Canterbury Bankstown Council v Gazi
[2019] NSWWCCPD 14
•11 April 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 | |
| APPELLANT: | Canterbury Bankstown Council | |
| RESPONDENT: | Claire Gazi | |
| INSURER: | Self-insurer | |
| FILE NUMBER: | A1-2970/18 | |
| ARBITRATOR: | Mr J Isaksen | |
| DATE OF ARBITRATOR’S DECISION: | 22 October 2018 | |
| DATE OF APPEAL DECISION: | 11 April 2019 | |
| SUBJECT MATTER OF DECISION: | Psychological injury; causation of injury; whether injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer; causation test in s 11A(1) of the Workers Compensation Act 1987; application of Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; 19 NSWCCR 181 | |
| PRESIDENTIAL MEMBER: | President Judge Phillips | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Bartier Perry |
| Respondent: | Carroll & O’Dea | |
ORDERS MADE ON APPEAL: | 1. Orders [1] and [2] of the Arbitrator’s Certificate of Determination dated 22 October 2018 are revoked. | |
| 2. The matter is remitted to the same Arbitrator for re-determination of the outstanding issues, consistent with these reasons. | ||
INTRODUCTION
This appeal challenges the Arbitrator’s finding that the worker’s psychological injury was not wholly or predominantly caused by action taken by the employer with respect to transfer, pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). This appeal also challenges the Arbitrator’s factual finding that the worker was exposed to an excessive workload.
BACKGROUND
Claire Gazi was employed as a Senior Finance Officer with Canterbury Council. She had worked at Canterbury Council for approximately 30 years.
On 12 May 2016, Canterbury and Bankstown Councils amalgamated. This resulted in the transfer of staff of the former Canterbury Council to the new amalgamated council, Canterbury Bankstown Council, the appellant.
On 24 April 2017, Ms Gazi physically transferred from Canterbury Council to the premises of the amalgamated council. The premises of the new amalgamated council, is the same premises of the former Bankstown Council in Bankstown.
On 14 August 2017, Ms Gazi ceased working for the appellant.
On 6 October 2017, Ms Gazi made a claim for compensation against the appellant. She alleges that she was subjected to bullying, harassment and ostracism by her new supervisors at the appellant. She also alleges that she was subjected to excessive workload and a lack of assistance and training in new operating systems. Ms Gazi claims that as a result of these actions she sustained a psychological injury.
On 7 December 2017, the appellant issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant denied liability on the “grounds of reasonable excuse”. It disputed the allegation that Ms Gazi had been subject to unfair treatment or behaviour or inappropriate conduct from superiors or other employees, excessive workload or disrespectful communications. It also disputed the allegation of lack of training, support and recognition. It further disputed that Ms Gazi sustained a work-related psychological injury but if she did that injury was wholly or predominantly caused by reasonable action with respect to transfer, under s 11A of the 1987 Act.
On 15 May 2018, Ms Gazi requested that the appellant review the decision to dispute liability which was contained in the s 74 notice.
On 1 June 2018, the appellant issued a notice under s 287A of the 1998 Act. The appellant reviewed the decision to decline liability contained in the s 74 notice and determined to maintain its original decision.
On 8 June 2018, Ms Gazi filed an Application to Resolve a Dispute (the Application). Ms Gazi claimed weekly payments of compensation and medical expenses in respect of a psychological injury deemed on 28 August 2017. The injury is described as arising from being ostracised, subjected to bullying and harassment at the amalgamated council department. She claimed compensation from 15 August 2017 to date and continuing.
On 27 June 2018, the appellant filed a reply to the Application. The appellant disputed the claim, relying on the s 74 and s 287A notices.
On 7 September 2018 and 3 October 2018, the parties attended conciliation/arbitration proceedings before Arbitrator John Isaksen. During the proceedings on 7 September 2018, over objection, Ms Gazi was granted leave to amend Part 4 of the Application to add the following nine separate allegations of injury, in addition to allegations of bullying and harassment:
(a) appointment of former Bankstown City Council employees (Bankstown employees) to management position;
(b) unsatisfactory interactions with Ms Vlahovic;
(c) difficulties with a new IT accounting system (SAP);
(d) disrespectful interactions and communications by Bankstown employees towards Canterbury City Council employees (Canterbury employees);
(e) Bankstown employees not accommodating Canterbury employees;
(f) excessive workload and being required to work excessive hours;
(g) inefficient or inequitable distribution of work;
(h) behaviour aimed at compromising the employment of Canterbury employees, and
(i) insufficient training, support and lack of recognition.
On 22 October 2018, the Arbitrator issued a Certificate of Determination in favour of Ms Gazi.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant submits that the appeal should be determined on the papers. However, Ms Gazi submits that there should be an oral hearing on the basis that she seeks to raise a “cross-appeal”. In this regard, Ms Gazi submits that the Arbitrator erred in not finding that she was bullied or harassed, treated unfavourably or subjected to inappropriate behaviour in the workplace. In view of the “cross-appeal” and the submissions regarding the finding on bullying and harassment, Ms Gazi submits that it would be appropriate to “convene an oral hearing to facilitate examination of the unusual issues in the matter.”
It could be considered that Ms Gazi’s attempt to pursue a “cross-appeal” is unusual, because nothing in the 1998 Act, the Workers Compensation Commission Rules 2011 (2011 Rules) or Practice Direction No 6 – Appeal Against a Decision of an Arbitrator (Practice Direction No 6) permits such a course. Having said that, the subject matter of the hearing below and the appeal proceedings, absent any consideration of a “cross-appeal”, are not attended upon by any feature that would require an oral hearing. For the reasons discussed below, the appeal succeeds in-part and the matter is to be remitted for re-determination of the s 11A defence in accordance with law. As a consequence, it is not appropriate that I deal with the issues raised in the “cross-appeal”. It follows that the sole basis for which Ms Gazi seeks an oral hearing has little weight.
Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances. For the above reasons, the request by Ms Gazi for an oral hearing is denied.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
Lay evidence
Ms Gazi
In evidence is a statement signed by Ms Gazi, dated 23 October 2017. In that statement, Ms Gazi stated that she had worked for Canterbury Council for approximately 30 years, prior to the amalgamation of Canterbury Council and Bankstown Council.
From 15 May 2016, when the amalgamation occurred, she began reporting to Ms Vlahovic, coordinator of finance. Ms Vlahovic had been employed at Bankstown Council prior to the amalgamation.
Ms Gazi stated that on 25 April 2017 she moved premises to the Bankstown Council premises. Prior to the amalgamation she had been using, at Canterbury Council, the JDE/Pathway accounting software and Bankstown Council used the SAP system. She was asked to start using the SAP system, which was “totally different” to the JDE software. She underwent training in the SAP system prior to the physical move, approximately once a week for a couple of hours. However, the training time was in Ms Gazi’s view “insufficient to learn all the new systems” and she made a request to Rachel Cheetham and Ms Vlahovic for external training. That request was declined, in preference to in-house training. Ms Gazi stated that because all staff were “very busy following the amalgamation, there was no extra time provided to us to train in the SAP system.”
In early 2017, Ms Gazi claimed that Ms Vlahovic sent her an email regarding Mr Eduardo Flores’ job “when he was going on holidays to do his full job”. Ms Gazi told Ms Vlahovic that as she also had her own “job to do” she “could not do two full time jobs at once.” Ms Gazi stated that Ms Vlahovic was not happy about that and accused her of not being a part of the team and spoke to her in a “disrespectful manner”, being “short and rude” and “appearing to place herself above” the finance employees from the Canterbury premises.
Ms Gazi stated that she personally “initially enjoyed working with [her] new team for approximately the first two months, until the end of June 2017. She stated that she did not experience any personal issues between herself and the team she worked with.
Ms Gazi stated that after the physical transfer “[Ms Vlahovic] began to load [her] up with a volume of work that [she] was unable to cope with during [her] usual working hours.” She began starting work at 8 am and finishing between 7 pm or 7.30 pm, often not taking a lunch break to get through the workload. She added that:
“I found it difficult to complete my assigned duties in my usual working hours because all the systems were new to me, so I was trying to learn these new systems and handle the amount of work I was being given by [Ms Vlahovic].”
Ms Gazi stated that Ms Vlahovic would give her more work and the others nothing. She felt that it was the appellant’s “way to get rid of us after the five years we were promised, or make our lives miserable to resign.”
It was around this time that Ms Gazi claims that she “began to feel very stressed because of the change in systems and my workload that I had to get through on a day-to-day basis.” She stated that she was not being given the training and support needed to “get up to speed with the new systems and workload.” She stated that all of her “work experience was not recognized [sic] and any initiative shown was not encouraged”. It had to be the “Bankstown way only”.
Ms Gazi said that she felt Ms Vlahovic was “unsupportive” as her manager and would “often make disparaging remarks about” her work performance. She recalled a meeting in May 2017 where she told Ms Vlahovic that “there must be an easier way to transfer all accounts instead of doing them manually.” Ms Vlahovic replied: “You need to understand accounting first, we have four qualified accountants here.” Ms Gazi stated that the way this was stated to her in the presence of her work colleagues made her feel that Ms Vlahovic “looked down upon [her] knowledge and skill to complete [her] job” and she took it as a “personal attack”.
Ms Gazi recalled that also towards the end of May 2017, Ms Vlahovic asked her to manually reverse about four spreadsheet pages of accounts. She asked Ms Vlahovic if the task could be done some other way and Ms Vlahovic said “this was the only way to do it.” Ms Gazi stayed back at work until about 7.30 pm to complete the task, while her “other work accumulated.”
Ms Gazi stated that she “always stayed back until late at night” at the end of the financial year “to roll-over the balance”. There were problems in June 2017 and the balance could not be rolled over. She told Ms Vlahovic about the problem who said it was because codes had been changed. Ms Gazi was frustrated because “things were being changed … without our knowledge” and without Ms Vlahovic informing her. The codes were later reversed and Ms Gazi was able to complete the reconciliations.
Ms Gazi stated that in early July two staff members each took one week of annual leave, one of which took further leave up to a month due to an illness. Ms Gazi claims that this “added to the pressure on me at work”. She stated that when one colleague returned she put more work in her in-tray. Ms Gazi stated that she told Ms Vlahovic that she could not currently help alleviate the workload because she had also been assigned a heavy workload.
Ms Gazi stated that in or about July 2017, the workload and Ms Vlahovic’s management style began to affect her emotional state. In July 2017, a meeting was held, where Ms Vlahovic talked about workloads. Ms Gazi recalls that she told Ms Vlahovic that they were “all under pressure with the workload” and that “[j]ust because I don’t come to you whining does not mean I am not stressed.” Ms Vlahovic did not respond to the latter comment and everyone in the room then started raising their voices. Ms Gazi stated that her “stress and frustration continued each day into August 2017.”
Ms Gazi provided a document titled “General comments regarding the witness statements”, responding to the various statements in the investigation report prepared by Clearscope. This document is undated. Relevantly, the document records that Ms Gazi wanted to learn how to operate the SAP system and that she was loaded with work that required the transfer from the previous system to the SAP system, while at the same time learning the new SAP system. It also records that Ms Vlahovic changed the SAP system codes without informing Ms Gazi. The document also records that the “work load did not affect me as much, it keeps me busy and time passes faster”.
Kalyani (Kala) Iyer
In evidence is a statement signed by Kalyani Iyer, the appellant’s team leader financial management, dated 24 October 2017. She was Ms Gazi’s direct supervisor from 11 July 2017.
Ms Iyer stated that all members of the finance team were responsible for bulk receipting. Ms Gazi was given training to perform bulk rate receipting. She added that when Geraldine White had been on leave for a few days, Ms Gazi performed her receipting tasks.
Ms Iyer stated that after she became Ms Gazi’s supervisor she “…noticed that Claire [became] emotional approximately once or twice while at work.” Ms Iyer asked Ms Gazi if she was alright and she responded that she was fine. Ms Iyer stated that she assumed Ms Gazi was dealing with personal issues.
Ms Iyer recalled being copied into an email sent by Ms Vlahovic to Ms Gazi on 11 August 2017, regarding the correct approach for offsetting a tax invoice. Ms Iyer stated that, approximately five minutes later she saw Ms Gazi openly crying at work. Ms Gazi did not wish to discuss her issues and left work for the day. Ms Gazi only returned to work for one day, on 14 August 2017, and did not return thereafter and as a result Ms Iyer did not have an opportunity to discuss this matter further with Ms Gazi.
Ms Iyer stated that the relationship between Ms Gazi and Ms Vlahovic was “strained from the beginning”. She observed that Ms Gazi “took [Ms Vlahovic’s] criticisms of her work personally.” She added that Ms Vlahovic was “always polite and professional in her approach.”
Ms Iyer also stated that for the most part Ms Gazi worked usual hours. She noted that on 30 June 2017 Ms Gazi worked overtime to ensure that a data rollover could take place and that she was paid overtime for that day.
Ms Iyer further stated that the general manager invited a few staff members to lunch to show his appreciation of their efforts. She stated that “the mood of the office was tense” and she did not openly discuss the lunch with others.
Eduardo Flores
In evidence is a statement signed by Mr Flores, the appellant’s finance officer, dated 1 November 2017. He formerly worked for Canterbury Council, prior to the amalgamation.
Mr Flores stated that the SAP system was completely different to the JDE Pathway system used by the former Canterbury Council. He could not recall receiving any formal SAP training, except for one session with Ms Vlahovic, which was just her talking about the SAP system and “not really showing us how to use it in a hands-on way.” Following this he, together with Ms Gazi and another employee, requested formal training from an external SAP training provider. This request was declined.
Mr Flores did not start working at the new premises until May 2017, following a period of leave in April 2017. When he started working there he “did not have any issues” with his colleagues but he felt that “Council’s management, [Ms Cheetham] and [Ms Vlahovic], did not recognize [sic] the former Canterbury Council accounts receivable staff and would rather rely on the former Bankstown Council staff.” Due to this, he stated that, he and Ms Gazi “both felt that we were not of any use.”
Mr Flores recalled a meeting in about mid-2017 with Ms Holt, the appellant’s human resource manager, where Ms Gazi “let out her feelings of what was happening to her in the workplace”, about the issues with Ms Vlahovic which centred around Ms Gazi not feeling recognised and how she wanted to learn the SAP system but when she asked Ms Morley to teach her this was ignored.
Mr Flores stated that one of the “biggest things that really affected [Ms Gazi] emotionally was when all of the former Bankstown Council finance staff … were invited to the city for lunch” with Council’s General Manager. Mr Flores and Ms Gazi were not invited to the lunch. Ms Gazi was very upset that she had not been invited to the lunch.
Mr Flores commented on Ms Gazi’s relationship with Ms Vlahovic. Mr Flores stated that he saw Ms Vlahovic “speak down” to Ms Gazi on numerous occasions since the amalgamation. Mr Flores stated that:
“I think a lot of little things that were happening at work built up in Claire over time, causing her a lot of stress. Claire told me in conversation that she was not happy about many things that were happening at work, such as she used to do reconciliations and reports, but Pathway had been changed to SAP, so she no longer did the reports and reconciliations. After June 2017, Claire was only raising invoices and would rather have been doing work that carried more responsibility. Claire felt like she had lost her position of responsibility and did not enjoy coming to work anymore. Basically, Claire was demoted without consultation.”
Kaye Morley
In evidence is a statement signed by Kaye Morley, the appellant’s senior accounts receivable officer, dated 2 November 2017. Ms Morley stated that she trained Ms Gazi on the SAP system on many occasions. Ms Gazi did not complain about learning the new system and processes during the training.
Ms Morley stated that, leading up to 1 July 2017, Ms Gazi did not have a greater workload than anyone else in the team. She recalled that prior to 1 July 2017 Ms Gazi only stayed back past her scheduled finishing time on a few occasions, including 30 June 2017.
In July 2017, Ms Morley’s counterpart, Rhonda, was off work sick. Ms Morley claimed that she was inundated with work and Ms Gazi and Mr Flores would not assist. When she asked for their assistance during a meeting, Ms Gazi “became mildly angry … because I had said that I was stressed, screwing her face up.” She said that Ms Gazi and Mr Flores were very resistant to be team players and did not want to do certain tasks because it was not in their job description.
Ms Morley stated that on her return from a week of leave, during which time Rhonda was away on sick leave, she found that no one had done her work and her in-tray was full.
Ms Morley added:
“From my observations while working with Claire, Claire seemed to be resistant at times to changes that were taking place at Council. It felt to me as if she thought of the former Bankstown Council employees and former Canterbury Council employees as separate entities and would not change to work together as one Council after the amalgamation.”
Mr Morley stated that she could not recall Ms Vlahovic making “any disparaging remarks” about Ms Gazi’s work performance. She never observed Ms Vlahovic to speak to Ms Gazi in a manner that was “inappropriate, rude, or short.”
Ken Manoski
In evidence is a statement signed by Ken Manoski, the appellant’s director corporate, dated 3 November 2017. In the statement Mr Manoski stated that it was identified that the SAP system “would be the most effective consolidated finance solution to use by the organisation moving forward”. SAP presented a lower level of risk for the organisation, given a number of the former Bankstown Council finance staff were experienced and proficient in using the SAP system and were capable and willing to train former Canterbury Council staff. He stated that “[s]taff were advised of the reasons for Council choosing SAP as its financial system”.
In June 2017, the appellant finalised its transition to one financial system. All financial processing was largely carried out through SAP, with the exception of accounts receivable which required processing of certain existing licencing invoices through the former financial system until this was transitioned.
Mr Manoski stated that following the amalgamation he held a number of meetings with finance staff, both combined and separately for each former council. The purpose of these meetings was to discuss various issues including interim structure, job security, training, expectations and other relevant corporate/organisation issues. He recalled holding a meeting with Ms Gazi and a United Services Union (the union) delegate where the processes in the accounts receivable area were discussed. He explained the appellant’s decision to continue to use SAP with existing processes and that he expected teams would have the opportunity to review their processes and make/implement changes and/or improvements. He encouraged Ms Gazi to discuss her issues with her team leader and/or coordinator regarding the transactional issues she had raised.
In March 2017, the appellant met with the union to discuss employee concerns within the finance team. The appellant agreed to improve communications within the team. A further meeting was held in October 2017, regarding employee issues and concerns. Those issues concerned the relationship between certain former Bankstown Council employees and Canterbury Council employees and a lack of respect amongst one another. It was agreed that the appellant would write to staff regarding the issues raised and set out expectations moving forward. Attached to the statement is an email dated 31 October 2017, from Mr Manoski to relevant staff. Relevantly, the email recorded:
“Workload distribution
I understand that in some areas there is an uneven distribution of work, with some team members working more hours than others. I will work with the Coordinators and/or Team Leaders to ensure that we appropriately distribute work amongst all staff.
Staff are expected to participate in this process. Similarly, I expect that each of you work together and support each other in carrying out the outcomes for your area/teams.
…
SAP Training
The most effective way to learn SAP is by applying the system processes and learn from your colleagues, who have experience in the area. Similarly, I expect those staff with experience in using SAP to take the time to assist and support staff who need to carry-out the required processing in each area.”
Antoinette Holt
In evidence is a statement signed by Antoinette Holt, the appellant’s manager of corporate development, dated 7 November 2017.
Ms Holt stated that from May 2017 she conducted monthly two-hour workshops with the former Canterbury Council staff and Bankstown Council staff to “collaboratively and openly discuss work allocations and functions within their units”. She stated:
“The feedback from the workshop I received, with regards to some former Canterbury Council accounts receivable team members, was that they continued to perform their duties as they had previously done, and made limited or no adaptations, as had been agreed at the initial workshop. This concerned me, as when we held the workshop, all participants collectively agreed to the changes which were discussed.”
Ms Holt stated that as the months passed and workshops continued, she received feedback that Ms Gazi and some of the former Canterbury Council staff had not adapted to the processes or allocations as agreed.
Ms Holt commented on conversations she had with Ms Gazi. She stated that in July 2017, she had a couple of informal discussions with Ms Gazi in her office. She stated that Ms Gazi advised on one occasion that she was unhappy with the revised work allocations and the training that was provided. She responded to Ms Gazi that she understood appropriate training had been organised but if she required further assistance to speak to Ms Vlahovic. In respect of the issue of workload, Ms Cheetham stated that Ms Gazi suggested that she wanted to continue performing the same type of work she did at Canterbury Council. Ms Cheetham added that Ms Gazi “mentioned that she did not like working with the new SAP system and spoke about how she preferred the old system JDE.”
Ms Holt made further comment on her dealings with Ms Gazi. She stated that Ms Gazi did not make any direct complaints to her about Ms Cheetham or Ms Vlahovic’s treatment of her in the workplace. However, Ms Gazi made some “general, informal comments about the work allocation and type of work she was expected to undertake.”
In respect of the July 2017 workshop in which Ms Gazi raised an issue relating to work allocation, Ms Holt stated that she recalled Ms Vlahovic stating that Ms Morley “was feeling quite stressed”. Ms Holt stated that she did not see any person speak in an inappropriate manner during the workshop. She added that “[p]eople aired their views openly and honestly.”
Nga (Christine) Phuong
In evidence is a statement signed by Nga Phuong, the appellant’s team leader of financial management, dated 9 November 2017.
Ms Phuong stated that throughout the process of the amalgamation, the appellant held regular meetings with the Canterbury Council finance team to keep them informed.
In respect of appointments to management positions, Ms Phuong stated that from October/November 2016, Ms Cheetham was appointed as the appellant’s finance manager and Ms Vlahovic was appointed as the appellant’s coordinator financial management. Ms Cheetham and Ms Vlahovic attended the Canterbury Council premises at least one day per week to answer staff questions regarding the amalgamation.
Ms Phuong stated that even though there was clear communication about the amalgamation “the Canterbury Council staff’s conversation was still quite negative about the changes that were taking place due to the amalgamation.” In particular, the staff were unhappy that SAP was the chosen accounting software, over JDE software.
Ms Phuong stated that she never saw Ms Cheetham or Ms Vlahovic “speak to any Council staff in a raised voice, or an intimidating manner.” However, she stated that “there was still resistance to the changes from some members of the group.”
Ms Phuong recalled that at or about the end of 2016, Canterbury Council finance staff began going to Bankstown Council’s premises once a week for half a day to undertake SAP system training.
Ms Phuong stated that she applied for the position of interim team leader in or about February 2017. She noted that Ms Gazi had spent a lot of time on her resume but “ended up not applying for the role.” She added that she attended a formal interview for the role and took a test as part of the application process. She was later advised she was the most qualified candidate. She claimed that she was “treated differently in a unpleasant way” by the former Canterbury Council staff, following her appointment. She stated that Ms Gazi, and others, began to speak to her in a “disrespecting manner”.
Ms Phuong commented on her observations of Ms Gazi in the workplace. She stated that Ms Gazi and Mr Flores were “very resistant to changes that had been proposed by Rachel and Ranka” following physical transfer. She explained that Ms Gazi and Mr Flores were extremely reluctant to do duties, such as loading receipts for rates, that they had not done before.
Ms Phuong stated that up until mid-July 2017, the former Bankstown Council finance staff were “really snowed under with work because they were proficient in the SAP system and the former Canterbury Council Finance staff were still training and getting used to the system”. She claimed that this added to the workload of former Bankstown Council finance staff, who had been assigned as “buddies” to each former Canterbury Council finance staff member. This was because they were “constantly on call to answer any questions about the SAP system, as well as trying to complete their workload.” She added that she observed that the former Bankstown Council finance staff, during this period, were “very supportive of the former Canterbury Council finance staff, including Claire.”
In respect of management of Ms Gazi and finance staff, Ms Phuong stated “I have never observed Rachel, Ranka, or Kala speak or act in an inappropriate or demeaning manner towards Claire or any Council staff member.” She added she had not spoken or acted in an inappropriate or demeaning manner towards Ms Gazi or any of the appellant’s staff members.
Ranka Vlahovic
In evidence is a statement signed by Ranka Vlahovic, the appellant’s interim coordinator financial management, dated 9 November 2017. She commenced this role in February 2017. She had previously been employed by Bankstown Council.
Ms Vlahovic stated that shortly after February 2017, she held a team meeting with former Canterbury Council finance staff to provide an overview for the work agenda until the end of the 2016-17 financial year. She discussed the appellant’s objectives for the finance team and the transition period. She sought to allay fears regarding job security and confirmed that all employees had been given 5-year job protection.
In or about March 2017, there were two interim team leaders appointed. Christine Phuong, formerly a member of Canterbury Council Finance team, was appointed to Team Leader Financial Management Canterbury Branch. Kalyani Iyer, formerly a member of Bankstown Council Finance team, was appointed to Team Leader Financial Management Bankstown Branch. Once the appointment of the team leader of the Canterbury branch was announced, Ms Phuong advised her that there was “an immediate divide within the team she was appointed to oversee.” Ms Vlahovic stated that Ms Gazi did not apply for the role of team leader. She also stated that Ms Gazi and some other staff disrespected Ms Phuong’s appointment.
Ms Vlahovic stated that she became aware that Mr Flores would be on leave for five to six weeks in April 2017 and that she needed to know who could cover for him while he was on leave. Ms Vlahovic asked Ms Gazi if she would cover for Mr Flores to which she responded “I have a full time job and I cannot possibly do another person’s job.” Following receipt of a list of duties Ms Flores undertook, Ms Vlahovic emailed her team confirming that “we need to all cover for each other when someone is on leave, and we needed to work as a team.” In response to that email, Ms Gazi said “where did this come from?” Ms Vlahovic stated that the content of her email became a “sticky point with former Canterbury Council” finance team and it was raised, amongst other things, with the union. The issue of workload in staff absences was discussed during the union meeting. Following the union meeting, Ms Vlahovic stated that she had the following conversation with Ms Gazi:
Ms Vlahovic: “Claire, am I that unapproachable that you cannot talk to me without having to raise such things with the union. Why can’t you just come and talk to me, surely it didn’t need to go to the union.”
(Ms Vlahovic stated that Ms Gazi “got a bit emotional”.)
Ms Gazi: “I know you are a really nice person, because Kaye and Rhonda have told me that you are [a] really nice person and they think highly of you, I just felt that you were wanting me to do Eduardo’s full time job when I have a full time job.”
Ms Vlahovic: “you can just talk [to] me, I was just wanting a confirmation as to whether you were going to cover for Eduardo when he is on leave.”
Ms Vlahovic stated that following this conversation she gave Ms Gazi a hug. Ms Gazi thanked her for the hug. Ms Vlahovic also stated that following this discussion “things appeared to be going well”. She added that she chatted to Ms Gazi and Mr Flores and did not allow the union issues to come in the way even though she “was displeased with how it was approached.”
Ms Vlahovic recalled that in or about February/March 2017 the appellant decided that the main system for finance would be the SAP system that the former Bankstown Council had used since 1997. The JDE system, used by the former Canterbury Council, would no longer be used. Once it was announced that this would occur there were “grumblings from the former Canterbury Council finance team” that SAP had been chosen as the preferred finance system.
Ms Vlahovic stated that on 3 March 2017 a small training session on SAP was held for former Canterbury Council finance staff at the appellant’s premises. She stated that the training was “very basic” but she wanted the staff to become “familiar with the system before they commenced their further training.” At that same time, weekly half-day training commenced and Canterbury Council finance staff would drive to the appellant’s premises. It was believed that the best training would be provided by former Bankstown Council finance staff as “buddies”, instead of an external contractor. Ms Vlahovic stated that it “appeared that the training was welcomed by all staff” and that Ms Gazi seemed to enjoy it and got on well with her training buddy. Ms Vlahovic observed that it “all appeared to be going reasonably well.”
Ms Vlahovic commented on regular toolbox talks. She stated that following talks between the union and former Canterbury Council finance staff, there was a need for toolbox talks to be introduced to improve communications. It was decided that toolbox talks of approximately 10 minutes would be held each day. These talks continued for about six weeks until it appeared finance staff did not want the talks to continue. The toolbox talks were replaced with smaller talks within each team.
Ms Vlahovic also commented on the allegations raised by Ms Gazi. Ms Vlahovic refuted the allegations, for the reasons set out in her statement. Ms Vlahovic stated that there was “no mismanagement, council was transitioning to one system and there was a clear reluctance to adhere to the requirements”. She added that the “reluctance was causing extra workload and pressure on other staff.”
Ms Vlahovic stated that she only asked Ms Gazi to stay back on one occasion, for which she was paid overtime. She added there were a few days when Ms Gazi worked a bit later than her scheduled finishing time but “this was not a continuous pattern and was not due to me personally overloading [Ms Gazi] with work.” She also added that Ms Gazi “was not subjected to the amount of pressure that [Ms Gazi] is stating regarding her workload” and that there were five accounts receivable officers to spread the workload. She further added that Ms Gazi never said that she found it difficult to complete any of the assigned duties.
Ms Vlahovic said that the workload for the appellant’s finance team “increased until we transitioned, but then it slowly started to decline once we completed the June 2017 month-end, which was completed towards end of July 2017.”
Ms Vlahovic stated that there were several workshops which Ms Holt chaired, to discuss workload and to “come up with an agreed approach for work distribution.” The first two meetings were held on 7 and 20 June 2017. The third meeting was held on 18 July 2017, where attempts were made to “arrive [at] a more defined and agreeable split of duties for the accounts receivable officers and also for the two seniors being Claire and Kaye.” She later stated that the workshops were conducted “because of the continuous resistance from Claire and Eduardo.” She also stated that there were three workshop sessions to “agree on a workload split and we were not able to arrive at a united decision.” She added that work “overall changed between what would have been done in Canterbury to what is required now in Canterbury Bankstown.”
Ms Vlahovic stated that she never “targeted Claire or any employee of Council”. She added that “Claire and Eduardo continuously displayed resistance to work as a team.”
Ms Vlahovic stated that Ms Gazi was paid overtime to complete the transfers of the debts from the Canterbury Pathway system in late May 2017. She also stated that as part of the “Pathway debtor rollover process, each 30 June, Claire would stay back to carry out the debtor rollover in the Pathway system”. However, there was a system issue on 30 June 2017 preventing Ms Gazi from performing the complete rollover.
Ms Vlahovic stated that she did not reverse codes on the computer system, in late June 2017. She stated that she was “mapping the SAP account numbers in Canterbury Pathway system” which was critical so that the general ledger extract would be “pointing to SAP from Monday 3 July.” Ms Vlahovic stated that the problems Ms Gazi experienced were due to her “lack of understanding of the situation”.
Ms Vlahovic commented on Ms Gazi’s statement regarding a meeting in July 2017, regarding workload. In that meeting Ms Gazi said “[j]ust because I don’t come to you whining does not mean I am not stressed”. Ms Vlahovic stated that she did not respond “because I was annoyed that we had wasted another 1 to 2 hours and still had not reached a decision because of continuous resistance from Claire and Eduardo.” Ms Holt stopped the meeting because “Claire and Eduardo were uncooperative and the rest of us were getting annoyed and upset with the overall outcome or lack of proper outcome.”
Despina Meimaroglou
In evidence is a statement signed by Despina Meimaroglou, the appellant’s senior finance officer, dated 6 March 2018.
Ms Meimaroglou stated that she noticed a change in how the incoming Bankstown management was treating Ms Gazi in or around Christmas 2016. Ms Cheetham and Ms Vlahovic would email Ms Gazi frequently and “question the work she was doing”, saying “why are [you] doing this” and “what are you talking to that person for?” She described the behaviour as “nit-picking”. These emails had a negative impact on Ms Gazi and she would often come to Ms Meimaroglou in tears. Ms Meimaroglou stated that the “emails steadily increased” and “the questioning and belittling comments got worse.” Ms Meimaroglou claimed that she also experienced this kind of treatment from Ms Cheetham and Ms Vlahovic.
Ms Meimaroglou recalled meetings between the Canterbury Council finance staff and the Bankstown Council finance staff, from early 2017. She recalled one meeting where Ms Vlahovic said to Ms Gazi “you don’t know what you are doing”, “this is wrong” and “you’re an accountant and you don’t have the skills to do what you do.” She was shocked by this treatment and noted that Ms Gazi “became angry and upset.” Ms Meimaroglou stated that she “noticed that because management were treating [Ms Gazi] this way, some of the Bankstown workers started to treat [Ms Gazi] in the same way.”
Ms Meimaroglou recalled another meeting that took place in April 2017, with the union, management and some staff to discuss allegations of bullying and harassment. Ms Meimaroglou stated that the meeting “escalated quite quickly and people started screaming at each other as well as walking out.” Following this meeting, the behaviour was “better for a couple of weeks” but in May 2017 the “situation really deteriorated.”
Ms Meimaroglou stated that she often saw Ms Cheetham and Ms Vlahovic approach Ms Gazi at her desk and start questioning her about her work. She stated that “[t]hey would stand behind her and look down at her” and she saw them “point and yell at her.”
Ms Meimaroglou also stated that in June 2017 Ms Gazi was responsible for the “roll over of the old accounting system into the new one”, which required a lot of work. Ms Gazi was “very stressed and upset” because the accounts could not be reconciled. She claimed that management blamed Ms Gazi for the problem. However, it was later discovered that management had changed the codes on the system which prevented the program from reconciling.
Ms Meimaroglou stated that in June 2017 a meeting took place with Mr Manoski, Ms Gazi and herself. During that meeting, Ms Gazi talked about “all of the behaviour she was experiencing” and “cried throughout the meeting”. Ms Gazi took a couple of weeks of leave after the meeting. Ms Meimaroglou stated that she also took some time off as she had been experiencing similar problems to Ms Gazi. Ms Meimaroglou did not return to work until August 2017.
Rachel Cheetham
In evidence is a statement signed by Rachel Cheetham, the appellant’s finance manager, initially undated but later dated 26 June 2018. Ms Cheetham was responsible for managing the finance staff from the former Canterbury Council and Bankstown Council.
Ms Cheetham stated she conducted a workshop for all finance employees to discuss the amalgamation and “attempt to allay job security fears” and encourage communication between the employees. At the workshop, she confirmed the five year protection in place for positions of employment. She also explained that there was the same amount of work to be completed in finance and the same amount of employees would be needed to complete that work.
In early 2017 a meeting was held where Ms Cheetham and Ms Vlahovic informed former Canterbury Council finance staff that there “was definitely no favouritism” towards either of the former council staff and that they both adhered to procedural fairness.
Ms Cheetham stated that daily toolbox talks were held for former Bankstown Council finance staff and former Canterbury Council staff at their separate premises to keep staff informed and attempt to allay any fears that employees held regarding the amalgamation.
Ms Cheetham stated that she asked Ms Vlahovic to prepare some training of the SAP system for the Canterbury Council finance staff. That training commenced in or about the end of January 2017. Ms Cheetham stated that:
“At about this time, Claire began to voice her opinion that the SAP system was not as good as the JDE system. Ranka and I continued to advise Claire that the decision to use [SAP] had been made by people above us and that SAP was the system that we were required to use and move forward with. Claire was obviously not happy about this.
From my observations, Claire did not deal with the change to the SAP system very well and continued to voice her displeasure about this change. It appeared to me that Claire, who had been an expert in the JDE system, felt a great loss due to the change, and she felt powerless because she had to rely on others regarding her knowledge of the SAP system. Claire resisted the change to SAP at every step, where other former [Canterbury] Council finance employees adapted to the change and became proficient and self-sufficient in the system.”
Ms Cheetham added that each trainee was provided with a manual regarding accounts receivable transactions, which provided “step-by-step instruction for trainees on the SAP system.”
Ms Cheetham stated that from May 2017 onwards, workshops were conducted with accounts receivable staff to attempt to identify what each team and each person was capable of undertaking and to assist with strategies for streamlining processes moving forward. She recalled that during these workshops there was tension coming from Ms Gazi’s team, mostly from Ms Gazi and Mr Flores.
Ms Cheetham commented on the relationship between Ms Gazi and Ms Vlahovic. Ms Cheetham stated that she “did not observe conflict between [Ms Vlahovic] and [Ms Gazi]” and no issue of conflict had been reported to her. She added that she never observed Ms Vlahovic to mistreat Ms Gazi or “speak to her disrespectfully” or inappropriately.
Ms Cheetham recalled a meeting that took place in or about the end of July 2017 where workload issues and stress were discussed. The meeting became a little rowdy and she asked everybody to “calm down” and she said she would discuss the issues with Ms Vlahovic and Ms Iyer and get back to everyone with a new approach to address the issue. She had a meeting with Ms Vlahovic and Ms Iyer and formulated an approach that they believed would work best to address the complaints about workload stress that had been raised at the meeting. However, before they were able to address this proposal with the teams, Ms Gazi had left work on sick leave.
Ms Cheetham referred to the lunch with the appellant’s general manager. She was asked to nominate staff she thought had been key in the transition to SAP to be rewarded with a lunch. She provided a selection of names of people she thought had been key during the transition to SAP. Ms Gazi was not selected as one of those people. However, two former Canterbury Council finance staff were nominated to attend the lunch because they “had embraced the transition and worked hard”. Ms Cheetham stated that she did not attend the lunch but provided some lamingtons to staff who were working at the appellant that day. She stated that she was not aware that her offer of lamingtons to staff may have upset Ms Gazi.
Medical evidence
Treating practitioners
On 1 August 2017, Ms Gazi attended on her treating practitioner, Dr Yu Sun Cheung. In the clinical notes for that attendance, Dr Cheung recorded: “[s]ays she used to work at Canterbury Council at Campsie now has been relocated to Bankstown Not happy with people and the working condition there Feelping [sic] depressed Feels she has been discriminated by the staff”.
On 18 August 2017, Ms Gazi attended on her treating practitioner, Dr Gan. In the clinical notes for that attendance, Dr Gan recorded that Ms Gazi “[s]ays been under a lot of stress recently – work related.”
On 28 August 2017, Ms Gazi attended on her treating practitioner, Dr Abeyewardene, having changed treating practitioners. In the clinical notes for that attendance, Dr Abeyewardene recorded:
“Worked for cant council, now merged with bankstown, job description changed without informing worker.
Work overload, bosses are blaming her for poor performance.
V distressed, anxiety, depression.”
On 26 October 2017, Ms Gazi again attended on Dr Abeyewardene. In the clinical notes for that attendance, Dr Abeyewardene recorded that she attended for “working condition problems” and that she was counselled regarding work stress.
Dr Austin Ng
In evidence is a report by Dr Austin Ng, consultant physician and cardiologist, dated 15 September 2017. Ms Gazi attended on Dr Ng following a referral by her general practitioner for a cardiac assessment. In the history recorded, Dr Ng stated that Ms Gazi “used to work as a finance officer but, in her current new work environment, her work load has increased substantially.” Dr Ng commented that he was “very much concerned with [Ms Gazi’s] current level of stress from her work environment” and that it has become detrimental to her cardiovascular health. He issued a medical certificate for three months of “stress leave”.
On 24 November 2017, Dr Ng issued a further report which stated that Ms Gazi “seems to still be under a significant amount of psychological stress due to the issues that she had with her work.”
Dr Peter Whetton
In evidence are reports of Dr Peter Whetton, psychiatrist, dated 6 November 2017 and 22 November 2017, qualified by the appellant. In his first report, Dr Whetton recorded a history of the amalgamation in May 2016. Under the heading “Background” Dr Whetton recorded:
“There was a seminal point when she said that the former Bankstown Council employees had been invited to a luncheon with the general manager. The former Canterbury staff she said were not included and the manager came to her offering instead a box of lamingtons.”
Under the heading “Work History” Dr Whetton recorded the amalgamation and how the transition would occur. He recorded that in the transition the duties which Ms Gazi was performing involved previous protocols which needed to be changed. This resulted in “an increasing workload and with extra demands.” She was “initially” happy with her team and doing her work when she moved premises in April 2017. However, from May there was an increase in work demands made and other work was accumulating and she missed lunch to “persist with tasks at hand.” In June 2017, Ms Gazi became “increasingly stressed” and developed chest pain and increasing sleep disturbance. Her HR recognised she was stressed and referred her to EAP.
Dr Whetton diagnosed Ms Gazi with adjustment disorder with anxiety and depression. He opined that it “is the reported excessive workload and demands being made upon [Ms Gazi] in the setting of the council amalgamation” that caused the psychological condition.
In his second report, Dr Whetton commented on the statements of some of the appellant’s employees and answered specific questions raised by the appellant. In response to the question whether Ms Gazi’s psychological injury was wholly or predominantly caused by the appellant’s action or proposed action with respect to transfer Dr Whetton stated:
“I consider that the transfer from Ms Gazi’s former role to the new role at the amalgamated council was the predominant cause of her psychological injury.”
Associate Professor Michael Robertson
In evidence is a report of Associate Professor Michael Robertson, consultant psychiatrist, qualified by Ms Gazi, dated 9 April 2018. Associate Professor Robertson provides the following history:
“Ms Gazi experienced difficulties around the time of a forced amalgamation with the Bankstown Council … which brought ‘significant cultural change’.
She indicated that the new managers did not listen to her or any of the former Canterbury employees. She indicated that the Bankstown management tended to complain about the Canterbury staff, referring to them as ‘lazy or unproductive’. She had difficulties with the coordinator, RV. She described a series of difficulties, including being ‘treated like imbeciles’; being refused to show how to perform specific tasks brought in by the Bankstown Council; her coordinator being ‘very abrupt and rude’; the Canterbury staff were frequently marginalised and accused of not doing work and; the Canterbury staff often had responsibility for tasks removed. Ms Gazi believes that frequently she was blamed unfairly for things going wrong and that her counterpart from Bankstown had undermined her.” (emphasis in original)
Associate Professor Robertson diagnosed Ms Gazi with an adjustment disorder with anxiety and depressed mood. He stated that Ms Gazi developed a work-related psychological injury in the context of bullying in the workplace and that that was the substantial contributing factor to the psychological injury. In his assessment, Associate Professor Robertson stated that Ms Gazi said “she was not aggrieved at having to change worksites and believed that she went in good faith to try to cope with the demands of the amalgamation.” He concluded: “Ms Gazi developed her psychopathological state as a consequence of the treatment she received from the Bankstown management of the merged council.”
THE ARBITRATOR’S REASONS
The Arbitrator set out the issues for determination before providing a detailed summary of the evidence. The Arbitrator then set out the principles of causation in respect of a psychological injury.
The Arbitrator noted that the claim was run on the basis of two different causes of psychological injury, bullying and harassment and/or excessive workplace demands. The Arbitrator considered those causes separately, as separate limbs of Ms Gazi’s claim. Having read and considered the evidence, the Arbitrator did not feel an actual persuasion that Ms Gazi was bullied or harassed, treated unfavourably or subjected to inappropriate behaviour in the workplace.[1] However, the Arbitrator was satisfied that the excessive work demands placed on Ms Gazi and the difficulties that she encountered in the workplace “from at least the latter part of June 2017 until her last day of work on 28 August 2017 did cause her psychological injury.”[2]
[1] Gazi v Canterbury Bankstown City Council [2018] NSWWCC 257 (Reasons), [131], [138].
[2] Reasons, [139].
The Arbitrator referred to Ms Gazi’s evidence that she enjoyed working with her new team and did not experience any personal issues with the team for the first two months, until the end of June 2017. This, the Arbitrator said, was confirmed in the history taken by Dr Whetton.[3] However, in the latter part of June 2017 Ms Gazi began to encounter difficulties with work and she perceived that she had a heavier workload from late June onwards. The Arbitrator accepted Dr Whetton’s evidence that the psychological injury suffered was due to the reported excessive workload and demands made in the setting of the council amalgamation.[4] The Arbitrator did not consider Dr Whetton’s opinion to be altered by his supplementary report in which he opined that the transfer was the predominant cause of the psychological injury, because the transfer was described in the questions posed as “moving premises; learning new work systems, procedures and protocols; coming under new management and supervision, and adaptation of work tasks and responsibilities.”[5]
[3] Reasons, [140].
[4] Reasons, [146].
[5] Reasons, [147].
The Arbitrator then turned his mind to the s 11A defence. The Arbitrator referred to the submissions by the appellant that a broad view should be given to the expression “action with respect to” transfer, consistent with the decision in Heggie. The Arbitrator also referred to the submissions by Ms Gazi’s counsel in respect of Manly Pacific International Hotel Pty Ltd v Doyle.[6] The Arbitrator referred specifically to the comments made by Davies AJA in dissent, in respect of the s 11A defence with respect to transfer.[7] The Arbitrator then stated:
“[153] I consider that the principles set out in Doyle are pertinent to this dispute which I am required to determine because that decision specifically deals with the application of the term ‘transfer’ within section 11A, whereas the decision in Heggie applies more particularly to the term ‘discipline’ within section 11A.
[154] Applying what was stated in Doyle to the circumstances of this dispute, I consider that the applicant sustained psychological injury as a ‘response to employment conditions encountered after a transfer’ and not as a result of the respondent’s action in effecting the transfer of the applicant from her former position with Canterbury Council to the new amalgamated council. The applicant does not complain of, or seek any treatment for, any psychological symptoms until some two months after the transfer to the Bankstown premises. Her own evidence, which I accept, is that ‘I initially enjoyed working with my new team for approximately the first two months, until the end of June 2017.’ The end of June 2017 coincides with an increase in the intensity of work at the end of the financial year, difficulties with the SAP system and the temporary reduction of staff in her section. The ‘process of transfer’ had ended by late June 2017 and the difficulties that the applicant then encountered arose from issues within her work environment subsequent to the transfer.”[8]
[6] [1999] NSWCA 465; 19 NSWCCR 181 (Doyle).
[7] Reasons, [152] citing Doyle, [26]-[27] (per Davies AJA).
[8] Reasons, [153]-[154].
Having found that the appellant’s s 11A defence failed, the Arbitrator turned his mind to the application of s 9A of the 1987 Act. The Arbitrator found that employment was a substantial contributing factor to Ms Gazi’s psychological injury.[9] He deemed the date of injury to be 14 August 2017, being the last day Ms Gazi was subjected to excessive work demands and difficulties.[10] The Arbitrator then entered an award for weekly payments of compensation and medical expenses.
[9] Reasons, [158].
[10] Reasons, [158].
On 22 October 2018, the Arbitrator issued a Certificate of Determination in the following terms:
“The Commission determines:
1. The applicant sustained a psychological injury in the course of her employment with the respondent on 14 August 2017.
2. The applicant has had no work capacity as a result of her psychological injury from 28 August 2017.
The Commission orders:
1. The respondent is to pay weekly payments of compensation to the applicant as follows:
(a)$1,403.83 per week from 28 August 2017 to 26 November 2017 pursuant to section 36 of the Workers Compensation Act 1987 (1987 Act);
(b)$1,182.18 per week from 27 November 2017 to 26 August 2018 pursuant to section 37 of the 1987 Act, and
(c)$1,170.64 per week from 27 August 2018 to date and continuing pursuant to sections 37 and 44C (1) of the 1987 Act.
2. That the respondent is to pay the applicant’s medical expenses for reasonably necessary treatment for the psychological injury that was sustained by the applicant in the course of her employment with the respondent on 14 August 2017 pursuant to section 60 of the 1987 Act.
A brief statement is attached setting out the Commission’s reasons for the determination.”
The appellant challenges the Arbitrator’s decision.
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator’s decision is affected by error of fact and law in the following terms:
(a) For the purposes of s 11A(1) of the 1987 Act, the Arbitrator erred in fact and law in failing to consider whether the transfer was the whole or predominant cause of her psychological injury, as required by Doyle at [8]. (Ground one)
(b) The Arbitrator erred in fact and law in finding that Ms Gazi’s responses to employment conditions after a physical transfer were not relevant to this inquiry. (Ground two)
(c) The Arbitrator erred in law in failing to hold that a broad view should be taken of the expression, “action with respect to transfer”, extending to the whole process of transfer, including, but not limited to, learning new work systems and a new computer software system, moving premises, learning new procedures and new protocols, coming under new management and supervision, and adapting to new work tasks and responsibilities: per Northern NSW Local Health Network v Heggie.[11] (Ground three)
(d) The Arbitrator erred in fact and law in failing to hold that Ms Gazi’s injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant with respect to transfer within the meaning of s 11A of the 1987 Act. (Ground four)
(e) The Arbitrator erred in fact in finding that Ms Gazi was exposed to an excessive workload after her physical transfer to Bankstown. (Ground five)
[11] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [59].
It is not disputed that Ms Gazi sustained a psychological injury. The issue in dispute on appeal primarily concerns the application of s 11A of the 1987 Act. The appellant submits that the psychological injury was wholly or predominantly caused by reasonable action taken in respect of Ms Gazi’s transfer of employment.
GROUNDS ONE TO FOUR
Appellant’s submissions
The appellant specifically appeals the Arbitrator’s finding of “excessive workload”. It submits that its s 11A defence is supported by the report of Dr Whetton, dated 22 November 2017, who opined that the transfer was the “predominant cause” of Ms Gazi’s psychological injury.
The appellant submits that the Arbitrator erred in incorrectly considering and misapplying the decision of Doyle. The Arbitrator solely relied on the minority judgment of Davies AJA, regarding the correct approach to “action with respect to transfer”. The Arbitrator should have considered and applied the majority judgment and followed the reasoning of Fitzgerald JA.[12] The Arbitrator failed to consider whether the transfer, including the further allegations (set out at [12] above) was wholly or predominantly causative of injury. The appellant submits that that was an error of law.
[12] Citing Doyle, [7]–[8] (Mason P agreeing).
The appellant also submits that the Arbitrator failed to adopt the reasoning in Heggie, that a broad view is to be taken of the expression “action with respect to discipline” and apply that view to “action with respect to transfer”. The appellant submits that this view is consistent with the majority decision in Doyle. The appellant further submits that this is consistent with other decisions where a “broad view” is adopted.[13] It would be “an odd and inconsistent outcome if, in section 11(A), ‘action with respect to transfer’ had a different or narrower scope than any of the other ‘actions with respect to’, such as transfer, demotion, promotion etc.”[14]
[13] Citing, Kushwaha v Queanbeyan City Council [2002] NSWCC 25, [151]-[154]; Department of Education & Training v Sinclair [2005] NSWCA 465 (Sinclair), [35].
[14] Citing, Waugh v Kippen [1986] HCA 12; 160 CLR 156, [165].
The Arbitrator found that the process of the transfer ended by late June 2017. The appellant submits that the Arbitrator failed to explain why it ended at this time and should have found the circumstances under which Ms Gazi worked after the physical move to be “an ongoing part of the transfer process”. Action with respect to transfer must “necessarily include the entire process of the transfer”, consistent with the decision in Heggie where it was held that action with respect to discipline was found to include “the entire process” of discipline and in Doyle where transfer involved a consideration of all the circumstances caused by and resulting from the transfer. The appellant submits that, it follows by:
“[c]ombining the reasoning in both Doyle and Heggie, action with respect to transfer must be capable of extending to the entire process involved in the transfer action, including relevant actions before and after the physical act of transfer, capturing the amended ‘further allegations’…
Whether these actions were ‘wholly or predominantly’ causative of [Ms Gazi’s] injury, or ‘reasonable’, involves consideration of all the circumstances that were causative of [Ms Gazi’s] psychological condition. By failing to conduct this analysis, the arbitrator has erred in law.”
The appellant further submits that the facts in the case make it plain that Ms Gazi’s allegations were all actions with respect to the entire process of transfer. Those facts are:
(a) appointment of former Bankstown employees to management positions;
(b) interactions with Ms Vlahovic;
(c) difficulties with the new IT accounting system (SAP);
(d) interactions and communications by Bankstown employees towards Canterbury employees;
(e) relationship between Bankstown employees and Canterbury employees;
(f) the distribution of work;
(g) moving premises;
(h) learning new work systems, new procedures and new protocols;
(i) coming under new management and supervision, and
(j) adaptation of work tasks and responsibilities.
The appellant provided detailed submissions on the new computer system, as an “apt example”. Both prior and subsequent to the physical transfer, Ms Gazi was required to learn and use a different financial software system called SAP. Ms Gazi was resistant to this change in system and claimed she was stressed because of it and had not been given training and support. The appellant then referred to lay evidence to support that the SAP computer system was one factor, as with the other allegations above, which Ms Gazi was “not coping with, or adapting to, the effects of her transfer”.
The appellant then refers to the lay evidence of Ms Morley, Ms Holt, and Mr Flores regarding work changes as a result of the amalgamation and her reaction to those changes. The appellant further submits that Ms Gazi’s psychological injury arose out of the circumstances of the employer’s actions with respect to transfer.
Ms Gazi’s submissions
Ms Gazi submits that the Arbitrator found that Ms Gazi initially enjoyed working with her new team for the first two months (until the end of June 2017) following the transfer. The Arbitrator identified the following factors to be relevant to Ms Gazi’s psychological condition: increase in the intensity of work, difficulties with the SAP system, and the temporary reduction of staff in her section. However, these factors were found to be unrelated to the transfer.
Ms Gazi contends that the Arbitrator correctly found that these factors, which occurred after the physical transfer, were not relevant to the employer’s defence under s 11A of the 1987 Act.
Ms Gazi also submits that the Arbitrator explained why he did not consider Heggie to be relevant because it dealt with discipline, as opposed to transfer. Ms Gazi further submits that the appellant unreasonably seeks to assert the operation of s 11A “in a manner that would mean that transfer was a never-ending concept”. That is, “that any event subsequent to the physical act of transfer was capable of being treated as action with regard to transfer.”
Ms Gazi further submits that the appellant bore the onus of establishing that Ms Gazi’s injury was wholly or predominantly caused by reasonable action with regard to transfer. It was open to the Arbitrator to find that Ms Gazi’s injury was caused by matters that were not related to transfer.
GROUND FIVE
Appellant’s submissions
The appellant submits that its lay witnesses, whose evidence the Arbitrator accepted when deciding against Ms Gazi’s allegations of bullying and harassment, universally refute the allegations of “excessive workload” following the transfer. The appellant also submits that “the fact that there may have been an increase in work at the end of the 2017 financial year is not unusual for a finance department and [Ms Gazi] had been experienced in performing these this [sic] for many years.” The appellant submits that the difference in 2017 was the transfer from Canterbury to Canterbury Bankstown.
The appellant further submits that the Arbitrator’s finding that Ms Gazi was subjected to excessive workload is against the weight of the evidence and an error in fact.
The appellant refers to the Arbitrator’s reasons:
“I will deal with the applicant’s perception of an excessive workload when I examine the second limb of the potential cause of psychological injury, namely the excessive demands of work.”[15]
[15] Citing Reasons, [136].
The appellant then submits that Ms Gazi’s perception (or misperception) of real events causing the psychological injury had no role to play when determining s 11A, as the test is an objective test.
Ms Gazi’s submissions
Ms Gazi submits that it was open to the Arbitrator to find that Ms Gazi was exposed to an excessive workload. All that Ms Gazi was required to show was that she “perceived her workload to be excessive.”
SECTION 11A(1) OF THE 1987 ACT
Section 11A(1) of the 1987 Act relevantly provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The employer carries the onus of proof to establish the defence under s 11A of the 1987 Act.[16] To succeed in a defence under s 11A(1), the employer must establish:
(a) the relevant injury to which the defence is said to apply;
(b) that the injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers, and
(c) that the action taken or proposed to be taken was (objectively) reasonable.[17]
[16] Sinclair, [67]; Commissioner of Police v Minahan [2003] NSWCA 239, [25].
[17] State of NSW v Simms [2015] NSWWCCPD 62, [11].
It is only if “injury” is established that it is necessary to consider whether s 11A(1) of the 1987 Act provides the employer with a defence (as set out in (b) and (c) above).[18]
[18] Doyle, [4].
If either (b) or (c) is answered in the negative, the worker is entitled to succeed. That is, if the employer cannot show that the psychological injury was wholly or predominantly caused by action taken or proposed to be taken by the employer with respect to the transfer, the worker succeeds.[19] If the employer cannot prove that the actions taken by it in the context of the transfer were reasonable, the worker will also succeed.[20] Whether the injury was wholly or predominantly caused by reasonable action with respect to transfer is a question of fact to be determined on the evidence in each case.[21]
[19] Doyle, [5].
[20] Doyle, [5].
[21] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96.
The first limb of s 11A(1) of the 1987 Act requires the employer to prove that the relevant psychological injury was “wholly or predominantly” caused by the employer’s action with respect to, in this case, transfer. This requires consideration of the nature of the psychological injury and the extent that employment contributed to the injury.[22] The causal test in s 11A(1) is whether the injury was “wholly or predominantly caused” by the relevant action, in the present case with respect to transfer. In determining that question the phrase “predominantly caused” means “mainly or principally caused”.[23]
[22] Sinclair.
[23] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92.
The second limb of s 11A(1) of the 1987 Act requires the employer to prove that “the action taken” or proposed to be taken with respect to transfer was reasonable. The question of reasonableness is one of fact, weighing all the relevant factors.[24] It requires an objective assessment of the employer’s action and is determined by the facts known to the employer at the time of the “action” or facts “that could have been ascertained by reasonably diligent inquiries.”[25] It does not require “that the action be demonstrated to be ‘unreasonable’ in order for the claimant to succeed, but rather ... that compensation will not be payable if the action were ‘reasonable’.”[26]
[24] Irwin v Director General of School Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997) (Irwin).
[25] Heggie, [61], [11].
[26] Jefferyv Lintipal Pty Ltd [2008] NSWCA 138, [33].
In Irwin, Geraghty CCJ said the test of reasonableness is:
“…less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”[27]
[27] Irwin.
In Ivanisevic,[28] Truss CCJ said:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”[29]
[28] Ivanisevic v Laudet Pty Ltd (unreported, Compensation Court of NSW, Truss CCJ, 24 November 1998) (Ivanisevic).
[29] Ivanisevic.
PRINCIPLES ON APPEAL
The principles to be applied on appeal are found in s 352(5) of the 1998 Act which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”[30]
[30] Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), s 352(5).
It is necessary that the appellant demonstrate error of fact, law or discretion before the Commission can intervene to disturb the Arbitrator’s decision.
DISCUSSION
Ground five
As ground five purports to dispute the Arbitrator’s finding on injury, it is convenient to deal with it first before the remaining grounds of appeal are considered.
Ground five alleges that the Arbitrator erred in fact in finding that Ms Gazi was exposed to an excessive workload after her physical transfer to Bankstown. This finding is challenged on two bases. The first challenge is that the “excessive workload” finding was against the weight of the evidence and thus produced an error in fact. The second challenge is that whilst perception, or misperception, of real events causing a psychological injury may satisfy s 4 of the 1987 Act, perception or misperception has no role to play when determining s 11A of the 1987 Act as the tests of “wholly or predominantly” and reasonableness to be applied in the making out of the defence are objective tests.
Ground five in terms alleges an error of fact. The principle to be applied in such a challenge is that as stated by Roche DP in Raulston v Toll Pty Ltd.[31] In particular, the following subparagraphs are relevant:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.” [32]
[31] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [19].
[32] Raulston, [19].
To establish that the Arbitrator erred in fact, the appellant must show that the Arbitrator’s finding that Ms Gazi was subjected to an “excessive workload” was wrong.
In this case, it is clear that there is conflicting lay evidence as to whether Ms Gazi was subjected to an excessive workload. However, the appellant has not explained how other probabilities so outweigh that chosen by the Arbitrator that it can be said that his factual conclusion that Ms Gazi was subject to an excessive workload was wrong. Indeed, I have not been directed to any specific evidence that the Arbitrator overlooked or gave undue or too little weight in making the factual finding. The appellant merely makes oblique references to evidence in the Application, “[ARD 167(62), (66), 168(72), 173(102), 190(24), 223(27), 235(42)]” and submits that the fact that there may have be an increase in work at the end of the 2017 financial year was not unusual and the difference in 2017 was the transfer from Canterbury to the appellant. It then follows that the Arbitrator’s finding that Ms Gazi was subjected to an “excessive workload”, so the appellant submits, was “against the weight of the evidence” and was an error in fact.
The appellant’s references to specific paragraphs of the evidence in the Application, relate to several lay statements. It refers to Ms Vlahovic’s statement dated 9 November 2011, regarding the claim that there was no report or evidence of Ms Gazi experiencing difficulty completing assigned duties, the development of workshops due to resistance by Ms Gazi and others to agree on an equitable workload split, and the claim that she had no knowledge of former Bankstown Council finance staff being paid more than former Canterbury Council finance staff. It also refers to Ms Morley’s statement, dated 2 November 2017, that claimed Ms Gazi “did not have a greater workload than anyone else in the accounts receivable team”, that she continued to train Ms Gazi and that she only recalled Ms Gazi working back past her scheduled finishing time on a few occasions to pick up her daughter.
The Arbitrator provided a detailed summary of the evidence, which included specific reference to the statement evidence of Ms Vlahovic and Ms Morley.[33] In determining the question of causation of the psychological injury the Arbitrator correctly applied former Deputy President Roche’s decision in Attorney General’s Department v K.[34] While the Arbitrator may have accepted the appellant’s lay evidence in determining whether the allegation of bullying and harassment was made out, he ultimately accepted Ms Gazi’s evidence, supported by Dr Whetton’s evidence, in respect of the allegation of excessive workload.[35] In particular, the Arbitrator accepted that Ms Gazi “perceived that she had a heavier workload from late June onwards”. While Ms Morley and Ms Vlahovic denied the allegation of excessive workload, the Arbitrator accepted Ms Gazi’s evidence that she felt she was under stress during this period due to work.[36] The Arbitrator concluded by finding that Ms Gazi approached the move to the Bankstown premises with optimism but later found she was unable to cope with learning and operating the SAP system and the workload being placed on her, which led her to suffer symptoms of stress. These findings were open to the Arbitrator on the evidence.
[33] Reasons, [12]-[115].
[34] [2010] NSWWCCPD 76; Reasons, [119]-[120].
[35] Reasons, [139].
[36] Reasons, [143].
The references to “223(27), 235(42)”, in the appellant’s submissions, do not correspond with evidence in the Application. Page 223 relates to the statement of Ms Phuong dated 9 November 2017, but that page does not contain a reference to paragraph [27]. Similarly, page 235 relates to meeting minutes of a finance tool box talk on 11 April 2017, but that page does not contain a reference to paragraph [42] nor does it contain a reference to Ms Gazi. Without further submissions, it is difficult to decipher what these references relate to and how they support this ground of appeal. Such reference, absent any reference to the actual evidence and reasoning of the Arbitrator in respect of that evidence, is of little or no assistance.
The fact that it was possible for a different view to be taken on the evidence is not a reason to intervene on appeal. This ground purports to re-ventilate the merits as argued before the Arbitrator. To the extent that it seeks to cavil with the Arbitrator’s factual findings that Ms Gazi was exposed to an excessive workload, this ground of appeal has not been made out. I am not satisfied that the appellant has discharged the relevant onus to establish that there are sufficient grounds to overturn the Arbitrator’s decision.[37] No error of fact in the relevant sense has been identified.[38]
[37] Singh v Ginelle Pty Ltd [2010] NSWCA 310, [45].
[38] Raulston, [19].
The appellant’s argument under this ground was further developed in the appellant’s submissions by alleging that the Arbitrator had erred in law by confusing the provisions of s 4 and s 11A of the 1987 Act. The appellant’s submissions are supported by reference to a single line from the Arbitrator’s reasons (at [136] of Reasons), which the appellant extracted. That single line, contained within [136] of Reasons, is as follows:
“I will deal with the applicant’s perception of an excessive workload when I examine the second limb of the potential cause of psychological injury, namely the excessive demands of work.”[39]
[39] Citing Reasons, [136].
Paragraph [136] of the Arbitrator’s reasons sits within a section of the judgment entitled “Causation of psychological injury”. This section of the Arbitrator’s reasons covers paragraphs [116]–[147] of the decision. In this section of the reasons the Arbitrator was considering the two limbs on which Ms Gazi’s case for psychological injury had been advanced, namely the first limb pertaining to the allegation of bullying, harassment or unfair treatment, and the second limb pertaining to the allegation of excessive workload. It was with respect to the second limb that the Arbitrator found injury, he found that the excessive workload was causative of the psychological injury. It was not until the sections of the reasons entitled “The section 11A defence”, which are in paragraphs [148]–[154], does the Arbitrator consider whether the s 11A defence had been made out.
It is clear, when read in context, that the reference to the single line from the Arbitrator’s reasons is a reference to the Arbitrator’s findings on injury for the purpose of s 4 of the 1987 Act, not the Arbitrator’s findings on causation under s 11A of the 1987 Act. The Arbitrator was entitled to consider Ms Gazi’s perception of real events in determining what was causative of the injury for the purposes of s 4 of the 1987 Act.[40] To the extent that this ground of appeal suggests that the Arbitrator considered Ms Gazi’s “perception” in determining the s 11A defence, this assertion has not been made good. No relevant error has been demonstrated.
[40] State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286.
I observe that the Arbitrator had separated, at least in his own mind, the need to address the bullying and harassment claim and the excessive demands of work claim as opposed to considering the defence raised by the appellant under s 11A of the 1987 Act.[41] The Arbitrator did not consider the question of reasonableness under s 11A because he found the psychological injury was not wholly or predominantly caused by the transfer.
[41] Reasons, [126].
It follows that ground five is not made out either in terms of its allegation of an error of fact or law.
Grounds one to four
The appellant’s submissions, for reasons which will become apparent, dealt with the first four grounds of appeal together. The appeal is described to be confined to a narrow compass as to whether the appellant’s “action with respect to transfer” was still ongoing after Ms Gazi was physically moved from Canterbury Council premises to the new amalgamated Canterbury Bankstown Council at Bankstown. These grounds essentially depend on whether the Arbitrator erred in the application of the appropriate test, under s 11A of the 1987 Act.
Having found that he was not persuaded that Ms Gazi was bullied or harassed, treated unfavourably or subjected to inappropriate behaviour in the workplace, the Arbitrator turned his mind to the allegation of excessive work.[42] The Arbitrator found that the “excessive work demands placed upon the applicant and the difficulties that she encountered in the workplace from at least the latter part of June 2017 until her last day of work on 28 [sic, 14] August 2017 did cause her psychological injury.”[43] He then identified a number of “stressful incidents” causative of the injury:
(a) difficulties with the work she was required to undertake from latter part of June 2017, which the Arbitrator explained related to operating the SAP system;
(b) the incident regarding the codes on the computer system at the end of June 2017;
(c) perception of a heavier workload from late June onwards, with work required at the end of the financial year and early July when employees (Rhonda and Ms Morley) were on leave, and
(d) the meeting in July 2017.
[42] Reasons, [131].
[43] Reasons, [139].
The Arbitrator found that Ms Gazi’s employment between late June 2017 and 14 August 2017 was a substantial contributing factor to the psychological injury sustained.[44] He found that Ms Gazi was “subjected to excessive work demands and difficulties in her workplace.”[45]
[44] Reasons, [158].
[45] Reasons, [158].
These were the Arbitrator’s relevant findings on causation of the psychological injury.
The Arbitrator then considered the application of the s 11A defence and whether the relevant action was the whole or predominant cause of the psychological injury.[46] In undertaking this enquiry, the Arbitrator considered and applied the principles in Doyle as found by Davies AJA.[47] The Arbitrator set out the judgment of Davies AJA at [26] and [27] in Doyle where his Honour dealt with the defence of wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer.[48] There Davies AJA held that the phrase ‘with respect to’ in the context of the s 11A defence was “of wide application” and held that the provision is “looking to the worker’s response to the employer’s action or proposed action, not to the worker’s response to employment conditions encountered after a transfer … the section was looking to the process of the transfer … rather than those acts per se.” The Arbitrator adopted those principles and distinguished Heggie on the basis that it concerned the category of action of “discipline” rather than “transfer”.[49] The Arbitrator then applied the reasoning as stated by Davies AJA in Doyle and found that the injury sustained by the worker was as a response to employment conditions after the transfer.[50] He identified those conditions to be:
(a) increase in intensity of work from the end of the 2017 financial year;
(b) difficulties with the SAP system, and
(c) temporary reduction of staff in Ms Gazi’s section.[51]
[46] Reasons, [148]-[154].
[47] Reasons, [152]-[153].
[48] Reasons, [152].
[49] Reasons, [153].
[50] Reasons, [154].
[51] Reasons, [154].
Specifically, the appellant complains that the Arbitrator made an error of law by misapplying the decision in Doyle with respect to the application of the appropriate test in s 11A of the 1987 Act.
A consideration of Doyle reveals that the passages of Davies AJA’s judgment relied on by the Arbitrator in determining the s 11A defence was in fact in the minority. This was the approach urged upon the Arbitrator by the respondent’s counsel. In Doyle, Fitzgerald JA (with whom Mason P agreed) disagreed with the approach taken by Davies AJA with respect to the formulation of the relevant test. The majority stated:
“7. Davies AJA has stated (at [28]) that the Compensation Court ‘held that the circumstances under which Mr Doyle worked [after his transfer] were the predominant cause of his breakdown’ and expressed the opinion (at [27]) that, for the purpose of s 11A(1), the consequences of actions ‘taken or proposed to be taken by or on behalf of the employer with respect to transfer’ do not include ‘the worker's response to employment conditions encountered after a transfer ...’. In my opinion, that proposition is too broadly stated.
8. It was an action taken by the appellant with respect to the transfer of Mr Doyle, namely, the transfer of him from one position to another, which caused him to work in ‘the circumstances ... which ... were the predominant cause of his breakdown’. That being so, the appellant's material action, the transfer of Mr Doyle, cannot be automatically excluded as the whole or predominant cause of Mr Doyle's psychological injury. Whether or not the appellant's transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle's condition.”[52] (emphasis added)
[52] Doyle, [7]-[8].
The task that the Arbitrator ought to have undertaken was to consider whether Ms Gazi’s transfer was the whole or predominant cause of her psychological injury, which is a question of fact and degree involving a consideration of all of the factors which produced the condition in accordance with the majority decision on this point in Doyle. Those factors may include the circumstances in which a worker was required to work because of the transfer from one position to another, or in the present case the circumstances in which Ms Gazi was required to work following the physical transfer to the amalgamated premises. This is consistent with the broad approach taken in Heggie.
Section 11A(1) of the 1987 Act, when properly construed, provides an employer with relief from liability in eight identified categories. Each category is to be viewed through the lens of the words of the section immediately preceding the listing of the eight categories. Namely, was the psychological injury wholly or predominantly caused by reasonable action taken, or proposed to be taken, by or on behalf of the employer with respect to one (or more as the case may be) of the eight listed categories.
The Court of Appeal in Heggie was dealing with the category of “discipline” in s 11A of the 1987 Act and was of the view that a broad approach should be taken to “action with respect to discipline”. While the decision in Heggie is factually distinct from Doyle and the present case, it remains relevant to the proper approach to be taken to determining s 11A(1) of the 1987 Act. There is no warrant to depart from the approach taken in Heggie with respect to the category of “transfer” or the other categories in s 11A. As was said by the majority in Doyle, it is a “question of fact and degree” as to whether the relevant category was the whole or predominant cause of a worker’s psychological injury within the meaning of s 11A(1).
Therefore, the Arbitrator was required to consider all of the relevant actions or proposed actions taken by the employer with respect to transfer in determining whether those actions were the whole or predominant cause of the psychological injury. That required the Arbitrator to engage in an analysis of the facts as found to be causative of the injury against the relevant actions in determining the question under s 11A of the 1987 Act. The Arbitrator failed to properly undertake this exercise in determining the defence under s 11A, because of his reliance on the minority decision, instead of the majority decision, in Doyle.
The appellant submits on the appeal that the circumstances under which Ms Gazi worked after the physical move was an ongoing part of the transfer process. The appellant specifically relies on the list of allegations of fact, that were added to the Application by amendment (see [12] above), as the “actions” with respect to the entire process of the transfer under s 11A of the 1987 Act. The appellant submits that these factors demonstrated that Ms Gazi was “not coping with, or adapting to, the effects of her transfer.” It is these factors which the appellant submits the Arbitrator should have considered in his approach to the determination of s 11A. This is consistent with how the appellant conducted its case before the Arbitrator, during the proceedings on 3 October 2018, where its counsel set out the employer’s defence under s 11A. The appellant’s counsel turned his mind to s 11A and submitted that “[t]here’s no other way of dealing with that than to use the same allegations, if you like, that have been made for injury by the worker.”[53] The appellant’s counsel also submitted:
“…it’s quite clear that all of the applicant’s problems essentially stem from the process of transfer, from its very inception to all the activities that were being carried out in the new premises once she was moved over. It’s all part of the transfer. It’s all part of the process of transfer, the broad definition that Heggie talks about.”[54]
[53] Transcript of Proceedings (T), Gazi v Canterbury Bankstown City Council [2018] NSWWCC 257, Arbitrator Isaksen, 3 October 2018, T42.10.
[54] T32.9.
The appellant’s counsel also added:
“And the action, of course, are the actions, plural, of the protagonists in this case, pretty much, all those witnesses I have told you – Ranka and Rachel Cheetham and, to a lesser extent, Ms Iyer and Christine Phuong and Ken Manoski, et cetera, all of whom are players in this process. And you have to look at – I have to show you that their actions in putting together this amalgamation and in bringing across Canterbury people and in dealing with these new employees, when I say new, this merge of employees in the system, was done in a way that the actions that they took were reasonable. And you must look at the circumstances”[55]
[55] T34.13.
The Arbitrator failed to look at the circumstances, submitted by the appellant, that were allegedly a relevant cause of the psychological injury for the purposes of s 11A of the 1987 Act. The Arbitrator also failed to properly evaluate the evidence, against his findings on injury, in determining the appellant’s s 11A defence. This was a result of the Arbitrator’s misapplication of the decision in Doyle. The Arbitrator’s failure to undertake the appropriate task in determining the s 11A defence was an error of law.
It follows that grounds one and three are made out.
Grounds two and four are derivations of the submissions advanced in grounds one and three. Each involves the analysis of the proper construction of s 11A of the 1987 Act. Each ground alleges errors of fact and law and a complaint relating to the “transfer”:
Ground Two – The Arbitrator erred in fact and law in finding that Ms Gazi’s responses to employment conditions after a physical transfer were not relevant to this inquiry.
Ground Four - The Arbitrator erred in fact and law in failing to hold that Ms Gazi’s injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant with respect to transfer within the meaning of section 11A.
Whilst in grounds two and four the appellant alleges both errors of fact and law, it is apparent from a consideration of the submissions that the substance of this complaint relates to the Arbitrator’s mistaken application of the minority decision in Doyle and that the facts in the present case should have been considered consistently with the majority decision. The error of law in terms of the misapplication of Doyle and the failure to apply and consider the majority view in that decision was an error that affected the Arbitrator’s fact finding exercise and ultimate approach to determining the s 11A defence.
It follows that the question of the establishment (or not) of the s 11A defence must be re-determined. The appellant seeks that the Arbitrator’s decision be revoked and an award made in its favour be substituted. Alternatively, the appellant seeks that the appeal be allowed and the matter remitted back to the Arbitrator for determination of the s 11A defence in accordance with the correct approach.
While it is desirable that the matter be re-determined on appeal, in the circumstances, to enable the parties an opportunity to ventilate the issues in accordance with the correct approach to s 11A of the 1987 Act it is necessary that the matter be remitted, pursuant to s 352(7) of the 1998 Act, to the same Arbitrator for re-determination. This will enable the appellant to properly articulate the actions it said it took with respect to transfer and how they relate to the psychological injury as found by the Arbitrator. Whether the employment conditions after the physical transfer were relevant to the s 11A inquiry and whether the psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant with respect to transfer will be a matter considered in the redetermination. This is, as was held in Doyle, a question of fact and degree involving a consideration of all the factors which produced Ms Gazi’s psychological injury.
OTHER MATTERS
As the matter will be remitted to the same Arbitrator for determination of the outstanding issues, it is appropriate that the following observations are made to assist the proceedings on remitter.
Medical evidence
All of the medical evidence supports a history of varying problems in the workplace following the amalgamation. The evidence of Dr Cheung indicated that Ms Gazi was not “happy with people and the working condition.” Dr Abeyewardene recorded a complaint of a change in job description without notice following the amalgamation, “[w]ork overload” and “V distressed, anxiety, depression.” Dr Ng recorded a history of an increase in workload and stress in the workplace environment, which he considered to be detrimental to her cardiovascular health. Associate Professor Robertson recorded a history of difficulties arising from the amalgamation and bullying in the workplace. Dr Whetton recorded a history of “an increasing workload and with extra demands” and increasing stress resulting in symptoms of chest pain and sleep disturbance. Dr Whetton, in his supplementary report, opined that Ms Gazi’s transfer to her new role in the amalgamated council was the predominant cause of her psychological injury. The overwhelming medical evidence supported a history of an increased workload and resulting stress. This was a compelling indication that the excessive workload played a part in causing Ms Gazi’s psychological injury. However, whether the actions of the appellant in respect of transfer caused the increased workload and resulting stress is a question of fact to be determined by the Commission.
It is clear that Ms Gazi’s psychological injury was multifactorial and there was no specific medical evidence going to the s 11A of the 1987 Act question, except for Dr Whetton’s supplementary report which recorded that the transfer could be regarded as the whole or predominant cause of injury. In this regard, I would make the following observations.
Dr Whetton’s supplementary report was prepared at the request of the appellant to answer two questions, in which it appeared to call on the doctor to express an opinion on what is a legal conclusion concerning the application of s 11A of the 1987 Act. In particular, the appellant asked Dr Whetton to answer whether he considered Ms Gazi’s “psychological injury was wholly or predominantly caused by employer action or proposed action with respect to transfer.” It is in response to this question that Dr Whetton opined that the transfer was the “predominant cause” of the psychological injury. Relevantly, Dr Whetton did not evaluate why he formed that view nor did he identify the specific actions taken (or proposed to be taken) by the employer in respect of transfer that wholly or predominantly caused Ms Gazi’s psychological injury.
Expert evidence may assist in determining questions of causation but the evidence is not necessarily determinative. The ultimate satisfaction as to whether the requirements of s 11A of the 1987 Act are met is a question of fact for the Commission to answer based on an assessment of all of the evidence.[56] As the Court of Appeal stated in Nguyen “[t]he court [or the Commission] does not abdicate its responsibility to an expert; an expert’s opinion cannot be determinative, particularly in relation to ultimate facts.”[57] The tribunal of fact must feel an actual persuasion of the existence of facts. Dr Whetton’s comments in respect of transfer was a conclusion on the legal issue under s 11A(1). His opinion, in so far as it purports to provide a legal conclusion on causation under s 11A, is not conclusive to the determination of the appellant’s s 11A defence.
[56] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).
[57] Nguyen, [60] (per Justice McDougall (McColl and Bell JA agreeing).
Cross-appeal
Ms Gazi raised a “cross-appeal” in her Notice of Opposition to the Appeal. She submits that the Arbitrator misdirected himself in that he made an erroneous finding in relation to her perception that she was “bullied or harassed, treated unfavourably or subjected to inappropriate behaviour in the workplace.” The appellant objects to the cross-appeal. As the s 11A issue will be remitted for redetermination, it is not appropriate that I deal with the issue of the “cross-appeal”. However, I make the following observations.
There is no provision for a “cross-appeal” in the Commission.[58] Section 352 of 1998 Act, r 16.2 of the 2011 Rules and Practice Direction No 6 specify the procedural requirements in which an appeal against a decision of an Arbitrator must be lodged. Ms Gazi has not availed herself of these procedural requirements. In particular, Ms Gazi has not submitted on the exceptional circumstances that would work a demonstrable and substantial injustice if the “cross-appeal” would not be determined. Whilst the Commission is to conduct matters with as little formality and technicality as a proper consideration of the matter permits,[59] it also must act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.[60] In this regard, it would not be appropriate to effectively permit Ms Gazi to pursue an appeal without complying with s 352 and the procedural requirements for lodging an appeal. Further, to do so would not be in accordance with s 354(3) of the 1998 Act and would be unfair to the appellant. Absent the filing of an appeal, and satisfying the necessary procedural requirements, there is no appeal lodged by Ms Gazi which is capable of being determined. For these reasons, I decline to decide the proposed cross-appeal.
[58] Hume v CSR Ltd [2015] NSWWCCPD 7.
[59] 1998 Act, s 354(1).
[60] 1998 Act, s 354(3).
CONCLUSION
For the reasons given above, the appellant’s appeal succeeds in-part. The Arbitrator’s finding that Ms Gazi was subjected to an excessive workload and his finding on causation of injury under s 4 of the 1987 Act was open to him and involved no error. However, the Arbitrator erred in his approach to determining the appellant’s defence under s 11A of the 1987 Act by reliance on the minority decision in Doyle. In the circumstances, the appropriate course is that the matter regarding the s 11A defence be remitted, pursuant to s 352(7) of the 1998 Act, to the same Arbitrator for re-determination.
DECISION
Orders [1] and [2] of the Arbitrator’s Certificate of Determination, dated 22 October 2018, are revoked.
The matter is remitted to the same Arbitrator for re-determination of the outstanding issues, consistent with these reasons.
Judge Phillips
PRESIDENT
11 April 2019
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