Carey v BGIS Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carey v BGIS Pty Ltd [2025] NSWPIC 343
APPLICANT:	Darren Carey
RESPONDENT:	BGIS Pty Ltd
MEMBER:	Kathryn Camp
DATE OF DECISION:	17 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses for accepted psychological injury; section 11A(1) defence; action taken with respect of discipline and/or dismissal; wholly or predominantly caused by reasonable action; culmination of a series of events rather than a single event or action; absence of critical evidence and explanation as to causation; duty to discharge onus of proof; Hamad v Q Catering Limited; Nguyen v Cosmopolitan Homes considered and applied; Held – respondent failed to discharge its onus of establishing a defence under section 11A(1); award for the applicant for weekly benefits and medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The accepted aggravation of the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline and/or dismissal for the purposes of s 11A(1) of the Workers Compensation Act 1987. 2. The applicant is entitled to compensation for his accepted psychological injury. 3. The applicant’s pre-injury average weekly earnings were agreed at $1,271.86 (as indexed periodically). 4. The applicant has been incapacitated as a result of the injury for the period from 16 May 2024. The Commission orders: 1. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) for the period 16 May 2024 to 30 September 2024, at the rate of $1,035.70 per week; (b) for the period 1 October 2024 to 31 March 2025, at the rate of $1,056.21 per week, and (c) for the period 1 April 2024 to date and continuing, at the rate of $1,060.75 per week (and as indexed periodically). 2. Liberty to apply in respect of the quantum of weekly payments in order [1]. 3. The respondent is to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 if the Workers Compensation Act 1987 on production of accounts, receipts and/or Medicare notice of charge.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a claim for weekly payments of compensation and medical expenses in respect of an accepted psychological injury, but where the respondent employer relies on a defence pursuant to s 11A of the Workers Compensation Act 1987 (1987 Act). In particular, the respondent contends that the accepted injury was wholly or predominately caused by reasonable action taken or proposed to be taken with respect to discipline and/or dismissal.
For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

In 2016 the applicant, Darren Carey, commenced work for the respondent, BIGS Pty Ltd, as a Range Area and Training Operator. He was responsible for overseeing a range of duties, involving firing ranges and safe airspace, together with enforcing rules and regulations.
It is accepted that the applicant’s pre-existing post-traumatic stress disorder was aggravated by workplace events, but the cause is disputed for the purpose of s 11A of the 1987 Act. The applicant claims the cause relates to safety issues in the workplace whereas the respondent contends it relates to actions taken or proposed with respect to discipline and/or dismissal.
The respondent’s insurer issued several notices and reviews pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998, dated 8 December 2023, 8 April 2024, 23 April 2024, 2 September 2024, and 16 September 2024. Liability was initially accepted on 8 December 2023 and the applicant was paid weekly payments of compensation and medical treatment was approved. However, weekly payments of compensation ceased on 15 May 2024, following the respondent’s denial of liability on 23 April 2024 which was founded on a defence under s 11A of the 1987 Act.
The applicant commenced the present proceedings, on 25 February 2025, under an Application to Resolve a Dispute (Application) for determination of a claim for weekly payments of compensation. The dispute was later expanded, with leave and by consent, to include a claim for general medical expenses.

ISSUE FOR DETERMINATION

The following matters are agreed or not disputed:
(a)    that the applicant sustained a psychological injury deemed to have occurred on 1 September 2021;
(b)    the parties agree that the applicant’s pre-injury average weekly earnings were $1,271.86, and
(c)    there is no dispute that the applicant has no current work capacity for the period from 16 May 2024 and ongoing, and that he requires ongoing treatment for his psychological injury.
However, the respondent seeks to dispute liability and any entitlement to compensation on the basis of a defence under s 11A of the 1987 Act. The following issue requires determination:
(a) whether the respondent has a defence under s 11A of the 1987 Act in respect of the actions of “discipline” and/or “dismissal”.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 8 April 2025, the parties attended a preliminary conference.
On 29 May 2025, the parties attended a conciliation conference and arbitration hearing. Mr Robinson, of counsel, appeared for the applicant instructed by Coutts Lawyers. Mr Gaitanis, of counsel, appeared for the respondent instructed by Hall & Wilcox Lawyers.
During the proceedings the Application was amended, by consent, to include a claim for a general order for medical expenses pursuant to s 60 of the 1987 Act. I also made an interlocutory decision in respect of Applications to Lodge Additional Documents (see further below from [14]).
The matter proceeded to hearing and counsel provided oral submissions which were recorded. Due to time constraints, the respondent was unable to provide oral submissions in reply and a direction was issued for the lodgment of written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the Application, dated 25 February 2025, and attached documents;
(b)    Reply to the Application, dated 17 March 2025, and attached documents;
(c)    Direction issued on 29 May 2025;
(d)    Application to Lodge Additional Documents, lodged by the applicant on 2 May 2025, and attachments (ALAD-1);
(e)    Application to Lodge Additional Documents, lodged by the applicant on 26 May 2025, and attachments (ALAD-2), and
(f)    Application to Lodge Additional Documents, lodged by the respondent on 26 May 2025, and attachments (ALAD-3).
The respondent raised an objection to the admission of the documents attached to ALAD-2, which related to two statements from new lay witnesses. I heard submissions from the parties regarding the admission of the statements and provided reasons for declining leave to introduce the additional documents into proceedings. I considered that the respondent would be prejudiced by the content and lateness of the new statement evidence if the documents were admitted into the proceedings, which could not be remedied without delay to the resolution of the proceedings. The admission of the material was not in keeping with the objectives of the Commission and guiding principles to resolve the real issues in dispute justly, quickly, cost effectively and with as little formality as possible.[1] To ensure fairness between the parties, it was in the interests of justice that I decline to grant leave to the applicant to lodge the additional documents attached to ALAD-2.[2] The applicant’s application was refused.
[1] Personal Injury Commission Act 2020, ss 3, 42.
[2] Personal Injury Commission Rules 2021, r 67C(3).
There being no objection in respect of the ALAD-1 and ALAD-3, and given the documents related to the real issues in dispute, they were admitted into proceedings together with the balance of the documentation lodged.

Lay evidence

Applicant’s lay evidence

In evidence are two statements of the applicant, dated 15 September 2023 and 19 November 2024, and an email dated 28 February 2024.
The first statement appears to be a response to the “Show Cause letter”, his conduct in sending text messages to his supervisor and his termination. The statement comprises of over 20 pages, and varies in font style and size, and some parts are highlighted yellow.
In the statement, the applicant records details of his employment. He states that over the last 24 months he and staff had “witnessed what we believed to be the decline of [his supervisor’s] memory”. He states that this began with “minor failings” nothing short of forgetfulness but this progressed into more “significant failings in memory that began to cause issues surrounding safety.” He provides examples, including failing to pass on serious messages regarding airspace, forgetting he signed units on the range, failing to get vehicles serviced and registered, and forgetting standing order policy.
The applicant refers to an incident regarding a cleaner driving into an active trace and there were no active barriers in place on the supervisor’s proviso. He considered that this was a dangerous occurrence or near miss. He states a meeting was held in Oct 2022 regarding this incident, where he told Mr Haszard of his concerns with the supervisor’s failing memory causing safety issues which was affecting his own mental health.
The applicant states that the supervisor’s forgetfulness worsened over the last six months. He refers to specific examples of events relating to airspace and an accidental fire, fire training events and no barriers, a combat shooting course, and the supervisor allegedly telling a colleague to falsify an injury report. He states that he had a heated exchange with the supervisor on 5 September 2023 and he requested that Mr Haszard contact him. He states that later that night he began to be a “little concerned” for the supervisor and noted that he had told him earlier he was going to talk to Mr Haszard about his declining memory and how it was becoming a safety risk. This led the applicant to begin a series of text messages to the supervisor that the applicant states “contained both tones of concern, and also regrettably; my disgust at his behaviour”. He then extracts the messages and provides additional context to those messages to explain why they were each individually sent.
The applicant asserts that “viewed through the lenses of context and circumstance, and viewed over the last 24 months…I do not believe [the text messages] is an example of gross misconduct whatsoever.” He adds that he did “what was required for the safety of everyone who use Holsworthy Range.” He concedes that it may not have been “the best course of action, but in [his] psychological state at the time, it was action” which he considered was “certainly required.”
In his second statement, he provides a detailed history of his work background, noting he commenced employment with the respondent in 2016 as a Range Area and Training Operator and ceased in September 2023. His duties included, overseeing live firing ranges, enforcing rules and regulations, and negotiating safe use of the airspace.
The applicant provides details of his personal life prior to employment with the respondent. He states that in late 2006 he began to suffer from post-traumatic stress disorder, including alcohol abuse and dependency, following his return from operations in the military. He states he continued to exhibit symptoms of post-traumatic stress disorder when he commenced employment with the respondent but he had not received a diagnosis.
The applicant explains that the supervisor commenced as his new supervisor in 2019. The applicant states that he considered that the supervisor was developing dementia and suffering from cognitive impairments, and thought this was apparent to everyone. He states that he:
“…became increasingly concerned about this because symptoms such as memory lapses and impaired judgement placed all other employees at risk. These concerns became a daily discussion topic amongst [his] colleagues and was eventually reported to Tom Hazzard during a meeting on or around October 2022.”
He states that prior to this meeting he also notified Ms Novelli, Human Resources (HR) Director, of his concerns by email on several occasions. He states that these emails prompted the meeting in October 2022.
The applicant states that there was a “near miss” in 2022 when a Black Hawk Helicopter nearly sucked a drone into its air intake, resulting in an internal investigation. He states that he was operating the radios on this day but was not interviewed or questioned as part of the internal investigation. He was not provided with the formal findings but was told that the closing report implied that he and a colleague were to blame.
The applicant refers to events relating to the supervisor, including:
(a)    where he would forget to pass messages from the airport relating to securing the airspace;
(b)    when he failed to prepare for a new radio system which left him vulnerable to mistakes;
(c)    when he failed to warn a cleaner not to enter an area where sniper practice was being conducted and failed to establish barriers to keep people from the area. The applicant states that this incident should have resulted in an investigation but this did not occur;
(d)    an accidental bushfire and use of two vehicles with firefighting equipment. The supervisor left to put out the fire on his own in a land cruiser leaving the applicant and a colleague behind. The applicant asserts the supervisor could not put the fire out on his own and as a result he drove the remaining vehicle, medium rigid vehicle, which he did not have qualifications to drive, to help put out the fire. This was reported to Mr Haszard;
(e)    a combat shooting training course on 5 September 2023, which the supervisor had forgotten about despite having signed-in the military personnel an hour earlier, and
(f)    an allegation that the supervisor instructed a colleague on 5 September 2023 to falsify an injury report because it had not been completed on time.
The applicant states that he “became increasingly worried about the happenings with [his supervisor]” and sent “numerous emails to Human Resources and requested meetings with both [his supervisor] and his manager, Tom Hazzard.” He states a meeting was eventually held and was assured there would be an investigation but nothing further happened.
The applicant claims that the situation came to a head on 1 September 2023, when the supervisor assaulted him in the doorway of a break room. He said to the supervisor that “in the interest of self defence, if you ever do that again, I will put you on your arse”.
The applicant states that after events on 5 September 2023 and from 11.00pm that evening he engaged in a texting exchange with the supervisor. The applicant states that he “was not in a good frame of mind and of the belief that he had been involved in fraud in an attempt to cover his failing memory.” He states that this led to an investigation and he was reprimanded for misconduct. He adds that he was later terminated.
The applicant contends that his “mental health began to deteriorate several months prior to the termination of [his] employment”. He provides a list of his symptoms.
In an email dated 28 February 2024, from the applicant to his medical practice, the applicant states that Dr Suarty initiated a Mental Health Plan and referred him to psychologist Ms Rosser with whom he saw six to seven times from 9 September 2023.

Dana Comben

In evidence are two statements from Ms Comben, the respondent’s HR Business Partner, dated 16 November 2023 and 14 February 2024.
In her first statement, she states she had first contact with the applicant on 7 September 2023, when he had lodged a complaint regarding the supervisor. She notes that the applicant had a range of things he discussed with her regarding the supervisor, mainly about his “capacity to do his role safely in the workplace.” She states the applicant wanted an investigation and this took place.
Ms Comben states that the investigation resulted in two allegations against the supervisor being confirmed and he was issued with a warning. As a result, the supervisor was also sent for an independent medical examination and he was “fully cleared to conduct his duties safely and without any restriction.” Ms Comben states that the applicant had been terminated at the time the outcome of the investigation.
Ms Comben states that the applicant was terminated on the basis of a serious misconduct allegation lodged by the supervisor regarding a series of text messages. She states that it was “deemed that [the applicant] incited [the supervisor] to suicide” and as a result a disciplinary process was conducted and this resulted in termination on 8 September 2023 for serious misconduct.
Ms Comben states that when the applicant raised his complaint on 7 September 2023 regarding the supervisor and he said that he had “PTSD and anxiety”.
Ms Comben claims that the applicant did not raise any complaints or safety issues prior. However, later states that the applicant “believes that these issues have been building over a number of years with [the supervisor] and he feels that he has raised concerns on a number of occasions and that it has not been addressed.” She considered that the applicant “probably” had general conversations with Mr Haszard and the supervisor but that issues were never raised as he claims. She states that had she been aware of the applicant’s concerns they “may have had the ability to step in and have some conversations of mediation and it might not have reached the stage that it did”.
In her second statement, Ms Comben states she was not aware of any helicopter accident in July 2023 and the respondent had no involvement in the incident.

Tom Hazard

In evidence is a statement from Tom Haszard, the respondent’s account director, dated 17 November 2023. He states that he has not had a lot of involvement with the applicant.
Mr Haszard states that in August 2022 he had a conversation with the applicant following a request from HR. He states that the applicant mentioned a few things, one was about pay which was resolved and another related to an aviation radio course. He also states that at the time the applicant “noted something around a safety incident that was green shirt related”.
Mr Haszard also refers to the recent events between the applicant and the supervisor. He states that both the applicant and the supervisor were stood down until investigations were concluded. He notes that the applicant was terminated and the supervisor was medically assessed and later returned to work.
Mr Haszard states that he had “heard from others that he worked with that [the applicant] had PTSD”. He also notes that the applicant was “living on site during the week”. However, he states that he never raised any mental health issues with him.
Mr Haszard refers to the investigations which he states followed HR policies and processes. He states that the applicant never emailed him. He did not really know what the issues were between the applicant and the supervisor, other than that the applicant thought that the supervisor was “passive aggressive towards him”. He then refers to the incident in the hallway.

Investigation and outcome

On 7 September 2023, the applicant was issued a letter from the respondent inviting the applicant to respond to serious misconduct concerns. It includes a series of quotes of text messages the applicant sent to the supervisor from 11.00pm on 5 September 2023. Those messages were classified as “harassment” and inciting the supervisor to act on suicide.
The text messages have been reviewed and considered. There were over 20 messages sent from 11.00pm on 5 September 2023. Some of the text messages are reproduced below:
“I hope you sleep well. Take care mate.”
“Little worried about you. Hope your ok. Let me know.”
“Should I call the police? Or are you stable? Just worried being a veteran you may take it the wrong way. I hope you see it as a safety issue which is what it is. You’re dangerous. And you can't see it. But we will see how serious people start taking the range. You have allowed it to be too lax. Unacceptable!”
“A actually? Are you even a veteran? Did you do anything?”
“Veteran is pretty loosely used these days. Where did you go?”
“Oh your a pretender. Thats right. Those people. I love em.”
“All good. No shame in that. You take care mate. Ill see you bright and early in the morning.”
“Like i said, mate, i was just concerned. You'd been caught out on another lie. That's like soooo many. Id be like suicidal. So just wanted to make sure your ok. If i dont hear from ya ill check on you in the morning.”
“…you're forgetful, useless, and a pain in the arse whenever you get involved…Just do everyone a favour and drift off into retirement. You can do it without losing face. Or do it amplifying your incompetence. I like you. But you are over.”
“And i care. So i hope your ok with the truth. Because everyone feels the same. Take the hit mate. End it.”
“…i hope you fry and i hope you end up homeless you passive aggressive narcissist!”
“I'll correct that. Your not a narcissist. Your a sociopath. Fucking dangerous!”
“Its fucking over cunt!”
“Ill see you in the morning with a big smile on my face!”
The letter provided the applicant with an opportunity to respond as to why his employment should not be terminated and his ability to maintain the safety of himself and others in the workplace. The applicant was stood down and invited to a meeting online at 4.00pm the following day. He was informed that Mr Haszard and Ms Comben would attend the meeting and he could have a support person. He was also referred to the external Employee Assistance Program (EAP).
On 8 September 2023, the respondent sent a detailed letter to the applicant confirming his termination. It refers to the meeting held that day which he was called to provide a show cause related to his ongoing employment. It notes that the applicant had a support person present. It also notes that the applicant acknowledged the text messages were “unprofessional attempt to break [the supervisor’s] alleged wall of denial” and that he would apologise. It also notes that the applicant requested the respondent to take into “account several factors leading” to up to his conduct but noted that these factors do not justify the behaviour.
The letter notes that the respondent determined that the applicant’s employment should be terminated, effective close of business 8 September 2023.

Performance Appraisal Document

In evidence is a table undated and unauthored, titled “BGIS Optimizer Ratings – [the applicant]”. It records details regarding the applicant’s performance from 2019 to 2023. There are no issues regarding performance or safety issues recorded.

Medical evidence

Clinical records

In evidence are a series of clinical records and certificates of capacity, which have been considered and will be referred to where relevant.
On 11 November 2021, the applicant attended on Dr Zhou, treating general practitioner. The entry records a history of post-traumatic stress disorder – worsening recently and notes antidepressant medication was ceased six months earlier. On that same day, Dr Zhou sends a message to Dr Simon seeking a recommendation for a psychologist for the applicant who he states has “PTSD with military background (still working at Holsworth).”
On 21 April 2022, the applicant attends on Dr Leslie, treating general practitioner. He records complaint of symptoms which are not relevant and notes the applicant’s relationship of seven years just broke up. He also notes that the applicant is “working still at Holsworthy running ranges and supplying ammo so still in contact with some defence mates”.
On 11 September 2023, the applicant attends on Dr Khalfan, treating general practitioner. Dr Khalfan records that the applicant attended “shaking [u]nsettled has had these symptoms for last 5 weeks”. He provides a diagnosis of panic attacks.
On 15 September 2023, the applicant attends on Dr Saurty, treating general practitioner for reason of panic attacks. The presenting complaint is recorded as “PTSD // anxiety due for review”. It records that the applicant was hyperfixating on death and had not seen any psychologist or psychiatrist for a few years. It notes the bus crash in the Hunter Valley recently and that the applicant was not taking his antidepressants. It notes that the applicant works for the defence force and records “safety incidences” and “weight loss of 18 kg in 5 weeks.”
On 20 September 2023, the applicant again attends on Dr Saurty. Dr Saurty records the applicant has post-traumatic stress disorder, chronic anxiety and recurrent attacks. He notes a fatality in the mines in 2010 and an incident at work, but no further details are recorded.
On that same day, Dr Saurty sends a letter to South Coast Psychology Clinic referring the applicant for treatment for his panic attacks, anxiety and post-traumatic stress disorder. It records that the applicant was a paramedic in the army and sustained post-traumatic stress disorder late after a few issues noting “Hunter Valley crash, recent safety concern at work, helicopter crash in Queensland”. Dr Saurty records that the applicant’s symptoms had worsened.
The applicant attends again on Dr Saurty or another practitioner at the same medical practice, on 4 October 2023, 20 October 2023, 25 October 2023, and 6 December 2023 regarding his psychological condition. He continues to attend on the medical practice in 2024 for review and treatment of his post-traumatic stress disorder.

Sam Borenstien

In evidence is a report from Sam Borenstein, the applicant’s treating clinical psychologist, dated 5 December 2019. The focus of this report relates to the applicant’s personal relationships in the context of an unrelated charge of common assault. It confirms that the applicant had developed symptoms of post-traumatic stress disorder following his military service overseas, and notes triggers of that condition. He also notes that the applicant had comorbid symptoms of depression and anxiety, and developed an alcohol dependency.

Nadja Rosser

In evidence are some records of Ms Rosser, the applicant’s treating psychologist. In a letter dated 7 June 2024, it notes that the applicant had been engaged in treatment since October 2023 to address symptoms of post-traumatic stress disorder. There is a recommendation for in-patient treatment for his mental health.

Dr Paisley

In evidence is a report from Dr Shannon Paisley, consultant psychiatrist, qualified by the applicant, dated 31 July 2024. Dr Paisley provides a detailed history of the events surrounding the applicant’s workplace, including interactions with the supervisor from 2019 and a 2022 Black Hawk helicopter near miss.
In respect of the supervisor, he takes a history of specific events. Namely, that he failed to pass on messages about securing the airspace, failed to warn a cleaner who entered an area where sniper practice was being conducted, forgot military personnel had arrived for a combat shooting course, and instructed a colleague to falsify an injury report. He notes the text exchange between the applicant and the supervisor, including his subsequent termination for that conduct.
Dr Paisley records a history of previous mental health issues and he notes his recent loss of weight. He notes that the applicant has experienced symptoms of post-traumatic stress disorder for more than 15 years, along with periods of excessive alcohol consumption. He diagnosed the applicant with post-traumatic stress disorder. He finds that:
“[The applicant] experienced a stressful predicament at work. He managed the risk associated with firearms, explosives, fires and aircraft. He felt this responsibility acutely, given his pre-existing PTSD and having previously witnessed a workplace fatality in the mines. He became aware that his supervisor’s cognitive decline was increasingly putting his colleagues at risk of accident and misadventure because of the resulting failures to follow safety procedures. His calls for help and support from senior management were effectively ignored. As a result, he was hypervigilant about potential risks and felt helpless in the face of the increasing possibility of a serious injury or fatality occurring at work. Therefore, it is understandable that as his workplace became more dangerous, his condition was exacerbated.”
In response to a specific question as to the casual link, Dr Paisley said that there “was no single accident or event which caused his injury. Rather, it was the cumulative exposure to numerous errors, failures and near misses in the workplace that triggered his fear of a serious workplace accident occurring.”
Dr Paisley considered that the events at work caused an aggravation of his psychiatric injury and that the applicant’s symptoms had not resolved. In response to a question as to whether work was the main contributing factor to the psychological condition as required by s 4 of the 1987 Act, Dr Paisley responded:
“It is plausible that these events at work may have caused the aggravation of his psychiatric injury, and the timing of his psychological deterioration coincided with the events at work. Therefore, his employment was the main contributing factor to his psychological injury (the aggravation of his pre-existing PTSD and the onset of Major Depressive Disorder).”
Dr Paisley found that the applicant had no capacity to work and requires “assertive, comprehensive psychiatric treatment.” He recommended a 21-day in-patient program, ongoing therapy and pharmacological treatment.

Dr Kumar

In evidence are two reports from Dr Mukesh Kumar, psychiatrist qualified by the respondent dated 14 December 2023 and 14 March 2024. Dr Kumar provides a detailed history of events relating to safety issues at work and the applicant’s concerns about the supervisor’s capacity causing safety issues. He refers to events relating to the supervisor’s failure to pass messages on regarding the airspace, a live sniper trace exercise where a cleaner drove into the range, an accidental fire, and the supervisor asking a colleague to falsify records. He also refers to a crash of an aircraft. He further refers to details surrounding the applicant’s termination, including the text messages.
Dr Kumar diagnoses the applicant with post-traumatic stress disorder. He provides a rationale for the diagnosis as follows:
“The post-traumatic stress disorder is in context of multiple traumatic events he has experienced as part of his work as a paramedic with the military. [The applicant] described several such incidents. These symptoms were precipitated after he saw the news of the Hunter Valley bus crash. The symptoms were further exacerbated by other events such as the crash of the aircraft. [The applicant] reported that he was already under stress due to his conflicts with his supervisor, [the supervisor] on safety issues. These symptoms are still ongoing, and the symptoms have been clinically significant and have caused impairments in several areas of functioning.”
Dr Kumar finds that the applicant suffers from post-traumatic stress disorder which is pre-existing and the symptoms have been recently exacerbated. He states that: “[t]he symptoms were exacerbated by events such as the Hunter Valley bus crash as well as the aircraft crash at his workplace. The exacerbation therefore is in the course of his employment.”
Dr Kumar considers the applicant’s aggravation (or exacerbation) was caused by certain incidents, “such as the crash of the aircraft as well as the disciplinary action taken by his employer in context of [the applicant] sending inappropriate messages to his supervisor.”
Dr Kumar considers that the applicant requires ongoing treatment for his post-traumatic stress disorder and that he is unfit to return to work. He states that the applicant has total incapacity as a result of his post-traumatic stress disorder.
In his supplementary report, Dr Kumar is invited to provide a further opinion noting that investigations revealed that the aircraft crash was not related to employment. Dr Kumar is asked two questions and provides the following responses:
“1. Do you consider employment was the main contributing factor to the aggravation of the worker’s pre-existing PTSD?
The employment was the main contributory factor to the aggravation of pre-existing PTSD in context of disciplinary actions taken by his employer. I note that the aircraft crash and the Hunter valley bus crash are not considered part of his employment.
2. If you do consider employment was the main contributing factor to an aggravation of his PTSD, of the employment related factors, do you consider the disciplinary action taken by his employer was the predominant cause of the work related aggravation (if any)?
The aggravation is due to the disciplinary actions taken by his employer and this is the predominant work related cause for the aggravation.” (emphasis in original)

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. The respondent also provided written submissions in reply. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Respondent’s submissions

The respondent confirms that it relies on the following actions taken or proposed to be taken by the employer in support of a defence under s 11A:
(a) disciplinary action: on 5 September 2023 the applicant sent inappropriate text messages to his supervisor. As a result of these messages and the applicant’s alleged conduct, his employer asked the applicant to attend a disciplinary meeting on 7 September 2023.
(b) Disciplinary action and dismissal: on 8 September 2023 the applicant was terminated by his employer as a result of the applicant’s serious misconduct.
The respondent contends that the series of text messages sent on 5 September 2023 were classified by the employer as bullying and harassment. The messages were intimidatory and offensive, and harassing. The supervisor made the employer aware of the text messages on 7 September 2023 and the applicant was asked that day to attend a disciplinary meeting on 8 September 2023. He was afforded the opportunity of a support person. The applicant attended that meeting and his conduct was found to be so egregious that he was terminated that day.
The respondent refers to the clinical notes and contends that they are consistent with the opinion of Dr Kumar. The applicant attended on Dr Zhou on 11 November 2021 and a history is taken that his post-traumatic stress disorder was worsening but there is no reference to employment. On the same day Dr Leslie records a message that Dr Zhou is seeking a recommendation for a psychologist for the applicant.
The respondent submits that the applicant is careful about seeing doctors about matters he is concerned about. There is reference to personal matters but no reference to work matters affecting him.
The respondent further submits that the whole or predominant cause of the psychological injury is the disciplinary actions, which includes dismissal. The respondent relies on Dr Kumar’s opinion. He notes that he is aware of the other events unrelated to work, namely the Blackhawk helicopter incident and Hunter Valley bus crash. Dr Kumar accepts these other events had an impact but the whole or predominant cause is the discipline and dismissal.
The respondent refers to a document in ALAD-3, which has no author, regarding a table with ratings of the applicant in 2019 to 2023. There are no suggestions that the applicant is having any friction with the supervisor or anyone else.
The respondent submits that there is no complaint made by the applicant regarding the supervisor until after he is terminated, including in the clinical notes. This is highly important in assessing the temporal connection between the psychological injury and the events that happened at work. What is most persuasive is that the applicant reacted adversely psychologically to the dismissal as a result of discipline that was taken from 5 September 2023.
The respondent also submits that there is no doubt that there has been a pre-existing psychological injury, there have been triggers throughout such as the Hunter Valley bus crash and the applicant seeks to attribute another trigger or an aggravation to the events relating to the supervisor. It is not until September 2023 when the applicant saw his practitioner about safety issues at work. This coincides with a lengthy statement provided by the applicant which criticises the supervisor. The respondent asserts that this is a construct post event. It is convenient and flies in the face of plausibility.
The respondent refers to Dr Kumar’s evidence. He diagnoses the applicant with post-traumatic stress disorder in the context of multiple traumatic events. The post-traumatic stress disorder was exacerbated or aggravated by external non-work events and the disciplinary action taken by the employer in the context of inappropriate text messages.
The respondent submits that the whole and predominant cause of the applicant’s psychological injury is not caused by work related instances with the supervisor because the complaints were made after the event of dismissal.
The respondent also submits that the nature of the text messages themselves are highly important. The applicant sought fit to write derogatory text messages to his supervisor and he is called to explain himself. This is a highly important factor in the applicant’s life yet his version of events is that his psychological injury is caused by events involving the supervisor and concerns he had regarding the supervisor’s cognitive failures and that this would cause an accident in the workplace. This is not a plausible explanation and what is the most plausible explanation is what occurred from 5 to 8 September 2023.
The respondent then submits that the onus shifts back to the applicant in light of what Dr Kumar says.
The respondent then refers to Dr Paisley’s report. He fails to have regard to the events between 5 and 8 September 2023. He states that the cumulative exposure to numerous errors, failures in the workplace triggered his condition but fails to consider the termination, text message and reprimands by the employer and it is difficult to accept his opinion.
The respondent submits that there needs to be a real life assessment of these types of maters and that is that the events between 5 and 8 September 2023 would have been highly important events. The applicant seeks to derogate from these events and say it is what happened with his supervisor. The respondent submits that this is a fanciful submission.
In relation to the complaints with his supervisor, the respondent refers to the statement of Ms Comben. She notes that the applicant had concerns with his supervisor and had discussed this with her, and the main concern was his capacity and safety in the workplace. She notes that the applicant wanted his supervisor investigated and this occurred.
The respondent also refers to Mr Haszard’s statement. He refers to events between the applicant and the supervisor, where they both made complaints to HR. The supervisor and the applicant were stood down pending investigation.

The respondent asserts that the approach in terms of reasonableness of the actions of the employer is even handed and balanced. The employer saw the text messages, there was a complaint raised by the supervisor, the applicant was asked to attend a meeting with a support person, and they formed the view that the conduct was serious misconduct and the applicant was terminated. The respondent submits that the text messages were a valid threat and there is no other remedy other than to terminate the employment.
The respondent submits that there is a narrative that has been constructed after the event to suggest that any psychological injury is due to complaints made about the supervisor relating to cognitive deficits and grievances about the workplace. When you look at the evidence in a real world sense, the text messages are pretty bad. The applicant is asked to explain himself and he is terminated, and then he sees medical practitioners seeking treatment and provides a statement attributing blame on the supervisor and the employer. The respondent submits that consideration should be given to the temporal connection between the events of 5 and 8 September 2023. These events are wholly and or predominantly the cause of the aggravation of the applicant’s psychological condition.

Applicant’s submissions

The applicant submits that whether there may have been concurrent non-work stressors is irrelevant to the test of whole or predominant cause under s 11A.
The applicant submits that submissions that there has been a constructive narrative or similar phases is very close to or even indistinguishable from an allegation of dishonesty. A finding of that nature cannot be made without an application for leave to cross-examine. The respondent’s submissions are pitched in such a way that it cannot be upheld in the absence of cross-examination.
The applicant submits that there is a medico-legal consensus between Dr Kumar and Dr Paisley that a generalised work situation as opposed to the finality of a termination is what caused his psychiatric condition in the form of an aggravation. That consensus changes only when Dr Kumar is asked a leading question as to whether the cause was in fact the termination. He then provides a response in agreement which is a bare ipse dixit. It is contrary to his substantive report where he gives a similar opinion to Dr Paisley, regarding totality of work causing the aggravation rather than one particular event.
The applicant submits that the onus does not shift to the applicant in an evidentiary way to displace the defence.
The applicant refers to the statement evidence. The applicant submits that he has given a very candid account of matters relevant to his psychiatric history, which supports a finding of a witness of credit.
The applicant considered that his supervisor was developing dementia and suffering cognitive impairment. This was apparent to the applicant and he became increasingly concerned about this due to memory lapses and impaired judgments placing other employees at risk. The cause of the injury is separate to and prior to the dismissal. Some years prior to the dismissal there was a real or perceived risk of employee safety because of his supervisor’s declining cognitive state. The applicant gives examples of events and safety issues, relating to a 2022 helicopter incident, use of airspace, a cleaner entering a field where sniper practice was being conducted, and a fire being accidently started with the use of flares. There is a gradual process of injury occurring over a long period of time and the matters came to a head during an event with his supervisor which occurred prior to the issue of the text messages.
The applicant submits that the injury already existed at the time of the text messages being sent. It clearly excludes any suggestion of whole or predominant causation. It is clear from the applicant’s text messages how florid his condition was at that point in time. A close examination of the clinical notes indicate that there were changes in his medical situation, both physically and mentally prior to termination.
The applicant contends that the primary evidence is that the dismissal is not the whole or predominant cause of the applicant’s aggravation of his psychological condition. There is no single or whole cause as it is the course of exposure to concerns about safety due relating to his supervisor.
The applicant submits that the respondent admits liability and it is not clear why it saw fit to make the payments it did in the context of liability now being declined. The applicant refers to the unreported decision in Heuston v Your Contractors Pty Ltd.[3] The applicant submits that the fact that there is an express admission of liability and payments of compensation beyond the provisional period is not determinative of outcome but they are evidentiary matters weighing in favour of the applicant, when liability is subsequently denied without an explanation for the change in position.
[3] (unreported) 11451 of 1987 (9 March 1992), Hunt CJ.
The applicant submits that there does not appear to be a disciplinary process in this matter.
The applicant refers to Dr Paisely’s evidence in detail. He refers to the applicant’s management of risks associated with firearms, explosives, fires and aircrafts. The applicant felt his responsibility acutely given his pre-existing post-traumatic stress disorder. Dr Paisley refers to the applicant becoming aware of his supervisor’s cognitive decline, and that is in the context of doing work which is inherently dangerous and potentially deadly. It is a matter of common sense that Dr Paisley then says that the applicant’s condition was exacerbated as his workplace became more dangerous. The whole or predominant cause is not a single event it is the long term worsening of safety issues, whether real or perceived. They pertain to real events, those events are that the applicant worked with the supervisor and they worked with explosives and firearms. Dr Paisley finds that it was the accumulative exposure to numerous errors, failures and near misses in the workplace as causative of his injury.
The applicant refers to the clinical evidence which records a history of worsening symptoms in 2019, which is not related to work. He attended on doctors not only after he was terminated.
The applicant refers to the entry of Dr Suarty, of 15 September 2023, where it records the presenting problem relating to safety incidents. It does not relate to the termination. There are some other non-work factors but these are not relevant because s 4 is conceded. The applicant submits that a month before the applicant was dismissed there was a rapid decline in his mental health resulting in weight loss. The applicant submits that there needs to be caution about placing excessive emphasis merely on the closeness in time of this entry to the dismissal, particularly in the context of the applicant having these problems for a period of time and the clinical entry a few years prior.
The applicant refers to the psychologist report which is close in time to the dismissal, but notes the referral took place on 15 September 2023 but decision to make the referral came later on 20 September 2023. The reason for the referral is not a presentation pertaining to dismissal from employment but rather the recent safety concerns at work, and some other non-work related matters.
The applicant submits that there is no statement from the supervisor and seeks that a Jones v Dunkel inference be drawn that the material is incapable of assisting the respondent.
The applicant refers to the statement evidence of Ms Comben. She confirms that there were concerns held by the applicant in relation to the supervisor which related to safety. The theory that the applicant’s case is concocted after the dismissal cannot be accepted, when the evidence supports an ongoing problem pertaining to concerns that the applicant had about safety and relationship with the supervisor. The respondent had concerns about the conduct of the supervisor and he was investigated, after the dismissal. The applicant submits that this witness provides a conclusion that the applicant considered there were issues that had been building over a number of years with the supervisor and he feels that he had raised concerns on a number of occasions. The conclusion that is reached is that it is a long term issue which appears to have been accepted by the witness.
The applicant then refers to the statement of Mr Haszard. He states that he was asked by HR to have a chat with the applicant in August 2022 regarding an issue of pay, training and a safety incident. This supports the conclusions of Ms Comben regarding previous events.
The applicant submits that there are long standing issues, at least from mid-2022 according to the applicant’s evidence. The whole or predominant cause was not the dismissal.
The applicant concedes that the respondent had to deal with the text messages, which were not trivial. It should have been clear to a professional HR person that the applicant was in an abnormal state with varying tone in the text messages from supportive of the supervisor to abusive. The correct approach was not to terminate but to suggest the applicant obtain some assistance with his mental health. That is the key issue in terms of reasonableness. A reasonable employer seeing this behaviour should have foreseen that it was likely a mental health issue. The text messages are a mix of compassion, concern, paranoia then abuse. It is not normal communication and a reasonable person should have seen this as a potentially very serious mental health issue. It called for positive steps to be taken but what follows is termination. The applicant submits that the employer did not take that preliminary step of actively encouraging help which he clearly needed.
The text messages are consistent with the injury being in place before the termination. The sequence of events is that it came before in time to the termination.
The applicant refers to the evidence of Dr Kumar. The applicant submits that on a combination of the history recorded by Dr Kumar and the clinical notes, which are contemporaneous, there were concerns with safety well prior to the termination. Dr Kumar is aware of the applicant’s termination but in finding the cause of injury he says it is in the context of multiple traumatic events. He does not state that the dismissal has any particular meaning or consequence in the formation of the diagnosis of injury. It is not referred to at all.
The applicant submits that the respondent cannot satisfy the test in Hamad v Q Catering Limited[4], because the only evidence in support is the supplementary report of Dr Kumar. The original report simply does not say that the whole or predominant cause is due to factual circumstances contemplated by s 11A. The supplementary report provides no persuasive explanation for why he arrived at his opinion on causation. It is merely a tautology of the question and cannot be given any weight.
[4] [2017] NSWWCCPD 6 (Hamad).
The applicant submits that the preponderance of the medical evidence is clearly of chronic causation not momentary causation.
The applicant submits that there is no counterfactual evidence that the applicant has capacity to work and he clearly had treatment and needs medical treatment. There is no dispute as to capacity or medical treatment.

Respondent’s submissions in reply

The respondent concedes injury on the basis of Dr Kumar’s report that there was an aggravation of the applicant’s post-traumatic stress disorder caused by specific disciplinary actions which lead to dismissal. The respondent submits that injury cannot have occurred prior to the text messages.
The respondent does not concede that the applicant raised his grievances with work before, relying on the evidence of Ms Comben and Mr Haszard.
The respondent contends that the disciplinary process involved raising a serious misconduct allegation with the applicant as outlined in the letter dated 7 September 2023. The applicant was referred to EAP in this letter.
The respondent refers to the correspondence of 8 September 2023, and notes that the applicant acknowledged that the text messages were unprofessional.
The respondent submits that decision to terminate the applicant’s employment was reasonable noting that consideration was given to both the seriousness of applicant’s actions as well as the applicant’s response. The respondent submits that it made the most appropriate decision based on the information available at the time including that information provided directly by the applicant, relying on Northern NSW Local Health Network v Heggie[5].
[5] [2013] NSWCA 255, [60]-[64] (Heggie).
The respondent says that the text messages represented hostile and irrational behaviours and suggest rather that it was the applicant and not the supervisor that was at fault. The respondent submits that the applicant’s behaviour warranted dismissal and he was not fit to occupy a position where safety was paramount.
The respondent refers to the decision in Van Vliet v Landscape Enterprises Pty Ltd,[6] where the President concluded that notwithstanding imperfection in the termination the action was reasonable given the circumstances.
[6] [2022] NSWPICPD 49.
The respondent refers to its earlier submission that the applicant has constructed a narrative of injury as a result of history with the supervisor post event. The respondent submits that there is no requirement for a Member to accept all of the evidence of any one witness and adverse credit findings may be made absent cross examination.

FINDINGS AND REASONS

Relevant law

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer in accordance with the 1987 Act.
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Under s 11A of the 1987 Act, and in the present matter, the respondent 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 respondent employer with respect to “discipline” and/or “dismissal”, and
(c)    that the action taken or proposed to be taken was (objectively) reasonable.[7]
[7] State of NSW v Simms [2015] NSWWCCPD 62, [11]; Canterbury Bankstown Council v Gazi [2009] NSWWCCPD 14, [143].
In Attorney General's Department v K,[8] Roche DP considered the relevance of a worker’s perception of workplace events in determining the causation of a “psychological injury”:
“The following conclusions can be drawn from the above authorities:
(a)     employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”[9] (footnotes omitted)
[8] [2010] NSWWCCPD 76.
[9] Attorney General v K [2010] NSWWCCPD 76, [52].
The terms “wholly” and “predominantly” under s 11A of the 1987 Act are separate concepts and a finding of one or the other needs to be considered.[10] The phrase “predominantly caused” has been held to mean “mainly or principally caused”.[11]
[10] Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
[11] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92.
In Hamad v Q Catering Limited,[12] Deputy President Snell found:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”[13]
[12] [2017] NSWWCCPD 6.
[13] Hamad, [88].
Whether the “action taken or proposed to be taken” is reasonable is a question of fact, having regard to all of the relevant factors.[14] The test of reasonableness was considered in the decision of Irwin v Director-General of Education where Geraghty J said:
“That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.” [15]
[14] Irwin v Director-General of Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068/97) (Irwin).
[15] Irwin.
In determining the reasonableness of the employer’s actions there must be an objective analysis of the facts which were known to the employer at the time of the action or the facts which could have been ascertained by reasonably diligent inquiries.[16] There must also be regard to “not only the end result but the manner in which it was effected”.[17] An employer is not required to have acted flawlessly or to a standard of perfection.[18] It is essential that the entire process is considered to determine whether the action was reasonable, including the circumstances surrounding the action (before and after the action).[19]
[16] Heggie, [61] and [11].
[17] Ivanisevic v Laudet Pty Ltd (unreported, Compensation Court of NSW, Truss CCJ, 24 November 1998).
[18] Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49.
[19] Department of Education & Training v Sinclair [2005] NSWCA 465 (Sinclair), [69] and [97].
The respondent bears the onus of proof, to establish a defence under s 11A(1) of the 1987 Act on the balance of probabilities.[20] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd,[21] where he said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[22]
[20] Sinclair; Pirie v Franklins Ltd (2001) NSWCCR 346; Commissioner of Police v Minahan [2003] NSWCA 239 at [25]; Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134; Heggie.
[21] [2008] NSWCA 246.
[22] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)).

Section 11A defence

It is accepted that the applicant sustained an aggravation of a pre-existing psychological condition in the course of his employment with the respondent. It is also not disputed that for reason of this aggravation the applicant has no current work capacity and requires ongoing medical treatment. The only dispute concerns the application of s 11A(1) of the 1987 Act.
To succeed in an s 11A(1) defence to the claim for compensation, the respondent must discharge the onus of proof that the employer’s actions with respect to discipline and/or dismissal were the whole or predominant cause of the accepted psychological injury and also that those actions were reasonable.[23] If the respondent fails on one limb under s 11A(1) it cannot succeed in a defence to the claim for compensation.
[23] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)).
The respondent relies on specific events with respect to discipline and/or dismissal. Those events are as follows:
(a) disciplinary action: on 5 September 2023 the applicant sent inappropriate text messages to his supervisor. As a result of these messages and the applicant’s alleged conduct, his employer asked the applicant to attend a disciplinary meeting on 7 September 2023, and
(b) disciplinary action and dismissal: on 8 September 2023 the applicant was terminated by his employer as a result of the applicant’s serious misconduct.
The respondent’s main argument, in respect of the above actions, is founded on a basis that:
(a)    there has been a narrative constructed post the dismissal of the applicant;
(b)    the temporal connection must be given force and that the events of 5 to 8 September 2023 were the whole and or predominant cause of the aggravation of the psychological condition and the employer’s actions were reasonable;
(c)    there was no prior complaint regarding the supervisor until after the dismissal, and
(d)    Dr Kumar’s evidence should be preferred over Dr Paisley’s evidence.

Reliability of the applicant and evidence of complaint

A significant focus of the respondent’s submissions turn on the reliability of the applicant as a witness of truth. The respondent contends that the applicant constructed a narrative post dismissal. I do not accept the respondent’s submissions.
It is helpful to set out a chronology of the objective events leading to the dismissal and attendance on medical practitioners in September 2023:
(a)    on 1 September 2023, the applicant and his supervisor had a confrontation in a doorway at work;
(b)    on 5 September 2023, the applicant sent a series of text messages to the supervisor’s mobile phone from 11.00pm that evening;
(c)    on or about 6 September 2023, the supervisor made a complaint about the applicant to the respondent;
(d)    on 7 September 2023, the applicant was issued with a show cause for his conduct and invited to attend a meeting at 4.00pm the next day (being 8 September 2023);
(e)    also on 7 September 2023, the applicant made a complaint against the supervisor;
(f)    on 8 September 2023, the applicant attended a meeting with a support person, Ms Comben and Mr Haszard regarding his conduct;
(g)    on 8 September 2023, following the meeting, the applicant was issued with a letter terminating his employment for serious misconduct. His employment was terminated effective close of business that day;
(h)    on 11 and 15 September 2023, the applicant attends on his treating general practitioner with psychological symptoms, and
(i)    on 15 September 2023, the applicant prepares a detailed written response to the show cause and his termination.
Firstly, there is no apparent dispute that the applicant considered that the supervisor’s cognitive function was declining and that he considered that this posed a safety risk in the workplace. It is on this basis that the applicant claims his psychological condition was aggravated. Indeed, the respondent sought fit to investigate the supervisor (following the applicant’s complaint) and seek a medical assessment of his capacity, which identified (after the applicant was dismissed) that he was fit to return to normal duties.
Secondly, there is also no apparent dispute as to the events or the description of events that the applicant details in his statements regarding forgetfulness, errors or safety issues in the workplace arising from the supervisor’s actions. Indeed, there is no dispute that these safety events occurred or were real events (notwithstanding the applicant’s perception of those events).[24] The respondent’s evidence does not address these particular events with any specificity. Mr Haszard and Ms Comben merely provide support for there being no issues previously raised. There is also no statement from the supervisor for reason, as set out in the investigation report, that he refused.
[24] Attorney General v K [2010] NSWWCCPD 76, [52].
The applicant submitted that a Jones v Dunkel inference should be drawn in the absence of statement evidence from the supervisor, but I am not satisfied that those submissions were properly developed addressing the relevant principles recently discussed by Judge Philips in Shrestha v On Sunset Pty Ltd.[25] I decline to draw such an inference.
[25] [2025] NSWPICPD 36, [228].
Thirdly, I do not accept that the respondent’s submission that there was no complaint of the supervisor’s conduct prior to the dismissal. Ms Comben confirms that the applicant complained of the supervisor’s cognitive functioning on 7 September 2023 and that this was the subject of investigation, the outcome of which was concluded after the applicant was dismissed on 8 September 2023.
Fourthly, I accept that there is no evidence of the applicant complaining of the supervisor’s conduct prior to 7 September 2023 despite the applicant stating otherwise. However, the evidence supports that there was tension between the supervisor and the applicant prior to the applicant’s dismissal and this related to his cognitive abilities and safety issues. In this regard, I accept that the event of 1 September 2023 in the doorway, the undisputed safety events prior to dismissal and the text messages on 5 September 2023 demonstrate an underlying tension and concern regarding safety issues and the supervisor’s capacity. Indeed, the text messages refer to the supervisor’s capacity. Namely, there is reference to whether the supervisor is “stable”, that this is “a safety issue”, that he is “dangerous” and allowed the range to be “too lax” which he considered “[u]nacceptable”, and that he was “caught out on another lie”.
Fifthly, there is other evidence suggesting concern about safety issues. Mr Haszard’s states that in August 2022 he spoke with the applicant about several matters including a safety incident, although I accept there are no further details in this regard. On 15 September 2023, the applicant provides a statement to the respondent with significant detail relating to the supervisor’s capacity and related safety issues which predate the disciplinary process. On that same day, Dr Saurty notes the applicant attended presenting with psychological symptoms and the doctor refers to “safety incidences”. On 20 September 2023, Dr Saurty refers the applicant for psychological treatment for reason of his psychological condition which is described to include “recent safety concern at work”.
Sixthly, the applicant provides a consistent history to Dr Paisley and Dr Kumar regarding the workplace events and his psychological condition. This history is consistent with his statement evidence, in relation to the supervisor and long term safety concerns.
I make no adverse finding against the applicant, having regard to the relevant principles set out by Judge Philips in White v Marist Youth Care Limited.[26] The applicant has been forthright in the detail regarding his personal and psychological history. The overwhelming evidence is supportive of the applicant’s concern over safety incidents having occurred involving the supervisor. There are no glaring inconsistencies between the applicant’s evidence and the lay evidence or histories recorded in the medical reports, apart from the reporting of complaints. In any event, I do not accept that to the extent of any inconsistencies between the applicant’s evidence and the lay evidence that this gives me cause to find that he is not a witness of truth. Rather, the matters referred to above suggest that the respondent’s evidence provides some support for the applicant’s case.
[26] [2023] NSWPICPD 41, from [147].

Whole or predominant cause

For the reasons which will follow, I find that the aggravation of the applicant’s psychological injury was multifaceted. It did not result from a single action or incident. It resulted from a culmination of a series of events.
The respondent sought to contend that the events surrounding the employer’s actions from 5 September 2023 should be given force. However, the evidence indicates that the employer only took action with respect to discipline and/or dismissal from 7 September 2023 when the applicant was notified of a disciplinary meeting for the alleged misconduct.
I accept that the events from 5 September 2023 (and earlier) are relevant and they must be considered in context against the totality of the evidence. It is well accepted that a series of events may have a cumulative effect and be causative of a psychiatric condition which does not manifest until a later time, but this does not mean the earlier events in the series are not causative.[27] I will return to this in discussion of the medical evidence on causation.
[27] Hamad, [85].
The respondent set out the actions it relied on with respect to discipline and dismissal (see [74] above). I accept the respondent has not articulated precisely the nature of the disciplinary process that was undertaken, but note a broad approach is taken to the definition of discipline within the meaning of that term in s 11A of the 1987 Act. I also accept that it may relate to the entire process involved in disciplinary action, including the course of an investigation.[28] To this end, the respondent’s reliance on discipline to encompass an invitation to attend a disciplinary meeting and the notification of the outcome of that meeting is action with respect to discipline. I also note that there is some overlap in the events relied on as supportive of a defence of reasonable action taken with respect to discipline and also dismissal, although this is not significant.
[28] Heggie.
The independent medical experts both provide support for the view that the aggravation of the applicant’s psychological injury was multifaceted. Dr Paisley and Dr Kumar take a history of workplace events, which includes safety issues, the applicant’s concerns regarding the supervisor’s cognitive functioning, the text messages, and ultimate dismissal. That history is consistent with the applicant’s statement evidence. However, it is their opinion on causation which differs.
Dr Paisley found that the applicant’s condition was exacerbated due to the risk of accident and misadventure as a result of failures to follow safety procedures. He opined that the applicant’s condition was exacerbated as his workplace became more dangerous with the increasing possibility of serious injury or fatality with safety risks, which related to the actions of the supervisor. He explained that it was the cumulative exposure to numerous errors, failures and near misses in the workplace that triggered the applicant’s fear of a serious accident occurring. While Dr Paisley does not provide an opinion in relation to the effect of the disciplinary matters, he is acutely aware of those events. Dr Paisley specifically comments on the text exchange between the applicant and the supervisor and that this conduct gave rise to the applicant’s termination of employment. Dr Paisley provides a well-reasoned explanation for his findings that a series of events were causative of the applicant’s condition.
Dr Kumar initially finds that the applicant’s psychological condition was exacerbated by a series of events, including a bus crash, aircraft crash, and safety issues at work with the supervisor. He further states that the aggravation (rather than exacerbation) was also caused by the disciplinary action taken by the employer as a result of the text messages. He does not identify a whole or predominant cause of the psychological injury.
In a supplementary report, Dr Kumar modifies his findings on causation having been advised that the aircraft crash was not work related. Noting that the aircraft crash and bus crash were not related to employment, he considered the main contributing factor to the aggravation and also the predominant cause was the disciplinary action taken by the respondent. However, he does not explain what those action/s are with any specificity or whether the safety issues to which he referred in his initial report remain a cause, and, if not, why his opinion changes. In the absence of a reasoned explanation for his modified opinion in respect of the safety issues Dr Kumar’s supplementary report lacks sufficient probative value. On this basis, I accept the applicant submission, that Dr Kumar’s final opinion does not rise above a “bare ipse dixit”.[29]
[29] Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34.
Dr Kumar’s evidence is not sufficient to enable the respondent to discharge its onus of proof under s 11A of the 1987 Act. [30] It fails to deal with the applicant’s evidence which details specific events regarding safety matters in the workplace involving the supervisor, the events leading up to the issue of the text messages in any detail, or the actual events in the disciplinary process said to be the predominant cause. It also fails to explain the reasoning process for a change in opinion on causation. These matters were necessary to provide a persuasive opinion on the issue of whole or predominant cause under s 11A .
[30] Hamad, [88].
I prefer Dr Paisley’s opinion over Dr Kumar’s opinion. Dr Paisley’s opinion is supported by Dr Kumar’s original opinion, which considered the cause of the aggravation to be multifaceted and to involve both work and non-work stressors. This is consistent with the applicant’s statement evidence and balance of the medical evidence.
I do not accept the applicant’s submission that the unreported decision in Heuston v Your Contractors Pty Ltd[31] provides a basis not to accept Dr Kumar’s medical opinion or the respondent’s defence under s 11A. To the extent that the respondent’s initial acceptance of liability formed an evidentiary admission of liability it was displaced by the latter s 78 notice issued on 23 April 2024 which provided a sufficient explanation for its subsequent denial of liability.
[31] (unreported) 11451 of 1987 (9 March 1992), Hunt CJ.
There were clearly events that occurred leading to the issue of text messages at 11.00pm on 5 September 2023 and prior to the disciplinary process. As discussed above, those events clearly related to safety issues involving the supervisor and his capacity to undertake his role. These events all occurred prior to the commencement of the disciplinary process and dismissal. On this background, it was reasonable for Dr Paisley and Dr Kumar (initially) to form the view that the cause of the applicant’s injury was multifaceted. Whether or not the applicant’s perception of the supervisor’s capacity was accurate is not relevant, as the events involving the supervisor to which the applicant refers are not disputed to have occurred.
It follows that I am not satisfied that the respondent has discharged its onus of proof that the cause of the applicant’s psychological injury was wholly or predominantly caused by actions of the employer relating to discipline or dismissal. I am satisfied that the applicant suffered an aggravation (or exacerbation) of his psychological injury which was caused by a series of events, which included work and non-work matters, and it is arguable that that aggravation occurred prior to the actions of the employer with respect to discipline and dismissal. Accordingly, the respondent fails in its s 11A defence.

Reasonableness

Given my findings on wholly and predominantly above, it is not necessary that I consider whether the respondent’s actions with respect to discipline and/or dismissal were reasonable for the purpose of a defence under s 11A. However, I make the following observations.
The applicant’s conduct in sending over 20 personal text messages to his immediate supervisor’s mobile phone after 11.00pm was not only inappropriate and unprofessional, but the content was highly offensive and intimidatory. The respondent was well within its rights to consider termination of the applicant’s employment for reason of his serious conduct. However, those rights must be balanced against the rights of the employee.[32]
[32] Irwin.
I accept the applicant’s submissions that the series of text messages demonstrates his florid mental state at that time. In this regard, I note the timing of the messages after 11.00pm, the number of messages across a short period of time, tone from considerate to offensive to hostile and harmful, which each evidence the applicant’s fragility at that time. However, as the applicant properly concedes, his conduct was not appropriate.
The task of determining reasonableness is made more difficult by the absence of critical evidence in respect of the following matters:
(a)    the details of the complaint giving rise to investigation of the applicant’s conduct;
(b)    evidence from the supervisor;
(c)    evidence of the enquiries with the supervisor in respect of both complaint investigations, and whether this took place prior to the applicant’s termination;
(d)    detailed evidence of a resolution of the applicant’s complaint of the supervisor, lodged prior to his termination, and timing of that resolution;
(e)    evidence of the steps the respondent took in relation to the applicant’s fragility in the context of the investigation process, noting it was on notice of the applicant’s psychological condition from at least 7 September 2023 (see Ms Corbem’s statement);
(f)    specific details or minutes of what took place during the meeting with the applicant on 8 September 2023;
(g)    details of what was actually considered in forming a decision to terminate, in this regard, it is unclear whether the respondent considered the factors leading up to the issue of the text messages, which the respondent notes in its letter of 8 September 2023 was requested by the applicant, and
(h)    it is not clear how the termination was communicated and when, noting the meeting took place at 4.00pm on 8 September 2023 and the applicant was issued with a letter that same day indicating termination effective close of business.
On the background of the respondent’s awareness of his mental health, at the very least from 7 September 2023, I accept the applicant’s submission that there were positive steps the respondent could have taken during the disciplinary process. It is not clear whether the respondent took appropriate and positive steps to assist the applicant, notwithstanding a standard EPA referral. I also note that it would have been more reasonable to provide the applicant with additional time to respond to the allegations of misconduct rather than solely in the meeting of 8 September 2023 after one day’s notice. It is unclear whether this was requested or provided, however, I note the applicant responded to the allegations in writing on 15 September 2023 after his termination on 8 September 2023. It is also unclear precisely how and when the outcome to terminate was communicated.
I do not consider the imperfections in the disciplinary process or the manner in which the outcome was effected, whether proven or not, means that the respondent’s actions were necessarily not reasonable.[33]
[33] Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49.

However, for the reasons set out above and given the absence of critical evidence, the respondent has not discharged its onus of proof that the whole or predominant cause of the applicant’s psychological injury was its reasonable actions with respect to discipline and/or dismissal.[34]
[34] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)).

Weekly benefits

The parties agreed that the applicant had and continues to have no current work capacity for the period claimed. This is supported by the treating clinical records, certificates of capacity, and evidence of Dr Paisley and Dr Kumar.

Medical expenses

The evidence before the Commission demonstrates that the applicant has undertaken psychological treatment for his condition, including recent in-patient admission, therapy and medication. There is no dispute that the applicant needed this treatment for his condition. Dr Paisely and Dr Kumar agree that the applicant requires ongoing medical treatment for his psychological condition, in the nature of therapy and medication.
It follows that there will be a general order for the reasonably necessary incurred medical expenses, pursuant to s 60 of the 1987 Act.

CONCLUSION

The respondent has failed to discharge its onus of establishing a defence under s 11A(1) of the 1987 Act.
The applicant had and continues to have no current work capacity and requires ongoing medical treatment for reason of his psychological condition. As a result, the applicant has an entitlement to the claimed weekly benefits and reasonably necessary incurred medical expenses.
The findings and orders are set out in the Certificate of Determination.

[2025] NSWPIC 343

17 July 2025