Clima v Bunnings Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Clima v Bunnings Group Ltd [2025] NSWPIC 349
APPLICANT:	Rosa Clima
RESPONDENT:	Bunnings Group Limited
MEMBER:	John Turner
DATE OF DECISION:	23 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Personal Injury Commission Act 2020 (PIC Act); claim for weekly compensation and medical and treatment expenses; de-identification; reasonable action; sections 11A(1), 36, 37 and 60 of the 1987 Act; section 58 of the PIC Act; rules 131 and 132 of the Personal Injury Commission Rules 2021; Irwin v Director-General of Education, Ivanisevic v Laudet Pty Ltd, Jackson v Work Directions Australia Pty Ltd, Northern NSW Local Health Network v Heggie, Department of Education and Training v Sinclair, and Pirie v Franklins Ltd cited and applied; Held – respondent’s application for de-identification is refused; in respect to section 11A(1) of the 1987 Act the actions taken by or on behalf of the respondent with respect to discipline were not reasonable; the applicant has suffered and continues to suffer from an incapacity as a result of the accepted psychological injury; respondent is to pay the applicant’s reasonably necessary treatment and medical expenses pursuant to section 60 of the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent’s application for de-identification is refused. 2. In respect to s 11A(1) of the Workers Compensation Act 1987 (1987 Act) the actions taken by or on behalf of the respondent with respect to discipline were not reasonable. 3. That the applicant has suffered and continues to suffer from an incapacity as a result of the accepted psychological injury. 4. The respondent is to pay the applicant: (a) $411.59 per week from 17 October 2024 to 27 October 2024, pursuant to s 36 of the 1987 Act; (b) $341.10 per week from 28 October 2024 to 7 November 2024, pursuant to s 36 of the 1987 Act; (c) $172.50 per week from 8 November 2024 to 12 November 2024, pursuant to s 37 of the 1987 Act; (d) $899.20 per week from 13 November 2024 to 15 November 2024, pursuant to s 37 of the 1987 Act; (e) $172.50 per week from 16 November 2024 to 19 December 2024, pursuant to s 37 of the 1987 Act; (f) $899.20 per week from 20 December 2024 to 30 March 2025, pursuant to s 37 of the 1987 Act, and (g) $903.20 per week from 1 April 2025 to date and continuing subject to indexation, pursuant to s 37 of the 1987 Act. 5. The respondent is to have credit for any payments made. 6. The respondent is to pay the applicant’s reasonably necessary treatment and medical expenses pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Rosa Clima (applicant) has commenced proceedings in the Personal Injury Commission (Commission) in which she alleges that she sustained a psychological injury (disease injury) on the deemed dated of 9 August 2024 in the course of her employment with Bunnings Group Limited (respondent).
The applicant pleads that she suffered injury as a result of the aftermath following a fire evacuation on 9 July 2024, specifically being subject to allegations regarding improper behaviour on 9 July 2024, a social media post authored by another colleague on
12 July 2024, attending three meetings with the respondent commencing on 31 July 2024 and ending on 6 August 2024 whereby she was subject to further accusations and was not afforded the opportunity to provide her version of events as well as an inadequacy of support from the respondent during the investigative process.
The applicant seeks weekly compensation payments pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (1987 Act) from 17 October 2024 to date and ongoing as well as the payment of treatment and medical expenses pursuant to s 60 of the 1987 Act.
The parties agreed the applicant’s indexed pre-injury average weekly earnings (PIAWE) at $1,124 for the period 1 October 2024 to 31 March 2025 and at $1,129 from 1 April 2025.

ISSUES FOR DETERMINATION

At the arbitration conference the respondent conceded injury, and the applicant conceded that s 11A(1) of the 1987 Act applies in terms of “wholly or predominantly”.

The parties agree that the following issues remain in dispute:
(a) whether for the purposes of s 11A(1) of the 1987 Act the action taken or proposed to be taken by or on behalf of the respondent with respect to discipline were reasonable, and
(b) incapacity.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
26 June 2025. Mr Ty Hickey, counsel, instructed by Ms Zahra Panju, solicitor, appeared for the applicant, who was present. Mr Tom Grimes, counsel, instructed by Ms Belinda Walsh, solicitor, appeared for the respondent. The proceedings were conducted on MS Teams. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to Application to Lodge Additional Documents lodged on behalf of the respondent dated 27 June 2025 (ALAD).

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Respondent’s application for de-identification

The respondent made an application pursuant to r 132 of the Personal Injury Commission Rules 2021 (2021 Rules) for de-identification of witness names. De-identification of the parties was not sought. Whilst the application relates to multiple witnesses a statement from only one of those witnesses is evidence. The remainder of the witnesses are referred to in the evidence as having provided statements, however their statements are not in evidence in the current proceedings.

Submissions

The respondent submits that the employees of the respondent who have given statements did so in an industrial context. That at the time they gave their statements they were not aware that there would be a workers compensation claim, that their statements would be used in any proceedings and that they could be named in a decision. In the respondent’s submission de-identification of those employees does not prevent the Commission from performing the objects of the Personal Injury Commission Act 2020 (PIC Act).
The applicant opposes to the respondent’s application. In the applicant’s submission the mere fact that the statements were prepared in respect to an industrial dispute is irrelevant and there is no basis for de-identification.

The relevant legislation

Section 58(1)(a) of the PIC Act requires the Commission to publish details of its decisions in accordance with the 2021 Rules.
Rule 131(1) of the 2021 Rules provides that subject to r 132 details of a decision are to be published.
Rule 132 provides for the de-identification or redaction of publishable decisions. Pursuant to r 132(4) regard is to be given to the following matters when considering de-identification:
“(a)    the objects of the PIC Act and enabling legislation and, in particular, the object that the Commission be open and transparent about its processes,
(b)     the prevention of prejudice to the proper administration of justice,
(c)    the safety, health and wellbeing of a person affected or named by the publishable decision,
(d)     the views of any other party to the proceedings,
(e)     whether it is necessary in the public interest for the direction to be given and whether the public interest in giving the direction significantly outweighs the public interest in open justice.”

Consideration

Considering the matters in r 132(4) in the context of the current matter. Section 3 of the PIC Act outlines the objects of the PIC Act which include to ensure that the Commission is “open and transparent about its processes” and that it “publicises and disseminates information concerning its processes”. The objects of the PIC Act and the enabling legislation are for the publication of the decisions of the Commission.
There is no submission by the respondent that the requested de-identification is for the purposes of the prevention of prejudice to the proper administration of justice or for the safety, health and wellbeing of the witnesses. There is also no submission that the de-identification is necessary in the public interest. The applicant opposes the de-identification.
It is not unusual for statements or statutory declarations to be made for one purpose, and then subsequently become evidence in proceedings before the Commission or before another tribunal or court. These statements are often made at the time of the occurrence of the relevant event(s) or shortly thereafter. These statements, statutory declarations and such like can be of particular evidentiary value due to their being contemporaneous.
Simply because the statements were prepared for a purpose other than for proceedings before the Commission is not a basis for de-identification. The respondent’s application for de-identification is therefore refused.

Section 11A(1) 1987 Act - Was the action taken or proposed to be taken by or on behalf of the respondent with respect to discipline “reasonable”?

Section 11A(1) of the 1987 Act states:
“(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.” [Emphasis added]
The applicant concedes that the psychological injury has been “wholly or predominantly” caused by action taken or proposed to be taken by the respondent with respect to discipline. However, the applicant disputes that the action taken or proposed to be taken was “reasonable”.
Considering the meaning of reasonableness, Geraghty J in Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998 (Irwin) said:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
In Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) (Ivanisevic), Truss CCJ said:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
Reasonableness is judged having regard to fairness. As Armitage J said in Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45 (Jackson) “only if the employer’s action in all the circumstances was fair could it be said to be reasonable.” The entire process must be looked at to see if the action was reasonable.[1]
[1] Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 (Sinclair).
Sackville AJA in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) observed the following at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression "action with respect to discipline". It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The respondent carries the onus of establishing the defence under s 11A.[2]
[2] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346 (Pirie); Sinclair; Heggie.
It is the applicant’s evidence in her statement of 3 December 2024 at [10] that on 9 July 2024 the store was evacuated when a gas bottle and nearby cardboard box caught fire whilst a team member was testing the gas bottle. At [11] that whilst evacuated outside everyone was socialising and waiting. At [12] the applicant recalls asking the fire wardens if they had checked on Ben, the team member who had been injured. At [13] the applicant observes that the fire wardens are to conduct a rollcall and recalls someone asking the fire wards if they were going to undertake a rollcall and someone also suggesting that the “UKG app” be used to do a checklist of all staff. It is the applicant’s evidence at [14] that because of this she was accused of causing a commotion. The applicant denies that she was laughing with other colleagues or that she said “lets go to maccas and have coffee”.
The allegations made against the applicant in respect to her behaviour during the evacuation on 9 July 2024 are recorded in an Interview Record of 31 July 2024[3] and are that she was not taking the evacuation seriously:
(1)    saying to other team members words to the effect: “Can we go over to Maccas?”, “Why are we doing this?” and “This is stupid?”;
(2)    saying to other team members in a sarcastic tone words to the effect: “Where’s the hats?”, “Where’s the first aid kit?” and “Where’s the team listing?”, and
(3)    laughing.
[3] ARD   pp. 349-350.
An email from the respondent’s Eva Lee dated 26 September 2024[4] indicates that statements to investigate the fire incident on 9 July 2024 were gathered from Marie Danks, Dimity Chidgey, Ben Kirkwood, Savannah Te Whaiti-Holmes, Chloe Muscat, Nigel Smith and Sam Kareem. It also indicates that follow up interviews were conducted with the following who had seen the applicant at the evacuation point – Sam Kareem, Chloe Muscat, Savannah Te Whaiti-Holmes and Damien Vazquez. An Evidence Matrix completed by the respondent[5] names as witnesses Sam Kareem, Chloe Muscat, Savannah Te Whaiti Holmes, Damien Vasquez and Deanne Manev.
[4] Reply p. 17.
[5] Reply p. 354.
None of the witness statements which the respondent gathered and relied upon in its investigation into the applicant’s conduct and behaviour during the evacuation on 9 July 2024 are in evidence.
The applicant’s evidence includes statements from Chiara Miceli and Maria Marinelli.
It is the evidence of Ms Miceli that the applicant and “Maria” were asking questions and asking if people were “ok” and if everyone had been evacuated to the “G4 people who weren’t doing anything.” That no rollcall was being conducted. That “Sam” got frustrated and yelled at them and said “I have never done this before I don’t know what I am doing” and that “Savannah then told everyone to shut up.”[6]
[6] ARD p. 7.
It is the evidence of Ms Marinelli that during the evacuation “everyone was talking/laughing”. That the applicant was quite concerned about the team member who was directly involved in the fire.
It is appropriate and reasonable for an employer to investigate inappropriate conduct that occurs during an emergency evacuation. Whilst it is not necessary for me to determine the truth or otherwise of the allegations made against the applicant the respondent bears the onus of proof and has not put in evidence the statements and complaints which formed the basis for the investigation into the applicant’s conduct. The respondent has also not put into evidence the further statements obtained during the course of the investigation. The applicant’s evidence is unchallenged by the respondent.
Whilst it was submitted on behalf of the respondent that the evidence of Ms Marinelli supports that the applicant was laughing, it is Ms Marinelli’s evidence that “everyone was talking/laughing”. Ms Marinelli does not state that the applicant was laughing. In the event that the applicant did laugh there is also no evidence as to the context in which that occurred.
The evidence before me does not support the allegations made against the applicant in respect to her conduct and behaviour during the evacuation on 9 July 2024.
It is the applicant’s evidence in her statement of 3 December 2024 at [16] that on
10 July 2024 she was told by two fire wardens that statements had been made about her behaviour during the evacuation and that she was upset because she did not know what she had done wrong.
On 12 July 2024 Ms Kelly-Jane Mann, the complex manager, made a post about the evacuation on the intranet. The post included a description of the incident that caused the fire as well as “learnings” from the evacuation and observations as to what worked well.
Ms Mann also stated in the post:
“It was disappointing to hear the amount of unnecessary commotion at the evacuation point, most team members were helpful and concerned in a stressful situation, a handful of team members were not.”
It is the applicant’s evidence that she was upset when she saw the post.
It is the evidence of Ms Mann that approximately five minutes after publishing the post the applicant came to the door of her office and said in an aggressive tone “What’s this all about?”, “What’s this bit about unnecessary commotion?” holding her phone in the air towards Ms Mann. It is Ms Mann’s evidence that she explained that she had multiple statements from the team members that were at the evacuation point stating that there were a handful of team members who were unhelpful.
It is Ms Mann’s evidence that the applicant said words to the effect “You’ve have got this all wrong”, “this is incorrect” and words to that effect. The applicant disagreed that they had been at the evacuation point within two minutes. It is Ms Mann’s evidence that she subsequently reviewed the video footage and altered the post. It is also Ms Mann’s evidence that the applicant said “No-one even asked if Ben needed first aid” to which Ms Mann explained that there was an investigation and de-brief with the leaders around the evacuation process and the roles they each played and that this was discussed.
It is the evidence of Ms Mann that the applicant responded by saying “So you’re lumping us all in together saying we were all unhelpful”, complaining that the post seemed rushed and contradictory. Ms Mann responded saying that as per the post there were only a handful of team members who were unhelpful and that there was an open investigation into the way these team members acted at the evacuation point, telling the applicant that she had received multiple feedback stating that there were a handful of team members that weren’t supportive. The applicant asked who? It is Ms Mann’s evidence that the applicant asked in a sarcastic tone “Do you want me to get statements from everyone who was there”.

It is Ms Mann’s evidence that the applicant left her office saying, “you won’t hear the end of this”, indicating with her phone in the air.
It is the evidence of Ms Mann that she felt attacked by the applicant’s language and tone, her body language came across as angry. Her choice of words seemed out of control at times, her tone was threatening, loud and forceful, and that this was an angry situation where she came across as defensive.
It is the applicant’s evidence that she went to Ms Mann’s door and asked what the post was about and specifically, what she meant by unnecessary commotion. That Ms Mann had told her that this was because various fire wardens had made statements about team members that were not helpful during the evacuation. It is the applicant’s evidence that she told
Ms Mann that she had gotten this “wrong and incorrect”. It is the applicant's evidence that she felt targeted and isolated.
On 31 July 2024 Mr James Ribbons, the respondent’s operations manager, held a meeting with the applicant. It is at that meeting, for the first time, that the allegations made against her are actually put to the applicant. The allegations comprised three allegations which relate to the applicant’s conduct on 9 July 2024 during the evacuation, two allegations which relate to the applicant’s conversation with Ms Mann on 12 July 2024 about her intranet post and one allegation about a conversation with “Sam” which was alleged to have occurred on or around 15-21 July.
Prior to the meeting the respondent had conducted interviews with staff and obtained statements. These statements were not provided to the applicant.[7]
[7] Reply p. 17.
The applicant appears to have been initially verbally advised on Friday 26 July at 7.30am by Mr Ribbons of a meeting on 26 July 2024. The meeting was subsequently re-scheduled to
31 July so the SDA Organiser could attend. There is no evidence from Mr Ribbons as to what the applicant was told about the meeting.
It is the applicant’s evidence that she was at no time told about the respondents Employee Assistance Program (EAP) and there is no evidence from the respondent indicating that the respondent informed the applicant about their EAP.
Even though there appears to have been investigations undertaken into the applicant’s behaviour from at least 12 July 2024 at no point prior to the meeting on 31 July 2024 is the applicant advised of the allegations made against her, the basis for the allegations, the process involved, who would be conducting the investigations or the potential disciplinary action to which she could be subjected.
The Interview Record of 31 July 2024 records that the purpose of the meeting was to “investigate & fact find/to get your response to” allegations that occurred on 9 July 2024 during the store evacuation. However, only three of the six allegations related to what occurred on 9 July 2024 during the evacuation.
In the applicant’s submission the questions which were put to the applicant in the meeting on 31 July 2024 were not in the nature of fact-finding questions but rather presume that the applicant is guilty of the conduct described in each of the allegations. I agree with the applicant’s submission. The questions put to the applicant in respect to the allegations in respect to her conduct during the evacuation were:
(a)    “How would you like to respond?”
(b)    “Do you understand the seriousness and safety risks during an evacuation?”
(c)    “Do you think this behaviour is in line with our BESAFE2100 ‘Health and Safety’ responsibilities and accountabilities.”
(d)    “Considering this was a stressful situation for a number of people that have not been involved in a real evacuation, do you believe you were a team player with your communication style?”
(e)    “How do you think your actions and comments would have made other team members including the supervisors feel?”
(f)    “How would you describe your tone?”
The questions put to the applicant in respect to the other three allegations were:
(a)    “How would you respond to this?”
(b)    “How would you describe your tone?”
(c)    “Can you please provide context around this comment?”
(d)    “What did you mean by that?”
There was also the following additional question: “If you had your time over would you do anything differently?”
The questions in my view do not seek to elicit from the applicant her history of the events. The applicant is not asked questions such as whether the complained of events occurred, if the applicant accepted that the events did occur what were the circumstances/context and her history of events, if it is the applicant’s position that they did not occur what is her history of the events, what witnesses or other evidence should be considered.
The applicant’s response to only the first allegation is recorded in the Interview Record. In that response the applicant denies that she uttered what she is accused of saying. In respect to being questioned as to whether she was a team player during the evacuation the applicant responded in the affirmative, that she instructed team members where to go, that she was the one to call management, that she told Sam and the customer that the box was on fire. That her tone was normal.
There is a further document which purports to record the applicant’s responses to all the allegations.[8] In that document the applicant is recorded as denying the allegations made against her.
[8] ARD pp. 357-358.
No statement was taken from the applicant as to the events, no detailed history as to what she says occurred and no witnesses identified.
It is the applicant’s evidence that following this meeting she obtained and supplied statements to the respondent from Maria Marinelli, Jenny McHugh, Adam Case and Chiara Michelli. The statements are not mentioned in the Interview Record of 31 July 2024. The statements were however obtained by the applicant prior to 7 August 2024 when the applicant is interviewed by the respondent in respect to the obtaining of the said statements.
On 5 August 2024 the applicant is given verbal notice by Ms Mann (whom two of the allegations involved) of a meeting to determine the outcome. On 6 August a discussion record to finalise allegations as to the applicant’s behaviour at the evacuation point and evidence matrix was conducted by James Ribbons and Kristen.
The evidence matrix records the names of the witnesses. The names of the applicant’s witnesses Maria Marinelli, Jenny McHugh, Adam Case and Chiara Michelli are not among the names recorded. They also do not appear among the names of those referred to in the document as having been interviewed. The Evidence Matrix only deals with four of the six allegations with the remaining two allegations remaining under consideration.
The copy of the Evidence Matrix in evidence is incomplete with parts of the applicant’s (as the respondent to the allegations) responses to the allegations being cut off.[9]
[9] ARD p. 361.
The Evidence Matrix records that allegations 2 and 3 were substantiated whilst allegations 1 and 4 were not. The Evidence Matrix only records the reasons for the finding in respect to allegation 2, recording that the allegation was substantiated based on multiple witness statements evidencing that the applicant was seen “speaking loudly in an aggressive tone to Sam and witnesses that commented on Sam's ‘dimeanor’ at the time of the conversation with Rosa as being stressed and upset. This could be attributed to the way Rosa was talking to Sam and the tone she used at the time.”
As Mr Hickey submitted on behalf of the applicant, the allegation which the respondent found substantiated, does not match the allegation which was put to the applicant which was that:
“On 9th July 2024 at approx 2pm you allegedly were not taking the real evacuation seriously and said to other team members during the evacuation in a sarcastic tone to the effect of: a) ‘where’s the hats?’ b) ‘Where’s the first aid kit?’ C) ‘Where’s the team listing?’”
The allegation put to the applicant does not put to the applicant that she spoke in a loud aggressive tone to Sam and that his demeanour was obviously stressed and upset in response.
The outcome of the investigation was put to the applicant on 6 August 2024.
It appears that interviews may have been conducted with the applicant’s witnesses following the completion of the Evidence Matrix. Those interviews appear to have been conducted by Ms Mann who was herself the subject of two of the allegations made against the applicant.
It appears that on 6 August 2024 Ms Mann gave verbal notice to the applicant of a further meeting to be held on 7 August 2024 to investigate claims in respect to breaches of confidentiality. There is no evidence from the respondent as to what the applicant was told about the meeting and the allegations which were the subject of the meeting or the process to be followed.
An Interview Record dated 7 August 2024 records that the applicant attended a meeting with Kristen Thompson and James Ribbons. The stated reason for the meeting was “to investigate allegations where you have breached the respectful workplace policy, specifically keeping confidentiality.”
The allegations in the most part relate to the applicant’s efforts in respect to requesting and obtaining statements in her defence to the allegations which had been made against her and in respect to which she was being investigated.
On 8 August 2024 the applicant was interviewed by Julie Ashkar of the respondent in respect to the allegations made by Ms Mann. That investigation was not finalised due to the applicant submitting a workers compensation claim on 9 August 2024.
In the respondent’s submission the investigations process was conducted in accordance with the respondent’s Respectful Workplace Policy (Policy). I do not accept the respondent’s submission.
The Policy outlines the process to be followed under the heading “Investigation process”. The Policy provides that once the details of the complaint have been obtained from the complainant the investigator will then meet with the respondent to give them an opportunity to respond to the allegations in the complaint. That the respondent may request an opportunity to provide additional information in writing.
In this matter this has not occurred. Rather than meeting with the applicant following the obtaining of the details of the complaint the respondent has proceeded to gather evidence in the form of statements in support of that complaint without discussing or even notifying the applicant of the allegations. When the respondent does conduct a meeting with the applicant on 31 July 2024 the questions put to the applicant are not, as previously discussed, in the nature of fact finding. No statement is taken from the applicant and no detailed history of the applicant’s version of the events has been elicited. Also no attempt appears to have been made to obtain the identities of any witnesses that may be of relevance to the applicant’s case.
The Policy provides that once the applicant has been interviewed by the investigator, the investigator will then meet with the witnesses. There is no evidence that Mr Ribbons interviewed the witnesses who provided statements to the applicant or that those statements were taken into consideration. The applicant’s witnesses do appear to have been interviewed by Ms Mann seemingly in respect to whether a breach of confidentiality had occurred but not in respect to the allegations made against the applicant. It was inappropriate in my view for any such interview to be conducted by Ms Mann in circumstances where Ms Mann was the complainant in respect of two of the six allegations made against the applicant. It is also of concern that it was thought appropriate to interview the applicant with respect to potential breach of confidentiality in respect to the obtaining of those statements in circumstances where the respondent has not explained and made clear to the applicant the investigation process, not sought details of witnesses from the applicant and then once the statements have been provided not seemingly thought to consider those statements or interview those witnesses in respect to the allegations made against the applicant.
The process followed by the respondent in my view was inadequate, flawed and unfair and therefore not “reasonable”.
At no time has the applicant been given written notice of the allegations made against her. At no time has she been provided with details of the process to be followed. When the applicant is interviewed on 31 July 2024 the meeting is reportedly in respect to the events that occurred at the time of the evacuation however only three of the six allegations relate to that event.
By the time of the meeting on 31 July 2024 contrary to the respondent’s Policy the allegations had been investigated without the applicant being interviewed and her history of events taken. The interview on 31 July 2024 failed to seek detailed information from the applicant in respect to her history of the events and failed to identify relevant witnesses. The information provided to the applicant as to the allegations is limited to a line a two for each allegation in circumstances where the scene directly following the evacuation appears to have been chaotic and where an injured worker may not have initially been receiving first aid treatment.
Following that meeting on 31 July 2024 the respondent does not appear to have conducted any further investigations and has ignored the statements obtained by the applicant and rather moved to discipline her for obtaining those statements without considering their own failures in respect to the investigative process. Ultimately at least one of the allegations which is found to be substantiated does not match in material respects the allegation which was put to the applicant.
For the above reasons I find that the actions taken by or on behalf of the respondent were not reasonable.

Capacity/incapacity

There is no dispute that the applicant sustained a psychological injury.
The applicant seeks weekly compensation from 17 October 2024 ongoing.
It is the applicant’s evidence that she lodged a workers compensation claim on
9 August 2024 and that she was able to return to work on light duties in September 2024. That on the day that she returned to work she was supposed to speak to Ms Mann, her return to work coordinator, however Ms Mann did not speak to her and nobody else did. It is the applicant’s evidence that she was subsequently told that someone else would be appointed as her return to work coordinator however this did not happen until several months later.
The applicant relies on the opinion of Dr Kumagaya, psychiatrist, who provided a forensic report to the applicant dated 6 December 2024. Dr Kumagaya took a history of the evacuation and the investigation into allegations made against her. The doctor also took a history of how in and around October 2024 the applicant attempted a return to work on full time hours, although she was unable to cope with her work duties owing to her psychological symptoms and how following a period of approximately two weeks, the applicant’s work hours were reduced to five hours per day, five days per week.
Dr Kumagaya diagnosed a major depressive disorder with anxious distress. The doctor anticipated improvement in the applicant’s mental state and functioning with access to treatment.
In the opinion of Dr Kumagaya, the applicant’s enduring incapacity results from her work-related psychological injury. That prior to her subject workplace injury, the applicant did not have a psychological incapacity for work. Subsequent to her workplace injury, the applicant was fully incapacitated for work until in and around October 2024, from which point, she has been partially incapacitated for work, thereafter
On 16 September 2024 the applicant’s general practitioner (GP) Dr Lorenzo Susino responded to a questionnaire advising that the applicant was certified as unfit but would see her psychologist and return to work on restricted duties in the near future. The doctor observed that the only barrier to the applicant’s return to work was contact with the Complex Manager (Ms Mann). In the opinion of the Dr Susino the applicant could return to work without the Complex Manager present.
On 10 March 2025 Dr Susino reported that the applicant was suffering an incapacity for work as a result of her psychological injury. The doctor observed that the applicant’s mood was low, that she was on edge, that she was not sleeping and had negative and intrusive thoughts regarding her workplace. She was fearful when she thought about the possibility of contact with the respondent’s staff members. She had lost confidence, had difficulty concentrating and had lost motivation. She had become irritable, and this had affected her home life.
In the respondent’s submission the only barrier identified by the applicant’s GP to the applicant returning to work both in the Certificates of Capacity and in Dr Susino’s response to the questionnaire on 16 September 2024 was contact with the Complex Manager. Whilst this is true, and whilst contact with the Complex Manager may have been a barrier to the applicant returning to work and undertaking work duties, at no time has the applicant been certified fit for pre-injury hours. There is also no evidence that at any time the applicant recovered from the psychological injury which she sustained.
In the respondent’s submission whilst Dr Kumagaya provides an opinion that from in or around October 2024 the applicant has been partially incapacitated for work the doctor provides no specific outline of limited hours, limited duties or which employer the doctor says the applicant cannot work for, so in the respondent’s submission there appears to be no limitation in that regard from Dr Kumagaya. In the applicant’s submission when the applicant saw Dr Kumagaya it correlated with a time when she was attempting to get back to work.
I accept the applicant’s submission. The applicant was examined by Dr Kumagaya on
6 December 2024. The applicant had returned to work in October 2024 on limited hours however by the time that the applicant attended on Dr Kumagaya for examination the applicant was again off work and has not returned to work. At the time of the examination the applicant was certified fit to work five hours per day, five days per week however the situation as to the applicant’s capacity to work appears to have been fairly fluid. Relevantly whilst the applicant had basically been certified fit to work five hours per day, five days per week from 17 October 2024 the applicant was certified with no current capacity for work from
1 October 2024 to 7 October 2024, from 13 November 2024 to 15 November 2024, and was then certified with no current work capacity from 20 December 2024.
Clinical record “#74”[10] which is unfortunately undated appears to relate to a consultation which occurred on or about 12 November 2024 as at this time the applicant was issued with a Certificate of Capacity for three days off work. The clinical record records “ongoing anxiety”, “not sleeping well – sleeping for 4-5 hours”, “feels on edge +++ at work, cannot relax” and that the applicant was to trial “tamaze”. This is the last clinical record in time and indicates that the applicant was struggling at work. The prior clinical records “#71”, “#72” and “#73” also indicate that the applicant continued to suffer from anxiety related to her work.
[10] ARD p. 170.
In the respondent’s submission the downgrade in the applicant’s capacity to no current capacity for work in the Certificate of Capacity dated 19 December 2024 occurs as a result of litigation neurosis which is not compensable.
I do not accept the respondent’s submission. The said Certificate of Capacity does record “workplace/insurance denied claim causing more distress” as a factor delaying recovery. There is no medical opinion supporting that the applicant is suffering from litigation neurosis and Dr Susino who reported on the applicant on 10 March 2025 provided an opinion that the applicant’s incapacity is due to the work-related psychological injury. Also as previously discussed clinical records “#71”, “#72” and “#73” indicate that the applicant was continuing to suffer from anxiety related to her work and struggle with her work duties.

In the respondent’s submission the medical opinions on which the applicant relies as to the cause of her incapacity should not be accepted. In the respondent’s submission the applicant did not disclose her psychiatric history to Dr Kumagaya.
In respect to the applicant’s psychiatric history Dr Kumagaya records that the applicant acknowledged having attended a marriage counsellor approximately three years prior. The applicant otherwise denied any pre-injury psychiatric background. It is also the applicant’s evidence in her statement of 3 December 2024 that she is going through menopause.
I do not accept the respondent’s submission. The clinical records from the practice of
Dr Susino evidence that the applicant was taking the antidepressant Cipramil at least as early as 2008. The clinical record for 13 October 2014 records that the applicant had reduced her dose of Cipramil and the clinical record for 1 October 2015 records that the applicant had ceased taking Cipramil.
The clinical record for the applicant’s consultation on 27 March 2017 questioned whether the applicant was suffering from premenstrual dysphoric disorder with the applicant feeling agitated, worried and overwhelmed. The applicant was provided a prescription for Cipramil which she appears to have again ceased taking by 31 August 2017.
On 22 March 2022 Dr Susino recorded that the applicant had developed menopausal symptoms. The symptoms recorded included low mood, irritability and emotional. The applicant had further consultations in respect to her menopause throughout 2022 and on
4 November 2022 Dr Susino noted that there were tensions in the applicant’s marital relationship. There are then references in the clinical records to the applicant’s relationship issues in late 2022 and early 2023.
There are no references in the clinical records to marital, menopausal or psychological issues after mid-2023. The complaints in respect to the applicant’s mental health then re-commence on 9 August 2024 with the subject work issues. There is nothing to indicate that the applicant’s prior mental health issues are the cause of the applicant’s current incapacity. As was submitted on behalf of the applicant the applicant’s psychological state appears to have been stable prior to the subject workplace injury with the clinical records recording no relevant complaints from mid-2023. There is also no evidence that the applicant’s previous mental health issues affected her capacity to perform her work duties and Dr Susino, the applicant’s long time GP, is of the opinion that the applicant’s incapacity is due to the work injury.
Dr Susino in his response to the medical questionnaire dated 16 September 2024 also noted when asked about pre-existing psychological conditions that the applicant suffered from perimenopausal depressive symptoms which had been diagnosed in 2022 and which were treated and stabilised by early 2023.
I accept the opinion of Dr Susino as to the applicant’s incapacity. Dr Susino is the applicant’s long time GP and is best placed as the doctor who has reviewed and treated the applicant on an ongoing basis to provide an opinion as the applicant’s capacity. The Certificates of Capacity are also supported by the doctor’s response to the medical questionnaire dated 16 September 2024 as well as the doctor’s report of 10 March 2025 which evidences a decline in the applicant’s mental health. Whilst Dr Kumagaya supports that the applicant suffers from an incapacity as a result of the work injury the report is limited in its utility having been obtained at a time when the applicant’s condition was not stable.
For the above reasons I find that the applicant has suffered and continues to suffer from an incapacity as a result of the accepted psychological injury.
The applicant was certified fit for suitable duties five hours per day, five days per week from 17 October 2024 to 19 December 2024 except for from 13 November 2024 to 15 November 2024 when the applicant was certified with no current work capacity. The applicant has been certified with no current work capacity since 20 December 2024.
The applicant does not appear to have worked since 27 October 2024. There is no explanation as to why the applicant did not work suitable duties between 28 October 2024 to 12 November 2024 and from 16 November 2024 to 19 December 2024 in circumstances where the applicant had returned to work with restrictions and was certified fit to work restricted hours. I therefore find in accordance with the Certificates of Capacity that the applicant had a capacity to work 25 hours per week between 28 October 2024 to
12 November 2024 and from 16 November 2024 to 19 December 2024. In accordance with the Certificates of Capacity I find that the applicant has had no current work capacity from
20 December 2024.
I understand from the payslip[11] for the period 14 October 2024 to 27 October 2024 that the applicant was paid $29.0681 per hour which would provide an income of $726.70 for a 25 hour work week. I find that the applicant had a capacity to earn of $726.70 per week between 28 October 2024 to 12 November 2024 and from 16 November 2024 to 19 December 2024.
[11] ARD p. 364.
There will be an award for the applicant in respect to weekly compensation as follows:
(a) $411.59 per week from 17 October 2024 to 27 October 2024, pursuant to s 36 of the 1987 Act;
(b) $341.10 per week from 28 October 2024 to 7 November 2024, pursuant to s 36 of the 1987 Act;
(c) $172.50 per week from 8 November 2024 to 12 November 2024, pursuant to s 37 of the 1987 Act;
(d) $899.20 per week from 13 November 2024 to 15 November 2024, pursuant to s 37 of the 1987 Act;
(e) $172.50 per week from 16 November 2024 to 19 December 2024, pursuant to s 37 of the 1987 Act;
(f) $899.20 per week from 20 December 2024 to 30 March 2025, pursuant to s 37 of the 1987 Act, and
(g) $903.20 per week from 1 April 2025 to date and continuing subject to indexation, pursuant to s 37 of the 1987 Act.

[2025] NSWPIC 349

23 July 2025