community Housing until some 10 or so days after her claim came before me for conciliation/arbitration hearing on 12 August 2024, (b) there is no reasoned explanation given for the delay in providing the late evidence sought to be admitted by Ms Cahill, and Hume Community Housing have not had the opportunity to respond to this late evidence, I will not allow the admission of this late evidence as I do not consider it is in the interests of justice to do so. With Dr Kelly’s clinical records relevant to Ms Cahill in evidence, which include a number of medical certificates and certificates of capacity issued relevant to Ms Cahill’s current work capacity, and Dr Kelly’s report dated 4 January 2024 in evidence, I do not accept my denial of admission of Dr Kelly’s report dated 21 August 2024 will cause prejudice to Ms Cahill and I accept admission of Dr Kelly’s report dated 21 August 2023 will cause prejudice to Hume Community Housing.
[1] [2007] SWWCCPD 135.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statements of Ms Cahill
Ms Cahill relies on a number of statements. While her statement dated 17 October 2023 is unsigned, her statements dated 14 May 2024 and 2 July 2024 are signed.
In essence, Ms Cahill said that while working with Hume Community Housing she was subjected to an enormous workload and progressively subjected to a lack of managerial support from October 2021, after which she was subjected to a series of distressing work situations culminating in a meeting with Brad Braithwaite, CEO with Hume Community Housing on 26 July 2023.
Of particular note in the circumstances of this particular matter is that in her initial statement Ms Cahill said of the meeting occurring on 26 July 2023 relevant to a grievance raised against her:
“…
I had a meeting with Brad Braithwaite on 26 July 2023 about this complaint, and that situation was the catalyst for the development of my work injury. I did not return to work on 27 July 2023.
…
As a result of the event/incident that occurred on 26 July 2023, I suffered a very serious escalation of my symptoms.
…
The meeting was as I expected, but after the meeting had finished, I broke down, I was by myself at my home and in that moment, I could not understand why I was so distressed.
…
I was not capable of continuing to work, so I sent Brad an email saying that I needed to take the rest of the week off work.
…
After the meeting on 26 July 2023, which was the catalyst for me to stop work, I consulted with Dr Kelly again. This appointment was on 2 August 2023. During the consultation, Dr Kelly called an ambulance to take me to hospital, as she was very concerned about my heart related symptoms.”
In her most recent statement Ms Cahill confirmed she ceased employment with Hume Community Housing on 29 February 2024 and that payment of her workers compensation benefits ceased on 28 December 2023. Ms Cahill explained that while she was not currently employed, since March 2024 she had engaged in “a small amount of consulting work” in the role of Human Resources consultant in her business Worksense Solutions. Ms Cahill explained she provided advice and coaching on all human resources, employment relations and work, health and safety matters. Ms Cahill said she had undertaken this work “to help build my confidence back up”. Ms Cahill said that between 1 March 2024 and the date of her statement, being 2 July 2024, she had earned a total of $3,997.50, working a total of approximately 41 hours.
Timeline
Ms Cahill prepared a timeline which relevantly demonstrated:
18 October 2019 Ms Cahill commenced employment with Hume Community Housing working on a part time basis (three days each week), with specific purpose of completing the WHS Manual. Ms Cahill was based in Sydney.
2 January 2020 Ms Cahill secured a role as Manager with People & Culture working on a part time basis (three days each week). Ms Cahill relocated to Maitland.
October 2021 Ms Cahill perceived her manager, Sharn Chisholm (who she had known for some 20 years), was exhibiting signs of cognitive decline.
26 May 2022 Ms Cahill received the Leadership Award for “the outstanding work” she had done leading the organization through the COVID-19 crisis.
July and August 2022 Ms Cahill’s hours “significantly increased” due to an organizational review. Ms Cahill worked “very long hours and most weekdays during this time.”
9 September 2022 Ms Cahill was directed to telephone an employee and stand the employee down at 4.45pm on a Friday afternoon, which made her feel uncomfortable and harbor concern for the employee. Ms Cahill was directed to investigate the employee, despite her recommendation the employee be externally investigated, with an outcome which was not the outcome her manager or the CEO had hoped for.
Ms Cahill’s hours were increased to four days each week consequent on the resignation of a senior colleague in her team.
16-29 January 2023 Ms Cahill worked everyday consequent on pressure placed on her to complete with short notice “a long and complex Board report”.
29 March 2023 Ms Cahill became aware that Ms Chisholm had authored a Board report which contained negative comment about Ms Cahill.
14 April 2023 a second senior colleague of Ms Cahill’s team resigned.
1 May 2023Ms Cahill secured the role of General Manager People & Culture working on a part time basis (four days each week)
9 May 2023Ms Cahill was advised by the Acting CEO, Sean Parker, there was to be no replacement for her previous role or that of the second senior colleague who had resigned, which necessarily increased her current workload. While Ms Cahill was eventually provided with approval to recruit a temporary replacement for her previous role, the discussions regarding her increased workload were “never satisfactorily resolved.”
25 May 2023 Ms Cahill had her first formal meeting with the new CEO, Mr Braithwaite who reportedly told her she should not have been given the role of general manager, and that the Board expected him to recruit an executive manager and he did not need both a general manager and an executive manager.
May and June 2023 Ms Cahill and Mr Braithwaite’s relationship was not amicable during this time.
1 June 2023 Louise Cowan commenced in Ms Cahill’s previous role for a three-month period, which provided Ms Cahill with more time for her own working responsibilities.
4 July 2023Ms Cahill commenced a period of personal leave due to “the stress and uncertainty around” her role and recognition she was “expected to cut more resources from her team”.
5 July 2023Ms Cahill received a telephone call from Mr Braithwaite to advise her that interviewing was taking place for a consultant to lead Ms Cahill’s team, create strategy and review structure. Ms Cahill reported this led to a compounding of her stress levels.
17 July 2023 Ms Cahill returned to work after her period of personal leave.
26 July 2023 Ms Cahill attended a meeting with Mr Braithwaite, which he had organized. Mr Braithwaite advised Ms Cahill of a formal grievance raised against her by Andrew Ghebar, who she had been performance managing, and that there was to be an external investigation into the matter. Ms Cahill said “after this meeting I effectively collapsed into despair. I had no trust in Brad, and no faith in the external investigation process.”
29 July 2023 Ms Cahill emailed an incident report to Mr Braithwaite.
31 July 2023 Mr Braithwaite acknowledged receipt of the incident report and recommended EAP to Ms Cahill.
Incident report
Ms Cahill completed a detailed incident report dated 29 July 2023 relevant to the incident occurring on 29 March 2023 when she became aware of the Board report prepared by Ms Chisholm. Ms Cahill provided the following short description of the incident:
“On 29 March 2023 I was made aware that Sharn Chisholm had written a report for the Board which was scathing in its assessment of my competence. The report was to advise the Board on the conclusions of an investigation conducted by a third party, into an investigation I had conducted into allegations of employee misconduct.
Had this report gone to the Board, my employment would not have been substantiable.”
Ms Cahill said at that time “I realise now, I have never recovered from the incident on
29 March caused by Sharn’s report.”
Claim form
Ms Cahill completed a claim form dated 3 August 2023. Ms Cahill provided the date of injury as 26 July 2023. Ms Cahill provided the time of injury as 6.00pm.
Relevant to questioning as to the circumstances of her alleged injury Ms Cahill wrote:
“I work as a General Manager People and Culture … I have been diagnosed with an adjustment disorder with anxiety and depression as a result of being poorly supported concerning a workplace incident with another employee and being overworked.”
Factual report
Insight Intelligence Group prepared a factual report dated 20 November 2023. The investigator noted Ms Cahill had relocated from Sydney to Maitland in 2019 with a view to seeking a less stressful lifestyle and part time employment “to better manage her health and wellbeing” against a back drop of Ms Cahill suffering from heart disease and also chronic pain resulting an accident when she was young.
Annexure to the factual report included the following:
Statement of Sean Parker
Mr Parker prepared a statement dated 16 October 2023. Mr Parker acted in the role of CEO of Hume Community Housing prior to Mr Braithwaite securing the role. Mr Parker is currently the Chief Financial Officer (CFO) with Hume Community Housing.
Mr Parker confirmed the circumstances of Ms Cahill’s appointment as General Manager People and Culture, which required to her to increase her days of work to four days each week. Mr Parker referred to the appointment as a temporary appointment.
Statement of Victor Prasad
Mr Prasad prepared a statement dated 24 October 2023. Mr Prasad is currently Chief Operations Officer (COO) with Hume Community Housing.
Mr Prasad also confirmed the circumstances of Ms Cahill’s “temporary” appointment as General Manager People and Culture. Mr Prasad said he regularly communicated with Ms Cahill regarding work and accepted she had a significant workload.
Statement of Brad Braithwaite
Mr Braithwaite provided a statement dated 5 November 2023. Mr Braithwaite is currently CEO with Hume Community Housing.
In essence, Mr Braithwaite said that at no stage prior to the formal grievance raised against Ms Cahill was he made aware Ms Cahill harboured complaint about inappropriate conduct taken towards her by anyone on behalf of Hume Community Housing.
Mr Braithwaite said that at no time during the period of time that he worked with Ms Cahill was she pressured to work more than her designated hours. Mr Braithwaite said there was an agreement in place so as to ensure Ms Cahill was provided with additional resourcing support to assist with the workload pressure Ms Cahill felt she and her team were subjected to. Mr Braithwaite said he provided Ms Cahill with significant support. Mr Braithwaite also said Ms Cahill received the appropriate level of support for a manager of her level and experience.
While Mr Braithwaite said Ms Cahill was generally accepted by her peers and managers as competent, he said that he had observed, and had received feedback from others, of a tendency of Ms Cahill to be unwilling to listen to and consider alternate points of view to those she held.
Mr Braithwaite accepted Ms Cahill had never been issued with any work-related or written warnings either prior to or on 26 July 2023. Mr Braithwaite confirmed the last time he had seen Ms Cahill was on 26 July 2023. Mr Braithwaite conceded the meeting occurring on
26 July 2023 would have been upsetting for Ms Cahill but said that at that time Ms Cahill appeared to understand and accept that a formal investigation into the grievance raised against her was required.
Email correspondence
In an email dated 31 March 2023 addressed to Mr Parker, Ms Cahill wrote:
“I want to thank you for ensuring that the report for the Board in response to the Weir report was fair and balanced.
The original report’s content was shocking to me. I have struggled to come to terms with the fact that Sharn wrote such a damning report of my abilities, professionalism and integrity. Despite trying to rationalise why she may have done this, over the last couple of nights I have found myself waking up multiple times a night ruminating over what she had written, and what would have happened to me if the report that she wrote had gone to the Board. Today I am very tired, and I feel quite ill. I do not want to interact with Sharn at all again. I think after being so consciously resilient for such a long period time, and then believing that the situation was almost at an end, the shock of her parting shot at me has laid me quite flat. I have reached out to EAP to help me process this and I have advised Hamish I am unwell today.
Once again thank you for your management of this matter.”
In an email dated 31 July 2023 addressed to Ms Cahill, Mr Braithwaite wrote:
“I want to acknowledge and affirm your decision to take some time off to look after your health, given the stress you state you have felt in recent times.
It would be appreciated if you could let me know how things go when you get into your doctor and whether there is anything else I can do to support you.
I also want to assure you that the issues raised in your incident report will be appropriately investigated. As you will hopefully appreciate, this process will take some time to do properly, especially given the circumstances I cannot engage the P&C team as would normally be the case.
In relation to the grievance submitted last week, I have informed the investigator that you are not able to participate right now and that you are seeking doctors’ advice on when that might be appropriate. In the meantime, to ensure procedural fairness for the complainant in that matter, the investigator will focus on initial interviews and fact-finding activities so that the process can still be completed as swiftly as possible in the interests of all parties.
I appreciate that you have expressed that this situation has raised stress and anxiety issues for you and would encourage you to make full use of the EAP and wellbeing support services available to you alongside the medical support that you are intending to seek.”
Performance reviews
In the Feedback for Wrap Up Performance Review 2020, which is shortly after Ms Cahill commenced her employment with Hume Community Housing, Ms Chisholm relevantly wrote in response to the area of focus entitled “responsiveness and ability to meet deadlines”:
“Catherine has worked hard to meet deadlines, but I am very aware she has been managing a large workload in amongst two major lifestyle changes – starting a new job and moving to a new house/region … and she works part time … and she has only been on board 6 months. Well done you!”
In the completed Performance and Development Review 2021, which of course canvassed the period during which COVID-19 presented the business which challenge, Ms Cahill relevantly noted “when I took on the WHS responsibilities we did not anticipate the volume of WHS work that would be required” and self-noted her key achievements to include “continuing to review and stay on top of Covid changes. This has been tricky particularly when there was a general lack of interest (due to low or no cases), and when suddenly many different people wish to become involved because the cases escalated”.
Ms Chisholm relevantly wrote in response to the area of performance and behaviour
Ms Cahill should “Keep, Stop and Start” doing:“STOP – taking on too much – but very grateful of your unwavering support. You have permission to push back and reprioritise as you need to.”
In the completed Performance and Development Review dated 2023, which was apparently completed just some three months before Ms Cahill ceased work on 26 July 2023, Ms Cahill relevantly noted “it is challenging to juggle the many matters that arise, but being able to do an extra day’s work when required helps to keep on top of things”. Ms Chisholm acknowledged “Cath has really lent in on the realignment work to support Hume’s managers and the employees achieve the outcomes required with minimal ER impact.”
On this occasion Ms Chisholm relevantly wrote in response to the area of performance and behaviour Ms Cahill should “Keep, Stop and Start” doing “STOP: assuming that you are the only one who has subject matter expertise in WHS or ER. You need to allow others to have a voice and sometimes because you have such good knowledge, you take such a strong position that the team members don’t feel confident to ask, challenge or suggest other approaches.”
Desktop investigation
Open Source Desktop Investigation prepared a report dated 25 June 2024 which identified Ms Cahill held a locked facebook account, held a private Instagram account with no publicly visible activity and held a Linkedin account that demonstrated she was available for consulting, contracting and interim roles in a self-employed capacity. Ms Cahill’s business trading name is “Worksense”.
Medical evidence
Treating medical evidence
Hamilton Doctors
Ms Cahill has come under the general medical care of Dr Kelly who practises out of Hamilton Doctors. The clinical records of the practice are in evidence and while in submission
Ms Cahill accepted there are no records from Dr Kelly prior to 5 July 2023 that demonstrate Ms Cahill presented with complaint of psychological symptoms resulting from her work with Hume Community Housing, on review it is apparent that when Ms Cahill presented on
13 September 2021 with principal complaint of cardiac symptoms, Dr Kelly noted:“… getting very stressed and distressed at work
unsure whether heart causing mental issues or if mood/anxiety causing the heart issues
S/B EAP via work, and this has helped”
Dr Kelly referred Ms Cahill to Dr Forster for cardiological review on that occasion, and relevantly noted of Ms Cahill in her letter of referral “she is under extraordinary stress currently”. Dr Kelly also certified Ms Cahill with no current work capacity between
13 September 2021 and 17 September 2021.It is evident Dr Kelly recorded on 5 July 2023 that Ms Cahill presented with “work issues” and noted that her “work is currently very hard” and that there were “some issues with new CEO at work – making ‘comments’ suggesting that she may not be performing properly”. Dr Kelly noted Ms Cahill was provided with “supportive counselling”. Dr Kelly also provided Ms Kelly with medical certification she had no current work capacity between 4 July 2023 and
14 July 2023.Ms Cahill consulted with Dr Kelly on 2 August 2023. Dr Kelly noted at that time that the meeting occurring on 26 July 2023 caused Ms Cahill “major distress”. Dr Kelly also noted that other factors contributing to Ms Cahill’s psychological distress were “working huge hours”, her extra responsibilities and workload, and “many other stressors”. Dr Kelly referred Ms Cahill to the Emergency Department at John Hunter Hospital and relevantly noted in her letter of referral:
“Thank you for seeing Catherine Cahill, age 62 yrs, for opinion and management. Need to exclude cardiac cause for her chest pain.
Known IHD
Severe stress with work last week
Since then on and off chest pain/tachycardia, tight in chest, pain comes on whenever feeling distressed again.”
On 3 August 2024 Dr Kelly wrote:
“Complicated history of very difficult workplace issues over a long period of time culminating in recent injury timeline outlining various incidents which have contributed to current situation discussed in detail.
Communication style of CEO and also some board members also having a major impact on her. E.g. often now told ‘don’t be too emotional’.”
Dr Kelly referred Ms Cahill for psychological treatment with George Stamell at that time, noting:
“She has had a work related psychological injury. She has been in a very challenging and difficult workspace for a number of years and following a particular incident, she is very distressed with symptoms of anxiety and depression”.
The certificate of capacity issued by Dr Kelly at that time provided a date of injury of
26 July 2023, provided diagnosis of adjustment disorder with anxiety and depression, and description of injury occurring:“Poorly supported with workplace incident with another employee, on background of unreasonable demands.”
On 4 August 2023 Dr Kelly re-referred Ms Cahill to Dr Forster for cardiological review and relevantly noted in her letter of referral:
“As discussed on the phone, she has developed quite significant chest pain – recurrent following a very stressful incident at work. She has been having chest tightness on and off for the last 10 days, usually in association with thoughts to do with her work.”
On 10 August 2023 Dr Kelly wrote:
“… when talks about work, not crying now
No contact with anyone at work.
Sleep is still and issue
Feels very lost and unsure re the future
Any thoughts of returning to work give her chest tightness and nausea
Aqua aerobics today
This gives her a total break from “thinking”
Dsd work situation and that usually actually enjoys her work and enjoys working with her team. Has had poor boundaries re working extra hours.
Main barrier to returning to work is the CEO, his treatment of her over particularly the last 6 weeks had led to a total mistrust of working with him.
The thought of working with him again fills her with major anxiety. His initial comments about her not being suited to her position, his lack of support around a simple employee issue.
He has made it very clear that he does not want her to continue in her role. He has brought in a ‘temporary’ person to be in charge of their department.”
The certificate of capacity issued at that time again provided a date of injury of 26 July 2023, diagnosis of adjustment disorder with anxiety and depression, and provided a description of injury occurring:
“1. Poorly supported with workplace incidents with another employee, on background of unreasonable demands. 2. Chest pain caused by extreme stress.”
On 24 August 2024 Dr Kelly wrote:
“appt with psychologist next wk
Work:
Not receiving any emails
Brad CEO had not told her. He later let her know that her emails were being redirected
Received pay from work, and wildly underpaid. Felt distressed about this.
Triggered by receiving emails from CEO on her private email.”
In response to a request by the relevant workers compensation scheme agent for information, on 1 September 2023 Dr Kelly provided diagnosis of adjustment disorder with mixed anxiety and depression with opinion Ms Cahill’s employment was the main or substantial contributing factor to injury. Dr Kelly recorded the following history of injury:
“Date of injury 26 July 2023.
After a complaint by an employee of just 4 months who was performance managed, she was poorly supported by CEO in her role as a General Manager People & Culture. He failed to listen to her explanation of the situation. This was on a background of very difficult complicated workplace issues in the preceding 18 months. The new CEO had already made it clear that he was unhappy with her in her position. Following incident developed severe chest pains consistent with ischemia.”
At the time of reporting, Dr Kelly considered Ms Cahill’s psychological injury was “ongoing” and confirmed she had referred Ms Cahill for psychological counselling. While Dr Kelly considered Ms Cahill would be capable of returning to her pre-injury duties, Dr Kelly identified barriers impacting a successful return to work and recommended a return to work co-ordinator be engaged “to try to iron out any issues which may present a return to full duties and to facilitate a graduated return to work.”
On 28 September 2023 Dr Kelly wrote:
“Still currently on annual leave
Had a good time in Greece and felt like herself again.
Has opportunity for some work ‘worktrial’ with another company. May lead to extra work and is able to keep it to tasks which are not too demanding so can get confidence back.
Feels unable to do any work involving investigating people just at the moment. Has had issues with apparent lack of support from the board or being overruled in her decisions despite her giving the expert opinion they required.
Feels totally unable to face going back to Hume at this stage, with Brad Braithwaite still being employed there, due to the way she was treated by him, particularly after putting the claim in.
Thoughts of returning cause her to feel distressed/anxious/teary and helpless.
Needing to be better at boundary setting.
A major concern about her workplace at Hume was despite her advising that unable to cope with workload issues, no changes were made and she needed to somehow just push through and get things done.
Fear with returning that the same will happen again.”
On 16 October 2023 Dr Kelly noted Ms Cahill was “starting to feel quite depressed since at home” and that Ms Cahill “has opportunity to work trial 8 hours/wk”.
On 6 November 2023 Dr Kelly noted that while the applicant had undertaken the training session and enjoyed writing and presenting, she subsequently suffered severe headache.
Dr Kelly wrote at that time that Ms Cahill was “still feeling unable to return to her previous workplace”.On 14 December 2023 Dr Kelly noted Ms Cahill’s claim for workers compensation had been declined and described Ms Cahill as “very upset”.
On 11 March 2024 Dr Kelly described Ms Cahill as having resigned from her employment with Hume Community Housing on 29 February 2024 and was “very exhausted”.
On 6 June 2024 Dr Kelly noted Ms Cahill “managed to do a little bit of work but does not have the same energy”. Dr Kelly described Ms Cahill’s sleep as highly variable and described her as having ongoing stress.
In his report dated 4 January 2024 Dr Kelly set out the history of Ms Cahill’s psychological injury, which included reference to numerous events occurring in Ms Cahill’s workplace over time and referenced the meeting occurring on 26 July 2023. Dr Kelly wrote:
“Date of injury: 26/7/23
Incident at work on Wednesday caused major distress for Catherine. CEO decided to get an external firm to investigate, in response to a grievance lodged about her from a member of her team, who has been with the organisation for 4 months and whom Catherine and been performance managing.
Additionally the CEO has engaged a consultant to “review the team” in which Catherine is working.
Recently there had been a complicated issue, which Catherne had been asked to investigate and report on.
She had requested an outside assessor, but this was refused her, and when she completed her assessment there was a serious criticism of her report. This was also at time when she is working huge hours.
When she took on her current position, it was with the understanding that she would be working part time (4 days a week). After her contract was signed, she was then told that the position she was vacating would not be filled. Another senior position in her area was also left unfilled, which meant that she needed to shoulder a lot of extra responsibility and workload. She has been working a lot of extra hours to try and keep on top of the workload.
There have been many other stressors also.
Since the incident last week, she has had a low mood, is teary, unable to think, feels totally unable to face returning to work and has feelings of hopelessness. She is worried about her future, feels anxious, overwhelmed and unable to concentrate or think.”
Dr Kelly provided diagnosis of adjustment disorder with depression and anxiety and said
Ms Cahill “has had a series of issues with her workplace which have contributed to the development of her current condition.” Dr Kelly considered Ms Cahill’s employment was the main contributing factor to injury. Dr Kelly recommended Ms Cahill continue with psychological counselling.Regarding Ms Cahill’s capacity for work, Dr Kelly wrote:
“As outlined in her WorkCover certificates, Catherine has been unfit to return to work at Hume, since the 26/7/23. She has developed some capacity for part time work outside of Hume, with the ability to perform most of her previous duties.
…
I expect with treatment and good support, Catherine will be able to return to full duties, but it may take considerable time for her to do this. I believe she will be unable to return to Hume to work, particularly if the current CEO (Brad Braithwaite) remains working at Hume. I believe that following her traumatic experiences at Hume, she will need in the future to work in a capacity where she has autonomy over her hours/workload duties.”
Dr Forster
Ms Cahill has come under the specialist care of Dr Forster. Dr Forster is a consultant cardiologist. Ms Cahill has been under Dr Forster’s care since 31 July 2018.
In an undated report addressed to Ms Cahill’s solicitors, Dr Forster confirmed she had reviewed Ms Cahill on 6 April 2021 “following an episode of syncope after a very upsetting episode at work where she stood to leave, felt palpations and had a total loss of consciousness and collapse. She was taken to hospital for further assessment”.
Dr Forster also relevantly reported:
“I received an urgent telephone call on 2 August 2023 from her GP Dr Anna Kelly asking for advice about Ms Cahill’s deteriorating health. In previous months she has had increasing frequency and severity of typical ischaemic chest pains, increasing in severity with increasing levels of work stress, and peaking around the time of her employment ending…”
Dr Forster relevantly provided diagnosis of ischemia with non-obstructive coronary arteries and provided comment “psychological stress is associated with adverse cardiovascular outcomes such as mental stress-induced myocardial ischemia”.
Dr Forster’s letter dated 6 April 2021 relevant to her review of Ms Cahill on 6 April 2021 is in evidence.
Calvary Mater Newcastle Emergency Department
The discharge summary relevant to Ms Cahill’s presentation on 2 August 2023 described
Ms Cahill as presenting with chest pain over a week long period and relevantly noted “… having some issues going on work since 2 weeks.”
Rehabilitation
MP Safety Management
MP Safety Management prepared a report dated 9 October 2023 following initial rehabilitation assessment with Ms Cahill on 30 August 2023. The author of the report, Karren Talbot, occupational therapist, provided the history of injury reported by Ms Cahill:
“Ms Cahill described increasing work demands with her work hours increasing in July and August 2022 due to an organisational review. Her hours increased from 3 – 4 days per week in September 2022 with increasing work pressure growing over January 2023.
In March 2023 Ms Cahill became aware that her manager had prepared a complaint against Ms Cahill which was to be presented to the Hume Board. Ms Cahill reported that she was given the opportunity to respond to these allegations and the complaint to the Board did not proceed. Ms Cahill identifies this incident as the first time that she suffered psychological injury.
Ms Cahill moved into the role of General Manager, People and Culture in May 2023, performing this role 4 days per week. She reported that her new CEO advised her in May 2023 that she should not have been given the role of General Manager. She reported increasing job uncertainty through July 2023.
A formal grievance was lodged against Ms Cahill by an employee who was being performance managed. She reported that she had kept the CEO briefed on the performance management throughout the process however after the grievance was lodged, she was advised by the CEO that the employee’s perceptions were valid. Ms Cahill was advised by the CEO that he would be engaging an external investigator to review the complaint.
Ms Cahill reported that she felt despairing after this advice from her CEO. She reported a loss of trust in her CEO and the external investigation process. She has not worked since 26 July 2023. Ms Cahill lodged an incident report and submitted a certificate of capacity certifying her unfit for work from 27 July 2023.”
Ms Talbot relevantly noted during assessment that Ms Cahill was observed to be teary and upset during discussion about the impact of the events leading up to July 2023 on her health and wellbeing. Ms Talbot relevantly said of Ms Cahill returning to work:
“Ms Cahill is highly motivated to resume work however experiences chest pain and cardiac symptoms such as racing heart rate and elevated blood pressure. These symptoms are related to anxiety. These symptoms can be triggered by discussion around Hume Community Housing and a potential return to work with the CEO.
…
At this stage, Dr Kelly has agreed that the return to work goal is for Ms Cahill to resume her pre-injury role however the timeframe for this is unknown.”
A Work Plan dated 20 October 2023 reported that Ms Cahill had negotiated an opportunity to undertake a work trial as an external consultant to Foundation Theatres, with duties including:
(a) developing a training session on bullying and harassment;
(b) providing three face to face training sessions of three hours duration each, and
(c) reviewing internal policies with recommendations to be made to the CEO for future policy development.
Independent medical evidence
Dr Sankaranarayanan
Ms Cahill was psychiatrically assessed by Dr Sankaranarayanan in his capacity as independent medical examiner. Dr Sankaranarayanan provided a report dated
28 November 2023 following assessment of Ms Cahill the same day.Dr Sankaranarayanan provided diagnosis of adjustment disorder with mixed anxiety and depression.
While Dr Sankaranarayanan described Ms Cahill as beginning to experience psychological symptoms on 26 July 2023 when the CEO told her he was going to organise an external investigation to look into the grievance raised against her by an underperforming employee whose employment Ms Cahill had terminated, Dr Sankaranarayanan also relevantly explained:
“… I believe the following work-related events have contributed to her psychological disorder:
- Being investigated in March 2023 when she had acted under the direction of the then CEO. According to the history she provided, the investigation was selective and biased to find her at fault. She was worried that this would be forwarded to the Board; however, this was amended by her direct manager, the now CFO, and the issue was resolved.
- Stress from bullying from the current CEO. Catherine reported that he made it clear from the first meeting that he did not approve of her being the GM position. He would also interrupt her, would cut her off and tell her that she was wrong. She found it strange that until then she was to go-to person for the senior people when they had to seek advice on complex matters and Brad was treating her as if she knew nothing and was incompetent. He would belittle her and criticise her and openly demonstrate that he didn’t want her and that she was not important. Catherine had taken one week of sick leave in early July for backpain. While she was on sick leave, Brad contacted her to tell her that he would be appointing a consultant to head up her team. She was distressed that someone else is going to make all the decisions. She went back to work for two weeks.
- When an employee that she had terminated during their probationary period complained against her, Brad told her that he would get this investigated and this caused her anxiety because of the way she was investigated the first time in March this year……
I believe that the event that led to her psychological injury is when the CEO told her that he would investigate the complaint. However, she reported being bullied in the lead-up to this and therefore, this could have made her more vulnerable at that time and caused her to lose faith in the system.”
Dr Sankaranarayanan relevantly wrote in response to questioning as to whether the whole or predominant cause of Ms Cahill’s injury was the grievance lodged against Ms Cahill by another employee and Hume Community Housing taking or proposing to take disciplinary action in response to the complaint:
“Yes, However, according to her, she was not told that a disciplinary action would be taken against her. She believes that this would have been premature and not for the CEO to state until the investigation was complete.”
Dr Sankaranarayanan also relevantly wrote in response to questioning as to whether the whole or predominant cause of Ms Cahill’s injury was feedback and discipline provided to her by the CEO in relation to her performance at work:
“Catherine states that he had bullied her and undermined and been critical of her. He had never provided any feedback and/or disciplined her.”
Dr Sankaranarayanan wrote in response to questing as to whether Ms Cahill suffered an incapacity for work resulting from her injury:
“Yes.
Catherine reported ongoing symptoms of anxiety and depression but has improved greatly. She has also managed to do brief work for former clients but feels exhausted and dysfunctional after this.
She will certainly not be able to work in the same position or with her previous employer as this will aggravate the injury and make it worse.
I believe she might be able to do 2-3 hours per day (10-15 hours per week) in a different position that is less stressful.”
Dr Sankaranarayanan provided opinion Ms Cahill required medical or related treatment for her injury.
Dr Kumagaya
Ms Cahill was psychiatrically assessed by Dr Kumagaya in his capacity as independent medical examiner. Dr Kumagaya provided a report dated 5 January 2024 following assessment the same day.
Dr Kumagaya provided diagnosis of major depressive disorder with anxious distress.
Dr Kumagaya reported Ms Cahill described experiencing challenges with her workplace nature and conditions since 2021 “characterised by a significant workload that she found increasingly overwhelming, being subjected to false accusations, as well as an unsupportive environment.”
Dr Kumagaya reported:
“Ms Cahill explained that her manager (SC) began to display signs of difficulties coping with her work duties in and around October 2021, which manifested as problems with her short-term memory. Ms Cahill described how her manager would regularly forget conversations, decisions, and actions that had been agreed upon, whilst requesting the same information multiple times. Ms Cahill stated that such workplace circumstances meant that her manager’s direct reports (including herself) were subjected to an increased workload – Ms Cahill described how she would regularly need to amend work and projects overseen by her manager that were to be presented to the board, as well as needing to attend to work projects with condensed time frames.
Ms Cahill described how her excessive workload was also contributed to by an organisation review during 2022. This saw Ms Cahill required to work a significant amount of unrostered overtime, with weekend work being attended to with regularity. Coinciding with such workplace challenges was the resignation of one of the three senior colleagues on her team during September 2022. This would later be followed by the resignation of another senior colleague on her team during April 2023.
Ms Cahill stated she began to experience anxious symptoms in and around May 2022 in the context of such workplace stressors, which included generalised anxiety, restlessness, sleep disturbance and concentration difficulties.
Ms Cahill also described how she became privy to a report furnished by her manager on 29 March 2023. Ms Cahill stated that this report reflected criticisms of Ms Cahill in relation to her handling of an investigation involving a fellow staff member. Ms Cahill explained how the conclusions that had been reached during the investigation were not in keeping with those endorsed by her manager, and that the report furnished by her manager contained several inaccuracies. Ms Cahill stated that an external investigator was subsequently contracted to conduct a review of the investigation. Ms Cahill described how she was ultimately able to demonstrate the inaccuracies in her manager’s report and have this report amended prior to submission to the board.
Ms Cahill described how her experience of such workplace stressors resulted in the onset of depressive symptoms and a worsening of her anxious symptoms in approximately March 2023. As at this point in time, Ms Cahill was experiencing low mood, decreased interest and engagement in activities, sleep disturbance, concentration difficulties and problems with decreased energy levels. Ms Cahill described how such symptoms had prompted her to access the employee assistance program (EAP) of her organisation for counselling on 31 March 2023. Ms Cahill also attended a period of leave during 24 April 2023 to 28 April 2023, and 3 July 2023 to 14 July 2023, owing to her psychological symptoms.
Ms Cahill described how her workplace stressors persisted. During May 2023, Ms Cahill was notified that the two roles that had been empty since the resignation of her colleagues was not going to be replaced. She explained that this meant that Ms Cahill was required to attend to the roles of three people, whilst working part time (four days per week).
Ms Cahill described how, on 26 July 2023, she was required to attend a Zoom meeting with the chief executive officer of her organisation. Ms Cahill stated that she had not been provided with an agenda for this meeting, nor had she been offered the opportunity to attend with a support person. During this meeting, Ms Cahill was notified regarding a grievance that had been lodged against her by a direct report who she had been performance managing. Ms Cahill explained that the chief executive officer had been briefed in relation to the basis and need for performance management. Regardless of such circumstances, Ms Cahill stated that she was notified that an independent investigation would be launched.
Ms Cahill described how such workplace stressors further destabilised her mental state, such that she had been unable to return to work since 26 July 2023.”
In response to specific questioning, Dr Kumagaya provided opinion Ms Cahill’s employment with Hume Community Housing was a substantial contributing factor to injury, with explanation:
“The cause of Ms Cahill’s workplace psychological injury was her experience of a significant workload that she found increasingly overwhelming, being subjected to false accusations, as well as an unsupportive workplace environment.”
Dr Kumagaya considered Ms Cahill to be totally incapacitated for all work as a result of her psychological injury. He said too “Ms Cahill’s prognosis for a full recovery from her major depressive disorder with anxious distress is guarded, given the ongoing severity and chronicity of her symptomology”.
Dr Kumagaya considered Ms Cahill required ongoing medical and related treatment under the care of her general practitioner and required psychological therapy with her psychologist. Dr Kumagaya also considered Ms Cahill required medication “under the close supervision of her general practitioner.”
Submissions
Mr Parker, Ms Warren and Mr El-Khatib provided written submissions. I have carefully considered Mr Parker’s submissions, Ms Warren’s submission and also those of Mr El-Khatib and I am grateful for the assistance afforded me in this particular matter. Copies of counsel’s submissions and those of Mr El-Khatib are available to the parties and not reproduced here.
Determination
Is Ms Cahill’s injury wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline?
In response to Ms Cahill’s claim before the Commission, while it is not disputed Ms Cahill sustained primary psychological injury in the course of her employment with Hume Community Housing, Hume Community Housing has raised defence under s 11A(1) of the 1987 Act relevant to performance appraisal and/or discipline and with specific reference to the meeting occurring on 26 July 2023 between Ms Cahill and Mr Braithwaite in his capacity as CEO with Hume Community Housing. In essence Hume Community Housing argues
Ms Cahill has no entitlement to compensation payable under the 1987 Act as the injury she sustained is “wholly or predominantly caused” by “reasonable action” taken or proposed to be taken by Hume Community Housing with respect to “performance appraisal” and/or “discipline”.Hume Community Housing has the onus of establishing the defence raised under s 11A(1) of the 1987 Act (Pirie v Franklins Ltd[2] and Department of Education and Training v Sinclair[3]) and there are two aspects to the defence raised by Hume Community Housing.
[2] [2001] NSWCC 167.
[3] [2005]’ NSWCA 465 (Sinclair).
Ms Cahill’s injury must be “wholly or predominantly caused” by Hume Community Housing’s actions regarding one of the categories referred to in s 11A(1) of the 1987 Act and in Ms Cahill’s case, Hume Community Housing relies on “performance appraisal” and/or “discipline” with specific reference to the meeting occurring on 26 July 2023.
Principles regarding the “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[4] with comment made that medical evidence is required to determine this causation issue. It is also accepted “wholly” and “predominately” are different concepts[5] and the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Kooragang Cement Ltd v Bates,[6] Ponnan v George Weston Foods Ltd[7] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.[8]
[4] [2017] NSWWCCPD 6.
[5] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[6] (1994) 35 NSWLR 452.
[7] [2007] NSWWCCPD 92.
[8] [2008 NSWWCCPD 96.
Relevant to the issue of causation of psychological injury, particularly when considering psychological injury caused in circumstances of a worker’s perception of real events occurring at work, in Attorney General’s Department v K [9] former Deputy President Roche usefully summarised the principles to be applied at [52]:
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40];
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President all in Leigh Sheridan v Q-Comp [2009] QIC 12);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 at [31], and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[9] [2010] NSWWCCPD 76.
Deputy President Roche also said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional…”
It is important to remember too that an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[10] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011 and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[10] [2013] NSWWCCPD 64.
Turning first to whether Ms Cahill’s injury was “wholly or predominantly caused” by Hume Community Housing’s actions or proposed actions regarding performance appraisal and/or discipline.
Ms Cahill explained in her statements that while she was employed with Hume Community Housing on a part time basis, she regularly worked more hours than those for which she said she was contracted. Ms Cahill detailed the steadily increased workload she shouldered.
Ms Cahill explained the stressful situation she came to find herself in under Ms Chisholm’s management consequent on Ms Chisholm’s health deteriorating. Ms Cahill detailed a history of events occurring in the course of her employment with Hume Community Housing and I think it is fair to say such history is reflected in the timeline which Ms Cahill also prepared.
Dr Forster confirmed she had reviewed Ms Cahill on 6 April 2021 “following an episode of syncope after a very upsetting episode at work” and on 13 September 2021 Dr Kelly noted during consultation that Ms Cahill’s cardiac symptoms reportedly “corresponded with getting very stressed and distressed at work”. In my view both Dr Forster’s reporting and Dr Kelly’s reporting in 2021 are not inconsistent with Ms Chisholm’s comments in the completed Performance and Development Review 2021 regarding Ms Cahill “taking on too much” and are also not inconsistent with the period when Ms Cahill said she began experiencing difficulties under the management of Ms Chisholm because of Ms Chisholm’s declining health. Of particular note is that Dr Kelly certified Ms Cahill with no current work capacity between 13 September 2021 and 17 September 2021 consequent on her consultation with Ms Cahill on 13 September 2021.
In an email dated 31 March 2023 addressed to Mr Parker, who at that time was acting CEO with Hume Community Housing, Ms Cahill indicated how the report prepared by
Ms Chisholm into Ms Cahill’s investigation into “JT” was “shocking” to her and caused her significant distress. Ms Cahill indicated to Mr Parker at that time that she had contacted employee assistance program (EAP) for support, was unwell and was taking time off work.On 5 July 2023 Dr Kelly noted during consultation Ms Cahill reportedly had “work issues” with “work currently very hard” and reportedly had “some issues with new CEO at work – making ‘comments’ suggesting she may not be performing properly”. In my view Dr Kelly’s notes are not inconsistent with Ms Chisholm’s comments in the completed Performance and Development Review 2023 regarding Ms Cahill’s need to “allow others to have a voice” during discussions with team members and with Ms Cahill reportedly receiving telephone advice from Mr Braithwaite that Hume Community Housing were interviewing for a consultant to lead Ms Cahill’s team, create strategy and review structure. Of particular note is Dr Kelly provided Ms Cahill with supportive counselling at that time and certified Ms Cahill with no current work capacity between 4 July 2023 and 14 July 2023 consequent on her consultation with Ms Cahill on 5 July 2023.
While Dr Kelly noted on 2 August 2023 that Ms Cahill’s meeting with Mr Braithwaite on
26 July 2023 caused “major distress to Catherine” and recorded a date of injury of
26 July 2023, Dr Kelly also made reference to a number of other incidents occurring in the course of Ms Cahill’s employment besides Mr Braithwaite’s voiced decision to engage an external investigator to investigate the grievance lodged against Ms Cahill, being (a) the decision to engage a consultant to review Ms Cahill’s team, (b) the investigation into JT and subsequent reporting prepared by Ms Chisholm that was critical of Ms Cahill, and (c) Ms Cahill’s excessive work load. On this occasion, Dr Kelly diagnosed Ms Kelly with adjustment disorder with depression and anxiety and was sufficiently concerned about Ms Kelly’s chest pain which reportedly worsened “when upset and thinking of workplace” that she referred Ms Cahill to hospital “via ambulance”. The Emergency Department reported on Ms Cahill’s presentation that she was “having some issues going on work since 2 weeks”.Following initial rehabilitation assessment a few weeks later on 30 August 2023, Ms Talbot reported a history of injury, which included increased work demands on Ms Cahill leading to an increase in her hours in September 2022 and increase in work-pressure in January 2023, (which is consistent with Ms Cahill reportedly commencing to work a four day week rather than a three day week and Ms Cahill reportedly preparing a report for the Board during January 2023), Ms Cahill’s distress in March 2023 relevant to the report prepared by
Ms Chisholm that was critical of her, Ms Cahill’s increasing concerns regarding her role with Hume Community Housing following her first formal meeting with Mr Braithwaite in his capacity as CEO with Hume Community Housing in May 2023, and the meeting with
Mr Braithwaite occurring on 26 July 2023 following which she ceased working.Following his psychiatric assessment of Ms Cahill over a year later on 28 November 2023,
Dr Sankaranarayanan diagnosed Ms Cahill with adjustment disorder with mixed anxiety and depression. In response to specific questioning Dr Sankaranarayanan accepted that the whole or predominant cause of Ms Cahill’s injury was disciplinary action taken or proposed to be taken by Hume Community Housing against Ms Cahill in response to the grievance raised against her. Dr Sankaranarayanan provided such opinion against a backdrop of a number of other identified work related incidents contributing to Ms Cahill’s injury, including the report prepared by Ms Chisholm, which was critical of Ms Cahill, Mr Braithwaite’s behaviour towards Ms Cahill generally and specifically Mr Braithwaite’s voiced intention to appoint a consultant to head up her team.Following his psychiatric assessment of Ms Cahill a short time later on 5 January 2024,
Dr Kumagaya diagnosed Ms Cahill with major depressive disorder with anxious distress. In response to specific questioning Dr Kumagaya provided opinion Ms Cahill’s employment with Hume Community Housing was a substantial contributing factor to injury with explanation:“The cause of Ms Cahill’s workplace psychological injury was her experience of a significant workload that she found increasingly overwhelming, being subjected to false accusations, as well as an unsupportive environment.”
I am of the view Ms Cahill has provided a credible history regarding the circumstances of her injury and following review of the evidence as a whole and careful consideration of counsel’s submissions I accept Ms Cahill’s submission that her psychological injury “was not the result of one incident but rather developed over a period of time during her employment”.
While Dr Sankaranarayanan provided opinion the whole or predominant cause of Ms Cahill’s injury was the grievance raised against Ms Cahill by another employee and Hume Community Housing taking or proposing to take disciplinary action in response to the grievance, it is evident Ms Cahill’s mental health had been clearly deteriorating for some time previously consequent on Ms Cahill’s excessive workload, Ms Cahill’s emerging difficulties with Ms Chisholm and the report prepared by Ms Chisholm that was critical of Ms Cahill and required rectification prior to being submitted to the Board, Ms Cahill’s difficulties with Mr Braithwaite following his appointment as CEO with Hume Community Housing and Mr Braithwaite’s voiced intention to appoint a consultant to Ms Cahill’s team. It is evident that the deterioration in Ms Cahill’s mental health saw her consult with Dr Kelly, Dr Forster and EAP prior to her meeting with Mr Braithwaite on 26 July 2023, following which she ceased working with diagnosis of psychological injury and referral for psychological counselling.
Dr Kumagaya provided opinion Ms Cahill’s employment with Hume Community Housing was a substantial contributing factor to injury with reference to Ms Cahill becoming increasingly overwhelmed with her excessive workload, Ms Cahill being subjected to an accusation which she believed to be false and Ms Cahill working in an environment where she felt unsupported. While Dr Kumagaya has not provided opinion Ms Cahill’s employment with Hume Community Housing was the main contributing factor to injury being the requirement of s 4 of the 1987 Act relevant to injury in the nature of a “disease” injury, which is generally the nature of psychological injury, this is of not fatal as the test of “main contributing factor” is one of causation which involves the consideration of the evidence overall and is not purely a medical question (AV v AW[11]).
[11] [2020] NSWWCCPD 9.
I prefer opinion provided by Dr Kumagaya to that provided by Dr Sankaranarayanan in circumstances where Ms Cahill has the support too of her long term treating general practitioner Dr Kelly, who has provided opinion Ms Cahill “has had a series of issues with her workplace which have contributed to the development of her current condition” and has provided opinion Ms Cahill’s employment was the main contributing factor to her psychological injury.
Even if I was to accept Ms Cahill’s injury was wholly or predominantly caused by action taken or proposed to be taken by Hume Community Housing with respect to “performance appraisal” and/or “discipline” (which I do not), Hume Community Housing is required to establish Hume Community Housing’s actions or proposed actions with respect to “performance appraisal” and/or “discipline” were “reasonable”.
In Dunn v Department of Education and Training[12] Gerahty J referred to his earlier unreported decision in Irwin v Direction-General of Education[13] in which he said a “performance appraisal” should be “formal, somewhat like an examination or a test rather than an extended and continuing assessment” and concluded an enhancement program to which a teacher was subjected to for well over a year was not performance appraisal.
[12] [2000] NSWCC.
[13] NSWCC 14068/97.
In the circumstances of this particular matter it does not appear Ms Cahill was subjected to “performance appraisal” during her meeting with Mr Braithwaite on 26 July 2023 and I do not accept any action or proposed action to be taken by Hume Community Housing relevant to Ms Cahill’s meeting with Mr Braithwaite on 26 July 2023 was with respect to “performance appraisal” of Ms Cahill.
I accept Ms Cahill’s submission that the meeting of 26 July 2023, being the identified action relied on by Hume Community Housing, does not fit within the category of “performance appraisal” prescribed in s 11A of the 1987 Act.
In Kushwaha v Queanbeyan City Council[14] “discipline” is broadly defined as learning by instruction and the maintenance of that learning by training, exercise or repetition, with the narrow meaning of punishment or chastisement being secondary to this broader meaning. In Sinclair it was held that “discipline” extends to the entire process, including the course of an investigation. Northern New South Wales Local Health Network v Heggie[15] confirmed a broad view is to be taken of the expression “action with respect to discipline” prescribed in s 11A of the 1987 Act with comment “it is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”
[14] [2002] NSWCC 25.
[15] [2013] NSWCA 225; 12 DDCR 95.
Regarding any disciplinary actions taken or proposed to be taken by Hume Community Housing relevant to Ms Cahill, Mr Braithwaite said in his statement at paragraphs 30 and 31:
“On 26 July 2023 Catherine Cahill was notified by me that a serious complaint had been lodged against her by an employee under her supervision, and that I had a duty of care to undertake a formal investigation.
Catherine Cahill was not issued with any work-related or other written warning, on or prior to 26 July 2023, either in relation to the complaint mentioned at paragraph 30, nor, to my knowledge, any prior event.”
While I accept that action with respect to “discipline” as prescribed by s 11A of the 1987 Act “is capable of extending to the entire process involved in disciplinary action, including the course of an investigation” in the circumstances of Ms Cahill’s matter it is evident Ms Cahill was merely informed during her meeting with Mr Braithwaite on 26 July 2023 that a grievance had been raised against her that was to be investigated due to the serious nature of the allegations.
In the circumstances of this particular matter it does not appear Ms Cahill was subjected to “discipline” during her meeting with Mr Braithwaite on 26 July 2023 and I do not accept any action or proposed action to be taken by Hume Community Housing relevant to Ms Cahill’s meeting with Mr Braithwaite on 26 July 2023 was with respect to “discipline” of Ms Cahill.
I accept Ms Cahill’s submission that the meeting of 26 July 2023, being the identified action relied on by Hume Community Housing does not fit within the category of “discipline” prescribed in s 11A of the 1987 Act.
Even if I was to accept that Hume Community Housing’s actions or proposed actions were with respect to “performance appraisal” and/or “discipline” (which I do not) Hume Community Housing is required to establish Hume Community Housing’s actions or proposed actions with respect to “performance appraisal” and/or “discipline” were “reasonable”.
Considering the meaning of reasonableness as regards actions taken or proposed to be taken by Hume Community Housing with respect to discipline, in Sinclair the court observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd,[16] Melder v Ausbowl Pty Ltd[17]).
[16] [1198] NSWCC 13.
[17] [1997] NSWCCR 454.
In Heggie the court set out the following statements of principle regarding s 11A (1):
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
In Irwin, Gerahty J said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding that the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by question of fairness”
While it may be that certain steps taken by Hume Community Housing with respect to informing Ms Cahill of the grievance raised against her and the proposed investigation relevant to the grievance were reasonable, it is not evident Ms Cahill was provided with the opportunity of a support person attending her meeting with Mr Braithwaite on 26 July 2023 despite Mr Braithwaite’s acknowledgement of the serious nature of the allegations made against Ms Cahill and neither is it evident Ms Cahill was offered EAP support at the time of the meeting despite Mr Braithwaite’s subsequent acknowledgement Ms Cahill “was understandably upset” when she was informed of the serious allegations made against her and the need for an investigation.
I am of the view that at any meeting where an employee is informed by management of a grievance made against them which is of such serious nature so at to warrant investigation it is appropriate that the employee be offered the opportunity of a support person attending such meeting and the employee be offered EAP support at the time of the meeting, neither of which occurred in the circumstances of the meeting Ms Cahill attended on 26 July 2023 with
Mr Braithwaite.In all of the circumstances known to Hume Community Housing at the time of Ms Cahill’s meeting on 26 July 2023 with Mr Braithwaite, with particular reference to Ms Cahill’s previously evidenced deterioration in mental health consequent on the Board report authored by Ms Chisholm with negative comment about Ms Cahill which required rectification and her increased workload, I do not accept the action taken by or proposed to be taken by Hume Community Housing with respect to “performance appraisal” and/or “discipline” (which I do not accept it was) was “reasonable” in that Ms Cahill was not provided with the opportunity of a support person being in attendance at the meeting and neither was she offered EAP support at the meeting despite Mr Braithwaite’s recognition and subsequent acceptance that the meeting would have been upsetting for Ms Cahill.
For the reasons discussed above I am not satisfied Hume Community Housing has discharged the onus of proof required and Hume Community Housing cannot rely on defence raised under s 11A of the 1987 Act.
Does Ms Cahill suffer an incapacity for work?
As Hume Community Housing does not dispute Ms Cahill sustained psychological injury in the course of her employment with Hume Community Housing, with her employment being the main contributing factor to injury and I have determined her injury was not wholly or predominantly caused by reasonable action taken by Hume Community Housing with respect to performance appraisal and/or discipline, it follows Ms Cahill may have an entitlement to weekly benefits payable under s 37 of the 1987 Act from 29 December 2023 to date and ongoing.
The parties agree:
(a) the applicable pre-injury average weekly earnings (PIAWE) is the statutory maximum rate, being $2,423.60 between the period 29 December 2023 and
16 March 2024, and $2,4970 from 17 March 2024 ongoing, and(b) Ms Cahill’s actual weekly earnings between 17 March 2024 and 1 June 2024 are:
(i)between 17 March 2024 and 23 March 2024 Ms Cahill earned $525;
(ii)between 24 March 2024 and 30 March 2024 Ms Cahill earned $337.50;
(iii)between 5 May 2024 and 11 May 2024 Ms Cahill earned $160;
(iv)between 12 May 2024 and 18 May 2024 Ms Cahill earned $480;
(v)between 19 May 2024 and 25 May 2024 Ms Cahill earned $640, and
(vi)between 26 May 2024 and 1 June 2024 Ms Cahill earned $1,755.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
Section 37 of the 1987 Act relevantly provides for weekly payments during an injured worker’s second entitlement period. The provisions of s 37 of the 1987 Act requires consideration as to whether an injured worker has “current work capacity” or “no current work capacity” as defined in cl 9 of Schedule 3 of the 1987 Act:
“An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Suitable employment is relevantly defined in s 32A of the 1987 Act:
“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 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
the worker’s place of residence.”
Assessment of Ms Cahill’s capacity for work from 29 December 2023 involves consideration as to whether since that time Ms Cahill has had a current work capacity or no current work capacity as defined in Schedule 3 of the 1987 Act. This requires consideration of Ms Cahill’s capacity to undertake not only her pre-injury employment with the Hume Community Housing but also her capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing Home Pty Ltd v Dewar.[18] It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[18] [2014] NSWWCCPD 55 (Dewar).
Dr Kelly certified Ms Cahill with no current work capacity for the period between 27 July 2023 and 16 October 2023, being a period which pre-dates Ms Cahill’s claim for weekly compensation.
Dr Kelly certified Ms Cahill with a current capacity to work eight hours each week between
16 October 2023 and 14 December 2023, also being a period which pre-dates Ms Cahill’s claim for weekly compensation, with comment noted in the Certificate of Capacity “fit for a work trial with another employer. Not fit to work at Hume Housing”. At the time Dr Kelly issued this Certificate of Capacity, Ms Cahill was still employed with Hume Community Housing.As at 28 November 2023 Dr Sankaranarayanan provided opinion Ms Cahill was totally incapacitated for her pre-injury duties with Hume Community Housing but considered “she might be able to do 2-3 hours (10-15 hours per week) in a different position for work”.
While Dr Kelly continued to certify Ms Cahill with the same previous level of capacity and comment between 14 December 2023 and 12 January 2024, she also provided Ms Cahill with medical certificates certifying Ms Cahill as unfit for work during the same period. Ms Cahill submits that an inference can be drawn from Dr Kelly’s alternate certification between
14 December 2023 and 12 January 2024 that Dr Kelly considered Ms Cahill only had capacity to attempt a “work trial” with an alternate employer during that period but had no current capacity for work per se, with a “work trial” not being “employment in work” as defined in s 32A of the 1987 Act. I accept Ms Cahill’s submission, and I also accept Ms Cahill’s submission that such an approach is consistent with Dewar.As at 5 January 2024 Dr Kumagaya provided opinion Ms Cahill had no current work capacity.
While Dr Kelly subsequently certified Ms Cahill with a current work capacity for some type of work for eight hours a week from 12 January 2024 and 12 March 2024 with the only restriction appearing to be that she was not fit to work at Hume Community Housing, she again also provided Ms Cahill with medical certificates certifying Ms Cahill as unfit for work during the same period, which Ms Cahill submits is of some importance. It was during this period that Ms Cahill resigned from her employment with Hume Community Housing.
Ms Cahill accepts that Dr Kelly subsequently certified Ms Cahill with a current work capacity for some type of work for 20 hours per week from 12 March 2024 and it is evident that since the week commencing 17 March 2024 Ms Cahill has, from time to time, undertaken employment in work to which she is suited.
Assessing Ms Cahill’s current work capacity during the period of her claim is not without complication but following review of the evidence as a whole and careful consideration of counsel’s submissions, I accept Ms Cahill had no current work capacity between
29 December 2023 and 11 March 2024 but had a current work capacity from
12 March 2024 for suitable employment, being employment in a less stressful role than that she held with Hume Community Housing, for 20 hours per week as certified by Dr Kelly.
Quantification of entitlement to weekly benefits
The parties agree the applicable PIAWE in Ms Cahill’s case is the statutory maximum rate.
I have determined Ms Cahill has no current work capacity during the period
29 December 2023 and 11 March 2024 and Ms Cahill’s entitlement to weekly benefits payable under s 37 of the 1987 Act during this period are capped at the statutory maximum weekly rate of $2,423.60.I have determined Ms Cahill has a current work capacity for suitable employment, being employment in a less stressful role than that she held with Hume Community Housing for 20 hours per week, from 12 March 2024. I accept Ms Cahill’s submission that in identifying a less stressful role than that which she held with Hume Community Housing I may have regard to the national average weekly earnings of $1,399.10, which is $35 per hour. I accept that since 12 March 2024 Ms Cahill has had capacity to earn $700 per week.
Ms Cahill’s entitlement to weekly benefits payable under s 37 of the 1987 Act from
12 March 2024 are as follows:(a) between 12 March 2024 and 30 March 2024 at the rate of $1,723.60 per week;
(b) between 31 March 2024 and 25 May 2024 at the rate of $1,797.70 per week;
(c) between 26 May 2024 and 1 June 2024 at the rate of $742.70 per week, and
(d) from 2 June 2024 ongoing at the rate of $1,797.70 per week (as indexed and in accordance with the 1987 Act).
Does Ms Cahill require treatment?
Hume Community Housing submits that in the event Hume Community Housing is not successful in maintaining the defence raised under s 11A of the 1987 Act, Hume Community Housing is “content with a general order being awarded”. As I have determined Ms Cahill’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline Ms Cahill has an entitlement to medical or related treatment expenses payable under s 60 of the 1987 Act.
SUMMARY
Hume Community Housing does not dispute Ms Cahill sustained primary psychological injury in the course of her employment with Hume Community Housing with deemed date of injury of 26 July 2023 and that her employment was the main contributing factor to injury, and I have determined Ms Cahill’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline.
The parties agree the applicable PIAWE in Ms Cahill’s case is the statutory maximum rate.
I have determined Ms Cahill has no current work capacity during the period
29 December 2023 and 11 March 2024. I have determined Ms Cahill has a current work capacity for suitable employment for 20 hours per week from 12 March 2024, earning $700 per week.Ms Cahill’s entitlement to weekly benefits payable under s 37 of the 1987 Act are as follows:
(a) between 29 December 2023 and 11 March 2024 at the rate of $2,423.60 per week;
(b) between 12 March 2024 and 30 March 2024 at the rate of $1,723.60 per week;
(c) between 31 March 2024 and 25 May 2024 at the rate of $1,797.70 per week;
(d) between 26 May 2024 and 1 June 2024 at the rate of $742.70 per week, and
(e) from 2 June 2024 ongoing at the rate of $1,797.70 per week (as indexed and in accordance with the 1987 Act).
Ms Cahill also has entitlement to medical or related treatment expenses payable under s 60 of the 1987 Act for her injury.
0
10
0