Clark v Richmondpra Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Clark v Richmondpra Limited [2022] NSWPIC 669
APPLICANT:	Pamela Clark
RESPONDENT:	Richmondpra Limited
Member:	Jane Peacock
DATE OF DECISION:	6 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; injury undisputed; section 11A of the Workers Compensation Act 1987 (1987 Act) defence; the respondent bears the onus of proving its section 11A of the 1987 Act defence; evidence weighed in the balance; Held – satisfied, on the balance of probabilities, that the respondent has discharged its onus on the issue of whether the predominant cause of the psychological injury was the action of the employer taken in relation to dismissal; not satisfied, on the balance of probabilities, that it has discharged its onus that the action taken in relation to dismissal was reasonable; applicant not precluded from the recovery of compensation for her psychological injury by reason of the provisions of section 11A of the 1987 Act; award for the applicant.
determinations made:	1. The applicant, by consent, has leave to amend the Application to Resolve a Dispute as follows: (a) to discontinue the claim for weekly compensation. (b) to rely on a deemed date of injury of 4 March 2021 in respect of the claim for lump sum compensation, being the date of the compensation claim. 2. The respondent to pay the applicant’s s 60 expenses on production of accounts and/or receipts. 3. The matter is remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 4 March 2021. 4. The documents to be forwarded to the Medical Assessor are those admitted by consent in these proceedings as follows: (a) the Application to Resolve a Dispute and all documents attached; (b) the late documents filed by the applicant with an Application to Admit Late Documents on 23 August 2022, and (c) the Reply and all documents attached.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), as amended, Ms Pamela Clark (Ms Clark), seeks lump sum compensation and compensation for medical expenses as a result of psychological injury alleged deemed to have occurred on 4 March 2021 in the course of or arising out of her employment as a Care Worker.
The respondent is the Richmondpra Limited (Richmondpra). The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual NSW Limited (the insurer).
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

Ms Clark was given leave to amend the Application by consent to discontinue the claim for weekly compensation and in respect of the claim for lump sum compensation to rely on a deemed date of injury of 4 March 2021, being the date of the compensation claim.
There is no dispute that the applicant suffers from a psychological injury.
The respondent relies on s 11A of the Workers Compensation Act 1987 (the 1987 Act) and says that the applicant is precluded from the recovery of compensation because her psychological injury was wholly or predominantly caused by the reasonable action of the employer in respect of discipline, and/or dismissal.
If Richmondpra is successful in its s 11A defence, there will be an award in its favour.
In the event that Ms Clark is successful on the liability question, the parties agree that the matter will be remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 4 March 2021.
In the event that Ms Clark is successful on the liability question it is agreed that a general order will be made in her favour for the payment of section 60 expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For Ms Clark:
(a)    Application and attached documents;
(b)    late documents filed with an Application to Admit Late Documents on 23 August 2022.
For Richmondpra:
(c)    Reply and attached documents;

Oral evidence

Ms Clark did not seek leave to adduce oral evidence and counsel for Richmondpra did not seek leave to cross-examine Ms Clark. Counsel for Ms Clark did not make any application in respect of cross-examination of the witnesses who provided statements in Richmondpra’s case.

FINDINGS AND REASONS

Ms Clark alleges that on a deemed date of injury of 4 March 2021 (amended from 27 April 2017 by consent for the purposes of the lump sum compensation claim) she suffered a psychological injury arising out of or in the course of her employment with Richmondpra as a care worker. The description of injury “pleaded” in the Application is as follows:
“The applicant sustained an injury by way of a disease (in the sense that it occurred over a period of time, as opposed to on a single date/event), following a cumulative exposure to stressful workplace events with the respondent from 2012 to 2017 (when she was terminated).
The exposure included traumatic incidents at work, disrespectful/harassing/bullying/hostile conduct from staff and clients, repeated disregard of her travel commitments and requests for transfer, unsubstantiated complaints concerning her integrity, demotion in title and duties (without proper regard for her opinion), lack of policy and/or training concerning her day to day activities, unreasonable disciplinary action, including the denial of procedural fairness and ultimately termination.
Further particulars are provided in the statement and emails from the applicant, together with the medical evidence.”
There is no dispute that the applicant suffered a psychological injury although the allegation of injury is disputed. Richmondpra says Ms Clark’s psychological injury was wholly or predominantly caused by the reasonable actions of the employer taken in relation to discipline, and/or dismissal.
The dispute concerns s 11A of the 1987 Act which provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Richmondpra relies on the heads of discipline and/or dismissal.
Richmondpra bears the onus of proof in relation to the s 11A defence.
This case must be decided, on the balance of probabilities, on the evidence and in accordance with the law.
The parties referred to the case of Hamad v Q Catering Limited [2017] NSWCCPD 6 (Hamad) in which Deputy President Snell said as follows:
“43. The appellant relies on Shore, a case of psychological injury where a defence pursuant to s 11A(1) was raised, and ‘wholly or predominantly caused’ was an issue. In that matter the only medical opinion was from a doctor who attributed the psychological injury to ‘all of the incidents at work’ (at [26]). Roche AP was critical of the Arbitrator’s analysis in that matter, as the Arbitrator restricted the enquiry to ‘the claim as defined by the Application’, which was an allegation based on a single date, and a meeting on that day (at [41]). Section 11A(1) required that the Arbitrator consider more than just the events on the pleaded date of injury.
44.   The Acting President, in Shore at [42] and [52], said:
‘The causation issue before the Arbitrator was not causation in the sense dealt with under ss 4 or 9A, but was the causation test in s 11A. That section requires the employer to prove that the relevant psychological injury was ‘wholly or predominantly’ caused by the employer’s reasonable action with respect to, in this case, transfer. That is a different, and more difficult, test to satisfy and it required the Arbitrator to consider more than just the events on 8 July 2010.’
Second, the issue is not whether the other events were causative of the alleged incapacity or need for treatment, which requires an application of the ‘results from’ test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, but whether the transfer was the whole or predominant cause of the admitted psychological injury. On this issue, the Arbitrator failed to consider the nature of the relevant psychological injury and the relevant evidence from Dr Westmore dealing with the cause of that injury. Instead of considering the terms of s 11A, he approached the question from the point of view that ‘the claim as defined by the Application relates to 8 July 2010 and the meeting on that day’.
45. The causal test in s 11A(1) is ‘different, and more difficult’, in that the test does not involve proof of ‘personal injury arising out of or in the course of employment’ (the s 4(a) test), or that employment was a ‘substantial contributing factor’ to the injury (the s 9A test), but rather whether the injury was ‘wholly or predominantly caused’ by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.
46.   In Ponnan Handley ADP at [24] held that the meaning of ‘predominant’ in s 11A(1) is ‘mainly or principally caused’. This was applied by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 (Temelkov). In the same case Roche DP also dealt with the causation issue on the basis that Kooragang, as ‘the leading authority on causation in workers compensation claims’, applied – ‘causation is a question of fact to be determined on the evidence in each case’ (at [79]).
47.   The Arbitrator at [60] of his reasons identified the causation issue requiring determination (see [9] above). It involved a consideration of all of the evidence, both lay and medical. The Arbitrator’s statement of the principles to be applied was consistent with the remarks of Herron CJ in Bes at 119, quoted and applied in Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [37]-[38]. The Arbitrator was entitled to rely on his ‘commonsense evaluation of the sequence of events’: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington) at [90]. He was entitled to make commonsense findings, provided these were ‘within the realm of common knowledge and experience’: Tubemakers in the High Court per Mason J at 724, applied in Etherington at [91].
48.   There are limits to such commonsense reasoning. It is restricted to matters within the realm of common knowledge and experience. Roche DP in Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1 (Ramaswamy), dealing with a causation issue, at [72] said:
‘…the connection between a thoracic strain on 5 February 2002 and the subsequent findings on CT scan on 26 April 2002 is not within ‘the realm of common knowledge and experience’ (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez(1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91])) that would enable an arbitrator or a Presidential member to rely on his or her ‘commonsense’ to conclude that the findings on CT scan resulted from a strain that occurred nearly three months earlier. Nor does ‘commonsense’ indicate, in the absence of appropriate medical evidence, that the incident on 5 February 2002 aggravated, accelerated or exacerbated the symptoms of any disease Mr Ramasamy suffered.’
49.   In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223;85 ALJR 1130 (Jackson) the plurality at [66] said:
‘The respondent's proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of ‘commonsense’ or the court's experience of ordinary life. The proposition turns on an inference from the nature of the respondent's injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence.’
50.   The appellant relies on Craig, in which Keating P, applying Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, at [79] said:
‘It is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge [Strinic v Singh]). Her Honour added (at [64]) that even if a judge is experienced in adjudicating in medical matters ‘that experience does not replace the requirement to base findings on the evidence’. For a judge to base a decision in such circumstances on his or her personal knowledge involves an error of law. Her Honour added ‘underlying that error is a fundamental breach of procedural fairness’. A party is not afforded procedural fairness where a trial judge makes a finding of fact based on the judge’s own purported knowledge, or understanding of matters that do not form part of the evidence.’
51.   Craig also dealt with the Commission’s status as a specialist tribunal, and the relevance of this to fact finding on an issue of causation. The Arbitrator, in the current matter, did not rely on the Commission’s status as a specialist tribunal. His reasons do not suggest that he approached his fact finding on that basis. In Etherington McColl JA (Mason P and Beazley JA agreeing) at [93] said that a primary judge (or an arbitrator or Presidential member) intending to rely on his or her specialised knowledge, should disclose this to the parties, to give them an opportunity to respond to it. As regards the effect of the Commission’s status as a specialist tribunal, on its fact finding, see also Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355, MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482, Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 and Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37.”
Deputy President Snell dealt with the causation issue at stake in that case making it clear that the onus is on the respondent in respect of the s 11 A defence:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
In that case, Deputy President Snell found that:
“The respondent could not, on the available evidence, in the absence of any medical evidence dealing appropriately with the topic, discharge its onus of proving that the appellant’s psychological injury resulted wholly or predominantly from its ‘reasonable action taken or proposed to be taken’ with respect to discipline.”
Richmondpra has conceded that Ms Clark suffered a psychological injury although they dispute the allegation of injury in the sense that they say the psychological injury was wholly or predominantly caused by the action of the respondent taken in relation to discipline or dismissal of Ms Clark.
Richmondpra bears the onus of proof on the issue of causation in the context of an s 11A defence.
Counsel for Richmondpra submitted as follows:
“Now my friend has mentioned in the preliminary stages the section 11A Hamad, and, of course that my task is, is to demonstrate to you that - and Hamad being Hamad v Q Catering Limited [2017] NSWWCCPD 6 - and that is agreed to be the appropriate law to apply to the case and it falls upon me to identify the injury from which Ms Clark’s impairment results, and that can only be determined by looking at all of the evidence and, in particular, the medical evidence.
Now, the respondent says that the impairment from which Ms Clark suffers results from her dismissal in April of 2017 and that that dismissal was, was reasonable action following a disciplinary action in respect of leaving a child unattended in the car when she knew she ought not to have done that. And now, looked at in those terms, it’s clearly, it’s clearly, on the face of it, reasonable. Now, it’s clearly a, a carer should not be leaving a child unattended in the car, particularly when she has had a lot of experience in the field and has been warned against doing that very thing. The question then remains, whether the circumstances of that dismissal are reasonable and whether or not there was some other cause that prevents you from finding that that action was wholly or predominantly the cause of her impairment.
Now, Dr Oldtree Clark in his report of the 3rd of February 2021, commencing at page 73 of the ARD, and scrolling down to page 75 of the ARD, is not all that helpful. He does identify the applicant’s claim to have been unfairly dismissed and that would appear to be, as far as - as far as it can be extrapolated from his report, that would appear to be the whole or predominant cause of the impairment that he assessed. But it doesn’t directly address the issue, other than to say at, on page 78, in answer to question 3 the employment was a substantial contributing factor to a psychiatric injury, without identifying what element of that employment it was that was the substantial contributing factor. Going back to the history he took, there doesn’t appear to be anything else upon which he could rely. There’s a reference to shock and trauma in the workplace but he doesn’t say what. There are incidents, related incidents but he doesn’t say what they are. He describes a build up of anxieties but doesn’t explain how. And the executive part of the history appears to have been limited to being pushed out of the organisation, terminated by the general manager.
Now, that’s consistent with the evidence obtained by the respondent, by Dr Davies. And if I can just take you - before we go to Dr Davies, can I just take you to the supplementary report of Dr Clark, on page 101 of the ARD. It’s about the middle of the page, where he says, with reference to Associate Professor Davies’ answer to question 3. He thought the circumstances of work were an opportunistic excuse to accuse Ms Clark of the misdemeanour. A technicality was used to find Ms Clark at fault. I agree with Associate Professor Davies finding. Now that too, would seem to me that both Dr Clark and Dr Davies feel that the, that the whole or predominant cause of the impairment is the termination, and the real issue to be determined by you, will be whether it was just a technicality used to find Ms Clark at fault or whether it was reasonable action taken in response to what was a serious misdemeanour.
Now, if I can then take you back to the original report of Dr Davies, Associate Professor, I should say. Now that commences at page 66, but the history that you want to look at is, well the opinion upon which we rely is at page 70, in answer to question ‘From the history that I obtained it would appear that the primary precipitant of Mrs Clark’s distress is her dismissal on grounds she considered unjust.’
Now that’s, that sets it out quite clearly and, I think, there can’t be any argument about that and it certainly doesn’t appear, from what I’ve just told you about, what I’ve just taken to you from Dr Clark, that there’s any other reason and, indeed, Dr Clark has agreed with Dr Davies on that in his supplementary report.”

Richmondpra relied on the opinion of Associate Professor Gordon Davies (A/P Davies) who was an independent medical expert (IME) qualified on behalf of Richmondpra. He saw Ms Clark on 23 July 2018 and provided a report back to the insurer dated 25 July 2018. I note this consultation took place about 15 months after Ms Clark’s dismissal in April 2017.
A/P Davies supports Richmondpra’s defence under s11A, that the predominant cause of Ms Clark’s psychological injury was the action taken by Richmondpra in relation to dismissal.
A/P Davies recorded a history as follows:
“Ms Clark told me that she had been employed as a Community Mental Health Worker in the Nowra office of Flourish Australia for the last four years.
Ms Clark said that between March and April 2017 her supervisor had started collecting complaints about her. She said that when she approached the supervisor regarding this the supervisor had however refused to tell her why she was doing so.
Ms Clark said that it was then alleged that she had taken a client’s child and that she had left them in her car while she was at the flourish Australia office in Nowra. Ms Clark said that she had taken the child and it mother to the office and that she had remained in the car while the mother attended the office. Ms Clark said that she had then left the mother and her child in the car while she had gone into the office but the mother had later left the child alone.
Ms Clark also said that in March 2017 she had given a letter to her boss about the impact of her travel to Nowra on her own mental health, she said that this had a resulted in a change to her hours but that a primary request for a transfer to Wollongong had been refused. Ms Clark said that the subsequent events had made her think that they thought it would ‘be easier to get rid of her’.
Ms Clark said that in April 2017 she had lost her job because of the allegations about leaving the child on her own in the car. She said that she subsequently spoken to the union and that after a telephone conference in June she had been given a termination payment. Ms Clark said that she had then sought legal advice and had eventually be advised in 2018 that she should seek workers compensation. She told me that she had then seen her doctor.”
A/P Davies undertook a mental state examination of Ms Clark.
A/P Davies provided the following “summary and opinion”:
“Ms Clark is a sixty-three year old woman living in Wollongong, she presents with a history of having been employed as a community mental health worker for some years. In April 2017 she was dismissed from her position because of allegations that she had breached the employer’s guidelines for client management, since then she has had her dismissal reviewed by the fair work tribunal who found in favour of her employer.
One of the problems in assessing Ms Clark from the point of view of workers compensation is that the primary issue causing her distress is her dismissal rather than other problems withing the workplace. I also note that since she had been advised to seek workers compensation she has felt better as she has had her complaint listed to and pursued so she has no current psychiatric disability.”
A/P Davies was asked a specific question as follows:
“Ms Clark’s 6^th allegation refers to her cease(sic) of employment, The clinical notes based on subsequent visit to the GP after resignation consistently refers to her being upset with her alleged unfair dismissal. Then on 12 February 2018 Ms Clark was diagnosed by treating Psychiatrist Dr Panesar with Bipolar Disorder, In consideration of allegations 1-5 listed above, is the 6th allegation the whole and predominant cause of her presenting condition?”
A/P Davies answered:
“From the history I obtained it would appear that the primary percipient of Mr Clarks distress is her dismissal from work on grounds that she considers unjust”.
A/P Davies was also asked about aggravation of pre-existing condition as follows: “In consideration of the clinical notes referring to Ms Clark having pre-existing conditions, has she suffered an aggravation? If so, has that aggravation ceased? If it has not ceased, please provide a timeframe for when this is likely?”
He answered as follows:
“As noted above, the noted were provided in a chaotic fashion and may be incomplete. However, Ms Clark reported long standing issues with anxiety and had been on anti-depressants for many ears. In considering the issue of exacerbation, her condition did worsen following her dismissal but Ms Clark also reported having improved after she had been advised to claim Workers Compensation. At this point, with the available evidence, I would not regard there as being any continuing exacerbation of Ms Clark’s psychological condition as a result of her dismissal.”
A/P Davies saw Ms Clark again on 13 July 2021 at the request of Richmondpra’s lawyers and provided a report back to them dated 15 July 2021.
I note the “presenting history” is recoded as set out above for the earlier report.
A/P Davies provided the following summary and opinion. I note I have added emphasis where the summary and opinion goes further than the previous report.
“Ms Clark is a sixty-three year old woman living in Wollongong, she presents with a history of having been employed a s community mental health worker for some years. In April 2017 she was dismissed from her position because of allegations that she had breached the employer’s guidelines for client management, since then she has had her dismissal reviewed by the fair work tribunal swho found in favour of her employer. However, I note that in her statement Ms Clark did provide a reasonable account of the reasons for the guidelines being breached and that it is likely that given the practical circumstances there was little else she could have done given that she was required to work alone with clients and had no immediate support available.
One of the problems in assessing Ms Clark from the point of view of workers compensation is that the primary issue causing her distress if her dismissal rather than other problems within the workplace; although she has reported previous problems and alleged discrimination against her in the workplace. Also Ms Clark has a long history of previous problems with anxiety and depression and was receiving treatment prior to the loss of her employment. I also note that since she had been advised to seek workers compensation she has felt better as she has had her complaint listed to and pursued so she has no current psychiatric disability.”
As to diagnosis, A/P Davies opined:
“At this point I remain of my initial diagnosis of Mild depression (ICDF10) although I do note that as part of this Ms Clark has significant anxiety and obsessionally,”
A/P Davies answered a series of specific questions which relevantly included:
“2. Your opinion concerning the relationship between any ongoing symptoms (if any ongoing symptoms) and the injuries and history as described to you”.
“Although Ms Clark had ongoing psychiatric issues prior to her dismissal from work it is clear that following this she experienced a significant increase in her symptoms and remains pre-occupied with the injustice of her dismissal.”
“3.your opinion as to whether the claimants injuries arose out of or in the course of her employment with the respondent”
“It is clear that the exacerbation of Ms Clark’s illness arose from her employment. The question of whether her employer acted reasonably remains open to some question. I am of the opinion that given the circumstances and nature of Mrs Clark employment that unless she was able to have a co-worker with her some technical breaches were an inevitable part of her carrying out her duties in the overall best intertest of her clients. This being so I would regard the employer as having been technically correct but opportunistic.”
Of course the question of whether Richmondpra undertook reasonable action in relation to dismissal is a matter to be determined as a factual matter on the evidence and is not a matter for a medical opinion.
A/P Davies went onto opine in answer to the question about substantial contributing factor, that “Ms Clark employment was a substantial contributing factor to the exacerbation of her underlying illness.”
He noted that Ms Clark has a long history of recurrent psychiatric illness and had been treated by her current practitioner since 2015.
He is asked in question 7: “please comment on whether the claimant’s psychological injury was wholly or predominantly caused by the reasonable actions taken or proposed to be taken by the employer with respect to dismissal. Please explain your reasoning”. He answered: “this is discussed under 4 above”. I note that this appears to be a typographical error and he is referring to his answer to question 3.
A/P Davies considered that Ms Clark still needed ongoing treatment and “still needs treatment for the issues related to her dismissal from work”.
He assessed Ms Clark as having a 6% WPI as a result of her work injury.
Richmondpra’s lawyers requested a further report from A/P Davies who provided same on 25 August writing as follows:
“I note the issue on which you are now seeking advice was raised in my original report in 2018. As stated in my earlier reports there was a major psychological impact from her dismissal as Ms Clark believed that she had done her best to assist the client and that her breach of the formal guidelines was technical and only undertaken in the interest of the client. I also noted that as her employer required her to work alone with clients such breaches were inevitable. Thus it was the perceived injustice of her dismissal that was a major factor in the onset of her illness.
When I last saw her Ms Clark had made some progress but continued to manifest symptoms as a result of the original workplace issues as detailed in my earlier report.”
It is clear that A/P Davies’ medical opinion is that the whole or predominant cause of Ms Clark’s injury was her dismissal. He is qualified to express that opinion and it legitimately forms part of the Richmondpra’s case in support of its s 11 A defence. Richmondpra bears the onus.
It is also clear that A/P Davies does not regard the employer’s actions as reasonable because he considers that it is inevitable technical breach dictated by the applicant having to work alone and that Ricmondpra’s actions in dismissing Ms Clark were “opportunistic”. This opinion is not one he is qualified to give and as the question of whether the employer’s actions were reasonable is a matter for factual determination, A/P Davies opinion on this issue carries no weight in my determination.
Dr Oldtree Clark, consultant psychiatrist, is the IME qualified on behalf of Ms Clark. He first saw Ms Clark on 2 February 2021 and provided a report back to her lawyers on 3 February 2021.
Dr Oldtree Clark provided the history under the heading “The Case” as follows:
“This is a workers compensation claim, Ms Clark is a mental health professional with certificates and diplomas in Community Mental Health and a Diploma in counselling. She was working at the Richmond Fellowship Outreach seeing clients. The Fellowship is now called Flourish.
She describes in her statement and in the investigation process how her anxieties built up. She has written an extensive account of her problems at work.
She related incidents at work in the Flourish organisation in Nowra. She was working as a mental Health Worker.
She has been attending a psychiatrist, Dr Panesar, who diagnosed Ms Clark as suffering a Post Traumatic Stress Disorder due to shock and trauma in the workplace, Her psychiatrist has prescribed her Circadin and duloxetine, She has also been on sertraline and venlafaxine.
She has been on anti-depressants since January 2017 when the first incident occurred. Then, allegations were made against her on 28 March 2017.
She said she was unfairly dismissed but went back to work for a few days in 2020.
She feels that she cannot talk about the whole situation properly. She feels that were rampant unspoken truths spoken and injustices perpetrated.
As a consequence, she was ‘pushed out’ of the organisation, she said. She said that she was terminated from her employment by the general manager.
She said that she has put in a Workcover claim because her injury commenced well before her employment was terminated.”
He went on to diagnose that Ms Clark suffered from a major depressive disorder and opined that work was a substantial contributing factor but did not seek to attribute causation to any particular event that occurred at work.
He went on to make an impairment assessment of 15% WPI upon which Ms Clark claim for lump sum compensation is based.
I note that A/P Davies was asked to comment on Dr Oldtree Clark’s report dated 3 February 2021 and he pointed out that Dr Oldtree Clark did not have the history that Ms Clark has a long history of psychiatric problems.
Dr Oldtree Clark was asked by Ms Clark’s lawyers to comment on A/P Davies report dated 15 July 2021. To this end he provided a report dated 10 October 2021. He expressed agreement with A/P Davies opinion where he said:
“With reference to A/P Davies answer to question 3 in his report, he thought circumstances at work were an opportunistic excuse to accuse Ms Clark of the misdemeanour . A technicality used to find Ms Clark at fault.
I agree with A/P Davies finding”.
Counsel for Ms Clark referred to the evidence from Dr Ernst, Ms Clark’s treating general practitioner (GP). Counsel submitted as follows:
“Member, the psychologist notes are contained with the GPs notes, and I’ll take you to those records now. There’s a report from the GP dated the 18th of July 2018. It’s at page 230 of the ARD. Now this report, Member, makes it clear that the wholly or predominantly aspect of the defence fails. In response to question 2, Dr Ernst notes that there was an exacerbation of the applicant’s anxiety and depression due to the dismissal from work. And then question 3, in response to point 3, Member, he notes ‘condition was present before but exacerbated’. So, Member, the applicant had already sustained an injury and it’s telling when it’s coming from a doctor that had treated the applicant for a number of years. And then again at 5, he notes that the, ‘the abovementioned allegation was the only aggravating factor.’ So it’s an aggravation to an already existing injury. Now, that’s the applicant’s case with respect to wholly or predominantly, Member.
MEMBER: Yes, but Mr Adhikary, isn’t it the case that she was treated for a psychological condition prior to working with the respondent?
MR ADHIKARY: She had issues in the past, yes, Member.
MEMBER: So is he referring to that? Where’s, where’s the evidence that he’s referring that, to the aggravation being to a condition that existed solely because of her problems with working with the respondent?
MR ADHIKARY: Member, in this report, he doesn’t address that but I will take you to the clinical notes from the applicant’s treating doctors and you’ll see that the applicant had issues relating to work, and you’ll also note, Member, there’s an accepted work related injury as well. So, when you have regard to these documents the evidence, and taken with the applicant’s lay statement evidence as well, the wholly or predominantly aspect of the defence fails.”
The insurer wrote to Dr Ernst on 14 June 2018 requesting that he answer a series of questions. He replied by letter dated 18 July 2018.
He was asked a series of questions which he answered as follows:
“1. In your opinion what is Ms Clark current psychological diagnosis as per the DSM-5? Please give details on how they meet the specified criteria for that diagnosis and confirm current symptoms” and he answered: “’anxiety and depression; low mood, anhedonia, lethargy, insomnia, loss of appetite, intermittent anxiety.”
“2. Please describe all events that caused the psychological injury” and he answered:
“Exacerbation of A&D due to dismissal from work in April 2017 perceived to be on unfair or contrived grounds. Allegedly transported a child without a parent being present, which Pamela denies.”
“3. Has Ms Clark sustained a diagnosable psychiatric or psychological condition as a result of the workplace. If yes please provide details as to how this occurred.” He answered: “Condition was present before but exacerbated by the above allegation”
“4. Has Ms Clark suffered an aggravation to a pre-existing condition or underlying condition? If so, has that aggravation cease? If it has not ceased, please provide a timeframe for when the aggravation is likely to cease?” He answered: “see 3.”
“5. Please advise whether these incidents are the whole and predominant cause of Ms Clark’s diagnosable condition and provide your rationale. If only some of the work related incidents are the whole and predominant cause of Ms Clark’s diagnosable condition, please confirm which incidents these are and provide your rationale.” He answered: “the above mentioned allegation seems to be the only aggravating factor in this time period”.
I consider that Dr Ernst’s answers to the insurer’s questions support a finding that the predominant cause of Ms Clark’s psychological injury was the action taken by the employer in relation to dismissal.
Dr Ernst referred Ms Clark to a psychiatrist, Dr Panesar. Ms Clark was first referred to Dr Panesar by Dr Ernst by letter dated 24 August 2017 from Dr Ernst to Dr Panesar. Dr Ernst referred Ms Clark for opinion and management. He noted she had “features of anxiety depression. Also very intrusive and ruminative thoughts possibly is paranoia but with no delusions.” There is no reference in this letter to any causative element. He requested that she be seen “soonest”.
Dr Panesar assessed Ms Clark on 31 August 2017 and reported back to Dr Ernst.
Dr Panesar recorded a history that included:
“Ms Clark was working as a mental health worker for Pra (flourish Australia) at Nowra for the last five years, She was dismissed in April 2017, she told me that her employer dismissed her because she transported a child without her mother in the car and left a child in the back seat at work. She believes that her dismissal was unfair.”
Dr Panesar conducted a mental state examination of Ms Clark.
Dr Panesar provided the followings summary of his findings as follows:
“In summary Ms Clark is a 62 year old woman presenting with depression and anxiety and OCD symptoms in the context of the loss of her job. This is on the background of a long history of depression and anxiety, cluster C personality style and a genetic predisposition to anxiety and depression”.
Dr Panesar’s opinion supports a finding that the predominant cause of Ms Clark’s psychological injury was the action taken by the employer in relation to dismissal.
When I weigh all of the evidence in the balance, I consider that A/P Davies opinion, the IME qualified on behalf of Richmondpra, that the predominant cause of Ms Calk’s psychological injury was her dismissal, is supported by the opinions of the treating GP Dr Ernst as expressed in his report dated 18 July 2018 to the insurer and the treating report of psychiatrist Dr Panesar. When I weigh all of the evidence in the balance, I am satisfied, on the balance of probabilities, that the action taken by Richmondpra in relation of Ms Clark’s dismissal whilst not the whole cause, was the predominant cause of her psychological injury.
The question for determination then becomes whether Richmondpra’s actions taken in relation to Ms Clark’s dismissal were reasonable.
The question of whether the employer’s action is reasonable is a factual determination. I have to weigh all of the evidence in the balance and determine, on the balance of the probabilities, whether the actions of the employer were reasonable in the circumstances of this case.
In this case, this requires careful consideration of the evidence of the alleged infraction by Ms Clark and the action taken by the employer in response.
The conduct for which Ms Clark was terminated took place on 28 March 2017. The client of the service for which Ms Clark was providing mental health support in the community was Kayla and she is the mother of the child, Felicia.

The allegations about Ms Clark’s conduct were twofold, namely that on 28 March 2017 she transported a child, Felicia, in her car without the mother Kayla being present and secondly, that she left the child alone in the car.
It seems on the respondent’s own case there was no communication with Ms Clark about the allegation that she transported a child without her mother and that she left a child alone in her car on 28 March 2017. This is despite the employer apparently being notified of the alleged incident on 28 March 2017. Ms Karina Lindsay is Ms Clark’s supervisor and it appears from the evidence of that she was notified on 28 March 2017 by another employee that Ms Clark had transported the child without the mother and left the child alone in the car. It appears also that Mr Matt Salen, the acting cluster manager was notified on the same day.
Despite the apparent seriousness of the conduct, Ms Clark was not contacted by her supervisor Ms Karina Lindsay or Mr Salen. In the intervening period between 28 March 2017 and a meeting held on 24 April 2017 Ms Clark was left to carry out her duties with clients and their children. She was not informed of the allegations until she was presented with a letter on 19 April 2017 by Ms Helen Backhouse (who is in charge of the Nowra branch) notifying her of the allegations and asking her to attend a meeting on 24 April 2017. Ms Clark said she had no opportunity to discuss the matter with Ms Backhouse on 19 April 2017 who didn’t ask for her version of events. Ms Clark attended the meeting on 24 April 2017. She was then dismissed by letter emailed to her on 27 April 2017, her rostered day off.
Ms Clark gave evidence in her statement that she had been asking Ms Karina Lindsay for support with Kayla at least from 20 March 2017 because Kayla was having severe mental health issues and had been suicidal. She also gave evidence that on 28 March 2017 she was trying to get Kayla in touch with Ms Lindsay for this reason. This is consistent with what Ms Clark said in the meeting on 24 April 2017 when the allegations were put to her.
Richmondpra has not relied on any evidence from Ms Lindsay despite Ms Lindsay being Ms Clark’s direct supervisor and despite the fact that it was Ms Lindsay who was notified of the allegation that the child was left in the car.
On 18 April 2017 Ms Clark received an email from Ms Helen Backhouse requesting that she attend a meeting with her on 19 April 2017. She was not told what the meeting was to be about. On 19 April 2017 Ms Clark attended the meeting with Ms Backhouse. Ms Clark said:
“She told me an allegation had been made against me and I had left a child alone in a vehicle in a car park, unattended. She handed me a letter and told me I need to attend a meeting on 24 April 2017”.
Ms Clark gave evidence:
“Helen did not ask me for an explanation and nor did she want one, I was told to be present. The letter offered that I could bring a support person to the meeting. I had the union delegate take part on a conference call.”
The meeting took place on 24 April 2017. Ms Clark gave evidence as follows:
“Also at the meeting on 24 April 2017 besides myself and Helen were Pamela, Matt Salen was on skype and my union delegate was on the phone, They put forward the allegation which was that I had transported a mother and child, but then left the mother at Centrelink and transported the child alone back to our office. This was totally untrue. I had transported them and left them both in the vehicle outside our office, While I was away the mother went to the toilet and left the child alone. I was blamed unfairly. Documents from 20 March 2017 verified the reason why I was attending the office for a follow up meeting with Karina Lindsay.”
There is no evidence from Ms Karina Lindsay. Ms Lindsay was Ms Clark’s immediate supervisor. Attached to Ms Clark’s statement in an email dated 28 April 2017 that she sent to Ms Lindsay referring to her requests for support. This email is dated after the termination on 27 April 2017. Counsel for Richmondpra says this is “self serving”. However, the timeframe must be taken into consideration, namely Ms Clark was asked to attend the meeting on 24 April 2017. This appears to be her only chance to explain her version of events. The next day 25 April 2017 is a public holiday. She worked on 26 April 2017. On 27 April 2017 she has rostered day off and after business hours received an email terminating her employment.
I note that during the meeting on 24 April 2017 Ms Clark said that she had been trying to get Ms Lindsay help with Kayla but had not received any response from Ms Lindsay. This aspect does not appear to have been the subject of any investigation by the employer. There is no statement from Ms Lindsay.
Ms Clark went on to give evidence as follows:
“Helen typed a record of the meeting which she gave me a copy at the end of the meeting on 24 April. I was asked to sign it but felt I could not do so because its contents did not reflect my truth and I wanted the union delegate to have a look at it first, 25 April was a public holiday. I went to work on Wednesday 26 April and went about my usual work.
I tole Helen at the end of that day I could not signed her account as my union delegate had not seen it, she was in training and the record was out of context.
I had a rostered day off on 27 April 2017. At around 5pm to 7pm on that night I received an emailed letter terminating my employment for a number of reasons. Rebecca and Michael McNeill had written false accounts of the child being left in the vehicle incident.
I was dreadfully upset about what had happened, the client who had left the child in the car gave false evidence against me – she would be concerned about the child being taken away from her if this was found out. Because 2 colleagues spoke out against me the insured took their evidence against mine.
I felt dreadfully unfairly treated over the incident and I was in shock.”
Helen backhouse gave evidence in a statement. I note she says she can’t recall if Ms Clark worked on 26 April 2017 and that it was considered three days was ample opportunity for Ms Clark to respond. This is despite one of those days being a public holiday (25 April) and the day (27 April) on which Ms Clark was terminated by email was on her rostered day off.
The chronology appears to be as follows:
·        28 March 2017: the alleged incident of transporting a child without the mother and leaving a child alone in the car takes place.
·        18 April 2017: email from Helen Backhouse to Ms Clark requesting she attend a meeting with her on 19 April 2017. No further detail is provided.
·        19 April 2017: Ms Clark attended a meeting with Helen Backhouse where she is handed a letter detailing the allegation (but without any supporting evidence attached) and asked to attend a meeting on 24 April 2017.
·        24 April 2017: meeting takes place. Ms Clark is able to have a support person present and the union delegate Emily appears by phone. Ms Clark is informed of the allegation made against her. Ms Clark is told of the witness statements (the mother Kayla and two colleagues) but she is not provided with a copy of their evidence. She denies the allegations and gives her version of events. She is given a typed record of the meeting to sign. She does not sign it.
·        25 April 2017: public holiday.
·        26 April 2017: Ms Clark says she worked as usual. I note Helen Backhouse says that the union delegate had been emailed the record of the meeting. Ms Clark says tells Helen Backhouse she can’t sign the document because the union delegate hasn’t seen it yet as she is in training. Helen Backhouse says she can’t recall if Ms Clark worked that day.
·        27 April 2017: Ms Clark’s rostered day off. Between 5.00pm and 7.00pm Ms Clark received an email terminating her employment.
The meeting on 24 April 2017 was transcribed in a document that is entitled “statement of Pamela Clark in the matter of:
1. On 28 March 2017, you transported an 18 month child on your own, with no parent present to and from the Flourish Austral offices despite you and the team receiving written instructions that no staff are to transport children without a parent/carer present;
And 2. You left the child unattended in the car situated in the site’s car park.”
Mathew Salen (acting cluster manager) conducted the meeting announcing that he “will be conducting an investigation into the allegations listed above”. He stated at the opening “during this interview a statement will be prepared, you will be given the opportunity to read this statement an make any corrections that are necessary. At the completion you will be given the opportunity to sign the statement. Do you understand this?”
The interview commenced at 9.30am, and the following statements were noted at the outset:
“Pam raised concern that she did not have the information requested, the letter does not state what time the incident happened, Pamela has requested the time from Andrew and Helen letting them know that she needed that information.
Matthew clarified that the incident occurred during the support period on 28 March 2017 1.45pm to 4.30pm.”
Ms Clark is asked to meet the first allegation and the following exchange occurred:
“Matt: do you agree or disagree with the allegation
Pam. Disagree. I did not transport the child without Kayla present in the car. No on the 28^th I did not transport Felicia in the car without Kayla.
Matt; can you walk me through the support you provided to Kayla that afternoon.
Pam: in the morning I provided supported to Kayla between 930am and 1230pm, Kayla was very distressed, she had ongoing arguments with her mother, there were some increased risks for this family on 20 March. Because I provided support a lot of support on that day, this makes it difficult for me to be sure which day. On the 28^th it was a very busy morning.
In the afternoon 1.45pm to 430pm a range of tasks to attend, Centrelink, Kayla needed an x-ray, Kayla taken to centre link to complete paperwork in relation to the baby. I remember we went to Centrelink and got paperwork and took to day-care, then it was not correct paperwork, so we went back to Centrelink, got the correct paperwork , then back to day care and Centrelink. Kayla had an x-ray done on her wrist.
During that day I tried to contact Karina Lindsay my supervisor as there were risk factors and prior to the 20^th of March Kayla had tried to commit suicide. I had tried to contact my supervisor to inform her of the risk factors. On the 28^th I was still focused on trying to get Kayla to the office to talk to Karina. On the 28^th after we had been to Centrelink, I think after we had dropped the paperwork, I suggested to Kayla that we could duck back to the office.
We came to the office, the child was in the car with Kayla. I parked the car near the back door, I said to Kayla to duck into the office to see if Karina was available, When Kayla came back to the car I said to Kayla that I just need to go into the office to talk to a supervisor.
I cannot give you an accurate time for when this happened and that is why I was trying to get information in the time of the alleged incident, I could give you shift report of when I worked with that person, I cannot break that down into exact time.
I do have messages I have sent to Karina during those days when the risks for Kayla were high, I had sent Karina messages on my smartphone I have records of all the messages sent to Karina.
The times on my iPhone. Tuesday 28^th March 12.18pm to Karina Lindsay
Hi just update re Kayla and current safety concerns with Kayla and a chord around her neck on Friday which I understand Danie may have followed up and recent concerns I sent to you Monday of last week.
Tuesday 28^th March 3.43pm to Karina Lindsay
‘Hi Karina I spoke with Bec re safety issues re children of KF and want to know your thoughts on this for follow up as we are mandatory reporters’
I was primarily concerned about safety issues for Kayla, her children and her partner,
Matte: when you came to the office who was in the car?
Pam: Kayla was in the car., Felicia was in the car and I was.
Matte: was there any time that you were in the car with the child and not the mother?
Pam: there was a time when I sat with Felicia in the car outside Centrelink and Kayla ran into Centrelink to do what she needed.
Matt: there was no stage at which you left that vehicle.
Pam: no
Matt; when you went to the office did you see any other staff there?
Pam: when I told Kayla to wait in the car. I believe at the time when I requested a conversation with my supervisor and that had not happened.
I saw my college Rebecca Semovente on the ramp, who said there a baby in the car where is the mother.
I said I don’t know whether the mother has gone. Kayla has a bladder issue as I sat back in the car my thought was that the mother went to the toilet.
Then the mother was in the car, the child was in the car and then we continued, the mother was in the car, the child was in the car. We left the site together just as we had all arrived in the car together.
Matt: did you talk to Kayla about why she had left the car at the time?
Pam: this person was having a mental health crisis at the time. My thoughts were to keep the mother safe and the child safe.
Matt: apart from Rebecca was there any other staff person at the office at the time?
Pam: my focus was on Kayla. I cannot tell you if anyone else was in the office I need to speak to my supervisor who I had been trying to get hold of since 20 March.
Matt: were you are aware of the written instructions not to transport a child without a parent present?
Pam; absolutely
Matt: confirming you deny the allegation that you transported the child without the parent.
Pam: absolutely on 28 March I did not transport the child on my own.
Matt: On the second allegation did you leave the child alone in the car in the site’s carpark?
Pam: I absolutely deny that allegation. The mother, child and I pulled up outside the back door. Kayla went into the office first. When she returned to the car, that is when I went into the office. That’s when another worker said, there’s a child in the car, I had not known that Kayla had left the child.
Matt: Kayla in her statement, has said that she was in Centrelink and that you had gone with the child.
Pam: No. We have a directive not to transport the child without a parent.
Pam: That may have been because Kayla was in the toilet. I do not remember anyone else in the office, I only remember Rebecca making that comment. I was concerned that Kayla had left the baby.
Matt: Kayla has claimed that you had driven the child to the office without her knowledge.
Pam: she is a mother having a mental health crisis who attempted suicide. There are risk factors around children, safety factors, I had alerted Karina of the increased risks and my concerns about the mental health of this client. When this client is in that state of mind, there is a lot of history around her honesty and dishonesty.
Matt: do you know a reason why two of your colleagues would have asserted that you arrived at the office with Felicia and without Kayla.
Emily: Can you clarify what the staff members saw?
Matt: That the child was left unattended in the car park.
Emily: That is consistent with what Pamela is saying that the child was left in the car park attended by her mother.
Matt: to clarify you deny the second allegation as well.
Pam: absolutely.
Matt; that is all the allegations we have.
Emily: Kayla is asserting that Pamela drove off with her child. Where is Kayla asserting she was at the time?
Matt: In Centrelink.
Pam: Can I just clarify that I left Centrelink with Kayla and Felicia to come to the office to speak to Karina Lindsay. Can I just assert again when I returned to the car a staff person said there was a baby in the car alone. I agree the baby was alone, but I left the baby in the care of the mother.
In terms of the transport aspect of me driving a baby to flourish office without a mother.
I would like to say that whoever put these allegations in place is dealt with.
Matt; these area allegations arising from statements of by two staff members and a service user.
Matt: that is the end of the conversation. Helen will draft up minutes of this meeting. The minutes, notes and statement by other staff members and the client will be forwarded to the Senior Leadership Team.
The senior leadership team will make a decision about action to be taken, which could be a range of action such as no action, improvement plan, formal warning up to dismissal.
You will be informed of the outcome in writing.
Emily: would like to put forward our concerns that you have allegations here from a client who has serious mental health issues. If you are positing one of your client’s evidence against a staff person, it has not been put to Pamela fairly that the staff statements say that they saw Pamela leave the office with Felicia in the car and not the parent.
Emily: Pamela do you want to make any statement about the fact that a staff person saw you transport Felicia without Kayla present?
Pam: That is malicious and defamation of my character and would like action taken against the staff person.
Matt: To clarify you did not drive the child in the car without the parent.
Pam: the mother was with the child.”
Within three days of the meeting on 24 April Ms Clark is dismissed by email on her rostered day off. One of these days was a public holiday (25 April) and one was Ms Clark’s rostered day off (27 April). At no time either before or during the meeting on 24 April 2017, was Ms Clark provided with the statements from Kayla and the two other employees (Michael and Rebecca) on 24 April 2017 that two staff persons saw the child alone in the car on 24 April. although she told during the meeting on 24 April 2017.
Helen Backhouse said she gave a hard copy of the minutes of the meeting to Ms Clark at the conclusion of the interview for Ms Clark to consider and sign. 25 April 2017 is a public holiday. On 26 April 2017 Ms Clark tells Ms Backhouse the union delegate hadn’t see the document yet. The delegate was on the phone at the meeting on 24 April 2017 and had apparently been emailed the document but Ms Clark said the delegate had been in training and therefore unavailable. On 27 April 2017 Ms Clark has a rostered day off. At the conclusion of that day she is emailed a letter of dismissal.
Ms Clark was given a chance to explain her version of events at a meeting on 24 April 2017 when allegations were put to her but the statement evidence underpinning the allegations was not provided to her. She refutes the allegations. Despite her being an employee of some five years standing (since 2012) in the mental health field, which could readily be conceded to be a most challenging field, Ms Clark is emailed a dismissal letter three days later on her rostered day off. There is no attempt to break the news in person to Ms Clark. She said she was in shock after receiving the email.
I note the termination letter also refers to a prior incident in which Ms Clark transported the children from the same family in her car without a parent present. This former occurrence is used by the employer in part to justify Ms Clark’s termination. When all of the evidence is reviewed, I am satisfied that prior to this former event there appeared to be no formal guidelines in place about transporting children in cars, although it is noted that there were various emails written after that event in which the staff, including Ms Clark, were clearly told not to transport children in their cars without parents present in any circumstances. I am satisfied that no formal written warning was ever issued to Ms Clark about the prior conduct although she was spoken to by Ms Backhouse about the event many weeks after it occurred. I am satisfied that the transporting of children on that occasion appears to have been taken at the request of the mother’s partner in circumstances where the mother was conveyed to hospital by ambulance after suffering two epileptic seizures. The mother’s partner requested the assistance of Ms Clark to transport the children to day care and she complied with that request in what appears to be a situation of extenuating circumstances. When all the circumstances are taken into account, I do not consider it reasonable for the employer to rely on Ms Clark’s prior conduct in transporting the children to day care when their mother was taken away by ambulance, as informing part of the reason for terminating Ms Clark because of her alleged conduct on 28 March 2017.

The termination letter also refers to Ms Clark not taking responsibility for her actions. Ms Clark in the meeting on 24 April 2017 denied that she had transported the child without the mother present and that she left the child alone in the car.
Ms Clark refutes the allegations about what occurred on 28 March 2017. She says she did transport the child in the car but she transported the child with her mother. She says she left the child and the mother in the car and went into the office. She says that the mother went to the toilet and left the child alone. Ms Clark said her attendance at the office with Kayla and the child this was in the context of Ms Clark repeatedly asking her supervisor Ms Karina Lindsay for help with this family because she considered both the mother Kayla and the child was at risk of harm. Ms Lindsay has not given evidence in these proceedings.
I take into account that the allegations made against Ms Clark were of a serious nature and concerned the safety of a child. I readily accept that the employer has obligations to act upon allegations of this nature. However, the employer also has obligations towards it employees who work in the difficult and challenging field of mental health. The question is whether the action the employer took in relation to dismissal of Ms Clark (because this is what I have found was the predominant cause of her psychological injury) was reasonable in all the circumstances of this case.
When I weigh all of the evidence in the balance I am not satisfied on the balance of probabilities, that the employer’s action taken in relation to dismissal of Ms Clark was reasonable in the all the circumstances of this case. The timeline I have set out above is an inadequate one in circumstances where Ms Clark has denied the allegations made against her in the one and only meeting that is held with her to discuss the allegation. I note that this meeting takes place some weeks after the alleged conduct, despite the seriousness of the alleged conduct and without it being raised with Ms Clark contemporaneously, such that she is left to continue to carry out her duties with clients and their children, despite the employer having been notified of the alleged conduct on the day it occurred. It was not reasonable to dismiss Ms Clark by email three days after the one and only meeting that is held with her to discuss the allegation when the statement evidence supporting the allegations has not been provided to her either before, during or after the meeting. It was not reasonable to dismiss Ms Clark, an employee of five years standing and who works in the challenging field of mental health, by email on her rostered day off, three days after the subject meeting, when one of those days was a public holiday, in circumstances where she has not been given an adequate opportunity to meet the case against her. It was not reasonable to dismiss Ms Clark when she says she was asking for help from her supervisor (Ms Lindsay) with the family in question and that is why she was attending the office on 28 March 2017, when no statement at all has seemingly been obtained at any time from that supervisor either before the dismissal in response to what Ms Clark said in the meeting on 24 April 2017 about seeking help from her supervisor or in the context of these proceedings in response to the evidence of Ms Clark in that regard.
The respondent bears the onus of proving its s 11A defence. When all of the evidence is weighed in the balance and for the reasons expressed throughout, I am satisfied, on the balance of probabilities, that the respondent has discharged its onus on the issue of whether the predominant cause of the psychological injury was the action of the employer taken in relation to dismissal but I am not satisfied, on the balance of probabilities, that it has discharged its onus that the action taken in relation to dismissal was reasonable.
This means that Ms Clark is not precluded from the recovery of compensation for her psychological injury by reason of the provisions of s 11A.
Accordingly, there will be, as agreed, a general order for the payment for her medical expenses and, in respect of the claim for lump sum compensation, the matter will be remitted to a MA to assess the degree of permanent impairment, if any, as result of psychological injury agreed deemed to have occurred on 4 March 2021. The documents to be forwarded to the MA will be the documents admitted into evidence in these proceedings by consent.

[2022] NSWPIC 669

6 December 2022