Chislett v State of New South Wales (Hunter New England Local Health District)

[2024] NSWPIC 92

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Chislett v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 92

APPLICANT:

Lauren Chislett

RESPONDENT:

State of New South Wales (Hunter New England Local Health District)

MEMBER:

Gaius Whiffin

DATE OF DECISION:

28 February 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation and treatment expenses pursuant to section 60; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained a psychological injury in accordance with section 4 as a result of employment events occurring during the course of her employment with the respondent between 21 February 2022 and 28 July 2022; AV v, Commissioner for Railways v Bain, Fletcher International Exports Pty Limited v Barrow & Anor, Perry v Tanine Pty Limited t/as Ermington Hotel, and Attorney General’s Department v K considered; consideration of whether the respondent can establish (pursuant to section 11A) that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer, discipline, performance appraisal or the provision of employment benefits; Pirie v Franklins Limited, Department of Education and Training v Sinclair, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portugese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, and Hamad v Q Catering Limited considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of her psychological injury, since 28 July 2022; Wollongong Nursing Home Pty Limited v Dewar, ACW v ACX, and Tubemakers of Australia Ltd v Fernandez considered; Held – the applicant sustained injury in accordance with section 4(b)(ii), being the aggravation, acceleration, exacerbation, or deterioration of her psychological condition in the course of her employment with the respondent, and to which that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the condition; the respondent has failed to establish its defence under section 11A; the applicant has had no current work capacity since 28 July 2022 and is entitled to awards pursuant to sections 36(1) and 37(1) in this regard; the applicant is also entitled to an award in relation to her reasonably necessary treatment expenses pursuant to section 60.

DETERMINATIONS MADE:

The Commission determines:

1. The applicant sustained injury in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), being the aggravation, acceleration, exacerbation, or deterioration of her psychological condition in the course of her employment with the respondent, and to which that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the condition. The injury will be deemed to have occurred on 28 July 2022.

2.     The respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer, discipline, performance appraisal, or the provision of employment benefits.

3.     The applicant has had no work capacity as a result of the injury since 28 July 2022.

4.     The applicant’s pre-injury average weekly earnings is $1,612.91.

5.     The applicant is entitled to have her reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent, in relation to the injury.

The Commission orders:

6. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 36(1) of the 1987 Act from 29 July 2022 to 27 October 2022, at the rate of $1,532.26 (as adjusted if necessary to apply relevant indexing) per week.

7. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 28 October 2022 to date and on a continuing basis, at the rate of $1,290.33 (as adjusted if necessary to apply relevant indexing) per week.

8.     There will be an award that the respondent pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

1. Lauren Chislett (the applicant) is 31-years-old and commenced her employment with Hunter New England Local Health District (the respondent) around 2015. She worked for it as an administration officer at Belmont Hospital from October 2016, but has not however worked for the respondent or any other organisation now since 28 July 2022.

2. The applicant alleges that she has sustained a psychological injury due to events which occurred during the course of her employment with the respondent. She also alleges that due to this injury, she has been incapacitated for employment since at least 28 July 2022, and is entitled to payments of weekly benefits compensation, as well as payments for her medical and treatment expenses, since that date.

3. On 9 September 2022, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to her psychological injury. The respondent later reviewed that notice on 20 January 2023, and confirmed its denial of liability. The applicant has as a result not received any payments of weekly benefits compensation, or any payments for her medical and treatment expenses, since 28 July 2022.

4. By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly benefits compensation from 28 July 2022 to date and on a continuing basis pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). The applicant also claims medical and treatment expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

1. The parties agree that the issues in dispute are as follows:

   (a)    did the applicant sustain a psychological injury in accordance with s 4 of the 1987 Act as a result of employment events occurring during the course of her employment with the respondent between 21 February 2022 and 28 July 2022;

   (b)    if the answer to (a) is in the affirmative, was the injury (in accordance with s 11A of the 1987 Act) wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer, discipline, performance appraisal, or the provision of employment benefits, and

(c)     if the answer to (a) is in the affirmative and the answer to (b) is in the negative, whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury, since 28 July 2022.

PROCEDURE BEFORE THE COMMISSION

1. 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.

2. The dispute was listed before the Commission for conciliation conference/arbitration hearing on 6 November 2023. On that occasion, Ms Ella Dalrymple of counsel appeared for the applicant, instructed by Mr Joshua, with the applicant being present in person and being supported by Mr Dominic Mulholland. Ms Nicole Compton of counsel appeared for the respondent, instructed initially by Ms Parkes and then by Mr Marhaba. Ms Montshiwa from the respondent’s insurer was also present, as were representatives of the respondent’s, being Ms Robertson and Ms Reader.

3. The dispute could not be resolved during an extensive conciliation conference, and it proceeded to an arbitration hearing. The parties identified and agreed to the issues in dispute (see paragraph 5 above), and the documents to be admitted into evidence were also agreed upon.

4. In relation to the ARD, it was agreed that the timeline of events prepared by the applicant (found between pages 55 and 168) would not be admitted into evidence save for the following documents included within the timeline:

   (a)page 58 – email from the applicant to Jade Osland (Osland) on 11 January 2022;

   (b)page 59 – email from Osland to the applicant on 14 January 2022;

   (c)page 64 – email from Osland to the applicant on 21 February 2022;

   (d)page 64 – email from the applicant to Osland on 22 February 2022;

   (e)page 65 – email from the applicant to Melissa Hilton on 23 February 2022;

   (f)page 66 – email from the applicant to Melissa Hilton on 28 February 2022;

   (g)page 66 – email from Melissa Hilton to the applicant on 28 February 2022;

   (h)page 67 – medical certificate from Dr Burton dated 24 February 2022;

   (i)page 67 – email from Rebecca North (North) to the applicant on 16 March 2022;

   (j)page 68 – email from the applicant to Osland on 16 March 2022;

   (k)page 68 – email from the applicant to Melissa Hilton on 16 March 2022;

   (l)page 70 – email from Melissa Hilton to the applicant on 16 March 2022;

   (m)page 71 – email from the applicant to Melissa Hilton on 23 March 2022;

   (n)page 72 – email from Melissa Hilton to the applicant on 23 March 2022;

   (o)page 72 – email from the applicant to Osland on 25 March 2022;

   (p)page 72 – medical certificate from Dr McCarthy dated 28 March 2022;

   (q)page 73 – email from the applicant to Osland on 28 March 2022;

   (r)page 74 – email from the applicant to Osland on 28 March 2022;

   (s)page 74 – email from Osland to the applicant on 28 March 2022;

   (t)page 75 – medical certificate from Dr McCarthy dated 30 March 2022;

   (u)page 76 – email from Melissa Hilton to the applicant on 5 April 2022;

   (v)page 76 – medical certificate from Dr Burton dated 8 April 2022;

   (w)page 77 – email from the applicant to Melissa Hilton, Osland and North on 12 April 2022;

   (x)page 77 – clearance letter provided by Dr Burton dated 12 April 2022;

   (y)page 78 – email from North to the applicant on 13 April 2022;

   (z)page 78 – email from North to the applicant on 13 April 2022;

   (aa)page 79 – email from the applicant to Alison Clayton (Clayton) on 13 April 2022;

   (bb)page 80 – email from Clayton to the applicant on 13 April 2022;

   (cc)page 80 – email from the applicant to Clayton on 13 April 2022;

   (dd)page 81 – email from the applicant to Clayton and Melissa Hilton on 1 May 2022;

   (ee)page 81 – email from Clayton to the applicant on 2 May 2022;

   (ff)page 81 – email from the applicant to Clayton on 3 May 2022;

   (gg)page 82 – screenshot provided by the applicant – reportedly dated 6 May 2022;

   (hh)page 83 – email from the applicant to Emma Brown (Brown) on 23 May 2022;

   (ii)page 84 – email from the applicant to Osland on 26 May 2022;

   (jj)page 84 – email from Brown to Melissa Booth (Booth) and Osland on 27 May 2022;

   (kk)page 87 – handwritten notes of the applicant’s for 21 June 2022;

   (ll)page 88 – email from the applicant to Brown on 1 June 2022;

   (mm)page 88 – email from Brown to Booth on 7 June 2022;

   (nn)page 89 – email from Osland to Brown on 7 June 2022;

   (oo)page 91 – email from the applicant to Louise Giles on 9 June 2022;

   (pp)page 91 – email from Louise Giles to the applicant on 10 June 2022;

   (qq)page 92 – email from the applicant to Louise Giles on 10 June 2022;

   (rr)page 92 – email from Louise Giles to the applicant on 14 June 2022;

   (ss)page 93 – email from Osland to Brown on 10 June 2022;

   (tt)page 94 – email that the applicant sent to herself on 16 June 2022;

   (uu)page 95 – handwritten notes of the applicant’s for 17 June 2022;

   (vv)page 97 – email from Brown to Osland on 20 June 2022;

   (ww)page 99 – email from the applicant to Dr Arnold on 28 June 2022;

   (xx)page 101 – handwritten notes of the applicant’s for 22 June 2022;

   (yy)page 102 – email from Osland to the applicant on 23 June 2022;

   (zz)page 102 – email from Osland to the applicant on 24 June 2022;

   (aaa)page 103 – email from Brown to Osland on 24 June 2022;

   (bbb)page 104 – handwritten notes of the applicant’s for 27 June 2022;

   (ccc)page 105 – handwritten notes of the applicant’s for 28 June 2022;

   (ddd)page 106 – email from Booth to Brown and Osland on 28 June 2022;

   (eee)page 106 – email from Brown to Booth and Osland on 29 June 2022;

   (fff)page 115 – handwritten notes of the applicant’s for 11 July 2022;

   (ggg)page 116 – email from Barbara Fazzini to the applicant on 12 July 2022;

   (hhh)page 118 – emails between the applicant and Louise Giles on 12 July 2022;

   (iii)page 119 – email from the applicant to Louise Giles on 12 July 2022;

   (jjj)page 120 – email from the NSW Health Service to the applicant on 15 July 2022;

   (kkk)page 121 – email from Rostering Support to the applicant and Kellie Grice on 18 July 2022;

   (lll)page 122 – emails from the applicant to Michelle McGregor (McGregor) on 19 July 2022;

   (mmm)page 123 – email from Vicki Bennett to the applicant on 18 July 2022;

   (nnn)page 123 – email from Mary Hodson to the applicant on 19 July 2022;

   (ooo)page 124 – email from Kristy to the applicant on 20 July 2022;

   (ppp)page 125 – email from Samara Bryce to the applicant on 20 July 2022;

   (qqq)page 126 – email from the applicant to Booth on 21 July 2022;

   (rrr)page 127 – handwritten notes of the applicant’s for 21 July 2022;

   (sss)page 128 – email from the applicant to McGregor on 21 July 2022;

   (ttt)page 131 – email from the applicant to McGregor on 21 July 2022;

   (uuu)page 132 – handwritten notes of the applicant’s for 21 July 2022;

   (vvv)page 133 – email from the applicant to Kath Paull on 22 July 2022;

   (www)page 134 – handwritten notes of the applicant’s for 22 July 2022;

   (xxx)page 135 – email from Barbara Fazzini to the applicant on 22 July 2022;

   (yyy)page 135 – email from the applicant to Barbara Fazzini on 26 July 2022;

   (zzz)page 136 – email from the applicant to Barbara Fazzini on 26 July 2022;

   (aaaa)page 137 – email from the applicant to Anna Preston, Joanna Wilson and Amanda Williams on 26 July 2022;

   (bbbb)page 141 – email from the applicant to McGregor on 21 July 2022;

   (cccc)page 142 – email from the applicant to McGregor on 26 July 2022;

   (dddd)page 143 – email from McGregor to the applicant on 26 July 2022;

   (eeee)page 145 – email from McGregor to the applicant on 27 July 2022;

   (ffff)page 146 – email from the applicant to McGregor on 27 July 2022 (including table);

   (gggg)page 149 – email from the applicant to Brown on 28 July 2022;

   (hhhh)page 151 – email from the applicant to Osland on 2 August 2022;

   (iiii)page 151 – email from Osland to the applicant and Booth on 2 August 2022;

   (jjjj)page 152 – email from the applicant to Osland on 2 August 2022;

   (kkkk)page 152 – email from Brown to Osland, the applicant and Booth on 3 August 2022;

   (llll)page 153 – email from Osland to the applicant on 5 August 2022;

   (mmmm)page 153 – email from Osland to Brown, the applicant and Booth on 5 August 2022;

   (nnnn)page 154 – payslip provided by the applicant – period ending 11 March 2022;

   (oooo)page 156 – email from Osland to the applicant on 23 June 2022;

   (pppp)pages 158-159 – text messages between the applicant and Jacqui Reid - 5 August 2022 to 11 August 2022;

   (qqqq)page 160 – text message from Osland to the applicant on 8 August 2022;

   (rrrr)page 161 – email from Brown to Osland and Booth on 9 August 2022;

   (ssss)page 161 – email from the applicant to Osland on 10 August 2022;

   (tttt)page 162 – email from the applicant to Osland and Booth on 15 August 2022;

   (uuuu)page 163 – email from Brown to Osland and Booth on 1 September 2022;

   (vvvv)page 163 – email from Brown to Osland and Booth on 1 September 2022;

   (wwww)page 164 – outstanding account letter sent by The Lorn Surgery dated 31 August 2022, and

   (xxxx)page 166 – appointment list for the applicant (in relation to Dr Burton) printed on 31 August 2022.

5. In relation to the respondent’s Reply (Reply), it was agreed that the timeline of events prepared by Osland (found between pages 109 and 112) would not be admitted into evidence.

6. Otherwise, it was agreed between the parties that all of the documents in the ARD and the Reply would be admitted into evidence. The applicant also agreed to the respondent’s Application to Admit Late Documents dated 1 November 2023 (respondent’s AALD) being admitted into evidence.

7. In relation to the issues in dispute (see paragraph 5 above), the respondent made a qualified concession regarding the first issue. It provided me and the applicant with that concession in writing, and I quote:

   “The respondent concedes that the applicant sustained an injury pursuant to s 4 and 9A, being an exacerbation of an underlying psychological condition, Arising from events which occurred from and relating to 15 February 2022 (the emergency Department event), and the subsequent disciplinary process arising from that event. The Respondent alleges however, that the injury was wholly or predominantly, pursuant to s 11A caused by the reasonable action taken or proposed to be taken on behalf of the employer with respect to discipline, performance appraisal, and transfer, and provision employment benefits arising from the events of 15 February 2022…The Respondent does not concede injury with respect to any other series of events.”

8. The parties also confirmed the following:

   (a)    they had agreed the applicant’s pre-injury average weekly earnings (PIAWE) to be $1,612.91;

   (b)    the applicant sought no more than a ‘general’ order pursuant to s 60 of the 1987 Act, and

   (c)    despite earlier being granted leave to cross-examine the applicant, the respondent advised that it did not seek to do so.

9. The applicant then sought leave to cross-examine Osland. The respondent did not register any formal objection to this course, and limited leave was therefore granted.

10. The applicant had issued summonses to attend the conciliation conference/arbitration hearing to both Osland and North, but she did not seek leave to cross-examine North.

11. Following the cross-examination of Osland at the arbitration hearing, there was insufficient time left available for the parties to complete their submissions, and a timetable for the provision of written submissions was therefore ordered.

12. I thank the parties for providing their written submissions in accordance with this timetable.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    the ARD and attached documents – without pages 55-168 inclusive, other than the documents referred to at paragraph 9 above;

   (b)    the Reply and attached documents - without pages 109-112 inclusive, and

   (c)    the respondent’s AALD and attached documents.

Oral evidence

1. As noted, oral evidence was given by Osland at the arbitration hearing – the evidence is discussed at paragraph 98 below.

Applicant’s evidence

1. The applicant relies upon three statements signed by her. The first statement was signed by her on 6 September 2022 and is found at page 1 of the ARD.

1. She describes her occupation as an administration officer grade 3 (since October 2016), and she says that she has been employed by the respondent for seven years in all, working in the Emergency Department (ED) at Belmont Hospital since October 2016. Her direct line manager is Osland.

2. She says that she finished school in 2010, and prior to working with the respondent, she had worked for a personnel company and as a call centre operator. She had obtained tertiary certificates in business administration and in assistant in nursing.

3. She describes her role in the ED as follows:

   “Briefly my role consists of registering patients That present at ED, interview them, complete admissions, put discharges notes together, complete auditing and provide admin support to the clinical staff.”

4. She says that she believes that she was “appropriately trained for the job I do”. She had a “great” rapport with patients and a “fantastic” rapport with fellow colleagues.

5. Prior to outlining the events which occurred on 15 February 2022, she summarises her “issues/triggers” as follows:

   “There has been a consistent lack of support from management, no clear guidelines on how I was to get back to ED…I was being subject to bullying, belittling and degrading comments especially by the acting DDON Michelle McGregor in the month of July that really had an impact on me mentally...I believe that Rebecca North is keeping me in the clinical rostering support officer role despite knowing from 21/2/22 that it was going to have a significant financial impact, as revenge from that meeting but also for calling her out for lying in the meeting in front of HR on 13/4/22. That is when the PIP I received on 30/6/22 was further extended by another 3 months…I believe that Jade Osland is doing everything she has been instructed to by Rebecca North and HR.”

6. On 15 February 2022, the applicant was working an afternoon shift at the ED. There was a nurses’ strike on that day, and the applicant was working with a casual registered nurse, Caroline Remmerswaal (Remmerswaal). She did not believe that Remmerswaal was “handling the workload”, which resulted in her having patient safety concerns on a number of occasions, which she expressed to the respondent’s after-hours manager, Katie Bell (Bell), and to Di Nally.

7. At around 9.00pm, she noticed a child with a fishing hook (with the weight of a lure attached) stuck in his leg, who had been at the ED for a couple of hours waiting for treatment. He looked really uncomfortable, and she was worried that he was not being considered as a priority for treatment. She says:

   “Instead I escalated to the nurse and asked for the weight of the lure to be removed. I grabbed some pliers and Caroline and I went out to the child. Without consent or warning Caroline pushed on the hook. It was clear that she was hurting the child. I told her to stop. Through the mother had asked for pain relief earlier on I don't believe the child had been given any… Caroline left me with them and I said I would look for someone else. I found an Ambulance officer who came out with me. He cut through the lure and removed the weight and the mother and child were both thankful.”

8. On the applicant’s next day at work on 17 February 2022, she says that she told Osland “about the incidents that occurred on 15/2/22”, but Osland dismissed her concerns, saying that she knew that it was a “bad” shift. Later on that day however, Osland advised her that there had been a complaint made about her and that she should be “more cautious that I don’t step over the clinical line”.

9. The applicant then says that she had some discussions with North, the respondent’s acting General Manager, on 18 February 2022, but does not detail those discussions. She says that on 21 February 2022, she was advised by Osland that she was under investigation, would be placed on alternative duties, and would not be returning to the ED until the investigation was completed. She had a meeting with North and Osland later on that day and was told that the investigation would consider if she had “crossed the clinical line”. She says:

   “I asked how I had crossed over the clinical line and she said it was not my job to get someone else to see what they could do for a patient. She shut done everything I tried to say and ask, and said she did not have to justify her responses to me and did not have to answer them. She was rude and dismissive. Her tone of voice was abrupt.”

10. She says she made it clear to North and Osland that she would be placed under immense financial hardship if she was unable to work at the ED (while the investigation was proceeding), and earn the shift penalties that she earned there.

11. She says that she got a letter outlining the allegations against her by email on the evening of 21 February 2022, and replied to that letter on 22 February 2022. She then took leave until 21 March 2022. She was not interviewed as part of the investigation process.

12. She had another meeting with North and Osland on 15 March 2022, during which she was informed that as a result of the investigation, she would be issued an official warning, required to complete an online course, and placed on a Performance Improvement Plan (PIP) for a minimum of three months (during which time she would not be able to work at the ED). She says that she was very upset and told them that she “could not survive financially on base rate and it was unfair”.

13. On 21 March 2022, the applicant returned to work for the respondent in a clinical rostering support officer role. She was to be trained by Mel Catford (Catford). On 23 March 2022, she was told by Bell that Bell had not been interviewed as part of the investigation process into the events that occurred on 15 February 2022, and she asked Catford if she could send an email to the respondent’s human resources section in that regard. Catford became angry at her however “because she was trying to show me a new role and she wanted to go back to her original role”. Catford was her “best mate at work”, and she says that the fact that Catford did not want to help her made her very upset. She was seen by Dr Arnold at the ED, who issued her with a medical certificate for time off work. She then saw her general practitioner, Dr McCarthy, on 28 March 2022, and he provided her with a number of medical certificates for time off work until 19 April 2022. Her treating psychiatrist, Dr Burton, eventually provided a letter of clearance on 12 April 2022 for her to return to work in a role where she had training, support and orientation.

14. On 13 April 2022, a meeting was held between North, the applicant, and Clayton, from the respondent’s human resources section. During the meeting, she alleges that North:

    (a)    dismissed her concerns about her being appropriately trained for the clinical rostering support officer role;

    (b)    lied about Bell not being interviewed as part of the investigation process into the events that occurred on 15 February 2022, and

    (c)    became irate when she asked why North questioned Dr Arnold as to what he recorded on her discharge summary which he issued following treating her at the ED on 23 March 2022.

    She told North that she would not “stand for her lies”, and she asked North to leave the meeting, so she could speak to Clayton alone. She says she was “very upset at this stage”. In relation to the events that occurred on 15 February 2022, Clayton then advised her that she should have “escalated my concerns and then done nothing”. She says that later:

    “I sent an email to Alison to express how upset I was. She acknowledged my email and asked whether she was to do anything with the information I gave her. I responded I guessed there was not much that could be done and i didnt want further retaliation from management.”

15. She says that she returned to work on 19 April 2022. She then had a telephone conversation with Booth from the respondent’s human resources section on 6 May 2022 about her PIP. She was upset about still being unable to earn shift penalties, and she says that Booth became offended “that I didn’t think she was trying to help me and proceed to lecture me”.  Booth then asked Osland to check on her. When Osland came into her office, she handed her headset to Osland and said that Osland could speak to Booth herself. She told Osland that she would be sitting in her car. She says:

    “I was having a panic attack which I had never had before, I could not feel my legs and was hyperventilating.”

16. The applicant was given her PIP by Osland during a meeting on 19 May 2022.

17. The applicant began to work for the respondent’s acting Deputy Director of Nursing, McGregor. She lists a number of incidents with McGregor:

    (a)    on 30 May 2022, McGregor instructed her to arrange orientation for a registered nurse – on investigation however, she ascertained that the registered nurse was not to be recruited and she advised McGregor – a few days later, McGregor blamed her for the recruitment board in her office not being up-to-date, even though she was not in her current position when the particular nurse went through the recruitment process – she says that she felt “shocked” at McGregor blaming her;

    (b)    McGregor occasionally joined Osland in her PIP meetings – she says that McGregor “would say one thing when she was alone and would say something else in my PIP meetings with Jade present and I was getting mixed messages”;

    (c)    on 20 June 2022, McGregor told her to cancel a nurse’s shifts and inform the nurse that a booking error had been made – she says however that she had not made any booking error in this regard;

    (d)    on 15 July 2022, McGregor “became angry” at her when she could not inform McGregor whether a particular nurse had obtained a medical clearance – she says however that she had been instructed to advise the nurse that all communication needed to be addressed to McGregor, and she had done so, meaning that she would have no notice of the relevant medical clearance;

    (e)    on 18 July 2022, while McGregor was on leave, she says that she advised Kellie Grice that needed to contact McGregor directly - after Grice “was rude and dismissive to me around an email I had received from Rostering”;

    (f)    on 21 July 2022, “Michelle came into my office mid morning and it was the angriest I have ever seen her” – McGregor wanted to know why McGregor had not been consulted by her about rostering issues, and McGregor also wanted her to stop discussing nursing allocations with nursing unit managers – she says that she had previously discussed with Osland that if McGregor wanted there to be a particular process for nursing allocations, McGregor should herself advise the nursing unit managers in this regard, and she says that she now advised McGregor as such, but McGregor responded “no we don’t” – she says she became visibly upset and approached Osland and was told to have a break – she later explained to Osland that she “cant win, no matter what I do. Im trying my hardest. Its exhausting. And I don’t want to be stuck in between it all. And no one listens. I then gave her a few examples”;

    (g)    on 22 July 2022, McGregor “had a go” at her in relation to her not telling McGregor of the absence of a nurse from a night shift on 21 July 2022 – she says however that she had attempted to communicate this absence to McGregor, leaving McGregor a note and sending McGregor an email – following this incident, she says that she attempted to contact Booth, she telephoned her psychiatrist, and she approached Osland saying that she “desperately needed her help”;

    (h)    on 25 July 2022, McGregor advised her not to send emails to her and not to leave messages on a sheet of paper on McGregor’s desk, and McGregor also “had another go at me” in relation to the communication of the absence of the nurse from the night shift on 21 July 2022 – in a later conversation on the same day about communication, she says that McGregor advised her:

    “I was told to physically write on dailies if there is a cancellation that day and when I said I don't see her all day Michelle told me I should be able to hear her walking up the hallway to her office. She then said in a nasty tone ‘what this calendar even for’ referring to a calendar I use for booking shifts”;

    (i)    on 27 July 2022, McGregor said to her:

    “can you not come into my office when I'm on the phone…You creep me out standing behind me and I think your reading my emails and listening to my phone calls. You know it’ just office etiquette’”, and

    (j)    later on 27 July 2022, she received an email from McGregor advising her that she “needed to stick to my work hours and not send messages outside of those hours”.

18. While the applicant was working for McGregor, she says that her PIP was extended. During a meeting on 30 June 2022, she was told by Osland that the main reason for the extension was that “they didn’t think I had reflected on my actions enough”.

19. Also, while the applicant was working for McGregor, she sent an official grievance letter (see paragraph 77(a) below) to Booth and Clayton.

20. The applicant then says that after the incidents with McGregor on 27 July 2022, she was speaking to Barbara Fazzini and broke down, following which Barbara Fazzini offered to telephone Osland. Osland then came to her office, and the applicant went home. She says that Osland “said to text her when I was home, have a rest and see how I felt in the morning and if I needed the day off tomorrow then to let her know in the morning”.

21. On 28 July 2022, the applicant was called into a meeting with Osland, and she says:

    “When I entered Jade's office Kellie Grice was there. I was shocked. I felt ambushed and wasn't offered a support person. Jade had a piece of paper on her desk. She said she was declaring me mentally unfit for work after earlier discussions with other management this morning. She showed me the piece of paper and said that work wanted my permission to contact my treating psychiatrist and ask him questions about my pre-existing medical conditions.”

22. The applicant was told that she would be required to take leave without pay, and she says:

    “I replied ‘so you're going to put me under even more stress by more financial hardship’. She kept saying how she was more worried about my mental health and I said I was more worried about maintaining a roof over my head and able to afford to live and that we could sit here for hours and go around and around in circles about what was actually causing my distress and until she actually addressed it then of course there will be issues. She proceed to say there was nothing she could do about it. I was told to go home.”

23. On 29 July 2022, Brown from the applicant’s union contacted Osland. The applicant summarises her situation as follows:

    “Jade was sticking with blaming the whole situation on pre-existing mental health conditions and not the fact I was having trouble at work including the treatment I was being subject to, the belittling and degrading comments, being blamed for issues that weren't mine, all treatment she said she was aware of and trying to resolve and had even told her manager about. No clear guidelines to get me back to ED, no clear timeframe, no position description for the CRSO role, the significant financial hardship, treatment by Rebecca North, the unfair investigation and the mistruths in the allegations.”

    The applicant also confirms that her mental health had not affected her work for 12 years.

24. The applicant says that she has not worked since 28 July 2022. She has been treated by both her general practitioner since 2016 (Dr McCarthy) and her treating psychiatrist since 2017 (Dr Burton). She says that she had pre-existing mental health conditions, which were stable prior to 21 February 2022. She had in effect “technically” only required three appointments with Dr Burton during the 2021 calendar year.

25. She describes her current psychological condition:

    (a)    “I have required significant amounts of consultations due to the de-stabilization of my mental health as a result of suffering a psychological injury from my work place”;

    (b)    she takes Sertraline and Seroquel;

    (c)    she is constantly “on edge”;

    (d)    she is anxious, panicked, and depressed;

    (e)    she suffers from low mood, recurring nightmares, disrupted sleep, extreme fatigue, and lack of motivation;

    (f)    she is mentally exhausted, and

    (g)    she is suffering significant financial hardship and is borrowing money from her parents – her “independence has been taken away from me”.

26. The applicant updates her first statement with a second statement which she signed on 5 April 2023. It is found at page 36 of the ARD. In this statement, the applicant complains about not receiving medical evidence or a factual investigation report from the insurer, and she complains about the deletion of her work emails (which she discovered on 2 February 2023).

27. The applicant then provides a third statement which she signed on 12 July 2023, and which provides more details regarding the workplace incidents which she believes led to her psychological condition. The statement is found at page 37 of the ARD.

28. In relation to her meetings with Osland and North on 21 February 2022, she emphasises:

    (a)    she was told by Osland that a risk assessment had been completed into her actions on 15 February 2022 – she has however never seen this assessment;

    (b)    she was told by North that she would not be working at the ED for at least three months;

    (c)    she stressed to North that she would not be able to financially survive if she was not able to rely upon shift penalties, and she would be forced to cease working for the respondent – her rent was expensive because she was not able to live with other people due to her obsessive-compulsive disorder, and

    (d)    she took leave from 22 February 2022 to 21 March 2022 due to the “occurrences” that she describes occurred on 21 February 2022.

29. In relation to her return to work from 21 March 2022, she emphasises:

    (a)    she did not receive adequate training prior to commencing her clinical rostering support officer role;

    (b)    while she received some training for the role from Catford, she was told by Catford that the workload in the role was significant and that Catford “had been left to try and work the role out herself for the most part” – she says Catford was very stressed;

    (c)    she attaches an email to her statement (at page 50 of the ARD) that she sent to Melissa Hilton from the respondent’s human resources section on 23 March 2022 – in the email, she says she is “in absolute total disbelief” that Bell had not been interviewed as part of the investigation process into the events that occurred on 15 February 2022, and she accuses North of lying to her – the email also complains that she has not been provided with her PIP, and that she is confused and out of her depth in her clinical rostering support officer role as “it’s so chaotic and impossible to learn as you can never just concentrate on one task” – the email mentions a “mental toll” being experienced by her, and

    (d)    after finding out that Bell had not been interviewed as part of the investigation process into the events that occurred on 15 February 2022, she “began feeling very overwhelmed” as she did not believe that she had been reasonably and fairly treated - she went to her car and was then escorted from the car by one of the respondent’s security guards and taken to the ED, where she consulted with Dr Arnold.

30. In relation to the meeting between herself, North, and Clayton on 13 April 2022, she emphasises:

    (a)    she was not informed how long she would be required to perform the clinical rostering support officer role, and she was also not provided with any formal PIP;

    (b)    “Rebecca became irate and began yelling words to the effect ‘I won’t stand for this’”, and

    (c)    Clayton told her to go home due to being upset – she therefore took further leave until 18 April 2022.

31. In relation to events between 19 April 2022 and 19 May 2022, she emphasises:

    (a)    she did not receive her PIP or a job description in relation to her clinical rostering support officer role, despite requesting both from Osland on a number of occasions;

    (b)    it was on 11 May 2022 (not 6 May 2022 – see paragraph 35 above) that she had the conversation with Booth where Booth lectured her and Osland came to her office, and

    (c)    after she went to her car and began hyperventilating on 11 May 2022, Osland asked her to get out of the car, but did not offer any medical support – she eventually went to Osland’s office where she “was very lightheaded and dizzy so I sat on her office floor against the wall before lying down on her office floor still crying and hyperventilating for about half an hour” – she was still not offered any assistance or medical assessment.

1. In relation to events between 19 May 2022 and 30 June 2022, she emphasises:

   (a)    when she was given her PIP on 19 May 2022, Osland informed her that her work since 19 April 2022 would not be included in the three months to be served under the PIP – she considered this to be an “extremely unreasonable” decision;

   (b)    she considered the PIP that was provided to her on 19 May 2022 to be unclear, and she therefore arranged for Brown to email Booth and Osland on 27 May 2022 – she attaches that email to her statement (at page 51 of the ARD) – the email states that she has accepted the outcome of the investigation process into the events that occurred on 15 February 2022 but found that the investigation “caused her great distress”, and it also requests clarity regarding what she needs to achieve to move off the PIP so that she can work again at the ED, as well as clarity regarding an estimated timeline in this regard – the email further requests more training for her in the clinical rostering support officer role;

   (c)    when her PIP was extended from 30 June 2022 to 23 September 2022, she was told by Osland that “she did not think it was safe I returned to the ED” and that “she didn’t think I had reflected enough on my actions”;

   (d)    she was earning $400 per week more in her role at the ED compared with her role as a clinical rostering support officer – as a result she had to borrow money from her parents causing conflict in their relationship, and she skipped meals, and

   (e)    the training modules that she was required to undertake to comply with her PIP were either non-existent or they required input from Osland (which was not initially forthcoming).

2. In relation to her interaction with McGregor on 30 May 2022, she emphasises:

   (a)    the process of the updating of the recruitment board in her office had never been explained to her;

   (b)    the relevant nurse had been interviewed in December 2021 (many months before she commenced her clinical rostering support officer role) – she could not therefore understand why the nurse’s name not being on the recruitment board was her fault or why McGregor spoke to her in an “angry tone”, and

   (c)    after this interaction, she attempted to amend an existing spreadsheet in an effort to track recruitment better – McGregor however accused her of creating additional and unnecessary work for herself in this regard.

3. In relation to her interaction with McGregor on 22 June 2022 (referred to as occurring on 20 June 2022 in her first statement – see paragraph 37(c) above), she emphasises:

   (a)    she did not consider it to be her responsibility to cancel the nurse’s shifts, considering that there were performance issues with the nurse involved – she also considered it to be obvious that no booking error had been made, and she felt uncomfortable lying to the nurse in this regard;

   (b)    when she advised the nurse of the cancellation of her shifts, the nurse asked if she was still “in the hospital”, causing her to believe that the nurse would come to visit her, which made her “extremely worried as to what she would say or do to me”;

   (c)    she reported this communication to McGregor in front of Louise Giles, and it was only then that McGregor told her to direct the nurse to McGregor;

   (d)    the nurse later sent a further message to her asking if the nurse had done anything wrong, and she directed the nurse to McGregor, and

   (e)    “I felt it was wrong that Michelle had tried to get me to take the blame for this nurse’s situation…Michelle put the issue on me to deal with and lie to the nurse…I believe that this incident instigated by Michelle has also contributed to my psychological injury”.

4. In relation to her interaction with McGregor on 15 July 2022, she emphasises:

   (a)    she had been advised by Louise Giles that the relevant nurse’s medical clearances needed to be communicated to both McGregor and Louise Giles – her email to the nurse was copied to McGregor in this regard, and

   (b)    after this interaction, she discussed it with Osland and showed Osland her emails – Osland advised her that it was clear that it was McGregor who was required to follow up the nurse’s medical clearances.

5. In relation to her interaction with McGregor on 21 July 2022, she emphasises:

   (a)    McGregor “raised her voice significantly” during this interaction;

   (b)    she did not have the chance to previously discuss the rostering issues being complained about by McGregor due to McGregor’s unavailability since 18 July 2022;

   (c)    she thought that it was her role to discuss nursing allocations with nursing unit managers as they “kept ringing me” – she felt “stuck in the middle” as nursing unit managers complained to her about lack of communication from McGregor – she had previously advised Osland in relation to these issues, and

   (d)    during her discussions with Osland after the interaction, she complained:

   (i)“I told Jade I couldn’t win no matter what I did and nothing was good enough for Michelle”;

   (ii)there was no consistency in McGregor’s instructions to her;

   (iii)she felt that she had to have written proof of instructions given to her;

   (iv)she said “It’s really stressful having Michelle come at me like she did this morning” and Osland replied “I can see your frustration”, and

   (v)she specifically advised “It’s not doing me any good being this upset all the time. Its taking a really big toll. It feels like its compounding and compounding”.

6. In relation to her interaction with McGregor on 22 July 2022, she emphasises that following the interaction, Osland confirmed to her that she was aware of her issues with McGregor and “was dealing with it”.

7. In relation to her interaction with McGregor on 25 July 2022, she emphasises:

   (a)    McGregor advised her that she did not have time to read her emails – she found this to be inconsistent as McGregor had previously told her to send an email if she could not find McGregor;

   (b)    McGregor raised her voice at her regarding the absence of the nurse from the night shift on 21 July 2022 – she explained that she had presumed that the nurse would have sent McGregor an email, and upon checking McGregor found that the nurse had in fact sent McGregor an email, and

   (c)    “Later that day, Michelle said that I seemed to be too busy ensuring I’m covering myself and sticking to my PIP”.

8. In relation to the events which occurred on 27 July 2022, she emphasises:

   (a)    she made some vinyl stickers for McGregor’s children as a “peace offering” and left them on McGregor’s desk – she explains that she did so as:

   “I was incredibly desperate because the stress of trying to make my working relationship with Michelle better was having a significant effect on me. I was going to work, being attacked daily and left feeling so upset, I felt incredibly anxious, overwhelmed and as if I was walking on eggshells all the time. It was taking a significant toll. I was mentally drained not only from the pressures of the job but the fact I didn’t know what I could and couldn’t do without Michelle’s permission anymore as it would constantly change from our performance plan meetings in front of Jade to when I was alone in Michelle’s office”;

   (b)    she was “taken back”, “in some shock”, and teary following McGregor’s conversation to her about not interrupting McGregor on the phone;

   (c)    she attaches to her statement McGregor’s email as well as her reply to that email (at pages 52-53 of the ARD) – the emails reveal that McGregor accused her of sending messages on a Saturday afternoon to staff when her phone records revealed otherwise – she asked for further information regarding the messages but never received that information from McGregor, and

   (d)    when Osland came to her office, Osland offered to take her to the ED, but she refused as she was concerned that “I would be scheduled due to how upset I was”.

9. In relation to the meeting on 28 July 2022, she says:

   “I believe that the meeting with Jade and Kellie on this day was an ambush insofar as I was not told the purpose of the meeting prior to arriving at work, l was not afforded the opportunity to have a support person and that l did not have an opportunity to respond to the decision declaring me unfit for work.”

10. Following her three statements, the applicant has attached a timeline of events to the ARD (from page 55 of it). As agreed between the parties (see paragraph 9 above), the applicant’s commentary in the timeline is not in evidence before me, but most of the documents (mainly emails, but also including some diary notes and some medical certificates) in it are. I have considered all these documents and will refer to them further if specifically directed to them during the parties’ submissions. Most of them do little more than provide context to or corroboration of the events referred to in the applicant’s statements.

11. I do however find the following to be important:

    (a)    in the applicant’s email to Melissa Hilton from the respondent’s human resources section on 16 March 2022 (at page 68 of the ARD), she summarises:

    “Like I said I take responsibility for my actions and expected the official warning, further education and even a performance plan but I didn’t think that would involve the financial impact of being removed from shift work as it has already been enough without that being extended by 3-6 months. I believe that to be very severe”;

    (b)    in an email dated 12 April 2022 (at page 77 of the ARD), Dr Burton confirms the applicant as “fit to return to work in the role of a clinical rostering support officer on the condition that she is provided with adequate and fulsome training, support, and orientation to the role”;

    (c)    in the applicant’s email to Clayton on 13 April 2022 (at page 79 of the ARD), apart from complaining both about her financial punishment following the events which occurred on 15 February 2022 and the respondent’s failure to interview Bell regarding those events, the applicant also refers Clayton to Dr Burton’s clearance and advises that she has not had enough training in the clinical rostering support officer role – she describes the role as messy and difficult for her to “get your head around”, and she specifically requests more time and more training;

    (d)    in a further email from the applicant to Clayton on 13 April 2022 (at page 80 of the ARD), the applicant says that she is “angry at the lies and misleading”, referring to her meeting with Clayton and North on that date;

    (e)    in an email from Brown to Booth on 7 June 2022 (at page 88 of the ARD), Brown refers to the applicant’s PIP as “fairly generic and vague in its requirements” – then in an email from Brown to Osland on 20 June 2022 (at page 97 of the ARD), Brown refers to the applicant being distressed by the PIP’s lack of clarity and the financial impact upon her of her role as a clinical rostering support officer;

    (f)    in an email from Brown to Booth on 29 June 2022 (at page 106 of the ARD), Brown requests that the time period in the applicant’s updated PIP be changed to a six-week period “in recognition of the fact that Lauren has been working in CSCD for two months to date and has already achieved a number of the PIP’s goals” – the email claims it to be unfair to the applicant to extend the PIP because “an adequate PIP was not initially provided”;

    (g)    in an email from Barbara Fazzini to the applicant on 12 July 2022 (at page 116 of the ARD), Barbara Fazzini refers to the applicant as having been “thrown in the deep end”, presumably referring to her role as a clinical rostering support officer;

    (h)    there is email correspondence between the applicant, Osland, and Brown on 2 August 2022 and 3 August 2022 (at pages 151-152 of the ARD) regarding Osland’s delay in requesting a medical report from Dr Burton, and

    (i)    the applicant forwarded her workers compensation claim form to Osland and Booth by email (at page 161 of the ARD) on 10 August 2022.

12. The medical evidence relied upon by the applicant effectively consists of various clinical records from her treating practitioners, as well as a medico-legal report from Dr Smith dated 20 December 2022 (which is found at page 211 of the ARD).

13. Dr Smith obtains a history of the events which occurred on 15 February 2022, that is consistent with the applicant’s statement evidence. In relation to the respondent’s investigation into those events, he records the applicant advising him:

    “She said the complaint misrepresented the situation. She said some of the information was false. She said she could not do anything about it and did not want to involve the union at the time because she wanted a peaceful resolution. She was relocated to a different department after taking leave and returned to the clinical support rostering role on 21 March. I note she was placed on a formal performance improvement plan for stepping outside the bounds of her role after the incident in February 2022.”

14. He also records that the applicant was anxious, stressed, unable to sleep, having nightmares, and ruminating prior to taking leave (on 21 February 2022). Her regular psychological medication was increased by her treating psychiatrist. When she returned to work (on 21 March 2022) she was still exhausted and sleep deprived, as well as having concentration issues and feeling depressed.

15. In relation to the applicant’s interactions with McGregor, the doctor records:

    “She said that at work, she was expressing thoughts that she was over feeling bullied and harassed. She said bullying in the clinical support officer role became a daily occurrence. She said her manager told her that she was dealing with it. She said the deputy director of nursing kept attacking her about things she had missed. Ms Chislett said her mental health deteriorated, and she had suicidal thoughts. She said she was not coping, was walking on eggshells and felt uncomfortable in the building (the executive admin building). She said she had been isolated from all her colleagues in the emergency department and was not allowed to talk to them. This left her with no support network.”

16. The doctor then records the “final straw” as occurring when the applicant was told (by McGregor on 27 July 2022) that she “creeped” McGregor out, and was not to send McGregor emails. He records that later on the same day, the applicant got “another serve from Michelle via email”.

17. The doctor records that since then, the applicant’s mental state had deteriorated. She began to plan her suicide and her funeral, she either slept excessively or not at all, and her nightmares deteriorated. She only left her house to do grocery shopping or to visit her doctors. She could not feed or look after herself. She had to borrow money from her parents, leading to friction with them. Her mood was depressed and “highly” anxious, her confidence had been “destroyed”, and she had concentration issues.

18. The doctor obtains a detailed history regarding the applicant’s previous psychiatric history, including that she was diagnosed with depression and obsessive-compulsive disorder in 2011, and that she was diagnosed with complex post-traumatic stress disorder in 2020. The history included:

    (a)    a difficult upbringing with emotionally and physically abusive parents, who were angry with her school performance;

    (b)    suicide planning when she was in year 6 of school – and again when she was 15 years old;

    (c)    being sexually harassed at school;

    (d)    being unpopular and bullied at school;

    (e)    being in a manipulative sexual relationship;

    (f)    generally leading a reclusive and isolated existence, and

    (g)    consulting with Dr Burton since March 2018.

19. On mental state examination, the doctor finds the applicant’s self-care to be adequate. Her affect however was flat and she was dysphoric. She described her mood as depressed and anxious. The doctor records:

    “Her thought content reflected intrusive obsessions and thoughts consistent with obsessive compulsive disorder. She reported trauma-related themes, including re-experiencing and intrusive thoughts and recollections of distressing incidents. She described depressive themes, including hopelessness, despair and suicidal ideation. She reported feeling upset and betrayed by her employer. There was no evidence of psychotic symptoms. She reported detailed suicidal thoughts and plans with no immediate intent to act.”

20. The doctor then reviews clinical records (especially from Drs McCarthy and Burton) as well as a timeline of events provided by the applicant (presumably the timeline and its attached documentation referred to at paragraph 9 above). The doctor provides the following opinion:

    “Ms Chislett is a 30-year-old woman employed as a clinical rostering support officer and previously an administration officer in the Belmont Hospital Emergency Department. She developed an aggravation of anxiety and depressive symptoms in the context of perceived unreasonable performance management and lack of support from her employer after an incident in February 2022 when she acted outside the bounds of her position. She was placed on a performance improvement plan, moved to alternative duties, alleged ongoing bullying from the Director of Nursing in her new position, was under financial stress due to a drop in income, and had difficulties adjusting to medication with a substantial deterioration in her mental health. She developed emotional dysregulation and suicidal thoughts, expressed these in the workplace and was deemed unfit to return to work. Her employer detailed progressive emotional lability and declining performance in the workplace, requiring performance management and then being stood down as medically unfit.”

21. The doctor diagnoses the applicant with obsessive-compulsive disorder, major depressive disorder, and complex post-traumatic stress disorder. He opines that prior to 15 February 2022, she was socially isolated and “work had become her only source of purpose and meaning”. Therefore, been declared medically unfit for work and suffering financial distress “was a significant blow to her sense of self”. The doctor advises:

    “I consider the current episode to be an aggravation of her pre-existing conditions. The cause of her condition was performance management and transfer, actions that Ms Chislett considered unreasonable and unwarranted. The account provided by Ms Chislett’s employer detailed an employee unable to cope with the demands of their employment due to significant mental health problems.”

22. The doctor then opines that the applicant is not fit for her pre-injury employment. He notes that she is certified as being capable of working six hours per week, but advises that such employment would need to be “in a different department with low levels of responsibility, low stimulus and adjustments for fatigue, impaired concentration and mood instability”. He does not anticipate her working at pre-injury level for at least 12 to 24 months. He opines that her prospects of advancement in the future “are limited principally due to the pre-existing conditions and personality vulnerabilities”.

23. The doctor finally provides a guarded prognosis, advising that the burden of the applicant’s pre-existing conditions is substantial, and that her recovery from the aggravation of those conditions is likely to be protracted.

24. The clinical records from the applicant’s general practitioner (Dr McCarthy) are found from page 236 of the ARD. I have considered these records in full, and (apart from my comments below) will only refer to them further when specifically directed to particular records during the parties’ submissions. From the records, I note:

    (a)    the applicant consulted with Dr McCarthy on 29 March 2022, when he suggested that he ring Osland in order to discuss her situation – he noted she has “reduced finances from disciplinary action”, is feeling anxious about her return to work, and has long-standing psychological issues which have rendered the effects of her work issues upon her to be more severe;

    (b)    Dr McCarthy telephoned Osland on 30 March 2022 during which “we didnt discuss the complaint against Laurenb more the impact it was having on her MH, lack of support network etc” – he then spoke to the applicant who was “accepting of current situation” and advised that she would speak to Osland in relation to when to return to work;

    (c)    the applicant consulted with Dr Turner on 8 August 2022 (due to Dr McCarthy being absent) – the doctor issued a certificate of capacity after “multiple emails reviewed and long time spent with Lauren going through background of disputes” – following a discussion with the applicant’s solicitor, the certificate of capacity referred to causation as “Dispute with an ED staff member + treatment by management”;

    (d)    there is a lengthy letter from the applicant to North and the respondent’s human resources section dated 21 March 2022, in which she provides an explanation for her actions on 15 February 2022 and provides reasons why her punishment for those actions should be less extreme and financially damaging – relevantly, she commences the letter with:

    “While I admit that I expected an official warning, my health learning and even a performance plan I did not think that being financially punished as a I result of what I admit was a poor judgement made in extremely rare and difficult situation is a justified punishment for actions that ultimately weren't carried out by myself.”;

    (e)    there is an email from the applicant to Brown on 5 August 2022 discussing the completion of her workers compensation claim form, in which she says that the “real cause” of her mental health issues “is due to stress they have caused initially but further more that acting DDON Michelle has caused” – she also says that she has “accepted what I did was wrong on 15/2/22” but that she has since “served my time and I learnt my lesson”;

    (f)    there is another email from the applicant to Brown on 28 July 2022, in which she mentions that Dr Burton had provided her with a medical clearance (in April 2022) and that “its clearly been a result of constant criticism, belittling and attacks that has made me incredible upset and had a compounding effect” – since 14 July 2022, she had on a daily basis discussed with Osland her issues with McGregor – she then describes those issues in some detail as follows:

    “I have made Jade aware for over a week the constant belittling, comparison to how good and how Cheryl (previous employee) did everything, comments about knowing l should be able to hear Michelle coming up the corridor like l have some special hearing ability able to distinguish between her shoes and the 20 other people's shoes who work in the building and that when we get in PIP meetings im told send an email, then she scrolls through her emails and says look how many emails l get l don't have time to read them. Or come to the office when you hear me walking up the corridor on Monday and then yesterday don't come in if im on my mobile (which never stops ringing) because it creeps her out when your behind me…Or come in at 2:40pm each day for handover in a PIP meeting before l leave then few days later saying don't come in when im on skye meeting…That ive literally been made to second guess everything l do and subject to comments such as what's the purpose of the month calendar on the wall. And who cares if l want a calendar on the way l use it when booking shifts…That l am sick of constantly copping it for her inability to prioritise her workload and communicate with her NUMS and that l am constantly stuck in the middle. And its causing me significant distress because its relentless and its compounding that’s why I am so upset. And then cop comments about how im so worried about sticking to and covering myself when it comes to things in my PIP when that's the whole purpose. And im trying every method possible in terms of escalation, communication and staying within my scope etc and so of course l would be doing such.”;

    (g)    there is a Mental Health Care Plan completed by Dr McCarthy on 28 March 2022 in which he describes her current symptoms as “exacerbation of low mood with recent events at work… reassigned to different post with reduced income causing severe financial stress”;

    (h)    there is a certificate of capacity completed by Dr McCarthy on 22 August 2022, in which he certifies the applicant as not fit for her pre-injury work between that date and 29 August 2022, but as otherwise fit for work 40 hours per week if provided with support and a lower stress environment – in relation to causation, the certificate states:

    “prestanding work events relevant to this injury dating back to 21/2/22 leading up to psychological breaking down at work on 27/7/22 - acutely emotionally distressed, crying, expressing thoughts that she would be better off dead rather than going through all that has happened at work. Employer deeming her to be unfit for work from 28/7/22 for psychological reasons, causing her further distress and psychological injury…Disciplined on 21/2/22 for issues whilst working on reception in ED. Whilst this was being investigated she was moved to alternative duties which caused Lauren significant psychological distress, subsequently leading to this psychological injury”, and

    (i)    there are no records from Dr McCarthy after 22 August 2022 in the ARD.

1. The clinical records from the applicant’s treating psychiatrist (Dr Burton) are found from page 325 of the ARD. I have considered these records in full, and (apart from my comments below) will only refer to them further when specifically directed to particular records during the parties’ submissions. From the records, I note:

   (a)    the first report from the doctor is dated 20 April 2021 – the report refers to the applicant as having a “complex trauma syndrome which has manifested over her life as anxiety with obsessions and compulsions”, and he recommends ongoing medication for her – he notes her obsession for cleanliness and her flat mood, but otherwise notes her denials of hopelessness, despondency, and plans for harm – he also notes frustration and anxiety that she is experiencing at work due to “interactions with clients”;

   (b)    the next report from doctor is dated 23 July 2021 – the report records a “general lowering” of the applicant’s work stress and that she was “more relaxed and at ease” – the doctor diagnoses the applicant with complex post-traumatic stress disorder, obsessive-compulsive disorder, and major depression – her treatment needed to be “consistent therapy with diligent application of psychology home work”;

   (c)    in the doctor’s 28 February 2022 report, the applicant discusses with the doctor the respondent’s investigation into her conduct on 15 February 2022 and the doctor opines:

   “Lauren is experiencing an acute exacerbation of her complex PTSD with a predominantly anxious and distressed mood secondary to a complaint at work. She does not appear to be clinically depressed or at risk, although she is at risk of developing a depressive episode”;

   (d)    in the doctor’s 17 March 2022 report, the applicant discusses with the doctor the outcome in relation to the respondent’s investigation into her conduct on 15 February 2022 – she says that she was expecting and accepting of a formal warning and planned education, but feels it unjust for her to be forced into a position without overtime which will cripple her financially – the doctor notes her mood as worried and angry, and that she is having sleep issues, but otherwise notes that there was no hopelessness, despondency or risk issues – the doctor alters her medication;

   (e)    the applicant consulted with the doctor on 31 March 2022, the notes in relation to the consultation referring to the loss of the applicant’s position in the ED as “devastating”, and recording the applicant as being “increasingly despondent about her future”;

   (f)    the next report from the doctor is dated 12 April 2022, in which he advises that he has provided the applicant with a clearance to return to work, but also highlighted to the respondent her concern regarding receiving adequate training (for her clinical rostering support officer role) – he opines that the “intensity of her reactivated complex trauma symptoms is settling”, but that she remains overly sensitive and vulnerable to further decline – he records his mental state examination of her as follows:

   “Lauren continues to present as defeated and overwhelmed. However, over the last two appointments there have been increased spontaneous comments about her future and in particular she is looking forward to spending Easter at home with her family. There have also been increased spontaneous statements about being able to work in admin ‘if I have to’. Lauren continues to described her mood as ‘flat’ and ‘anxious’ [emphases in original]. Her affect, while reduced in intensity and mobility, was not stuck and had retained reactivity. Her thoughts were coherent and logically sequenced. There were ongoing themes of being victimised unfairly and of being unable to cope. Although, there were also statements that were future focused and an attitude that she would survive this ordeal. There was the presence of suicidal ideation and escape fantasies but Lauren denied intent or planning for harm.”;

   (g)    the next report from the doctor is dated 22 April 2022, in which he advises that the applicant has settled into her new role at work, which was manageable – he records his mental state examination of her as follows:

   “Lauren presented as considerably more relaxed and cheerful than previous. She spoke and interacted well. Her speech was spontaneous, fluent, and grammatical. She described her mood as ‘more stable’, ‘improved’ and ‘not too bad’ [emphases in original]. Her affect was reactive and full. She made frequent jokes throughout. Her thoughts were coherent and logically sequenced. There were no melancholic of despondent themes. There was no delusional content. She expressed ongoing frustration with her work and the recent disciplinary process. No risk issues were disclosed or elicited.”;

   (h)    the applicant consulted with the doctor on 20 May 2022, and it is recorded that her nightmares had returned, and that she considered her PIP to be demeaning and “dramatic overkill for her actions” – her workload had also increased;

   (i)    in the doctor’s report dated 20 May 2022, he notes that the applicant continues to experience frustration, anger and anxiety with her work situation, and that she describes struggling with the excessive work in her new position – he advises the applicant to seek legal assistance;

   (j)    the doctor sent a report (presumably to the respondent, but not addressed to it) on 17 June 2022, in which he advises that North’s attempt to breach the applicant’s medical confidentiality (questioning Dr Arnold as to her attendance at the ED on 23 March 2022), as well as her failure to receive a job description for her current position, and as well as there being “no end date for her secondment to rosters”, were all having a detrimental effect upon her mental health;

   (k)    the applicant consulted with the doctor on 21 June 2022, and he noted that she remained stressed and overwhelmed, although she was “doing well at her new position” – she felt under-appreciated and had still not been provided with a pathway for her return to working at the ED;

   (l)    the next report from the doctor is dated 14 July 2022, in which he advises that the applicant’s level of distress has settled, and over the last two months she “has accommodated to her new position in rosters at Belmont Hospital although her distress levels have fluctuated” - she was “going ‘okay’ [emphasis in original]” and had consulted her union and developed plans to lodge a formal complaint against the respondent – she had excelled in her new position, received positive feedback, and had supportive colleagues, although she still had problems with management;

   (m)     the applicant consulted with the doctor on 22 July 2022 and advised him of ongoing tension between herself and her supervisors at work;

   (n)    the applicant consulted with the doctor on 2 August 2022 and he recorded, “High stress with very poor behaviour and bullying at work”;

   (o)    the applicant consulted with the doctor on 5 August 2022 annoyed that the respondent considered her unfit for work – she felt that she was fit for work;

   (p)    the applicant consulted with the doctor on 19 August 2022 and provided him with details as to her issues with McGregor – the doctor recorded that McGregor “is making errors that Lauren is getting blamed for”, that McGregor is giving the applicant different messages on different days, and that:

   “Lauren has detailed numerous incidents to me that are of concern. One involving conflicting instruction from Ms Michelle McGregor is of particular concern. Lauren alleges that she has been informed by Michelle McGregor that ‘you creep me out’ [emphasis in original]”;

   (q)    the next report from the doctor is dated 13 December 2022, in which he clarifies:

   “I can state that my opinion, as expressed in my letter dated 19th August 2022 that Lauren could return to work in rostering was in error. While Lauren certainly expressed a desire to return to full time work in the emergency department she was categorically unfit for any return to work within rostering. Lauren developed a severe Acute Stress Reaction after her treatment by Belmont Hospital and it would be both harmful and potentially dangerous for her to return, at any stage, to any form of employment within rostering. Lauren remains unfit to return to this position and in my professional opinion, due to the severity of her work placed bullying, she will not have capacity to return to rostering in the future.”, and

   (r)     there are no records from Dr Burton after 13 December 2022 in the ARD.

2. The remaining evidence relied upon by the applicant in the ARD consists of:

   (a)    the applicant’s grievance letter (see paragraph 39 above) dated 19 July 2022 (at page 169), sent to Booth – the applicant complains about:

   (i)the respondent not providing a safe working environment on 15 February 2022 due to the actions of Remmerswaal and the presence of an inexperienced second administration officer;

   (ii)previous harassment (only recorded as being prior to November 2017) experienced by her from a senior doctor at the ED;

   (iii)other comments made by Remmerswaal, and

   (iv)the respondent’s failure to provide her with a job description for her role as a clinical rostering support officer – she says that she is disappointed that the job description has not been provided and that:

   “I am however finding it hard to get clarification and support while acting in this role. I feel the issues I raise are over looked and that a lack of training provided for this role has only added to this.”;

   (b)    10 references provided in relation to the applicant (from page 174) – I have read the references and will refer to them further if specifically directed to them during the parties’ submissions;

   (c)    a brief report from Dr McCarthy dated 13 April 2023 (at page 225) – the doctor opines that workers in EDs offer experience psychological distress when they try to provide high quality compassionate care, but are unable to do so due to heavy workloads and patient expectations – he believes that the applicant has as a result “experienced significant moral stress through her work within the department and that subsequent disciplinary proceedings failed to understand her actions within this context” – he notes that the applicant therefore perceived her disciplinary measures as draconian, leaving her feeling undervalued and resulting in a significant deterioration in her mental health, and

   (d)    the applicant’s clinical notes for her admittance to the ED on 23 March 2022 (from page 226) – the notes record a history that the applicant’s current stressor “revolves around workplace stress as recently sanctioned and currently working in a different position”, causing her financial stress.

Respondent’s evidence

1. The respondent relies upon statement evidence from Osland and North, as well as certain documentary evidence, and medical evidence.

2. Osland has provided two statements. The first is dated 6 September 2022 (signed 28 June 2023) and found at page 44 of the Reply.

1. Osland makes some introductory comments including:

   (a)    she became the applicant’s line manager 12 months prior to 6 September 2022;

   (b)    the applicant worked as part of the team in the ED;

   (c)    in the applicant’s role as a clinical rostering support officer, “she is working by herself (under supervision)”, and

   (d)    the applicant has been “open and honest” with her.

2. Osland describes the applicant as overstepping her boundaries on 15 February 2022. The applicant “should have walked away”. She recalls the applicant raising concerns about Remmerswaal. She however had obtained a history that the applicant attempted to cut the lure off the child’s leg (rather than Remmerswaal) before obtaining assistance from a paramedic.

3. Osland confirms that on 17 February 2022 (after she had been informed about the events which occurred on 15 February 2022, advised North about them, and been told that there would be an investigation), she asked the applicant to “come in for a chat”. She told the applicant that there would be an investigation, and to go home and relax. She does not recall whether the applicant was overwhelmed.

4. Osland says that she then contacted the applicant on 21 February 2022 and told her that the applicant would be on alternative duties until the investigation was completed. She says that the applicant was provided with “a letter of allegation”, and requested leave which she approved.

5. Osland then confirms the meeting between herself, the applicant, and North later on 21 February 2022, during which she describes the applicant as emotional, upset and angry, but showing no responsibility nor remorse. She describes North as professional and direct in her communication but not rude or abrupt. She says “we were supportive of her”. She says the applicant “made it clear from the beginning that she relied heavily in her penalties”, and she and North “were sympathetic to her in regard to her penalties and did apologise but we did explain it wasn’t an entitlement”.

6. Osland advises that the applicant next worked between 21 March 2022 and 23 March 2022, following which the applicant requested further leave because “she was not coping at work”.

7. Osland was on leave when the applicant met with North and Clayton on 13 April 2022, but advises that she understands that the applicant was placed on her PIP then. She also advises that she was told by North that the applicant had an “emotional outburst” at the meeting.

8. Osland explains that when she returned from leave on 26 April 2022, the applicant was working in her clinical rostering support officer role. In relation to the applicant’s allegation of a lack of training in the role, she says that the applicant went home sick on a few days when she was supposed to be trained, but in any case could always obtain support from Catford.

9. In the clinical rostering support officer role, Osland says:

   “She was working for Michelle McGregor and I remained her line manager. Michelle is quite a soft person and has a soft disposition. She is very approachable.”

10. From May 2022, Osland says that she was having weekly meetings with the applicant in relation to her PIP. The meetings would sometimes be attended by McGregor and a union representative of the applicant’s. After the union became involved in June 2022, the PIP was changed. However, there was never any time frame for the PIP, and it was not “extended as such”. She says that “we all agreed to a review every month”.

11. Osland says:

    “In the meetings Lauren openly discussed challenges with Michelle. Lauren wanted Michelle to have meetings with her three times a day and always been available to her and I was having discussions with Michelle to help Lauren. Michelle found Lauren’s communication style to be difficult as Lauren seemed to document everything in excess of detail. She was probably giving Michelle too much information…They were both trying to work through what was going to work for them and meet in the middle. But it appeared that there were quite a number of emails and A4 bits of paper with information on it. Michelle probably did not need all of that information”.

12. Osland says that she never heard any raised communication from McGregor. She remembers the applicant approaching her about being blamed by McGregor when “a shift was missed”.

13. In a PIP meeting on 9 June 2022, Osland says that she included in the PIP a direction for the applicant’s office door not to be shut, a direction for the applicant to wear her identification badge, and a direction for the applicant to cease working outside her working hours and expecting overtime payments.

14. In a self-reflection document that Osland gave to the applicant on 16 June 2022, she says that the applicant “still believed that she was not to blame for 15 February and her responses were angry responses, not reflective or remorseful at all”.

15. In a PIP meeting on 30 June 2022, Osland says that the applicant did not appear to be overwhelmed by an updated version of the PIP that the applicant was given on 28 June 2022. There was a discussion about the PIP being reviewed in six weeks rather than 12 weeks, and she advised that she had not seen enough change in the applicant’s behaviour for the review to occur earlier. She says “Lauren was happy with that”.

16. In relation to the applicant’s last day at work, Osland says:

    “We were concerned about Lauren’s mental health and did not feel she could be at work. She had little leave left but unfortunately, she was not mentally safe for herself or to be at work. She disclosed to another admin staff member, Barbara Fazzini, that she was not safe. Barbara contacted us. I contacted Lauren and had discussions with her and asked to call her medical team and her parents. She declined. She went home that night…Lauren’s behaviour and emotions was escalating, and she was not dealing with everyday stuff like she should be…Lauren’s behaviours were escalating with emotional outbursts”.

17. Osland’s second statement was signed on 7 August 2023, and is found at page 87 of the Reply. Much of the time line in the statement does not add much more detail to the detail in her first statement, save that:

(a)    she now acknowledges that the letter detailing the allegations against the applicant in relation to the events which occurred on 15 February 2022 was not provided to the applicant until it was emailed to her following the meeting between herself, the applicant, and North on 21 February 2022;

(b)    in relation to the events on 23 March 2022, she says that the applicant had left the office and taken herself to the ED without informing her – she says that she was with North when North called Dr Arnold and that North “never asked what the discharge diagnosis was, it was just so we could locate Lauren to make sure she was safe”;

(c)    in relation to the events on 11 May 2022, she says that she did offer to call the ED and arrange medical assistance, but that the applicant declined – she says that she sat in darkness with the applicant in her office (once she had convinced the applicant to return from the applicant’s car) for around 30 minutes while the applicant was lying on the floor – she says “Lauren was upset and not talking to us when we asked her anything”;

(d)    she confirms that it was her that provided the applicant with her PIP during a meeting on 19 May 2022;

(e)    she confirms that the applicant “often” talked to her about issues that she had with McGregor – she also confirms that she would often meet with McGregor to discuss difficulties that McGregor was having with the applicant;

(f)    she confirms that the applicant was “visibly upset” and crying on 21 July 2022 after McGregor had “spoken to her sternly”, and

(g)    in relation to the events on 27 July 2022, she confirms that she received a telephone call from Barbara Fazzini advising that the applicant was “suicidal” – she went to the applicant’s office and found the applicant to be “distraught”, but the applicant refused medical attention.

1. Finally, in her second statement, Osland is asked to comment upon the “investigation and disciplinary process” into the events which occurred on 15 February 2022. She says that the formal investigation was necessary after a risk assessment had taken place, in accordance with the respondent’s “policy and procedures and code of conduct”. She says that the applicant was advised as to the outcome of the investigation on 13 April 2022 when a formal letter was delivered to the applicant during a meeting with North and Clayton. She says that the PIP was put into place with weekly meetings to assess it and make changes to it. She says that the applicant was placed in the clinical rostering support officer role to enable the applicant to be supervised throughout the investigation and the PIP. The applicant was transferred out of the ED “for the safety of herself, colleagues and the general public”, and because “it was safer to have Lauren in a role where she worked Mon-Fri and therefore had staff/management around her to support and supervise”.

1. As indicated earlier, when reviewing the medical evidence presented by the parties, I have determined to place significant weight upon the opinions of Dr Burton, as the applicant’s treating psychiatrist, whom the applicant had consulted with prior to 15 February 2022, and whom she consulted with on numerous occasions during and after the events which occurred between 15 February 2022 and 28 July 2022.

2. Although Dr Nagesh has attempted to deal with the issues raised by the respondent’s defence pursuant to s 11A of the 1987 Act, I find his opinions to be inconsistent. He also does not seem to have been provided with all of Dr Burton’s reports despite him relying upon early opinions of Dr Burton when providing his opinions.

3. Dr Nagesh’s initial opinion regarding the predominant cause of the applicant’s psychological injury (see paragraph 118 above) was obtained from the doctor following a question which I consider to be loaded. The question did not ask the doctor to evaluate the various factors which I have found were causative of the injury, but it asked the doctor to comment upon only some of those factors specifically mentioned in the question (which were solely related to the disciplinary process and the PIP and did not include the applicant’s difficult working conditions in her clinical rostering support officer role or her conflicts with specifically McGregor and North). I therefore do not place much weight upon the answer provided by the doctor to the question.

4. However, I do note that in answering the question, the doctor refers to the respondent’s investigation into the events which occurred on 15 February 2022 as the predominant factor in causing the applicant’s injury, as well as bullying and harassment perceived by the applicant during her meeting with Osland and Kellie Grice on 28 July 2022 as making the applicant’s symptoms worse. While the applicant was dissatisfied with the investigation process and while she considered the 28 July 2022 meeting to be an “ambush”, the overall evidence simply does not establish that those two factors were in any way dominant in the causation of the applicant’s injury, when compared with the disciplinary process which followed the investigation, the applicant’s subsequent financial difficulties in being transferred to her clinical rostering support officer role, her difficulties with her working conditions in that role, and her bullying and harassment at the hands of particularly McGregor and North.

5. The doctor attempts again to provide an opinion as to the predominant cause of the applicant’s injury in his second report (see paragraph 121 above). He now finds the disciplinary process that was the outcome of the investigation to be the predominant cause, but seems to base his opinion in this regard largely upon Dr Burton’s report that the applicant was asymptomatic on 12 April 2022, and then she received formal notification regarding the disciplinary process at her meeting with Clayton and North on 13 April 2022. Not only is this opinion inconsistent with the doctor’s earlier opinion, but it also fails to take into account Dr Burton’s reports and clinical records after 12 April 2022 (in circumstances where Dr Nagesh specifically relied upon Dr Burton’s opinion as to the applicant’s condition as at 12 April 2022). I do not intend to afford the opinion much weight. I accept the submissions of the applicant at paragraph 132 in this regard.

6. Finally, in relation to Dr Nagesh, his two opinions regarding the predominant cause of the applicant’s injury fail to take into account the applicant’s bullying and harassment by McGregor, which is otherwise considered to be significant by him. He records (see paragraph 113 above) the applicant advising him that the bullying and harassment was “the final straw”, and his opinion (quoted at paragraph 116 above) is that the applicant has sustained a primary psychological injury as a result of multiple stressors in the context of bullying and harassment. It is worth noting that the only stressor that he specifically mentions in that opinion is the bullying and harassment.

7. In my opinion, Dr Smith has not adequately addressed the question as to the predominant cause of the applicant’s psychological injury. He was not asked to do so.

8. The doctor certainly refers to the applicant’s financial stress, her performance management and her transfer to the clinical rostering support officer role as causative of her injury (see paragraph 72 above), but he also records in reasonable detail her conflicts with McGregor and the “final straw” being the events which occurred on 27 July 2022 (see paragraphs 66-67 above). He records a deterioration in the applicant’s mental state after 27 July 2022. His summary opinion at paragraph 71 above, is that the applicant developed an aggravation of anxiety and depressive symptoms in the context of perceived unreasonable performance management, lack of support from her employer, placement on her PIP, being moved to alternative duties, being bullied and harassed by McGregor, and being under financial stress. This description seems to me to be quite consistent with the applicant’s description as to the causes of her psychological injury.

9. In summary, I do not believe that the opinions of Dr Smith assist the respondent in its attempts to prove the disciplinary process and the PIP to be the predominant cause of the applicant’s psychological injury. The doctor identifies many causes, but does not appropriately evaluate them to determine whether any of them were predominant.

10. In contrast, Dr Burton’s 23 September 2022 report contains in my view the most significant opinion as to the predominant cause of the applicant’s psychological injury. Although the doctor does not use the word ‘predominant’, he uses the word ‘central’ to describe the applicant’s bullying and harassment by McGregor, and her removal to a position of high stress, as causes of her injury.

11. In the context of causation, it is also important to consider the doctor’s clinical records (reviewed at paragraph 76 above). He diagnoses an exacerbation of the applicant’s pre-existing psychological condition on 28 February 2022, notes that she still has mood and sleep issues on 17 March 2022, and then notes her increasingly despondent attitude on 31 March 2022. However, he provides her with a clearance to return to work on 12 April 2022 as her symptoms were settling. Her mood was then more stable on 22 April 2022, but her nightmares had returned on 20 May 2022. She remained stressed on 21 June 2022, but a level of that distress has settled on 14 July 2022 and she was “going okay” on that date. She advised of ongoing tension between herself and her supervisors at work on 22 July 2022, and the doctor then recorded “high stress” on 2 August 2022.

12. It is not entirely correct to say, as submitted by the applicant (see paragraphs 128-129 above), that she had improved by 14 July 2022. Rather, I agree with the respondent that these records show a fluctuating history of a non-resolving psychological condition. It is clear to me however from the records that there was a significant exacerbation in the condition between 14 July 2022 and 28 July 2022. The applicant alleges the exacerbation to be due to bullying and harassment by McGregor, and in my opinion, during that period, there is little evidence to the contrary.

13. Relying upon my acceptance of the applicant’s perceptions in relation to the events which occurred as outlined at paragraph 165 above, my acceptance that there was conflict between herself and McGregor which caused agitation to her, my acceptance that she had difficulties with her working conditions in her clinical rostering support officer role, my finding as to the lack of reliable medical evidence concerning whether her disciplinary process and her PIP were the predominant cause of her injury, and my acceptance of the records and opinions of Dr Burton; I find that the respondent has failed to discharge its onus of proof regarding its defence to the applicant’s claim pursuant to s 11A of the 1987 Act. In conducting a comparison between the applicant’s reaction to the respondent’s disciplinary process following the events which occurred on 15 February 2022 (including her PIP), against all other work-related factors which contributed to her psychological injury (especially those events which involved conflict with McGregor), I find that the disciplinary process was not the main, principal, or predominant cause of the injury.

Whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury, since 28 July 2022

1. The applicant of course bears the onus of proving the level of her incapacity (if any) since 28 July 2022.

2. Neither party has made any extensive submissions regarding capacity in this regard. I would also comment that neither party has provided me with a great deal of helpful evidence regarding the applicant’s current level of capacity.

3. I note that it was the respondent that refused to provide the applicant with employment duties after 28 July 2022 due to its concerns as to her mental health. Dr McCarthy then provides the applicant with certificates of capacity covering the period between 22 August 2022 and 12 September 2022 (see paragraphs 75(h) and 123(a) above) certifying the applicant as not fit for her pre-injury work, but as otherwise fit to work in a lower stress environment.

4. Between 15 September 2022 and 28 November 2022, Dr McCarthy issues certificates of capacity (see paragraph 123(b) above) certifying the applicant as only fit for work six hours per week.

5. Otherwise, Dr Burton (who is also treating the applicant up to the end of 2022) advises in his 23 September 2022 report (see paragraph 124 above) that the applicant remained unfit for employment. Further, in his 13 December 2022 report (see paragraph 76(q) above), he confirms that the applicant was “categorically unfit for any return to work within rostering”. In the report, he does not opine as to any other work that the applicant would be fit for.

6. Dr Smith (as at 20 December 2022) provides a guarded prognosis for the applicant and advises that he does not anticipate her working at pre-injury level for at least 12 to 24 months. He opines (see paragraph 73 above) that she is not fit for her pre-injury employment, and that while she has been certified (by Dr McCarthy) as being fit for work six hours per week, that work would need to have a low level of responsibility and be able to accommodate the applicant’s fatigue, impaired concentration and mood instability.

7. Dr Nagesh (as at 29 November 2022) considered that the applicant had no capacity for any sort of work – see paragraph 119 above.

8. The applicant submits that she has had no current work capacity since 28 July 2022. The respondent submits that she has been only partially incapacitated during that period, and relies upon Dr Smith’s opinion.

9. Considering the opinions of Drs Burton and Nagesh, I am willing to accept that the applicant had no work capacity for the remainder of 2022 after 28 July 2022. She will be entitled to an award of weekly benefits compensation accordingly.

10. Unfortunately, I have been provided with scant medical evidence regarding the applicant’s capacity for work since the beginning of 2023. Further, despite the applicant providing two further statements to her initial statement, these further statements do not address her psychological symptoms, and as a result, I am left with the applicant’s description of her symptoms as at the date of her first statement, being 6 September 2022.

11. The only medical evidence available since the beginning of 2023 are Dr McCarthy’s Centrelink certificates (see paragraph 123(c) above) which declare the applicant to be unfit for work up to 1 November 2023, and two medical reports from Dr Nair (see paragraphs 123(d) and 123 (e) above).

12. The reports from Dr Nair are consistent with the applicant’s psychological condition as having not improved, as she still has ongoing symptoms including low and anxious mood, lack of energy and motivation, poor appetite, anger, frustration, periods of panic and anxious rumination, thoughts of death, as well as feelings of helplessness. The observations of Dr Nair are consistent with the opinions provided earlier by Dr Smith regarding the applicant’s condition having a guarded prognosis, and there being a 12-24 month period for her to achieve pre-injury work capacity.

13. On balance, and considering the Centrelink certificates provided by Dr McCarthy, I am willing to accept that the applicant remains incapacitated for her pre-injury work to date. She is entitled to an ongoing award pursuant to s 37 of the 1987 Act.

14. Section 37 of the 1987 Act provides as follows:

    “(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.

    (2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates--

    (a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,

    (b) the maximum weekly compensation amount, less the worker's current weekly earnings.

    (3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates--

    (a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,

    (b) the maximum weekly compensation amount, less the worker's current weekly earnings.”

15. It is therefore important to determine whether the applicant has current work capacity.

16. Clause 9(1) of Schedule 3 to the 1987 Act provides:

    “An injured worker has ‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”

17. Section 32A of the 1987 Act provides the definition of suitable employment as follows:

    “‘suitable employment’ in relation to a worker, means employment in work for which the worker is currently suited--

    (a)    having regard to—

    (i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

    (ii) the worker's age, education, skills and work experience, and

    (iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

    (iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

    (v) such other matters as the Workers Compensation Guidelines may specify, and

    (b)     regardless of--

    (i) whether the work or the employment is available, and

    (ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

    (iii) the nature of the worker's pre-injury employment, and

    (iv) the worker's place of residence.”     

18. There is no evidence that the applicant is fit for her pre-injury employment. It needs to still be determined however whether she is capable of suitable employment within the meaning of s 32A of the 1987 Act, having regard to Dr Smith’s opinion regarding her possibly being able to work six hours per week, and Dr McCarthy’s certificates of capacity (up to 28 November 2022) certifying similarly.

19. To determine this, I will consider the authority of Wollongong Nursing Home Pty Limited v Dewar [2014] NSWWCCPD 55 (Dewar), in order to ascertain if there is evidence before me of a “real job” that the applicant “would be currently fit and qualified for, and be expected to secure and retain”.

20. In Dewar, Deputy President Roche discussed s 32A:

    “58.   However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).

    59.   The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.

    60.   Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”

    and:

    “63.   Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”

21. I have come to the conclusion that there are currently no “real jobs” that the applicant is able to do. The restrictions imposed upon her employment by Dr Smith (which I am willing to accept are still applicable, having regard to the evidence in Dr Nair’s reports and in Dr McCarthy’s Centrelink certificates) are significant. A job has to be available that can accommodate her fatigue, impaired concentration, and mood instability, and the job has to have a low level of responsibility, and the job has to be available for only six hours per week. I cannot see how such a job would be “real” on the open labour market, especially without any vocational evidence before me.

22. In considering the matters prescribed by s 32A of the 1987 Act:

    (a)    I note that although Dr McCarthy issued certificates of capacity between 15 September 2022 and 28 November 2022 suggesting the applicant to be fit for work six hours per week, his Centrelink certificates since have declared the applicant to be unfit for work – these Centrelink certificates in my opinion are consistent with the applicant’s ongoing restrictions recorded by Dr Nair;

    (b)    although the applicant is young and has tertiary certificates (see paragraph 22 above), I do not believe that she would be able to find a job in business administration or nursing with the restrictions imposed by Dr Smith (or indeed in a call centre) – her mood instability would seem to be a major issue in this regard, and

    (c)    there is no evidence before me of any return to work plans or rehabilitation/vocational reports.

1. Neither party relies on any evidence from a vocational expert. In those circumstances, it is for me to use common knowledge or experience to determine whether any of the applicant’s previous employments or educational qualifications would involve duties that Dr Smith has advised her to avoid. As Deputy President Snell observed in ACW v ACX [2020] NSWPICPD 19, applying Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720:

   “109. A fact finder is entitled to make commonsense findings, provided these are ‘within the realm of common knowledge or experience’”.

2. In all the circumstances, I consider Dr Smith’s view as to the applicant’s potential work capacity as being very much a theoretical one. The context of his opinion in this regard seems to indicate as such, considering that it is premised upon there already being a certification of six hours per week work capacity from Dr McCarthy. Certainly, Dr Smith does not suggest any real job that that would be available to the applicant with the restrictions that he imposes upon her work capacity.

3. I therefore find that the applicant has not been capable of suitable employment within the meaning of s 32A of the 1987 Act since Dr Smith’s report, and that she has as a result had no work capacity since then. She will be entitled to an ongoing award of weekly benefits compensation pursuant to s 37 of the 1987 Act.

SUMMARY

1. I find that the applicant sustained injury in accordance with s 4(b)(ii) of the 1987 Act, being the aggravation, acceleration, exacerbation, or deterioration of her psychological condition in the course of her employment with the respondent, and to which that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the condition. The injury will be deemed to have occurred on 28 July 2022.

1. I find that the respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer, discipline, performance appraisal, or the provision of employment benefits.

2. I find that the applicant has had no work capacity as a result of the injury since 28 July 2022.

3. In accordance with the agreement between the parties, I find that the applicant’s PIAWE is $1,612.91.

4. In accordance with the agreement between the parties and based upon my findings, I find that the applicant is entitled to have her reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent, in relation to the injury.

5. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 36(1) of the 1987 Act from 29 July 2022 to 27 October 2022, at the rate of $1,532.26 (as adjusted if necessary to apply relevant indexing) per week.

6. There will be an award that the respondent pay the applicant weekly benefits compensation pursuant to s 37(1) of the 1987 Act from 28 October 2022 to date and on a continuing basis, at the rate of $1,290.33 (as adjusted if necessary to apply relevant indexing) per week.

1. There will be an award that the respondent pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.