Chand v Philip Leong Stores Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chand v Philip Leong Stores Pty Limited [2022] NSWPIC 423
APPLICANT:	Sobana Chand
RESPONDENT:	Philip Leong Stores Pty Ltd
MEMBER:	Marshal Douglas
DATE OF DECISION:	29 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments for incapacity for work from agreed psychiatric injury; issue was whether section 11A of the Workers Compensation Act 1987 applied; respondent did not establish it did; Held — award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent pay weekly compensation to the applicant pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $778.67 a week from 12 July 2021 to 11 October 2021. 2. The respondent pay weekly compensation to the applicant pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $655.72 a week from 12 October 2021 to date and continuing in accordance with the Act. 3. The respondent pay the applicant’s costs for reasonably necessary treatment of her injury pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Sobana Chand seeks weekly payments of compensation from her employer Philip Leong Stores Pty Ltd (the respondent) for an incapacity for work she has resulting from a psychiatric injury. She seeks the payments be made to her from 12 July 2021. Ms Chand also seeks the respondent pay her compensation for the cost she has incurred for treatment of that injury.
The respondent agrees that Ms Chand suffered a psychiatric injury due to events that occurred in her employment in the period between January 2021 and May 2021. The respondent does not take issue that Ms Chand’s employment was the main contributing factor to her contracting her psychiatric injury, which has been diagnosed as an adjustment disorder with depressed and anxious mood. The respondent contends however, that
s 11A(1) of the Workers Compensation Act1987 (the 1987 Act) does not allow Ms Chand to recover compensation from it for her injury because her injury was wholly or predominantly caused by reasonable action it took or proposed to take with respect to transfer or the provision of employment benefits to Ms Chand.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a preliminary conference on 6 May 2022, conducted by telephone, and a conciliation conference on 3 June 2022 using Microsoft teams. They were represented by their respective solicitors at the preliminary conference and by their respective counsel during the conciliation conference. In accordance with my obligation under cl 6(1) of sch 3 of the Personal Injury Commission Act 2020, I used my best endeavours to assist the parties to reach an acceptable settlement of their dispute. They were unable to do so, and the matter consequently progressed to an arbitration hearing, at the end of which, and at the request of their representatives, I made directions for the parties to file written submissions.

ISSUES FOR DETERMINATION

The parties agree that the single issue for determination is whether Ms Chand’s psychiatric injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to the transfer or the provision of employment benefits to Ms Chand. The parties agree that Ms Chand is totally incapacitated for work as a consequence of her injury. The parties agree that Ms Chand’s pre-injury average weekly earnings (PIAWE), computed in accordance with the definition of that term in Cl 2 of Sch 3 of the 1987 Act, is $819.65.

EVIDENCE

The following documents were in evidence before the Personal Injury (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    a statement of Ms Chand signed on 1 June 2022;
(c)    the Reply and attached documents;
(d)    a statement of Ms Julena Cunico signed on 18 May 2022; and
(e)    a report of Dr Abishek Nagesh dated 2 May 2022.
Ms Chand was not cross-examined and no witness was called to give oral evidence.

FINDINGS AND REASONS

It is uncontroversial that Ms Chand’s injury occurred as a consequence of a process the respondent undertook of ascertaining whether Ms Chand would change the basis on which she was employed from casual to permanent part time. That process involved Ms Chand attending several meetings with various personnel of the respondent in the period
January 2021 to May 2021.
In evidence is a statement Ms Chand signed on 25 March 2022 in which she detailed what she says occurred in those several meetings and in which provided background relating to the circumstances in which she came to be employed by the respondent as a casual. It is apparent from [20] of that statement that she was a member of a trade union. Lilian Galea was her union delegate who attended several of the meetings that occurred in the relevant period and who prepared typed notes summarising what occurred in those meetings she attended. Ms Galea’s typed notes are in evidence. Also in evidence is a statement of
Ms Jelina Cunico that she signed on 18 May 2022. Ms Cunico describes herself in that statement as the “Culture & People Partner” of Primary Connect Pty Ltd and Woolworths Group Ltd. She participated in some of the meetings and created typed summaries of the meetings, that are also in evidence.
In her statement of 25 March 2022, Ms Chand recounted commencing employment with Primary Connect Pty Ltd in June 2008, performing duties as an order selector at the distribution centre of Woolworths at Erskine Park.
In written submissions Ms Chand’s counsel prepared on her behalf, Ms Chand said that her employment was transferred from Primary Connect Pty Ltd to the respondent and that both companies are part of the Woolworths Group. There is no evidence that clearly substantiates that. The respondent in written submissions its counsel prepared in reply to Ms Chand’s submissions did not take issue with Ms Chand’s submission on this, and it would seem from a consideration of the totality of the evidence, including an enterprise agreement pertaining to employees of the respondent, that Commissioner McKinnon of the Fair Work Commission approved under s 54 of the Fair Work Act, that the respondent, Woolworths Ltd and Primary Connect Pty Ltd are related entities. Nothing hinges on this, and it is noted merely for the purpose of clarity.

Prior physical injury

In her statement Ms Chand described being diagnosed in 2010 with plantar fasciitis. She said this had been aggravated by the prolonged standing and walking that she was required to do as part of her duties with Primary Connect. She made a claim for workers compensation which was accepted. She was unfit for work for 11 months and when she returned to work in February 2012 she did so not as a full time employee but as a casual employee. She said that this was to assist her with managing her condition. She said that she worked seven hours a day four days a week but reduced that to six hours a day four days a week because she was “struggling attending to long shifts due to my physical injury”.

The meetings

Ms Chand said in her statement that in January 2021 Mr Chris McIntosh, whom she described as “the HR and Operations Manager” approached her for a “friendly chat”. She said that Mr McIntosh told her that casual positions were no longer to be accepted and that she “needed to change to a part time employee in order to secure my ongoing employment”. Ms Chand said that she told Mr McIntosh that “the casual duties suited my condition which arose as a consequence of my employment”. She said that she told him that she had been undertaking her shifts for nine years with no issues raised by management. She said that
Mr McIntosh “made no attempt to reassure me or to take any reasonable measures to address my concerns”. She said that Mr McIntosh did not advise her that she “had no obligation to change my work status”.
Ms Chand said that she was requested to attend a further meeting in January 2021 with
Mr McIntosh and with her team leader, Shanae Terry, and another casual employee, David Korac. She said in that meeting that she asked to see her contract. She said that
Mr McIntosh responded “what difference does the contract make”. She explained in her statement that she wanted to see her contract to clarify what changes were being proposed to her entitlements. She said that she “felt as though the meeting was intended for me to change my status without providing me with any clarity or information”. She described feeling pressured.
Ms Chand said that on 5 February 2021 she was requested to attend a further meeting with Ms Terry and Lincoln James, whom she described as her “line leader”. She said that she was advised in that meeting that there would be no contract in respect of her casual employment. She said that Ms Terry told her that she would be required to work three days a week for eight hours a day irrespective of her concerns regarding her condition. She said that she was worried that prolonged standing could aggravate her condition.
Ms Galea made notes regarding the meeting on 5 February 2021 with Ms Chand and “Shanae and Lincoln”, which is an obvious reference to Ms Terry and Mr James. Ms Galea noted, under a sub-heading “Relation to Offer to Permanent Part Time Position” that
Ms Terry asked Ms Chand “if she had given it any thought to accepting the permanent part time position”. Ms Galea noted that Ms Chand replied “she did not want to go to part time and that she would stay as a casual”.
Ms Galea further noted that Ms Terry told Ms Chand that she was being offered Monday, Friday and Saturday shifts based on business requirements. Ms Galea noted that Ms Chand raised with Ms Terry that she had been approved for shifts in the current week on Tuesday, Wednesday and Thursday for six hours and that Ms Chand enquired regarding “what had happened to her roster for that week”. Ms Galea noted that Ms Terry responded by stating the “roster was denied” and that “it has been weeks leading up to this point”. Ms Galea noted that Ms Chand said that she was not okay with the “permanent rate” and that she needed more time to think about it and that she was waiting for a copy of her contract.
It is likely the case that, contrary to what Ms Chand said in her statement, she did not at the meeting on 5 February 2021 mention she was worried about the effect prolonged standing would have on her physical condition. Ms Galea’s notes appear to be thorough, and in my view provide a reliable record of what was discussed at the meeting. She made no mention of Ms Chand saying this at the meeting. Ms Chand’s recount in her statement of what occurred at the meeting is provided more than a year after the meeting and, as a consequence, her more memory at that time of what occurred in the meeting is far less reliable than Ms Galea’s notes.
In her statement Ms Chand also said that Mr James notified her after the meeting on
5 February 2021 that her shifts had been cancelled, but it would seem, based on the notes of Ms Galea, that Ms Chand was informed of that prior to the meeting commencing. In any event, as a consequence of those shifts being cancelled Ms Chand did not again work until 11 February 2021.
On 8 February 2021 Ms Galea forwarded by email to Ms Cunico an email that Ms Chand had previously written to Ms Cunico but which did not, apparently, transmit to Ms Cunico.
Ms Galea, by forwarding the email to Ms Cunico, thereby ensured its transmission to
Ms Cunico. In it, Ms Chand informed Ms Cunico that she had been employed as a “Woolworths casual” for the last nine years and that she had recently “been asked to consider a position as a permanent part time member by the management team”. She advised Ms Cunico that she had been a full time employee in the past but had trouble coping with the requirements that were expected of her and that was the reason why she accepted casual employment from Woolworths when it was offered to her. She recounted for
Ms Cunico attending a meeting on 9 January 2021 with Ms Terry, Mr Hands and her union representative Mr Ross. She said that Mr Ross, on her behalf, requested a copy of her contract at this meeting. She also recounted for Ms Cunico the meeting that took place on
5 February 2021 in which Ms Terry, Mr James and Ms Galea attended, and at which she again requested a copy of her contract, to be informed that there was no contract and that she had signed a roster change, which response Ms Chand described as a lie and dishonest. Ms Chand advised Ms Cunico that she was upset by the situation and felt bullied and harassed by management and sought Ms Cunico’s intervention.
Ms Galea’s notes reveal that she and Mr McIntosh met on 9 February 2021 at which time she informed Mr McIntosh that Ms Chand wanted to use some of her long service leave as she did not receive a roster for that week. Ms Galea also informed Mr McIntosh that
Ms Chand had not been sent a roster for the prior two weeks which had resulted in her being one week without pay.
A further meeting was held on 11 February 2021 in which Ms Chand, Ms Galea, Mr McIntosh and Ms Cunico participated. Ms Chand described in her statement that she enquired of
Ms Cunico and Mr McIntosh at this meeting why her shifts had been cancelled. She said their response was that it was because she was unable to undertake shifts that were not eight hours. She said that following this meeting she was offered a roster of eight hour shifts on three days a week, which was completely different to the previous roster she had been offered. She said due to financial circumstances she undertook that roster. She said that she felt she had no choice and felt pinned down and under pressure to undertake the roster. She said the respondent never tried to accommodate her needs despite her constantly trying to express her concerns.
Ms Cunico prepared a written summary of what occurred at the meeting, which included the following background, providing some context as to why the meeting was held:
“Meeting arranged with Sobana and Lilian to discuss concerns around Sobana’s change of employment status.
In previous weeks, Lincoln James (Team Leader) and Shanae Terry (Team Leader) have held discussions with Sobana regarding the opportunity for her to move from a Woolworths Casual to a Permanent Part Time employee. This is due to a change in the way our Operations works and this would allow her to consistently have the days/hours she has been doing, permanently. Alternatively the option was that if she did not want
to transition to PPT, she was able to remain as casual, however this would be on a needs basis as opposed to regular and systematic work.”
Ms Cunico detailed in her summary that Ms Chand felt distressed because she could not obtain a copy of her contract. Ms Cunico noted that she said to Ms Chand that this was not the fault of the leadership team but was due to personnel files not being kept at a standard at which they ought. Ms Cunico noted that she told Ms Chand that her contract was in accordance with an Enterprise Agreement. Ms Cunico recorded that she explained to
Ms Chand that the manner in which casuals would be rostered in future would be different to how it is presently done and that Ms Chand would not be able “to dictate her availability irrespective that worked for the operations or not”. Ms Cunico noted that the respondent was moving to “a needs basis” which would result in shifts being made available and that if
Ms Chand was able to complete those shifts she could accept the shift via text. Ms Cunico recorded that Ms Chand’s hours and days could therefore be completely different to what
Ms Chand is currently working, but if Ms Chand would like to secure those days and times then she was welcome to accept permanent employment which would be available until mid March.
The notes Ms Galea prepared of this meeting included Ms Cunico informing Ms Chand that they were unable to provide Ms Chand with a copy of her contract and that was because the documentation was not properly filed years ago. Ms Galea recorded that Ms Chand falls “under the EBA”.
Ms Galea also noted Ms Chand saying at the meeting that another employee of the respondent, Tarra, had been rude to her when Tarra approached her about the roster.
Ms Galea noted that Shanae (that is, Ms Terry) had asked Ms Chand whether she had made her decision and also asked “how many more times do we have to ask you”. Ms Galea recorded that Ms Chand stated that Lincoln (that is, Mr James) had approved her roster for the next week and then cancelled her shifts. Ms Galea noted that Ms Chand said she had been an employee of the respondent for 13 years and had not had any trouble.
Ms Galea recorded that Ms Chand said that Mr James had approached her about her performance and she found that humiliating and that Mr James had compared her to two other members of staff.
Ms Galea recorded that Mr McIntosh said that the respondent is recruiting more permanents and is trying to build up permanent labour. Ms Galea recorded that Mr McIntosh asked
Ms Chand whether she did not want to accept a permanent part time position because of financial reasons to which Ms Chand responded that that is partly the reason. Ms Galea recorded Mr McIntosh asked Ms Chand how long she would need to meet her financial situation to which Ms Chand responded 15 March 2021.
Ms Galea recorded that Ms Chand could not do the eight hours and currently works three to four days for six hours and that Ms Chand would like to remain as a casual team member and does not want to be disadvantaged. Ms Galea recorded that Ms Cunico advised that arrangement did not meet the business requirement. Ms Galea recorded that Ms Cunico said that rosters are complicated to change. Ms Galea recorded that Ms Chand said that she would consider moving into a part time position and that management agreed to work with Monday 15 March 2021 as the effective date for that. Ms Galea recorded that Ms Chand was aware of her entitlements as a permanent part time member and that Ms Chand would put forward her availability for a permanent part time position. Ms Galea recorded that
Mr McIntosh said that Ms Chand would not be disadvantaged and that he subsequently provided a roster of proposed permanent part time hours comprising Monday 5am to 11am, Tuesday 5am to 11am, Wednesday 5am to 11am and Thursday 5am to 11am.
Ms Cunico in her statement at [13] confirmed providing Ms Chand with a month to make “a decision about her employment status”. Ms Cunico also said that “eventually we had to insist on a formal decision from Sobana”. Ms Cunico at [11] of her statement said that she “was aware of Sobana’s physical injury”. She also said that Ms Chand had been “deemed medically fully fit for her duties”. She said if Ms Chand was not able to work her normal hours there “would have been a different conversation”. She did not detail what that different conversation would have been. She said “we offered to retain her current roster with the same hours that she had already been doing for a number of years on a permanent contract”.
A further meeting was held on 17 February 2021 between Ms Chand, Ms Galea,
Mr McIntosh and Benjamin. The evidence does not reveal Benjamin’s surname or his role. Ms Chand’s statement does not deal with this meeting, but Ms Galea again made notes regarding what was said at the meeting. Her notes reveal that Ms Chand gave Mr McIntosh a letter advising her acceptance of a permanent part time position. In evidence is a letter dated 17 February 2021 signed by Ms Chand, and whilst not addressed to anyone specifically, it is obvious that it was intended to be read by Mr McIntosh and Ms Cunico. The Tribunal infers that this is the letter that Ms Chand presented to Mr McIntosh at the meeting of 17 February 2021. In this letter, Ms Chand indicated her acceptance of a permanent part time position “in good faith” but she also said that she needs “reassurance that I have been given the correct information which has led me to the decision”. She requested “the written document be available prior to me signing my contract for permanent part time”.

Ms Galea recorded in her notes of the meeting of 17 February 2021 that the Ms Chand would commence permanent part time work on 15 March 2021 and that her shifts would be Monday to Thursday between 5am and 11am. Ms Galea recorded that Mr McIntosh approved those hours and days and told Ms Chand and Ms Galea to keep it confidential and not discuss it with anyone. Ms Galea noted that she provided Mr McIntosh with “a written document asking could Jelina put something in writing”. Ms Galea noted that Mr McIntosh took that document to Ms Cunico and when he rejoined the meeting advised that Ms Cunico was unwilling to fulfil that request. Ms Galea noted that she stated to Mr McIntosh that unless “we have something to go by that the signed agreement for permanent part time was no longer on the table”.
Ms Galea also noted that Mr James had told Ms Chand that she does not get a roster as a casual and that management had issued a directive that no roster be put in place for
Ms Chand and that Ms Chand had not received a roster for two weeks which resulted in her having no income for a week and having to use long service leave for another week.
Ms Galea noted that Mr McIntosh agreed “in good faith” to allow Ms Chand to work until
15 March 2021 Tuesday to Thursday between 5am and 11am and that from 15 March 2021 Ms Chand would be given a weekly roster based on business requirements. Ms Galea noted that she advised Mr McIntosh that “they are fully aware that Sobana Chand cannot work an 8 hour day”. Ms Galea noted that Mr McIntosh advised that if Ms Chand had “a change of heart” that the hours that she confirmed as being able to do on a permanent part time basis might not be available.
Ms Galea forwarded an email to Mr McIntosh and Ms Cunico on 17 February 2021 after the meeting in which she advised that neither party could come to an agreement today in regards to Ms Chand and that Ms Chand would still hold her position “as a Woolworths (Primary Connect) casual”. She advised that Ms Chand’s roster is Monday to Thursday between 5am and 11am until 15 March 2021.
A further meeting was held on 11 March 2021 at which Ms Chand, Ms Galea, Ms Cunico and Jared Buckby attended. In her statement Ms Chand described Mr Buckby as the Distribution Centre Manager. Ms Cunico said that at this meeting she was told her that she would not be receiving a new contract as she had been working there for years and that all changes regarding her employment status would be verbal and not written. Ms Chand said that heightened her anxiety and stress and that she felt as though “management were trying to hide something from me”.
Ms Cunico created a summary of the meeting in which she noted that Ms Chand still appeared to be uneasy regarding the change to her employment status and that she was visibly upset as she felt confused. Ms Cunico noted that she brought Ms Chand’s “physical file” with her to the meeting. Ms Cunico noted she highlighted to Ms Chand that the reason they were having discussions with her was due to her not providing any feedback as to what she would like to do. Ms Cunico noted that Ms Chand said that she trusted what they were saying but felt confused. Ms Cunico noted that she “reiterated to her that again documentation unfortunately was not available”. Ms Cunico noted that Ms Chand “would have signed a payroll change of roster form as she was previously employed as full time then moved to casual”. Ms Cunico noted that Mr Buckby advised Ms Chand as follows:
“The only reason we are communicating to her the option of employment change, is so
that she is not disadvantaged based on the operational changes for casual employment and how we roster them when the shift is available, meaning that she could be offered afternoon shift, Saturday shift, Monday shift, instead of the days and hours she currently has. If she does not want to change, there is no problem on our end with that.”
There are no notes in evidence from Ms Galea relating to this meeting.
It is apparent that at some point Ms Chand commenced doing eight hour shifts three days a week, but it is not clear from the evidence exactly when that happened. As best as I can understand the evidence, it was after 17 February 2021 and before 29 March 2021. Probably, it was 17 March 2021. Ms Chand said in her statement that she felt she had “no choice” to do the eight hour shifts and that she felt pressure to do them. She said that the respondent never tried to accommodate her needs despite her constantly expressing her concerns about them. She said that as a consequence of doing “prolonged work hours” her condition, meaning her plantar fasciitis, began to deteriorate rapidly.
A further meeting was held on 29 March 2921 with Mr Buckby, Ms Cunico, Ms Chand and Ms Galea. Ms Chand did not deal with that meeting in her statement. Ms Galea made notes of what was said in the meeting, which included Mr Buckby advising Ms Chand that he wanted to “follow up” with Ms Chand and enquire as to how she was. Ms Galea noted that Ms Chand responded that going from six hours a day to eight hours a day had been hard on her feet and that she had previously received workers compensation as a consequence of her feet and that was the reason why she accepted a casual position from Woolworths and reduced her hours. Ms Galea recorded that Ms Chand said that she would still like to remain as a casual and that she was “a little stressed and upset by the situation”. Ms Galea recorded that Ms Chand advised Mr Buckby that Ms Galea had explained to her what was being offered to her and the benefits of becoming a permanent part time worker. Ms Galea noted that Ms Chand was upset by the way she had been approached by management and that she had been unable to see her contract or change of roster form and was confused by the fact that she would not be signing a new contract to which Ms Cunico responded that
Ms Chand falls under the Enterprise Bargaining Agreement and that she does not have a contract but if she was to accept a permanent part time position a letter of offer would need to be processed and that she would receive a permanent roster. Ms Galea noted that
Mr Buckby advised that he supports casual employees but “that it may get to the stage that there are no casuals on site” because shifts and workloads were changing. Ms Galea noted that Ms Chand informed Mr Buckby that Mr James had previously confirmed her roster and then cancelled it in response to which Mr Buckby apologised to Ms Chand for the way things have been handled. Ms Galea noted that Mr Buckby advised Ms Chand that he would give her a deadline to the end of July to accept a part time position and that he would honour her preferred roster of six hours a day until the end of July but “after July there will be no flexibility.. and that with the hours there is no guarantee”. Ms Galea noted that Mr Buckby advised that this was driven by “operations and work force planning”.
Ms Cunico’s summary of the meeting recorded that she, Mr McIntosh, Ms Chand and
Ms Galea were present. In a statement Ms Chand signed on 1 June 2022 she said that
Mr McIntosh was not at the meeting. Noting what Ms Galea recorded in her contemporaneous notes, it seems that Ms Cunico was mistaken regarding Mr McIntosh’s presence and that it was Mr Buckby instead who attended. Nothing hinges on that.
Ms Cunico recorded that Ms Chand had said that she felt like she was being bullied and harassed regarding her employment status and that she had had so many discussions with different people and was feeling uneasy about the whole thing. Ms Cunico noted that she said to Ms Chand that the only reason they were catching up with her is because she had stated a few times that she would be happy to accept a permanent part time role but had changed her mind and that it was confusing and that they did not want her to be disadvantaged. Ms Cunico noted that they highlighted for Ms Chand that they do not need her to accept a permanent part time role and they want to make her aware that her roster may change due to the way their operations are currently running but if she wanted to remain as a casual she was welcome to do so.
On 19 April 2021 Ms Galea sent an email to Ms Cunico in which she advised Ms Cunico that over the last six to seven weeks Ms Chand had been given the same set roster for Monday, Wednesday and Thursday from 5am to 1.30pm for 24 hours a week as though she was employed as a permanent part time employee and that she had received a phone call from Ms Chand that morning in which Ms Chand said she was upset about that. Ms Galea noted that Ms Chand was at work on the 19 April 2021 but had not been rostered for that day.
Ms Galea noted that Ms Chand was having trouble receiving a confirmation text after she responded to her availability.
On 21 April 2021 a further meeting was held. Ms Chand in her statement of 1 June 2022 said that this meeting was with “Ed” and Ms Cunico. Ms Galea’s notes of the meeting also recorded that Ms Cunico and Ed participated in the meeting. Ms Cunico’s summary of the meeting however recorded that she, Mr McIntosh, Ms Chand and Ms Galea were present. It would again seem that Ms Cunico was again mistaken regarding Mr McIntosh’s presence. The surname, position or role of Ed is not revealed.
Ms Chand in her statement said the purpose of this meeting was to confirm her roster and for her to request if she could do six or seven hour shifts as her feet were getting worse working longer hours. She said that Ms Cunico said that the hours that Ms Chand was doing was based on business requirements.
Ms Galea’s notes of the meeting included that when Ms Chand received a text regarding her roster she always replied yes but for the week ending 18 April 2021 she did not receive a confirmation text and that she was told that if she was not on the roster she would be sent home. Ms Galea noted that when Ms Chand arrived at work on 19 April 2021 she was not on the roster but was allowed to stay at work. Ms Galea noted that Ms Cunico advised that the text messages go through many hands and are hard to track and that she will enquire how “it works in the system”. Ms Galea recorded that Ms Chand request that she work six to seven hours a day to help with her feet but Ms Cunico responded saying “it would be based on the business requirements”. Ms Galea noted that Ms Chand again asked Ms Cunico for some reassurance by providing her with the contract and a copy of her change of roster form to which Ms Cunico responded that Ms Chand fell under the EBA and does not have a contract and that her change of roster form was probably shredded. Ms Galea recorded that Ms Chand asked Ms Cunico if she accepted the permanent part time position whether she would be able to work six hours to which Ms Cunico responded that it would be based on business requirements and it would be a negotiating process between herself and Workforce Planning. Ms Galea noted that Ms Cunico said that she was going to “ask the team to review her concerns and she would get back to Sobana”.
In her statement of 25 March 2022 Ms Chand said that on 22 April 2021 she had notified her team leader Rommel Chicote and team leader Robert of the pain she was experiencing in her feet and said that she was struggling to work a full day. She said despite that complaint management was not prepared to accommodate her.
Ms Galea made notes of a meeting that occurred on 22 April 2021 between Ms Chand and “Rob and Rommel”. Her notes included that Ms Chand indicated that her previous injury of plantar fasciitis had flared on 21 April 2021. Ms Galea noted that Ms Chand had said to Rob that she had notified management in the previous weeks about her injury and had asked if she could reduce her hours due to her injury and that she had also advised that to
Mr McIntosh, Ms Cunico, Mr Buckby and Ed. Ms Galea noted that Ms Chand would seek six physiotherapy sessions and that she “signed the early intervention program document”.
On 31 April 2021 another meeting was held with Ms Chand, Ms Cunico, Mr Buckby and
Ms Galea. Ms Chand does not deal with that meeting in either of her statements and nor is there in evidence any record or summary from Ms Cunico regarding the meeting.
Ms Galea’s notes with respect to the meeting included that Ms Chand had advised that she did not receive a confirmation text regarding her shifts for the week ending 18 April 2021 and that she only worked one day that week and that Ms Cunico advised Ms Chand that
Ms Chand should receive confirmation in the future. Ms Galea also noted that Ms Chand asked Ms Cunico about reducing her hours due to the issue she was having with her feet and advised Ms Cunico that she was having six sessions with a physiotherapist and asked if she could reduce her hours to four six hour days or alternatively reduce her hours by one hour a day. Ms Cunico responded saying that she still had not been given any answer from “operations” or the hours that Ms Chand had requested are available.
Ms Cunico has provided a summary of a meeting that occurred on 3 May 2021 between her, Mr McIntosh, Ms Chand and Ms Galea. There are no notes in evidence from Ms Galea regarding that meeting. Ms Cunico noted that it was “confirmed for Ms Chand that casuals are rostered for 8 hours and it does not operationally work to roster Ms Chand for 6 or 7 hours”. Ms Cunico also noted that the workforce planning team would send Ms Chand a text with “the week commencing dates” and the dates by which those dates had to be confirmed. Ms Cunico further noted that the workforce planning team would additionally respond with a “yes” once it had been confirmed that Ms Chand had been rostered to work a day.
On 24 May 2021 a further meeting was held with Ms Chand, Ms Galea, Ms Cunico and
Mr McIntosh. Ms Galea made notes of that meeting. There is no summary in evidence from Ms Cunico regarding that meeting. Ms Galea’s notes included that Ms Cunico advised that the meeting was to “catch up” with Ms Chand to confirm if she was accepting a part time position. Ms Galea noted that they were unable to confirm when Ms Chand had become a casual and that “filing years ago was atrocious”. Ms Galea noted that Ms Cunico said that Ms Chand had been provided with her file and that she was able to see that there was nothing in it. Ms Galea noted that Ms Chand indicated that her main concern was about continuation of her long service leave and that Ms Cunico advised that she would need to confirm that and respond to Ms Chand. Ms Galea noted that Ms Cunico advised Ms Chand that she did not have to accept a permanent part time position if she did not want to but there would be changes happening in a couple of weeks and that “there may be no work available if she remains as a casual due to the changes”. Ms Galea noted that Ms Chand “understands about remaining a casual and the uncertainty of work being available”.
In her statement of 25 March 2022 Ms Chand said that around May 2021 she was called to a meeting with Ms Cunico and Mr McIntosh at which she was advised that she would not be given any shifts if she did not accept the new permanent part time role and that she felt immediately distressed and anxious. Noting that Ms Chand’s statement was made some 10 months after such a meeting and neither Ms Cunico recorded any summary nor Ms Galea made any note of this, I consider that in all likelihood such a meeting did not take place.
There is no evidence that indicates that any further meetings occurred after 24 May 2021 involving Ms Chand, Ms Galea, Ms Cunico, Mr McIntosh, Mr Buckby or anyone else from the respondent regarding Ms Chand’s potential change from casual employment to permanent part time employment. Ms Chand said in her statement that she was called to a further meeting on 26 May 2021 and further meetings “over the course of the next few weeks” with Mr James, but these related to performance issues. She said she thought these were unnecessary and she said they distressed her. I observe that the respondent has not relied on any action or proposed action taken by it with respect to discipline or performance appraisal as one of the matters that would engage s 11A(1).
Ms Cunico said in her statement that the meetings that occurred between her and Ms Chand in 2021, in which Ms Galea accompanied her as a support person, were to discuss operational changes that involved heavily recruiting permanent team members to meet increasing needs and demands. She said there was “no restructure as such”. She said that the respondent offered to keep Ms Chand’s identical casual roster but convert it to a “PPT contract” and that effectively she would in substance being doing “the same job in substance with no material change to her hours or duties”. She confirmed that Ms Chand was employed under an Enterprise Agreement and that she had been unable to locate her contract of employment from Ms Chand’s personal file. Ms Cunico said that the status of Ms Chand’s employment was the only variable that would change and that
Ms Chand would be provided with more job security. She said that “we would have provided her with a formal ‘letter of offer’ outlining terms and conditions”. That statement of her is speculative. She does not say that Ms Chand was provided with a letter outlining the terms and conditions of her employment or was provided with a copy of the Enterprise Agreement. Ms Cunico said that she was aware of Ms Chand’s physical injury but Ms Chand had been “medically fully fit for her duties” and that if she had not been able to work her normal duties it would have been a “different conversation”.
On 31 May 2021 Ms Chand consulted her then general practitioner (GP) who issued a medical certificate stating that Ms Chand would be unfit for work from 31 May 2021 to
13 June 2021. No diagnosis was provided in this certificate as the cause of Ms Chand’s unfitness, but it is apparent that the cause was her distress. In her statement of
25 March 2022 she said that she returned to work on 14 June 2021. Another GP issued a certificate of incapacity on 15 July 2021 certifying that Ms Chand had no capacity to work from 15 July 2021 due to work related stress. It seems this was the last day that Ms Chand worked.

The Enterprise Agreement

The Enterprise Agreement the Fair Work Commission approved pertaining to Ms Chand is in evidence. The Fair Work Commission approved that Agreement on 23 May 2018. Clause 2.1.1 of the Agreement stipulates the aim and objective of the respondent is to provide secure employment to its team members and, as part of that, the respondent is committed to maximising the conversion of casual hours to permanent hours where it is practicable and consistent with operational requirements of the respondent’s business. Clause 2.4.1 of the Agreement provides that a casual team member is engaged by the hour from shift to shift and may have their hours limited.

The medical evidence

An MRI done of her feet on 13 September 2021 on referral from GP Dr Eric Lim confirmed that Ms Chand had mild acute and moderate chronic features of proximal plantar fasciitis in her right foot and left foot.
Ms Chand’s solicitor qualified consultant psychiatrist Dr Richa Rastogi to examine and report on Ms Chand. That occurred on 25 February 2022 and Dr Rastogi issued a report on that day.
The relevant work history which Dr Rastogi detailed in her report included that Ms Chand had previously worked fulltime with Woolworths until 2010 as an order selector which involved
Ms Chand standing and walking. Dr Rastogi noted that Ms Chand had been diagnosed with plantar fasciitis in April 2010 and thereafter commenced in a casual role in February 2012 doing six hours a day four days a week. Dr Rastogi noted that Ms Chand managed flare-ups of her plantar fasciitis with orthotic supports and that Ms Chand was able to manage the hours that she was doing with Woolworths.

Dr Rastogi noted that as at January 2021 Ms Chand had been working her casual shifts four days a week for six hours a day for nine years and that in January 2021 she was approached by Mr McIntosh who told her that Woolworths was “planning to get rid of casual roles” and asked her to change her status to a permanent part time position. Dr Rastogi noted that
Ms Chand explained the reason why she had decided to perform in a casual role was due to her physical condition and the presence of pain. Dr Rastogi noted that Ms Chand in a subsequent meeting requested to see a copy of her contract and that her manager’s response was “what difference does the contract make”. Dr Rastogi noted that Ms Chand was seeking clarity about her entitlements. Dr Rastogi noted that there was then a series of meetings “with pressure put on her to change her status”. Dr Rastogi noted that Ms Chand approached Human Resources to gain access to her contract and was advised it would take a few days and that Ms Chand was then not put on the following roster, which had been taken away from her.
Dr Rastogi noted that HR informed Ms Chand that there was no formal contract. Dr Rastogi noted that Ms Chand was offered a roster that was different to the one she had previously done and that Ms Chand “had no choice” and “felt pinned down” and under complete duress and that she agreed to work three full days as she had no option left and she had financial commitments
Dr Rastogi noted that Ms Chand worked three “full days” on Monday, Wednesday and Thursday and that Ms Chand struggled with pain and that she persisted for six weeks until the pain became unbearable and she was unable to stand. Dr Rastogi noted that Ms Chand on 22 April 2021 informed her manager of her pain and filled out an injury report form.
Dr Rastogi noted that in a meeting on 24 May 2021 Ms Chand was informed that she would not be offered any roster and that she would have no further work if she did not accept the permanent part time role. Dr Rastogi said that Ms Chand felt distressed and felt betrayed given she was a long term employee of the respondent. Dr Rastogi noted that in a meeting on 26 May 2021 Ms Chand was required by her manager to make explanations for the mistakes that she was making.
Dr Rastogi noted that Ms Chand took time off work between 31 May and 13 June 2021.
Dr Rastogi noted that Ms Chand persisted with work until July 2021.
Dr Rastogi diagnosed Ms Chand with adjustment disorder and anxious distress. Dr Rastogi considered that “the negative and hostile behaviour at workplace with lack of support and inability to accommodate her in suitable duties led to Adjustment Disorder”. Dr Rastogi said:
“It is evident from the history and documentation that Ms Chand had continued to
perform with no issues in casual role since 2014 . This allowed her to have rest
and manage pain from her plantar fasciitis and given her flexibility . The ongoing
pressures, coercion and threats by management to push her into permanent part
time role with no support and allowances and well as not providing clear
documentation of her entitlements as well this causing financial disadvantage led
to onset of her adjustment disorder. I am of the opinion that the lack of support
and lack of consideration led to her psychological decline.”
The respondent’s solicitors qualified psychiatrist Dr Abhishek Nagesh to examine and report on Ms Chand. Dr Nagesh saw Ms Chand on 20 April 2022 and issued a report to the respondent’s solicitors on 2 May 2022.
The history Dr Nagesh provided in his report included that Ms Chand worked as a fulltime employee with Woolworths until 2010 when she was diagnosed with plantar fasciitis, following which she was on workers compensation for 11 months. Dr Nagesh noted that
Ms Chand then returned as a fulltime employee, but found it hard to cope and accepted an offer of a casual role in 2012 in which she continued to work until July 2021. Dr Nagesh noted that in January 2021 Ms Chand’s manager, Chris, met with her and informed her they were going to get rid of all casual employees and advised Ms Chand to become a permanent part time employee, which made Ms Chand anxious. Dr Nagesh noted that Ms Chand requested to see her contract and was informed by Chris that there was no contract.
Dr Nagesh noted that Ms Chand had attended four to five meetings with her union representative. Dr Nagesh noted that a few weeks later Ms Chand wrote to Human Resources alleging she had been harassed and bullied. Dr Nagesh noted Ms Chand met with HR when they took a roster away and provided her with a different roster. Dr Nagesh noted Ms Chand also alleged that she had been told that her performance was not good at work. Dr Nagesh noted that in April 2021 Ms Chand worked full days and she then asked management to reduce her hours which was declined. Dr Nagesh also noted that Ms Chand alleged that on 26 May 2021 a meeting was held where she was informed that she would have no work as she had not accepted that permanent part time position. Dr Nagesh noted that two days later at another meeting Ms Chand alleged that she was accused of making mistakes. Dr Nagesh noted that she saw her GP who gave her two weeks off work, after which she returned but two weeks later she was again told that she had to do a full shift which caused her stress and anxiety. Dr Nagesh noted that she saw her GP who certified her unfit for work.
Dr Nagesh diagnosed Ms Chand with adjustment disorder depressed and anxious mood.
Dr Nagesh expressed his opinion that “on the balance of probabilities, the predominant cause of [Ms Chand’s] injury was the action taken by the [respondent] with respect to the transfer from a casual to a permanent part time position”. Dr Nagesh expressed his rationale for his opinion was that Ms Chand’s “psychological symptoms commenced when she was informed by her manager that she had to change her position from casual to a permanent part time” and that Ms Chand was insisting on a contract but instead was employed on an Enterprise Agreement.

Liability

The histories that each of the qualified psychiatrists obtained are substantially the same. Broadly, those histories accord with the evidence set out above as to what occurred from January 2021 until Ms Chand ceased her work with the respondent, with the exception of the meeting on 26 May 2021 when both psychiatrists indicate Ms Chand alleged that she was informed that she would not be provided any further work as she had not accepted a permanent part time position. Ms Chand’s recount of that, both in her statement of
25 March 2022 and the history she provided to the qualified psychiatrists, was given many months after that meeting. As indicated above, there was no record made by her union representative Ms Galea, or by Ms Cunico or anyone else of that meeting, nor was there any note made by those persons of Ms Chand ever being refused shifts, with the exception of what occurred in February 2021. In my view Ms Chand’s recount of the 26 May 2021 meeting is not reliable, given that no other person involved in these meetings has recorded that that occurred.
Nevertheless, based on the evidence of both Dr Rastogi and Dr Nagesh I am satisfied that Ms Chand’s injury is as a consequence of the totality of the process by which the respondent offered Ms Chand to change the status of her employment from a casual position to a permanent part time position. That process commenced with the meeting Ms Chand had with Mr McIntosh in January 2021, at which time, based on Ms Chand’s uncontradicted evidence, Mr McIntosh informed her that casual positions would no longer be accepted and that she would need to change to a part time employee in order to secure ongoing employment. Ms Chand’s evidence, again uncontradicted, is that she told Mr McIntosh at the meeting that her casual position suited her condition that had arisen as a consequence of her employment, and that she had been doing her casual position for nine years. That reference to her condition was an obvious reference to her plantar fasciitis.
The evidence reveals that in subsequent meetings in which Ms Cunico was involved, and in which Mr Buckby was involved in some and Mr McIntosh involved in others, Ms Chand was disabused of any thought that she would have would be required to convert her status to a permanent part time employee. It was clarified for her that she could remain as a casual but if she did then ultimately it may be that she would not be offered eight hour casual shifts as that would not fulfil the “operations needs of the business”.
In my view, until such time as those meetings involving Ms Cunico occurred, it is understandable that Ms Chand came to form the view that she was being forced into accepting a permanent part time role. Her forming such a view was a consequence of her having her shifts approved and then cancelled around the time of the 5 February 2021 meeting and also her being told by Mr McIntosh that casual positions would no longer be accepted. It is likely that Mr McIntosh said words to those effect, given that ultimately is what was disclosed in subsequent meetings as being the ultimate likely outcome, that is that the workforce was being converted from casual to permanent part time and that there may not be sufficient shifts for casuals.
When the issue of the cancellation of Ms Chand’s roster around 5 February 2021 was raised in the 5 February 2021 meeting Ms Chand was told that it had “been weeks leading up to this point”. The evidence does not reveal that, at that time, any deadline had been put in place by which Ms Chand was to advise the respondent whether she would be accepting or not a change to permanent part time status. Further, the respondent was aware of Ms Chand’s issues with plantar fasciitis. That is the evidence of Ms Cunico, and also Ms Chand had informed Mr McIntosh of that in the initial meeting in January 2021. No communication had been had with Ms Chand by that time as to how her issue with her plantar fasciitis would be accommodated if she converted the status of her employment from casual six hours shifts four days a week to permanent part time work of three, eight hour shifts a week. Ms Cunico said in her statement that if Ms Chad was unable to work “normal hours/duties” then there would have “been a different conversation”. However, despite the respondent being aware of Ms Chand’s condition and Ms Chand having expressed her concern regarding her feet if she were to be a permanent part time employee, there never was “a different conversation”.
In the meeting that occurred on 25 March 2021, at which Mr Buckby and Ms Cunico attended with Ms Chand and Ms Galea, and in which Ms Chand expressly stated that going from six hours a day to eight hours a day would be hard on her feet, Mr Buckby said that he would honour Ms Chand’s four day six hours a day roster until the end of July if she were to accept a permanent part time position. Notwithstanding that, and although she had not accepted a permanent part time position, she was subsequently rostered to work three days eight hours a day. Ms Galea brought that to Ms Cunico’s attention by way of email on 19 April 2021.
In my view, given what had been going on in the several meetings to that date it was not unreasonable for Ms Chand to harbour the view that she was being forced to transfer to a permanent part time position.
The respondent has the onus of substantiating that Ms Chand is not, as a consequence of
[1] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education & Training v Sinclair [2005] NSWCA 465 (Sinclair)
s 11A(1), entitled to compensation for her injury.[1] The respondent must therefore establish that Ms Chand’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to either transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of Ms Chand, or provision of employment benefits to Ms Chand.
As mentioned, it was the whole of the process that the respondent initiated to seek to establish whether Ms Chand would convert the status of her employment from a casual employee to a permanent part time employee that caused her injury. Saying that the reverse way, her injury was wholly caused by that process. The respondent has not substantiated that any discrete part or particular event within that process was the whole or predominant cause of Ms Chand’s injury.
The respondent contends that its action with respect to this process is either action taken or proposed to be taken with respect to the transfer of Ms Chand or action taken or proposed to be taken with respect to the provision of employment benefits to Ms Chand.
With respect to whether the action amounts to transfer of Ms Chand, the respondent relied on Manly Pacific International Hotel v Doyle [1999] NSWCA 465 (Doyle) and Wilson v Qantas Airways Ltd [2009] NSWWCCPD 121 (Wilson) as authority. Doyle involved an employee moving from one role to another where there had been no change in the location where the worker would work in the new role. The Court held that amounted to a transfer. Davies JA in Doyle held that “in determining whether or not there is a transfer, a change in the nature and responsibilities of the work performed may be of more importance than the change in the place where the work is carried out”.
Doyle is entirely distinguishable from this case, in that the nature of the work Ms Chand would undertake as a permanent part time employee was no different to the work she had been performing as a casual. In my view, given that there was no variance in the duties
Ms Chand would perform at all by virtue of her changing the status of her employment from casual to a permanent part time role, the action the respondent took with respect to establishing whether Ms Chand would work in a permanent part time role does not amount to transfer.
In my view the circumstances of Wilson are also entirely different from this case in that, although the worker there was required to submit to a changed roster, the worker had changed to a position that was different in nature from the position she had previously been doing.
I do not consider that the process the respondent undertook to ascertain whether Ms Chand would change the status of her employment from casual to permanent part time can be characterised as action the respondent took with respect to transfer.
In my view however, the action of the respondent related to the provision of employment benefits to Ms Chand. The Enterprise Agreement makes it clear that were Ms Chand to have converted her employment to permanent part time, her employment would have been more secure and she would have been provided with annual leave and sick leave, which do not accrue to her as a casual employee. Given that those benefits would accrue to
Ms Chand were she to have changed the status of her employment, the action of the respondent with respect to ascertaining whether Ms Chand would change the status of her employment is correctly characterised as action it took with respect to the provision of employment benefits.
The test of whether the respondent’s action in this regard was reasonable requires weighing all the relevant factors including the rights of Ms Chand against the objective of the respondent.[2] Where the action involves a series of steps that cumulatively have a psychological effect on a worker the entirety of the process must be considered. If a particular step was unreasonable then that may not “blemish” the whole of the process.[3]
[2] Commissioner of Police v Minahan [2003] NSWCA 239 at [27]
[3] Sinclair at [96 and 97]
To my mind whilst the respondent’s objective in converting the casual members of its workforce to permanent part time employees was valid and whilst certain elements and steps the respondent took with respect to ascertaining whether Ms Chand would convert the status of her employment from casual to permanent part time were reasonable, the entirety of its process, which as said above was the cause of Ms Chand’s injury, was not reasonable.
In the circumstances where Ms Chand had some nine years earlier converted the status of her employment from permanent to a casual role, so as to be able to work four shifts for six hours a day in order to cope with her workplace injury suffered while employed with the respondent, and where the respondent was aware of that, the respondent ought reasonably have implemented measures to allay any concern and anxiety Ms Chand had regarding how she would be able to perform longer shifts were she to convert to permanent part time. A “different conversation”, to which Ms Cunico referred, and by whatever she meant by that, never occurred between the respondent and Ms Chand so as to allay any anxiety or concern she had regarding how working as a permanent part time employee would affect her if her workplace injury would flare or to become a concern to her. Whilst in the meetings after
5 February 2021 the respondent reassured Ms Chand she did not have to convert her employment to permanent part time, the respondent did not address Ms Chand’s concern regarding the potential impact that working longer but fewer shifts would have on her physical injury if she accepted a permanent part time role. The respondent by not doing so, and being aware of Ms Chand’s injury and her concern about this, did not act reasonably.
Further, given the manner in which the respondent acted by cancelling Ms Chand’s shifts around the time of the meeting on 5 February 2021 and given its action of telling her in the
5 February 2021 meeting that “it has been weeks leading up to this point”, it was likely in my view that Ms Chand would feel she was being pressured into converting the status of her employment from casual to permanent part time, even though the reality was she was not being compelled to do so. These actions of the respondent were not reasonable. The steps the respondent subsequently took to explain to Ms Chand that she would not be required to forego her casual status and accept a permanent part time position did not avoid her injury. Indeed, bearing in mind the evidence of Dr Rastogi and Dr Nagesh, her psychological symptoms had already commenced.
The respondent’s action of advising Ms Chand that were she convert to a permanent part time position she could work four six hour shifts a week until July 2021, but then requiring her to work three eight hour shifts around March 2021 when she did not convert, was also likely to have engendered in Ms Chand a view that she was being compelled to convert to a permanent part time employment. The explanations of Ms Cunico or Mr Buckby were unlikely, in the circumstances, to have been sufficient to dispel such a view.
Simply put, in the circumstance where Ms Chand had a valid concern about her physical well being were she to convert the status of her employment, and notwithstanding the respondent’s purpose in seeking to convert its casual employees to permanent part time employees was valid, the process the respondent undertook to establish whether Ms Chand would convert to a permanent part time employee was not reasonable given it was aware of Ms Chand’s physical injury. It was the whole of this process that was the cause of
Ms Chand’s injury.
Accordingly, the respondent is to pay weekly compensation to Ms Chand under s 36 of the 1987 Act at the rate of 95% of $819.65, which equates to $778.67, from 12 July 2021 to
11 October 2021 and thereafter under s 37 of the 1987 Act at the rate of 80% of $819.65 which equates to $655.72.

[2022] NSWPIC 423

29 July 2022