Collins v Bunnings Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Collins v Bunnings Group Ltd [2021] NSWPIC 313
APPLICANT:	Mellissa Collins
RESPONDENT:	Bunnings Group Ltd
MEMBER:	Glenn Capel
DATE OF DECISION:	30 August 2021
CATCHWORDS:	WORKERS COMPENSATION – Accepted psychological injury, but dispute as to the cause and whether injury wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to transfer; issue as to whether “suggested transfer” amounted to a “proposed transfer”; employer was concerned about worker’s ability to work with a variety of health issues; option of a transfer raised; worker suffered aggravation of pre-existing psychological condition; worker alleged bullying and harassment during course of employment; Jackson v Work Directions Australia Pty Ltd t/as Work Directions Australia, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Department of Education and Training v Sinclair, Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie, Attorney General’s Department v K, Shore v Tumbarumba Shire Council and Director General, and Department of Education and Training v Pembroke discussed and applied; Held - worker’s injury wholly or predominantly caused by action proposed to be taken by employer with respect to transfer, but the manner in which it acted was unreasonable; award for applicant for weekly compensation and medical expenses.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury arising out of or in the course of her employment with the respondent on 3 November 2020 (deemed). 2. The applicant’s employment was the main contributing factor to her injury. 3. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer. 4. The applicant was paid weekly compensation and medical expenses from 3 November 2020 to 26 January 2021. 5. The applicant has had no current work capacity since 3 November 2020. 6. The applicant requires medical treatment as a consequence of her injury and the respondent is liable to pay reasonably necessary medical expenses.
ORDERS MADE:	7. The respondent to pay the applicant weekly compensation as follows: (a) $779.51 per week from 26 January 2021 to 1 February 2021 pursuant to section 36(1) of the Workers Compensation Act 1987, and (b) $656.43 per week as adjusted from 2 February 2021 to date and continuing pursuant to section 37(1) of the Workers Compensation Act 1987. 8. The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mellissa Collins (the applicant) is 49 years old and commenced employment with Bunnings Group Ltd (the respondent) as a team member in the electrical department on
20 October 2007. She worked in a variety of positions until she was appointed to the position of loss prevention officer on 28 November 2019. She last worked for the respondent on
3 November 2020. Her current employment status is unknown.

There is no dispute that the applicant suffered a psychological injury arising out of or in the course of her employment on 3 November 2020 (deemed), although the cause of her injury is in issue. Provisional payments of compensation were made by Wesfarmers Ltd (the insurer) and I understand that some weekly compensation and medical expenses were paid from 3 November 2020 to 25 January 2021.

On 27 January 2021, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant had sustained an injury and that her employment was a substantial contributing factor. It indicated that the applicant’s employment was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to transfer. The insurer cited
ss 4, 9A and 11A of the Workers Compensation Act 1987 (the 1987 Act).

On 30 March 2021, the insurer reviewed its decision pursuant to s 287A of the 1998 Act and confirmed that it intended to maintain its position.

By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission) (the Commission) on 2 June 2021, and amended at the arbitration hearing, the applicant claims weekly compensation from 26 January 2021 to date and continuing pursuant to ss 36 and 37 of the 1987 Act, and medical expenses pursuant to s 60 of the 1987 Act due to an injury sustained on 3 November 2020 (deemed).

PROCEDURE BEFORE THE 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.
At the hearing on 17 August 2021, the respondent’s counsel, Mr Perry, confirmed that the respondent’s case was that the applicant suffered her psychological injury on
3 November 2020, and it was agreed between the parties that the applicant’s injury was in the nature of an aggravation of a pre-existing psychological condition with the deemed date of 3 November 2020.
There was no dispute that the applicant had no current work capacity and that she required medical treatment. I was informed that the parties agreed that the applicant’s Pre-Injury Average Weekly Earnings (PIAWE) were $820.54.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer – s 11A (1) of the 1987 Act.

Documentary evidence

10.The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    The Application with attached documents;
(b)    Reply with attached documents, and
(c)    Application to Admit Late documents received on 11 August 2021.

Oral evidence

11.Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Applicant’s statements

12.The applicant provided a statement on 4 January 2021. She stated that she had been troubled by spondylarthritis, rheumatoid arthritis and osteoarthritis since she was about 40 years old and she suffered flare ups from time to time, particularly in times of stress. She took a variety of medications depending on her pain levels.
13.The applicant stated that the new state leader, Jana Da Silva, reshuffled the teams and made some significant changes that meant that team members did not necessarily travel to the closest stores. When team members were off work, they were not replaced, so the remaining team members were expected to work as hard and achieve results. The applicant advised that her duties involved lifting and moving boxes, bending, and picking up. She pulled pallets in and out with pallet jacks, so her duties were quite physical.
14.The applicant stated that she would usually only see Ms Da Silva once a month at team meetings. Their communications were by telephone, texts, or emails, depending on the urgency. She enjoyed her role prior to Ms Da Silva’s appointment, but she never felt overly comfortable with or confident around Ms Da Silva. She was told that Ms Da Silva did not want team members contacting her, so the applicant felt uncomfortable when she had to contact her.

15.The applicant stated that she was not comfortable talking to Ms Da Silva when her mother died, as she did not know her very well. Ms Da Silva was supportive and allowed her to take time off work and the SSA team sent her flowers. When she returned from one month’s leave, Ms Schipp was not supportive and she was very cold, but other team members were supportive.
16.The applicant stated that in July/August 2020, Ms Da Silva asked to speak to her. She asked about Ms Schipp. The applicant told her that Ms Schipp was not doing her fair share of lifting, and she allocated the heavier pallets and workloads to her and the other team members.
17.The applicant told Ms Da Silva that she was struggling a bit and she was not getting support from Ms Schipp. Team members had offered her their condolences following her mother’s death apart from Ms Schipp. This made her feel uncomfortable. Ms Da Silva offered her EAP counselling, but she declined.
18.The applicant stated that Ms Da Silva said that if she or anybody else in SSA did not like the way that she did things, then she had “plenty of people knocking on her door” for their jobs. The applicant stated that her comments were every inappropriate and she felt intimidated and disappointed. She was shaky and thought that this was a little bit of bullying.
19.The applicant stated that she had to resend an email to Ms Da Silva regarding a toll reimbursement. She gained the impression that Ms Da Silva doubted that she had sent the email to her in the first place.
20.The applicant stated that on 23 October 2020, she attended a team meeting. Ms Da Silva discussed how SSA had performed over the previous financial year and talked about potential changes. She noted that New South Wales had the lowest scan rates and percentages compared to other states, and she questioned why that was the case.
Ms Da Silva thought that one of the reasons was because the team members were older.
21.The applicant stated that Ms Da Silva made it very clear that having older team members was one of the reasons why the numbers were not as high. There were five people at the meeting and the other team members, who were all older than her, remained quiet.
Ms Da Silva also stated that she felt that older team members posed a risk of injury. The applicant considered these comments to be inappropriate.
22.The applicant stated that when she left the meeting, she felt rattled and felt unsafe in her role. She asked a colleague, Charles, how he felt about these comments, and he said, “not good”.
23.The applicant referred to another incident when she was working in another team at Marsden Park. The operations manager praised the efforts of the team and asked that the members be given a coffee card. Ms Da Silva took the team out to lunch at McDonalds after the applicant had returned to her usual team. The applicant indicated that she received nothing from Ms Da Silva.
24.The applicant stated that she had an upset stomach on 2 November 2020, so she called
Ms Da Silva and informed her that she was going home at 2.00 pm instead of 3.30 pm.
Ms Da Silva advised her to hydrate and said that she hoped that she would feel better.
25.The applicant stated that she was still ill the next morning, so she sent a text to Ms Da Silva and advised that she would not be in and was going to see her doctor. She spoke to
Ms Da Silva at 9.04 am and told her that her doctor was concerned that she had diverticulitis. She had a certificate and hoped to be back at work that Thursday.
26.The applicant stated that Ms Da Silva said that she did not think that she was suitable for the SSA role anymore and she wanted her to think about transferring back into a store. The applicant told her that she was happy with her current role and she did not want to go back to a store. Ms Da Silva stated that in the opinion of the business, people like her with such conditions posed a high risk of injury, so she and the respondent would prefer that she not work in the SSA role.
27.The applicant stated that she told Ms Da Silva that she had been in a store for 12 years. She loved her job and she felt that she could still perform her work safely. Ms Da Silva responded that she could organise the paperwork and email it to her. She could organise a position in store close to her home. Ms Da Silva kept pushing and pushing her and tried to coerce her over an eight-minute telephone call. This caused the applicant to become upset.
28.The applicant stated that she apologised for the time that she had taken off work due to the deaths of her mother and cousin, and the three bouts of illness. She had not taken any time off work due to her arthritis.
29.The applicant stated that Ms Da Silva had never previously mentioned any concerns about her condition or its impact on her ability to fulfil her role. At her performance appraisal, she had received a very good review. Ms Da Silva was aware of her past psychological issues.
30.The applicant stated that she asked Ms Da Silva to support her for the rest of the year and she would try to regain her strength over the holiday break. The applicant told her that travel had never been a problem. Ms Da Silva asked her to complete a capacity assessment regarding her arthritis with her doctor’s comments before returning to her role.
31.The applicant stated that she thought that she was going to lose her job. When her partner called her, she was crying and shaking. She called Aaron Fisher in HR and told him that her boss was trying to push her out of her role. Mr Fisher said that this could not be done, and her job was safe.
32.The applicant stated that she returned to see her doctor. She was shaking and crying, and her blood pressure was elevated. Her doctor issued a WorkCover certificate for a couple of days. She later spoke to Margo McHugh of HR and she was told that she could not be forced out of her role. She sent the certificate to Ms McHugh, who indicated that she would speak to Ms Da Silva.
33.The applicant stated that Ms McHugh told her that she had two options, namely mediation, or making a formal complaint. She gave a statement over the telephone to Ms McHugh, and she was told that she could not be provided with a copy.
34.The applicant stated that she obtained a certificate of fitness for eight hours per day with only text and email contact with Ms Da Silva. She went back to work on 20 November 2020, and on that day, Ms McHugh called her and said that only one of her four allegations, namely Marsden Park lunch issue was substantiated. She indicated that Ms Da Silva was prepared to offer her a coffee card if she wanted one.
35.The applicant asked her why the investigation had been done so quickly and why the other team members had not been interviewed, and she questioned the outcome. She stated that her discussion with Ms Da Silva regarding her job should have been face to face and not over the telephone.
36.The applicant stated that she felt devastated and humiliated. She asked how her allegations were unsubstantiated. Ms McHugh explained that it was Ms Da Silva’s word against hers and the case was closed. Ms McHugh declined to tell her what Ms Da Silva had said because it was confidential. She considered that this was unfair and told her that there was no closure for her. Ms McHugh offered her the option of mediation.

37.The applicant stated that the news of the outcome set her back and she returned to see her doctor. She was still very anxious, had difficulty sleeping, and she was taking medication for her health issues.
38.The applicant provided a further statement on 11 August 2021. She advised that she was not offered time off with pay until the investigation was finalised in accordance with the respectful Workplace Policy. Ms McHugh declined her request to be provided with the names of the witnesses that she had interviewed, and she questioned why she had not interviewed Jackie Palmer and Ben Eaves who she mentioned in the telephone call on 10 November 2020.
39.The applicant claimed that Ms McHugh stated that she had spoken to two witnesses and that was sufficient. She claimed that Ms McHugh was aware that she could not move on from the grievance.
40.The applicant asked about her rights and Ms McHugh said that she did not have any. She asked how she was supposed to return to work, and Ms McHugh raised the option of mediation. The applicant said that there was no way that she would feel safe in a room with her.
41.The applicant stated that Ms McHugh did not offer her an internal review by a more senior member of the HR team. She was not given access to or advised of the policy or that her issues could be referred to external bodies. Ms Da Silva did not say that they needed to be mindful of others and give extra work breaks if needed.

Documents

42.The applicant also relies on three documents[1] that seem to be the source documents for her statement. They largely repeat the matters discussed in the applicant’s statement. These documents highlight the issues she had with Ms Da Silva and Ms Schipp, who the applicant did not consider her to be a team player.

[1] Application, pp 27 to 33.

Clinical notes of Our Medical Home Marsden Park

43.The clinical notes of Our Medical Home Marsden Park commence on 1 October 2018 and conclude on 14 December 2020.
44.On 26 May 2019, the applicant attended for treatment of anxiety and depression. There was no mention of the cause of the condition. She was prescribed Endep and Zoloft. She sought treatment for the same condition on 22 August 2019.
45.The applicant was prescribed Endep and Zoloft on 18 October 2019 and 19 March 2020. There was no history recorded.
46.On 19 April 2020, the applicant sought treatment for laryngitis. The doctor noted that she worked at Bunnings in Blacktown and she was worried about the coronavirus. She had a throat swab on 20 April 2020 for reassurance.
47.On 16 June 2020, Dr Nagulendran recorded that the applicant was not sleeping. The doctor decided to try to wean her off Zoloft.
48.On 30 July 2020, Dr Shukla recorded that the applicant worked at Bunnings. She complained of flu like symptoms, and it seems that the applicant was again concerned about contracting Covid. The doctor took a throat swab and advised her to self-isolate.
49.On 31 July 2020, the applicant spoke to Dr Ahmed because she required the test results for her work. She was informed that her tests were negative.
50.On 23 August 2020, Dr Nagulendran recorded that the applicant had suffered a panic attack the previous night. He told her to switch her medication back to Zoloft.
51.The applicant attended the surgery on 3 November 2020. Dr Nagulendran recorded the following history:

“Subjective:
1. 2 bereavements in the last 6 months mum and cousin, cannot sleep -very tearful. abdo pain diarrhoea and blood.
2. adjustment disorder at work - needed time off and her line manager has suggested she leave her role and move back into a store which upset her as she loves her role. she just needed a couple of days of non-paid leave to review her sleep cycle and get her pain under control and was shocked when her line manager suggested this especially after she has been working of bunnings for the last 12 years.
Reason for visit:
Anxiety/Depression”

52.The doctor prescribed medication and he gave her two medical certificates. The first certificate certified that the applicant was unfit for work on 3 November 2020 due to a medical condition, whilst the SIRA medical certificate certified that the applicant had no current work capacity from 3 November 2020 to 5 November 2020 due to an acute adjustment disorder that was due to the lack of support at work on 3 November 2020.

53.Dr Nagulendran completed a capacity assessment form on 3 November 2020. He advised that the applicant had rheumatoid arthritis and major depression. He identified various physical restrictions and noted that the barrier to her return to work was a lack of support and understanding from her line manager. Her prognosis was excellent if she is given support at work. He believed that she needed only a couple of days of rest, and then she could return to work.
54.On 6 November 2020, the applicant told the doctor that her mood was better, but she was still upset with her treatment at work. She was keen to return to work and hopefully be given more support. The doctor certified that she was fit for some work for 32 hours per week from 6 November 2020 to 4 December 2020. In this certificate, the doctor noted as follows:
“Factors affecting recovery:
ongoing acute anxiety after being threatened to be moved out of her role in ssa, needs mediation and should work her normal roster but with a lifting limit for the next month. Case to be closed once mediation has been organised and complaint is resolved. Bunnings to provide EAP support if required by Mellissa and GP to provide CBT as needed.”

55.In the certificate dated 23 November 2020, Dr Nagulendran certified that the applicant had no current work capacity due to an acute Adjustment Disorder. This was on the background of pre-existing spondylarthritis and major depression with recent bereavement reaction. In the certificate, the doctor noted as follows:
“Factors affecting recovery:
ongoing acute anxiety after being told her claim was unsubstantiated.”

56.In a report dated 20 March 2021, Dr Nagulendran advised that the applicant’s pre-existing psychological problems were exacerbated by her employment. He was of the view that the applicant’s injury did not rise from administrative action by the respondent, but by the conduct of its employees who told the applicant that due to her age, she was an unsuitable fit for her current role, gave her unfair criticism and bullied and harassed her.

Clinical notes of Rouse Hill Medical Centre and Crane Road Medical Centre

57.The clinical notes of Rouse Hill Medical Centre commence on 13 August 2012 and conclude on 28 January 2021. There are references to the prescription of Endep and/or Zoloft from 2014 to 2017 for mood issues and a relationship breakup. The last attendance prior to the events at work was on 23 September 2018.
58.On 30 November 2020, Dr Aktar recorded that troubled by multiple issues and she had anxiety caused by work related bullying. The doctor noted that the applicant:
“was adv to change roles at work this was encouraged or decided without her consent and she felt bullied and not listened too has felt pressured too with other decisions feeling vulnerable made contact with HR for help and has felt they have not helped either and they have all colluded against her...”

59.At the consultations on 10 and 27 December 2020, the doctor noted that the applicant had lost trust and she felt under pressure and unsupported by her work.
60.In a report dated 23 March 2021, Dr Aktar indicated that the applicant had an Adjustment Disorder which was exacerbated by her work as well as work-related events.
61.The clinical notes of the Crane Road Medical Centre commence in November 2014 and relate to the treatment of the applicant’s arthritis. In his report dated 30 November 2020,
Dr Jordan recorded that she had experienced a very traumatic year with the passing of her mother in May 2020 and a close cousin in September 2020. She had urinary tract infections, gastroenteritis, and was prescribed antibiotics. She had difficulty with her boss at work and had a worker’s compensation claim and it looked likely that she would not be to returning to work due to persistent bullying in her workplace.

Clinical notes of Advantage Psychology

62.The handwritten clinical notes of Advantage Psychology comprise two sessions on 6 and 13 January 2021.

63.The Allied Health Recovery Request form which was completed by Lakshmi Iyer on
13 January 2021 summarises the two counselling sessions on 6 and 13 January 2021.
64.Ms Iyer noted that noted that the applicant had difficulties with her manager at the respondent who said that that Bunnings did not need people with a high risk of injury. She felt like a nuisance and that she could not work anywhere. The applicant was crying during the session. The notes highlighted the lack of support from or trust in Ms Da Silva. The applicant advised that she did not want to return to work at the respondent.
65.In a report dated 8 March 2021, Ms Iyer indicated that the applicant had symptoms of depression and anxiety in the context of workplace difficulties, acute pain, and grief symptoms. She felt that interpersonal difficulties with her manager appeared to have contributed to her anxiety about returning to work, low mood, negative thoughts, low self-esteem, feelings of guilt for letting people down and difficulty trusting her workplace. Ms Iyer advised that she had no history of any proposed transfer.

Report of Dr Khan

66.Dr Khan reported on 10 February 2021. He recorded that the applicant had a good relationship with her boss first boss, Sonya. She claimed that after Ms Da Silva commenced work in May 2020, she started to target the applicant. She would make inappropriate comments, threaten, and intimidate her, which led to the emergence of anxiety. She felt that she could not talk to Ms Da Silva about how she was coping following her mother’s death. She felt that Ms Da Silva was unsupportive. She was also involved in an investigation about another team member.
67.The applicant indicated that there were no major issues between June 2020 and October 2020. She suffered urinary tract and bowel infections, and on 2 November 2020, she rang Ms Da Silva, and informed her that she had to go home early due to stomach pains and she then saw her doctor.
68.The doctor reported that Ms Da Silva contacted the applicant and told her that she did not believe that she was suitable for her role and it might be preferable to transfer to a store. She also said that she and the business felt that people like her with conditions like she had were not suitable for SSA, and that she was a "high risk injury worker" and "safety risk".
69.Dr Khan noted that the applicant described how Ms Da Silva pressured her to sign transfer papers, and she was told to complete a capacity assessment. It did not matter what she tried to say, she was unsupported, ignored and dismissed.
70.The applicant told the doctor that she raised her concerns with HR, and she later received a call from HR advising that the outcome of the investigation did not substantiate her allegations. She felt she could no longer trust management. As a result of these stressors, she experienced a gradual deterioration in her mental state.
71.Dr Khan diagnosed an aggravation of a Major Depressive Disorder due to “longitudinal bullying, harassment, intimidation, discrimination and lack of support by her manager”. He stated that her mental state stared to deteriorate before any transfer was raised and he felt that the employer’s actions were unreasonable. He stated that she was unfit for work.

Report of Dr Das

72.Dr Das reported on 21 January 2021. He noted that the applicant had received counselling following the birth of her daughter 20 years ago and after a marital breakup five to six years ago. She had not seen a psychiatrist since that time because she was happy with the treatment provided by her general practitioner. She had suffered a number of relapses and had been taking Zoloft for 17 years apart from brief periods when she took an alternative antidepressant.
73.Dr Dar reported that the applicant had a new manager and she felt discriminated over a period of six months because of her condition, and she tried to get her to leave her role. The applicant told the doctor that when she spoke to her manager on 3 November 2020 and informed her about her diagnosis of possible diverticulitis, her manager kept saying to her that she was at risk and she wanted her to sign a paper that was emailed to her.
74.The applicant told the doctor that it was humiliating and distressing to be spoken to like that and she never recovered from this. She claimed that her manager kept pushing her to leave because of her health issues. This telephone call came as a shock to her, and she was afraid of losing her job. She made a formal complaint to HR and she continued to work until
13 November 2020, however, she felt anxious and stressed about the complaint and investigation. She hoped for a resolution where her boss apologised for what she had said, but she was completely broken, felt worthless and thoroughly invalidated when she was advised of the outcome on 20 November 2020. She was offered mediation but was told her manager would not participate. She consulted her doctor who certified that she was unfit for work after she had been told that her allegations had been unsubstantiated.

75.Dr Das was provided with the factual investigation and was aware of the nature of the telephone call and the applicant’s request for support and understanding because of the loss of her mother and cousin. She believed that she had been discriminated against due to being a high risk because of her arthritis. Her manager had also made inappropriate comments and said that older team members were a high risk for injury. She had been offered EAP counselling, but the applicant declined.
76.Dr Das diagnosed a recurrent Major Depressive Disorder of moderate severity on the background of recent family grief. Her recommended medication in the context of her multifactorial problems and a referral to a psychiatrist. He stated that the recent recurrence was perhaps precipitated by grief following her mother’s death, but there was an exacerbation following the event on 3 November 2020, and she became further unwell when advised of the outcome of her grievance. He stated that she was unfit for any work, but once her condition became stable, she could be considered for part time work elsewhere.

Emails

77. The applicant sent an email to Ms McHugh on 4 November 2020. She advised that:

“…my concerns are that I feel Jana has discriminated against me for having an arthritic condition and I felt bullied and coerced into leaving my SSA role to go back into store after I asked Jana for understanding and consideration with my current health status and recent loss of my mother and cousin. Jana made it very clear that she wanted me out of SSA as I am (according to her), a risk factor for injury and both herself and the company (BUNNINGS), do not want team members performing roles when they are a risk of Injury, because of my arthritis. Jana pressured me to agree for her to get paperwork ready for me to sign to transfer back to a store against my wishes. I feel very undervalued as a team member and bullied by Jana. There have been other comments from Jana Da Silva which have concerned me in the past which I am happy to discuss with you in a meeting…”

78.In an email to Debbie Perano on 6 November 2020, the applicant advised that the incident on 3 November 2020 caused her a lot of anxiety.
79.In an email dated 7 November 2020, the applicant informed Ms McHugh that she was not comfortable with the thought of mediation. She still felt anxious about her position, and she felt that the issue of discrimination and bullying needed to be addressed further by a formal complaint. She claimed that Ms Da Silva was trying to coerce her to leave her SSA role when she was on sick leave over the phone, rather than in person, that she was discriminated against for having a chronic condition, that she was bullied over the phone when she tried to ask for support and understanding and she was continually pressured to leave SSA. She also had other concerns regarding Ms Da Silva’s behaviour towards her.

Statement of Jana Da Silva

80.Jana Da Silva provided a statement on 4 January 2021. She confirmed that the applicant called her the day or so after her mother passed away. She was sympathetic and told the applicant that she could have all the time off that she needed. Ms Da Silva offered her counselling on about four or five occasions, but the applicant declined.
81.Ms Da Silva denied that she said if they did not like how she did things, she had plenty of people knocking on the door for their jobs. This was something that she would never say to a team member. She acknowledged that the applicant might have had to wait for her toll reimbursement, but this would have only been a “one off”.
82.Ms Da Silva stated that she met with the team 1 members on 23 October 2020 to discuss the end of financial year results and strategic plans for 2021. She informed the team that New South Wales had the lowest scan rate and percentages compared to the other states. She said that this was not ideal, but she was not concerned about the ranking. She wanted to see improvement and get to the next performance level. This would come if they all worked together, and she encouraged them to do so.
83.Ms Da Silva denied that she had said that the numbers were not as high because team members in other states were younger. Rather, she stated that having some older team members provided experience. She commented that if her comments were insulting, the three other team members in the room would have said something.
84.Ms Da Silva stated that the applicant mentioned after the meeting that Ms Schipp was not pitching in as much and was taking a lighter load. She told the applicant that she appreciated the feedback and that she was dealing with Ms Schipp. She requested some specific examples regarding her concerns, but the applicant did not get back to her.
85.Ms Da Silva stated that she was aware that the applicant had some health issues and she spoke to her privately in the car park for about 30 to 45 minutes shortly after her mother’s death. The applicant stated that she was having a tough time, but she did not mention depression or her arthritis. Ms Da Silva offered counselling services and organised for flowers to be sent to her house.
86.Ms Da Silva confirmed that after she had received a complimentary email about team 2 from the operations manager, she visited the team at Villawood, and she spoke to four of the five members. She gave them coffee cards, but she missed the applicant. The applicant never raised this as an issue with her. She took team 5 to McDonald’s, not team 2.
87.Ms Da Silva stated that she recalled that the applicant called her on 2 November 2020 and advised that she would not be at work due to an upset stomach.
88.Ms Da Silva stated that the applicant called her at about 9 am on 3 November 2020 and told her that she was sick with stomach cramps and she was going to see her doctor. She seemed to think that this related to the stress following the deaths of her mother and a cousin. Ms Da Silva commented to the applicant that she had had a really tough year. The applicant kept saying that she felt that she was letting the team down, but Ms Da Silva assured her that this was not the case and told her to take some time off.
89.The applicant told Ms Da Silva that she was not sleeping and that she was on medication. Her arthritis was flaring up and she was not in a good state physically. Ms Da Silva told her to see what her doctor said.
90.Ms Da Silva stated that she was concerned about the applicant’s lack of sleep and the need to travel to different stores, so she asked her whether going back to a store would be an option, which would limit her driving. Ms Da Silva asked the applicant whether they should look at her hours and see how they could help if her work was too much for her. The applicant became hysterical and asked if she could wait until the end of the year and see how she felt. The applicant said that she did not feel that she would be supported in a store, as it was hard to take time off or be limited when she could work.
91.Ms Da Silva expressed her concerns about the applicant’s safety and asked if she could obtain a capacity form from her doctor so that they could have some idea of what her restrictions were. The applicant said that she could not really lift things with the flare up of the arthritis. The applicant agreed to take the form to her doctor.
92.Ms Da Silva indicated that they could review her work duties if her doctor imposed some restrictions, and she offered the applicant access to annual leave to cover any of her sick days, because she had no sick leave left. The applicant thanked her for this, and Ms Da Silva emailed the capacity form to her. This was later returned.
93.Ms Da Silva stated that about 20 to 30 minutes later, she received a telephone call from Ms McHugh, who advised that she had received a frantic call from the applicant. She was distressed, crying, and very emotional. The applicant had said that Ms Da Silva was trying to tell her that she needed to transfer and that she did not support her. Ms Da Silva denied that she had mentioned transferring out of SSA.

Statement of Margo McHugh

94.Margo McHugh provided a statement on 4 January 2021. She stated that she was contacted by Aaron Fisher after he had received a call from the applicant on 3 November 2020 regarding her conversation with Ms Da Silva.
95.Ms McHugh called the applicant, who repeated what had happened. Ms McHugh confirmed that she could not be forced to transfer from SSA to a store and if there were concerns regarding a team member's ability to perform the inherent requirements of their role, then they could ask for a capacity assessment form. The applicant was quite upset.
96.Ms McHugh stated that she told the applicant that she would speak with Ms Da Silva because there was possibly a misunderstanding. She offered the applicant access to EAP counselling, but she declined. The applicant sent her a WorkCover certificate, and they arranged to meet when she returned to work.
97.Ms McHugh met with applicant on 6 November 2020. The applicant told her about the telephone conversation on 3 November 2020, and Ms McHugh asked her whether she wanted to make formal complaint or proceed to mediation. The applicant sent an email the following day and advised that she wished to make a formal complaint about Ms Da Silva’s discrimination and bullying.
98.Ms McHugh interviewed the applicant on 10 November 2020. She identified her concerns regarding the team meeting on 23 October 2020, the Marsden Park lunch reward, and the meeting in early August 2020.
99.Ms McHugh stated that she explained the investigation process and how she would be informed of the outcome. On each occasion that she spoke to the applicant, she offered her the Bunnings EAP counselling service, but the applicant declined.

Ms McHugh advised that on 16 November 2020, she interviewed two witnesses in relation to the incident on 23 October 2020. She was unable to speak to the third witness despite numerous attempts to reach her. The applicant was interviewed on 19 November 2020 and Ms McHugh called her on 20 December 2020 to advise her of the outcome. The applicant was surprised at the speed of the investigation and it was agreed to discuss the matter when the applicant had the support of her partner later that day.
Ms McHugh spoke to the applicant at around 5.30 pm and advised that three of her complaints, namely the alleged bullying and discrimination in August 2020, on
23 October 2020 and on 3 November 2020, had not been substantiated. She was satisfied that the applicant had not received a coffee card for receiving positive feedback from the Marsden Park Warehouse, but it could not be substantiated that this was intentional, and that the lunch was solely for positive feedback from the Marsden Park Warehouse.

Ms McHugh’s statement is consistent with the minutes that she compiled regarding her telephone conversation[2].
[2] AALD, pp 78 to 79.

Meeting / telephone call minutes

The minutes completed by Ms Da Silva regarding the telephone call on 3 November 2020[3] was as follows:
[3] AALD, pp 80 to 81.
“9.00 am
Phone call with Melissa Collins
Called in sick due to stomach cramps is seeing a doctor today for some blood test think that it's all related to stress with her mother passing away and cousin recently passing away
I told her that is ok and understandable it's been a tough year, as she said she feels like she is letting the team down.
I told her to take her time and let's see what the doctor says
• Melissa then told me she was stressed not sleeping well or at all and is on medication to help her
• Mellissa said her arthritis is flaring up and hurts her and physically she was not in a good state at all.
I asked Mellissa is going back to store an option for her? Being closer to home and limited driving? Especially if she is fatigue which she said she is feeling. Is ssa too much for her with how she is feeling at the moment? Do we need to look at her hours what can we do to help?
Mellissa said if I could wait until the end of the year and see how she feels
I expressed my concern for her safety and said that at the next doctor’s appointment on Thursday if she could get her doctor to fill in a capacity form so we have an idea of what some of her restrictions are.
I did say that if the doctor thinks it's best for you to sit every hour or certain times or have lifting restriction we may need to review if ssa of safe for you to do.
Mellissa said she doesn't feel like she would be supported if she went back into store as before she was in support and it's hard to ask for time off or be limited to where she can work
I told Mellissa that my main concern is her safety And as a business we need to provide the safest working environment need to be able to provide a safe environment. I told her not to get upset about it let's just see what the doctor recommends for you and we can go from there. Offered her AL to cover her sick days as she is out of sick leave and I don't want to put in leave without pay for her as I feel that would add to her pressure if she is not getting paid.”
Ms McHugh compiled minutes about her discussion with the applicant on 6 November 2020[4]. The applicant was asked about the telephone call on 3 November 2020, and Ms McHugh recorded the following:
[4] AALD, pp 65 to 67.

“…I said: ‘Hi Jana, I’ve just been to see my doctors, he has asked me to have some tests done which I will have them done. At this stage I am coming back to work on Thursday as I don’t work on Wednesdays.’
I asked Jana ‘Please be patient with me while I get my health back on track, I’m asking for your support and I’m sorry I’ve had time off work.’
I then explained to her my arthritic condition. I said to Jana ‘with my arthritic condition, I have flare ups because of stress. It makes me more suspectable to infections. My anxiety is not good and I’ll have flare ups.’
I then said to Jana ‘the death of my mum 5 months ago and cousin 3 months ago has made things flareup and it’s taken a toll on me.’
Q: What was Jana’s response?
A: She said to me ‘I feel like it is in your (my) best interest if I let you move back to the store as someone like you poses a high risk of injury. Both me and the company (Bunnings) would prefer for people like you to not work in SSA due to a high risk with your arthritis.’
Q: What was your response to that?
A: ‘I love my job, I really enjoy it and Its good for my mental health as I love it and I did not want to return to the store.’
Q: What was Jana’s response?
A: ‘I can transfer you (me) to a local store you don’t have to travel so far.’
Q: What was your response?
A: ‘I have no problem travelling to stores and I’m not looking to work at a store around the corner’. Jana then said to me ‘oh look I can get papers ready for a transfer and I can email you the papers’. I was upset and said to her ‘I don’t want to lose my job in SSA’. Jana then said ‘Well I will need you to fill in a capacity assessment form and get you to fill that in so I know what your capabilities are’. I said ‘yes, I am happy to have that filled out and take it my doctor and get it filled out’. I think Jana then said ‘thank you and that’s good.’
I then tried to explain to Jana that ‘I can perform my role in a safe manner and without any risks’. I then say to her ‘let me get through the rest of the year and have the break over Christmas and then hopefully I will be better next year/’
Jana said: ‘maybe SSA isn’t right for you and you should think about a transfer. If you ask for reduced hours then SSA couldn’t accommodate that’. I said ‘I don’t want to reduce my hours.’
Jana then also said ‘If I couldn’t perform duties of lifting then it would be fair for the rest of the team and would compromise/put pressure on the team.’
I said ‘thank you and I’ll go back to my doctor.’
Q: Was that the end of the discussion?
A: Yes.
Q: Are you happy to provide me a copy of your notes?
A: Yes – send through
I feel like Jana has discriminated against me and wanted me to leave SSA not on my will. I think it is completely inappropriate and a lack of empathy and support from her. She is bullying me…”

The minutes of the meeting with the applicant on 10 November 2020[5] record the discussions regarding the events in August 2020, on 23 October 2020, and he coffee card incident. These notes are consistent with applicant’s statement.
[5] AALD pp 68 to 69.
Ms McHugh’s interviewed Charles Dzirutwe[6] and Chris McCardle[7] regarding the meeting on
23 October 2020, I do not propose to comment on these here, but will refer to them later in this decision.
[6] AALD, p 70.
[7] AALD, p 71.
Ms McHugh interviewed Ms Da Silva, and the minutes[8] were recorded as follows:
[8] AALD, pp 73 to 74.
“Allegation 4
Q: Can you take me through what your recollection of discussion with Mellissa in Aug 20?
A: yes. Conversation happened with Mellissa. Her concerns were in regarding to Michelle not pulling her weight. Team left to do heavy lifting, walks out of GI area but tells them not to, her main concerns were that they were not working as a team.
I said to her ‘thanks for bringing it to my attention, I am aware of issues and lack of team work’. She said ‘I feel she is under pressure’ and I said ‘that’s different to any performances concerns you may have’. I said ‘I’m new to the team so I will look into this’.
Q: Read allegation 4 in EM. Response?
A: Denied, definitely.
Allegation 3
Q: Read allegation 3 in EM. Response?
Team 5: received coffee cards ‘you did good’ as a thank you for the feedback from Marsden Park Op’s manager as a result of Kellie’s email saying coffee was on her.
Lunch was not on response to that Feedback
Reward’s lunch at McDonald’s for Team 5 – 4 different events not just the one event. Rewards and recognition for hitting several targets over a period of time. Northmead written feedback, Ashfield phone convo with Ops and Villawood reached green IPRS. Mellissa was not part of the Team in relation to Northmead, Ashfield and Villawood and was not a member of that Team when I took them out for lunch.
Q: Did Mellissa receive a coffee card?
A: I’m not sure I personally. I said to Ben make sure the team get a coffee. I did not follow up.
Allegation 2
Q; Did you attend Dural meeting 23 [sic] October 2020?
A: yes it was our strategy meeting.
Q: Who attended?
A: Michelle, Mel, Charles and Chris
Q: What was said?
A: Hour meeting went through slides. Slides talk about performance and how we did EFY20. I did say our results were terrible and here is room for improvement.
I have told them that the older 60-65 plays a part on us. like in absenteeism.
Q: Did you say ‘we are an older group of team members and our scan rates are lower and percentages are not as high’ and ‘team members who are older are at higher risk of injury and are concerns to her here in NSW’.
A: yes I did. I said we need to be mindful of those team members. I asked team to help those team members i.e. two team members lifts, extra breaks if needed. If you see them struggle let’s help them out. When I told them I read for a stats powerpoint (to send through). I did not say ‘are concerns to me here in NSW’
Q: Did you discuss Kevin and his injury in that discussion?
A: No I don’t think so. No. I don’t think I mentioned Kevin at all.
Allegation 1
Q: What was your account of discussion on 3 Nov 20 with Mellissa?
A: It was about 9am she phoned me saying she was unwell and I was in GI (it was a little loud), Melissa’s phone was in and out. I moved out of GI. She said ‘I am calling in sick today due to stomach cramps’. she said she had planned to see a doctor in relation to stomach cramps and she thought it was stress with her mum passing away and now her cousin. She was crying/teary on the phone. I said ‘its ok, you’ve had a rough year’. She then said “I feel like I am letting the team down”
I said Mellissa don’t worry about the team we will be ok, look after you.
I have notes – to provide to MM
MM Read allegation 1 in EM
I did not discriminate against Mellissa or bully/coerce her into leaving her SSA role to go back to a store.
In the convo I did say as an ‘option’ to transfer to a local store close to her home so she didn’t have to travel. This was in response to her telling me on the phone that she had anxiety, flareups with her arthritis that was affecting her hands at the time (but it does also affects her legs sometimes), on strong medication, wasn’t sleeping and she was fatigued.
(a) denied – didn’t say this
(b) denied – didn’t say it
(c) denied – didn’t say this
(d) denied – There are no papers for a transfer so I definitely did not say this.”

Evidence Matrix and outcome

The evidence matrix[9] summarises Ms McHugh’s interviews and is consistent with the minutes of the interviews. Ms McHugh determined that the applicant’s allegations regarding their discussions with Ms Da Silva on 3 November 2020 could not be substantiated.
Ms Da Silva denied the allegations, and Ms McHugh observed that there were no witnesses to corroborate the evidence of either witness.
[9] AALD, pp 75 to 77.
In respect of the team meeting on 23 October 2020, Ms McHugh was satisfied that
Ms Da Silva said words to the effect that “we are an older group of team members and our scan rates are lower, and percentages are not as high” and that “team members who are older are at higher risk of injury”, which were based on statistics, but she did not view these comments as inappropriate.
Ms McHugh was not satisfied that Ms Da Silva said that “team members who are older are concerns to her in NSW” and that she mentioned Kevin’s hip replacement, because
Ms Da Silva denied this, and the two witnesses could not recall this being said.
Ms McHugh was satisfied that Ms Da Silva did not take the applicant to lunch, but the allegation that the lunch was to congratulate the team for solely receiving positive feedback was not substantiated.
In respect of the meeting in August 2020, Ms McHugh stated that the applicant’s allegations could not be substantiated because Ms Da Silva denied saying the words and there were no witnesses to corroborate the evidence of either witness.

APPLICANT’S SUBMISSIONS

The applicant’s counsel, Ms Grotte, submits that the respondent bears the onus of proving that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer. She submits that the circumstances on 3 November 2020 did not constitute a decision taken or proposed to be taken with respect to transfer. It was merely a discussion in the context of the applicant approaching Ms Da Silva and seeking some time off work.
Ms Grotte submits that Ms Da Silva mentioned the possibility of a transfer out of the SSA and to a store, and this was resisted by the applicant. The respondent was not intending to transfer the applicant, and this was merely a matter raised in the moment in the context of a conversation.
Ms Grotte submits that there were no performance issues with applicant. In her statement,
Ms Da Silva confirmed that the death of the applicant’s mother and cousin had severely affected her. There was no mention of the applicant’s arthritic condition or any issues regarding her ability to perform her work duties that involved lifting and carrying. She denied that she had said in a meeting that the numbers were high because of the age of the team members. There was the issue regarding the coffee outing when the applicant was excluded.
Ms Grotte submits that Ms Da Silva described the discussion that occurred on 3 November 2020. She described the physical nature of the applicant’s duties and confirmed that she asked the applicant to provide a capacity form from her doctor regarding her work capacity. Ms Da Silva said that she never mentioned a transfer to the applicant when Ms McHugh contacted her after the applicant had spoken to her.
Ms Grotte submits that the capacity form was completed by Dr Nagulendran, who stated that the applicant had not required time off work due to her arthritis, but due to bereavement following the death of her mother and a respiratory condition. He reported that the applicant had felt discriminated against because of her medical condition. The physical restrictions noted in the report were for one month only. There was no suggestion that this was permanent.
Ms Grotte submits that whilst the applicant stated that there was a discussion about a transfer, it is apparent from Ms Da Silva’s statement that there was no transfer nor was a transfer proposed. No decision had been made and there was only an informal discussion. There was no intention, and it was only in its embryonic stage. In the circumstances, one could not be satisfied that the employer had made a decision to transfer or that it proposed to transfer the applicant, so the respondent cannot rely on a defence pursuant to s 11A(1) of the 1987 Act.
Ms Grotte submits that the next question concerns wholly or predominantly. She submits that Dr Khan obtained a history of the issues that the applicant had during the course of her employment. The applicant told the doctor that Ms Da Silva was making threatening and inappropriate comments that led to the emergence of her anxiety. She had difficulty talking to Ms Da Silva after her mother’s death and she felt unsupported by her. There were no major issues from June 2020 to October 2020. She then fell ill and spoke top Ms Da Silva on
2 November 2020, and there was the conversation with Ms Da Silva on 3 November 2020.
Ms Grotte submits that Dr Khan recorded that the applicant felt that she was not supported, and she was going to be transferred out. Ms Da Silva told her she was not suitable for the role and it might be better if she transferred to a store where her needs could be better accommodated. Dr Khan also recorded that Ms Da Silva said to the applicant that people with conditions like hers were not suitable for a position in SSA, that she was a high risk worker and a safety risk, she was pressured to sign papers and she was told to fill in a capacity form.
Ms Grotte submits that Dr Khan concluded that the applicant’s injury had not resulted from reasonable action regarding a proposed transfer. Her mental state started before any transfer proposal was raised. Whilst he did not state that the applicant’s injury was wholly or predominantly caused, one can infer that from his response that this was what he meant, and one can infer that there were other issues that caused the applicant’s anxiety to increase since May 2020 due to Ms Da Silva’s attitude towards older workers, whether for safety concerns or otherwise, which is irrelevant.
Ms Grotte submits that in her statement, the applicant described the issues that developed and the difficulty she had dealing with Ms Da Silva. The initial contact with Ms Da Silva was mixed. She stated that after she returned from leave following her mother’s death,
Ms Da Silva offered her counselling, but also said that very directly and coldly that if she or anybody else in SSA did not like the way she did things, she had plenty of people knocking on her door for their jobs. She was taken aback and was quite intimidated by it and she felt that this was bullying.
Ms Grotte submits that the applicant’s recollection should be accepted regardless of whether there is corroborative evidence. The applicant perceived that she was bullied and intimidated, and this is entirely plausible. She felt that she needed to watch out and be careful because there was an element of distrust in the relationship. This was one of the events that contributed to the applicant’s injury over a period of time.
Ms Grotte submits that there was the incident when she was excluded from receiving a coffee voucher, and this contributed to her anxiety. This added to the applicant’s perception and is a real incident. This amounted to bullying in her mind.
Ms Grotte submits that the applicant stated that at the meeting on 23 October 2020,
Ms Da Silva questioned the team about the poor results and said that one of the reasons was because they had older team members, and she said that older members posed a risk of injury. The applicant felt rattled about this. These are the incidents that Dr Khan viewed as contributing to the applicant’s injury.
Ms Grotte submits that in his interview about the meeting on 23 October 2020,
Charles Dzirutwe confirmed the applicant’s evidence regarding the meeting, but he did not recall any inappropriate comments. When he was asked about whether Ms Da Silva had said they were an older team and the scan rates and percentages were not as high and said that team members who were older are a higher risk of injury and was of concern to her, he agreed that Ms Da Silva said something like that. He denied that Ms Da Silva had mentioned Kevin. He was not concerned about these comments, but that is not the issue. He corroborates the applicant’s evidence, and it is perception that is relevant on the issue of causation of her injury. Mr McCardle also confirmed what was said about this meeting, the staff being off work due health issues and that older people were a higher risk of injury. He could not recall any comment about Kevin. There was no interview with Ms Schipp who failed to respond to the request.
Ms Grotte submits that there was a new supervisor, who was concerned about the results and the older staff members, who had a higher risk of injury and who were taking time off due to medical conditions. She raised her concerns at a meeting, and this created an atmosphere where it was plausible that the applicant would be feeling under stress, discriminated against and this would have contributed to the emergence of her anxiety which led to her decompensation on 3 November 2020 and thereafter.
Ms Grotte submits that in her interview, Ms Da Silva denied the applicant’s allegation regarding the discussion on 20 August 2020. Ms Da Silva agreed that she had no followed up whether the applicant was given a coffee card. In her statement she acknowledged this abut said that it was not deliberate.
Ms Grotte submits that Ms Da Silva agreed that she said that the team was an older group and the scan rates and were lower and the percentages higher, and that team members who were older were a higher risk of injury. She asked team members to help other team members. She did not mention that she was concerned and did not think that she mentioned Kevin.
Ms Grotte submits that there were other issues in the background that were causing the applicant anxiety and concern that contributed to her medical condition.
Ms Grotte submits that Dr Das does not indicate in his report that the applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respond with respect to transfer, but this is not necessarily fatal. He reported that the claim “is attributed to the workplace incident on 3 November 2020” and he noted that the applicant felt discriminated against by her new a manager and that she bullied her and tried to get her to leave her role because of her condition.

Ms Grotte submits that Dr Das stated that the recent recurrence was perhaps precipitated in the context to the death of the applicant’s mother, and it was exacerbated by the adverse experience on 3 November 2020 and following the outcome of her grievance. The doctor did not take a history of all of the things that happened to the applicant and he failed to deal with the applicant’s history of discrimination over a six month period and focussed on the events on 3 November 2020. In those circumstances, one could not rely on his opinion, and the evidence of Dr Khan should be preferred.
Ms Grotte submits that if there was action taken or proposed to be taken with respect to transfer, and if the applicant’s injury was wholly and predominantly caused by this, then one could not be satisfied that the respondent’s actions were reasonable.
Ms Grotte submits that the test for reasonableness is objective and prospective assessment. One must look at all of the circumstances before and after the event on 3 November 2020. She relies on three Presidential decisions, which I will refer to later.
Ms Grotte submits that Ms Da Silva was fully aware that the applicant had been under severe stress from family deaths and that she was dealing with someone who was saying she was unwell and had suffered stress and a flareup of her condition. In that context, she was discussing the potential transfer when the applicant had no performance issues, loved her job and she did not want to go. Such action was unreasonable.
Ms Grotte submits that the applicant was not given any prior warning that a transfer would be raised, and whilst it might be said that Ms Da Silva did not know that the applicant was going to ask for time off, nevertheless a reasonable supervisor would not be raising a potential transfer in those circumstances. Rather, a reasonable employer would have asked for the capacity assessment form to be completed so it could assess the applicant’s restrictions and capacity, not to say that the applicant was to be moved out and that she should not be working there. Whilst Ms Da Silva may have been concerned or not, the applicant was deprived of the opportunity to prepare and respond. This was not procedurally fair, and the applicant only wanted a few days off work.
Ms Grotte submits that in her statement, the applicant alerted Ms Da Silva to her health issues after she had seen her doctor, and she hoped to be back at work on Thursday.
Ms Da Silva said that she was not suitable for her role and perhaps she should transfer back to a store. The applicant said that she told Ms Da Silva that she did not want to go back to a store. Ms Da Silva said that she could organise the paperwork and email them to her. The applicant was upset by this. She submits that the applicant was already vulnerable because she was unwell, and being confronted with this, she was denied the opportunity to respond and have a fair and open discussion. There were no performance issues.
Ms Grotte submits that if the applicant’s evidence is accepted, it could not be said that the respondent’s actions were reasonable.
Ms Grotte submits that in her statement, Ms Da Silva described the discussion on
3 November 2020. She confirmed that she received a call from Ms McHugh and told her that she never mentioned transfer out of SSA. This is inconsistent with what Ms Da Silva said elsewhere.
Ms Grotte submits that in her statement, Ms McHugh confirmed the details of her discussion with the applicant. She told the applicant that she could not be forced out of SSA. This is relevant because how can the respondent rely on the defence of transfer, because
Ms McHugh confirmed that the applicant could not be transferred out. If there were any concerns, then they could be asked to complete the capacity assessment form. Therefore, the applicant’s evidence is more plausible. It was merely an off the cuff suggestion, and
Ms Da Silva’s action was unreasonable.
Ms Grotte submits that the applicant complained that she was not provided with details of Ms Da Silva’s response to her grievance. The applicant stated that the respondent had treated her unfairly because it had failed to give her time off with pay or requested assistance from an external body in accordance with its workplace policy. Ms McHugh said that she had no rights.
In reply, Ms Grotte submits that according to the applicant’s evidence, she was exposed to bullying by Ms Da Silva, as shown in the meeting on 23 October 2020. She stated that she did not feel that she could speak to Ms Da Silva, because she felt intimidated by her. The applicant was not given any prior notice regarding the proposed transfer, consistent with the authorities.
Ms Grotte submits that Ms Da Silva comments constitute either a compassionate suggestion or action proposed to be taken by the respondent. A compassionate suggestion does not rise to the level; of action proposed to be taken by the employer.
Ms Grotte submits that in her statement, Ms Da Silva said that she told Ms McHugh that she has never mentioned a transfer out of the SSA. However, in the record of interview, she said she offered the option of a transfer to a local store. She confirmed that there were no papers for a transfer, so she did not say this.
Ms Grotte submits that one needed to treat Ms Da Silva’s statement with a degree of caution, and accept what Ms McHugh said in her statement. She told the applicant that there was a protocol in place regarding transfers and capacity assessments. There was no proposal to transfer the applicant out of SSA, but if there was proposed action, this was unreasonable, because of the context of the telephone call.
Ms Grotte submits that the applicant had called Ms Da Silva to report that she was unwell, and she would need some time of work. During that conversation, Ms Da Silva suggested that she might want to transfer out of SSA. This was on the background of comments that the applicant perceived to be discriminatory against older workers with medical conditions.

RESPONDENT’S SUBMISSIONS

The respondent’s counsel, Mr Perry, submits that the present matter represents the exact circumstances where the s 11A defence was intended to be available. The respondent bears the onus of proof and the evidence shows that the applicant was wholly or at least predominantly injured by the event that occurred on 3 November 2020.
Mr Perry submits that there were a number of interactions prior to the conversation on
3 November 2020, but none contributed to her anxiety condition. She had anxiety and the clinical notes show the condition and what it was attributed to by the applicant. None of the work events or comments made by Ms Da Silva were reported by the applicant to her doctor. Her reaction to the discussion on 3 November 2020 could not be more striking on review of the evidence, and this was the whole cause of her condition. This discussion or propositions were the whole cause, and those actions can and ought to be categorised as action taken or proposed to be taken by the employer with respect to transfer.
Mr Perry submits that it could not be said that the discussion was very badly handled. It is hard to find a more sensitive reaction to the applicant’s account by Ms Da Silva. The applicant said that she was not sleeping and had health issues. Ms Da Silva suggested that perhaps the applicant should look at a transfer and this was consistent with her sensitive reaction. She was given a month off work in May 2020 following her mother’s death and for other personal matters, and it could not be said that the situation was badly handled.

Mr Perry submits that there is a little bit of confusion in Ms Da Silva’s statement. The applicant’s injury was complete on 3 November 2020. Ms McHugh called Ms Da Silva and informed her about the applicant’s frantic telephone call. This is consistent with Ms McHugh’s statement and the clinical notes. The was no doubt that the applicant was distressed, crying and emotional after the discussion with Ms Da Silva. This goes to wholly and predominantly. Ms Da Silva said to Ms McHugh that she had never mentioned a transfer out of SSA.
Mr Perry submits that Ms Da Silva described the discussion with the applicant regarding her health issues in her statement, which is consistent with the applicant’s evidence. The applicant told her that she was not sleeping, she was stressed, had arthritis and was in a really bad state.
Mr Perry submits that Ms Da Silva was concerned about the applicant’s safety, and she said to the applicant “would going back to a store be an option, being a bit closer to home, limiting your driving, especially with fatigue”. These were the options raised, and there is no dispute about this. It was merely a question and could not be seen that a decision had already been made. It was merely an option.
Mr Perry submits that putting such questions to a worker represents a proposal to transfer. The word “transfer” was not used by Ms Da Silva, but it was a suggestion. She asked whether going back to a store or “transfer”, be an option, and she referred to the benefits of a move. So, it was a proposal in its infancy stage that was put forward by Ms Da Silva with the authority of the respondent. This was an action taken or proposed to be taken with respect to a transfer.
Mr Perry submits that a review of the clinical notes of Dr Nagulendran shows that there was no mention of any stress on 19 April 2020. She attended in May 2020 for other health issues, and there were no complaints about work. On 16 June 2020, the applicant complained about her arthritis and sleeping issues, and the doctor wanted to wean her off Zoloft. The applicant’s mother had passed away in May 2020. There was a reference to working at Bunnings at the consultation on 30 July 2020, but no comment regarding any anxiety at work. According to the history recorded by Dr Khan, the applicant had no major issues between May 2020 and October 2020.
Mr Perry submits that on 23 August 2020, the doctor recorded that the applicant had suffered a panic attack and had anxiety, but there was no mention of any work issues. The entry on
3 November 2020 showed the applicant had suffered bereavements and could not sleep, was tearful and had abdominal pain. The doctor noted that the applicant needed time off work, and her line manager had suggested she leave her role and move back into a store and she only wanted some time off.
Mr Perry submits that there were no performance issues, but the applicant came to her supervisor with major issues that would raise proper concerns about her safety due to travel and physical nature of her work. Dr Nagulendan referred to the word “suggestion”, and he has categorised this correctly. There was no coercion, it was merely a suggestion. One has to look at it in the context that it was.
Mr Perry submits that Ms Da Silva’s actions tick all of the boxes in the authorities, which I will refer to later. She asked the applicant whether she would consider moving to the store and she suggested that she obtain a capacity assessment. This latter suggestion was reasonable in the applicant’s interests and in those of the respondent. One must look at the entire process, and the reasonableness of the suggestion at the time that it was made, in the context of physical, emotional, and psychological conditions.
Mr Perry submits that this matter differs from the authorities regarding discipline, and notice would not be required. This is a compassionate suggestion in the context of the applicant’s physical and emotional stressors.
Mr Perry submits that the applicant referred to Ms Da Silva’s comments about older workers with reference to 60 to 65 years of age, and there was no suggestion that Ms Da Silva considered that the applicant, who is 48 years old, was within that category. He concedes that this is a question of the applicant’s perception. However, the applicant says that she was injured when Ms Da Silva made comments about the safety of older workers, there is no suggestion that a psychological injury occurred or that this event contributed to an injury.
Mr Perry submits that the history recorded by Dr Khan differs from the applicant’s account in her statement regarding the flowers and the offer of time off following the death of her mother in May 2020. This might have led the doctor to refer to intimidating and bullying behaviour, but that is not consistent with applicant’s own account. The doctor concluded that the applicant’s injury was caused by longitudinal bullying, harassment, intimidation, and discrimination. There was not even a perception by the applicant, apart perhaps from discrimination regarding her symptoms and her age. That may have happened on
3 November 2020. The applicant’s account was not suggestive of any bullying, harassment, or intimidation.
Mr Perry submits that the applicant told Dr Khan that there were no major issues between June 2020 to October 2020, and she then became unwell with urinary and bowel infections. Whatever anxiety that might have been was not only not mentioned as a stressor to Dr Khan. She then proceeded to the next stressor on 2 November 2020. On that background, the respondent has made out that the event on 3 November 2020 was the predominant cause.
Mr Perry submits that the dictionary meaning of “predominate” was considered in the Compensation Court as meaning “the stronger” or “leading element”, or “more noticeable” and “more imposing”.
Mr Perry submits that the suggestion on 3 November 2020 fills the category of the predominant cause. The applicant mentioned no other issues and she told Dr Khan that there were no major issues between June 2020 and October 2020. In her statement, the applicant said that a week before 3 November 2020, her work was lovely and there were no issues.
Mr Perry submits that the applicant sustained a psychological injury and the reason for it was identified by Dr Das and Dr Nagulendran, being Ms Da Silva’s proposal on 3 November 2020 that the applicant consider a transfer to a store. This is the whole or predominant reason, and Ms Da Silva’s actions were reasonable in the circumstances.
Mr Perry submits that Dr Das attributed the applicant’s injury to the events on
3 November 2020. His opinion fits in with the other medical evidence regarding the cause of the applicant’s injury. In the circumstances, there should be an award for the respondent.

Authorities

There are a number of authorities that provide guidance in respect of the relevant principles and have been referred to by counsel in their submissions. These warrant some comment.
In Jackson v Work Directions Australia Pty Ltd t/as Work Directions Australia[10], cited by
Mr Perry in his submissions, Walker CCJ considered the meaning of “wholly and predominantly” in s 11A(1)(b) the 1987 Act, which was in similar terms to s 11A (1) of the current version of the 1987 Act. He commented as follows:
[10] (1998) 17 NSWCCR 70 (Jackson).
“ ‘Wholly’ is self-explanatory. Psychiatric cases sometimes turn upon single traumatic events but more often they involve multiple stressors not all of which may be work related. If those stressors happen to fall into one of the categories as I have just found then the meaning of the word “predominantly” will require interpretation.
The Macquarie Dictionary defines the verb ‘predominate’ as:
1. to be the stronger or leading element preponderate; prevail. 2. to have or exert controlling power. 3. to surpass others in authority or influence. 4. to be more noticeable or imposing than something else. 5. to dominate or prevail over.
The adverb ‘predominantly’ appears to me to be used in the sense that the s 11A(1)(b)
cause was stronger and prevailed over other causes.”

In the more recent Presidential decision of Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd[11], Roche DP stated:

[11] [2008] NSWWCCPD 96 (Temelkov).
“The leading authority on causation in workers compensation claims is Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (‘Kooragang’) where it was observed that causation is a question of fact to be determined on the evidence in each case. That case concerned the question of whether the death of a worker had ‘resulted from’ the relevant work injury. The present matter concerns whether ‘the injury was wholly or predominantly caused by reasonable action’. Acting Deputy President Handley considered the phrase ‘predominantly caused’ in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 and applied the dictionary meaning (at [24]) of ‘mainly or principally caused’. I agree with that definition and intend to apply it in the present matter.”[12]
[12] Temelkov, [79].
Whilst these interpretations are not dissimilar, I prefer the more recent interpretation of “mainly or principally caused”.
The respondent bears the onus of establishing the action taken was reasonable in
accordance with the principles discussed in Pirie v Franklins Ltd[13] and Department of Education and Training v Sinclair[14].
[13] [2001] NSWCC 167; 22 NSWCCR 346 (Pirie).
[14] [2004] NSWWCCPD 90 (Sinclair), [23].
The importance of medical evidence in establishing whether a psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by an employer was highlighted in Hamad v Q Catering Limited[15], where Snell DP stated:
[15] [2017] NSWWCCPD 6 (Hamad).

“… 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….”[16]
[16] Hamad, [88].

The test is objective, based on the facts, and involves questions of fairness. In Irwin v Director-General of School Education[17], Geraghty CCJ stated:
[17] NSWCC No 14068/97 (unreported, Geraghty J, 18 June 1998) (Irwin).

“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 a test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objective of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”

In Jeffery v Lintipal Pty Ltd[18], Basten JA confirmed that the test was objective and said:
[18] [2008] NSWCA 138, (Jeffery).

“In my view, if, in the view of the Commission, the action taken by the employer
in transferring an employee is not reasonable in all the circumstances, the employer cannot rely upon s 11A because it held a genuine belief, based on reasonable grounds, that its action was reasonable.”[19]
[19] Jeffery, [50].

When considering what is reasonable, it is also important to have regard not only to the end result, but to the manner in which it is done. This was discussed in some detail by Truss CCJ in Ivanisevic v Laudet Pty Ltd [20], by Roche DP in St George Leagues Club Ltd v Wretowska[21], and by the Court of Appeal in Northern NSW Local Health Network v Heggie[22] and in Sinclair.
[20] (unreported, 24 November 1998).
[21] [2013] NSWWCCPD 64.
[22] [2013] NSWCA 255 (Heggie).
Whilst it is true that Heggie dealt with defence of discipline, the principles discussed in that matter offer important guidance regarding the concept of “reasonableness”.
In Heggie, Sackville AJA stated:
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A (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 s11A (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, and

(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 (emphasis added).”[23]
[23] Heggie, [59].

Mr Perry referred me to Director General, Department of Education and Training v Pembroke[24], and the comments regarding “reasonableness” made by
Acting Deputy President Handley:
[24] [2006] NSWWCCPD 182.

“Having determined that the answer to the first question is that the Department’s action was “with respect to ... discipline”, then the second question which must be considered is whether that action was “reasonable”. This is a question of fact involving an objective test, that of the reasonableness of the conduct: Minahan at paragraph 27. In determining whether the conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer (Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWWCCPD 66, at paragraph 82). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation.”

Ms Grotte referred me to the decision in Shore v Tumbarumba Shire Council[25], a matter where the issue was whether the employer had acted reasonably with respect to the transfer of a worker. The worker was a long-term employee who was given no notice of the meeting until the morning, and he was not informed of the purpose of the meeting or of his employer’s intention to transfer him.
[25] [2013] NSWWCCPD 1 (Shore).
Acting President Roche, as he then was, cited the relevant authorities referred to above and commented as follows:

“Determining whether action is reasonable under s 11A is not simply a ‘value judgment’, as the Arbitrator suggested. It requires an objective assessment of the employer’s actions and a weighing of the rights of employees against the objective of the employer. The Arbitrator did not undertake that process. The fact that Mr Stoll and Ms Clarke indicated (at the meeting on 8 July 2010) why Mr Shore was to be transferred did not properly address the fundamental issue of whether the Council’s conduct was objectively reasonable in all the circumstances.”

REASONS

Was the applicant exposed to real events that she perceived as bullying, harassment, discrimination, and intimidation?

Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
There is no dispute that the applicant suffers from a psychological injury as a result of the events at work, and that her employment was the main contributing factor to her injury. The cause of the psychological injury, and whether the respondent can rely on s 11A(1) of the 1987 Act is the matters in dispute.
The applicant alleges that her psychological injury resulted from a number of events, which she perceived to be bullying, harassment, intimidation, and discrimination. These occurred during the course of her employment and culminating in the telephone discussion on
3 November 2020. The respondent alleges that the psychological injury was caused wholly or predominantly by the telephone discussion on 3 November 2020.
According to the applicant, she never felt comfortable around Ms Da Silva, especially when talking about her mother’s death. The applicant confirmed that Ms Da Silva was supportive and allowed her to take off time off work and the SSA team sent her flowers. There were some issues with Ms Schipp, who was not pulling her weight, and the delay regarding the applicant’s toll reimbursement, which Ms Da Silva acknowledged as a “one off”. There was no suggestion in the applicant’s statement that she felt bullied, harassed, or discriminated against by these events. The most that perhaps could be said was that the applicant was somewhat intimidated by Ms Da Silva, but she did not suggest this in her statement.
The applicant claimed that when she spoke to Ms Da Silva in August 2020, Ms Da Silva said that if she or anybody else in SSA did not like the way that she did things, then she had “plenty of people knocking on her door for their jobs”. The applicant thought that this amounted to some bullying. The applicant raised this incident in the interview with
Ms McHugh and claimed that she was shocked, rather than distressed, by this comment. In her statement and in the interview conducted by Ms McHugh, Ms Da Silva denied making these comments, so it is the case of one person’s word against another’s.
According to the applicant, she felt rattled and feared for her role after Ms Da Silva made inappropriate comments at the meeting on 23 October 2020. The applicant stated that
Ms Da Silva made it very clear that having older team members was one of the reasons why the numbers were not as high, and that older team members posed a risk of injury.
In the interview with Ms McHugh, the applicant stated that she was surprised by
Ms Da Silva’s comments about the older team members and the risks of injury. She also claimed that Ms Da Silva mentioned the injury suffered by Kevin as an example.
Ms Da Silva’s comments at this meeting were investigated by Ms McHugh. In her statement, Ms Da Silva confirmed that she informed the team that New South Wales had the lowest scan rate and highest percentages compared to the other states, and she wanted to see improvement. She encouraged them to work together to achieve those results.

Ms Da Silva denied that she said that the numbers were not as high because team members in other states were younger but told them that having some older team members provided experience.
However, in the interview with Ms McHugh, Ms Da Silva acknowledged that she had said that the results were terrible, there was room for improvement, and that the 60-65 year old makeup of the team played a part due to absenteeism. She agreed that she had said that “we are an older group of team members and our scan rates are lower, and percentages are not as high” and “team members who are older are at higher risk of injury and are concerns to her here in NSW”, but explained that they had to be mindful of those team members. She denied saying that this concerned her, and she did not think that she mentioned Kevin.
Ms McHugh’s interviews with Mr Dzirutwe and Mr McCardle largely corroborate the applicant’s evidence regarding this meeting, although their recollections were somewhat poor. They both agreed that Ms Da Silva had referred to the team having older team members, that the scan rates and percentages were lower, and that team members who were older were a higher risk of injury. They did not recall any mention of Kevin.
Therefore, on the basis of this evidence, there seems little doubt that this was a real event that had an impact on the applicant. Whether it resulted in a psychological injury will be considered later.
In the applicant’s statement, she claimed that Ms Da Silva took team 2 out to lunch at McDonalds as a reward for good work at Marsden Park after she had returned to her usual team. The applicant stated that she received nothing from Ms Da Silva, but she did not say how she felt about this.
In her statement, Ms Da Silva confirmed that she took team 5 out to lunch at McDonalds and only gave coffee cards to four team 2 members. She acknowledged that she missed the applicant, and she did not follow this up, but the applicant had never raised this omission with her.
The applicant was obviously mistaken about the lunch, and she did not say in her statement how the coffee card incident affected her, but in the interview with Ms McHugh, the applicant complained that she did not receive anything or any feedback, and she wanted this to be dealt with as bullying and discrimination. There is no doubt that the coffee card incident was a real event.

On 2 November 2020, the applicant called Ms Da Silva and informed her that she had stomach cramps and would be seeing her doctor. She alleges that when she called on
3 November 2020, Ms Da Silva said that she did not think that she was suitable for the SSA role anymore and she wanted her to think about transferring back into a store, which would minimise her travel. She claimed that Ms Da Silva stated that the business felt that people like her with such conditions posed a high risk of injury, so she and the respondent would prefer that she not work in the SSA role. The applicant had not expressed any concerns about her condition and her ability to perform her role.
The applicant explained that she was happy with her current role, she did not want to go back to a store, travel had never been a problem, and she could work safely. The applicant claimed that Ms Da Silva kept pushing and tried to coerce her. This upset the applicant.
The applicant apologised for taking time off due to her bereavements and illnesses. She asked Ms Da Silva to support her for the rest of the year and she would try to regain her strength over the holiday break. The applicant believed that she was going to lose her job and she felt that she was being bullied.
In her email to Ms McHugh on 4 November 2020, the applicant expressed her concerns. She stated that she felt that she had been discriminated against because of her arthritic condition and that she felt bullied, pressured, and coerced into leaving her position. She complained that Ms Da Silva had described her as a risk factor, and she did not want team members performing roles if they were a risk of injury. The applicant said that she was anxious and felt that she had been bullied and discriminated against by Ms Da Silva. She repeated this in other emails.
The minutes of the interview with Ms McHugh are consistent with the applicant’s statement. She claimed that Ms Da Silva said that it was in her interests if she let her move back to a store because someone like her posed a high risk of injury. Ms Da Silva also allegedly said that if SSA was not right for her, she should think about a transfer. These comments seem to be a mixture of the conversations that occurred on 23 October 2020 and 3 November 2020.

In her statement, Ms Da Silva confirmed that she was aware that the applicant had emotional issues following her mother’s death as well as health concerns. When the applicant called her on 3 November 2020, she said that she was letting the team down. Ms Da Silva assured that this was not the case and suggested that she take time off. The applicant told her that she was not sleeping, her arthritis was flaring up and she was not in a good state physically.
Ms Da Silva was concerned about the applicant’s condition, so she asked her whether going back to a store and being a bit closer to home would be an option. They could also look at her hours. The applicant became hysterical and asked if she could wait until the end of the year and see how she felt. She believed that she would not be supported in a store.
Ms Da Silva then suggested that her doctor complete a capacity form, and they would then review her duties.
Shortly after their conversation, Ms Da Silva received a call from Ms McHugh, who advised that the applicant had called her in a distressed and crying state and complained about the suggestion of a transfer. Ms Da Silva denied that she had mentioned a transfer out of SSA. The minutes that were transcribed by Ms Da Silva on 3 November 2020 are consistent with her statement.

In her interview with Ms McHugh, Ms Da Silva said that the applicant was crying and teary on the phone and said that she felt that she was letting the team down. She denied that she discriminated, bullied, or coerced the applicant into leaving her role, but she acknowledged that she raised the option of transferring to a local store close to her home, so she did not have to travel. She stated that there were no papers for a transfer.

Ms McHugh investigated the applicant’s grievance after the deemed date of injury, and although she found that three of the allegations of bullying and discrimination were not substantiated, she did this on the basis that there were no witnesses to corroborate the evidence of either witness, and she believed that the comments that were made about older team members were not inappropriate. The lunch allegation was not substantiated, but the coffee card was overlooked. The outcome of this investigation has no bearing on the current dispute that I need to determine.
In summary, the applicant relies primarily on four incidents where she felt that she was bullied, discriminated against, and intimidated by Ms Da Silva, and this caused an aggravation of her psychological condition.
In Attorney General’s Department v K[26], Deputy President Roche summarised relevant authorities in relation to a worker’s perception of real events at work:
[26] [2010] NSWWCCPD 76 (Attorney General’s Department v K).

“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40]);

(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);

(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);

(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Leigh Sheridan v Q-Comp [2009] QIC 12);

(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464 at [31]), and

(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”[27]
[27] Attorney General’s Department v K, [52].

It is difficult to say whether the conversation in August 2020 occurred, because it is one person’s word against the other, and the participants’ evidence has not been tested under cross examination.
The evidence confirms that Ms Da Silva referred to poor results, older workers, and the associated risks of injury when she was speaking to the team at the meeting on
23 October 2020. Ms Da Silva readily acknowledges that she talked about this. So this represents a real event.
The coffee incident was a real event, although the evidence is silent as to its effect on the applicant, but she wanted to include this episode in her allegation of bullying and discrimination.
Finally, there is no doubt about the nature of the telephone discussion on 3 November 2020, and the impact that this real event had on the applicant’s psychological condition.
There is contemporaneous material in the form of emails, minutes and interviews that largely support her evidence, and some of her concerns have been corroborated by the respondent’s employees. There has been an acknowledgement that some of the events did in fact occur.
On review of the applicant’s evidence and the evidence as a whole, I am satisfied that some of the events raised by the applicant did in fact occur and were not imaginary. The applicant viewed these interactions as bullying, harassment, intimidation, and discrimination, and
I have no reason to doubt the veracity of her evidence or her perception of these real events. The final straw seems to have been the telephone discussion with Ms Da Silva on
3 November 2020.

Did the applicant suffer an injury as a result of the real events?

The next matter to consider is whether these events aggravated the applicant’s psychological condition.
There is no dispute that the applicant has suffered a psychological injury in terms of s 4(b)(ii) of the 1987 Act and that her employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the psychological disease. What I need to determine is the cause of that injury based on the facts in the case and having regard to the common-sense evaluation of the causal chain in Kooragang Cement Pty Ltd v Bates[28].
[28] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].

In her statement, the applicant advised that she was intimidated by Ms Da Silva, but she did not suggest that this caused her any injury. She claimed that when Ms Da Silva spoke to her in August 2020, she was shocked by what she allegedly said, but there was no suggestion by the applicant that she suffered a psychological injury at that stage.
The coffee card incident appeared to be something that caused the applicant a degree of disappointment and she claimed this was discrimination, but she did not refer to any psychological sequalae in her statement.
The next incident of note was the meeting on 23 October 2020. The applicant indicated in her statement that she felt rattled and feared for her role, but again there was no suggestion of any psychological injury.
The applicant’s evidence shows that she was extremely upset during and after speaking to Ms Da Silva on 3 November 2020. She was shaking and crying and sought medical treatment. She called Ms McHugh, who told Ms Da Silva that she had received a frantic call from the applicant on 3 November 2020. She commented that the applicant was distressed, crying, and very emotional. The news of the outcome of the investigation caused her further emotional upset.
The clinical notes of Dr Nagulendran have minimal references to past psychological issues. There is no mention of the applicant having psychological issues as a result of her work in early and mid-2020. Whilst her employer was mentioned at two consultations, this was obviously in the context of the applicant’s concerns about contracting the coronavirus.
On 23 August 2020, Dr Nagulendran recorded that the applicant had suffered a panic attack the previous night, but there was no history as to the cause.
The lack of any report of any psychological symptoms arising from the work events prior to November 2020 is in my view of some significance. Whilst it is true that in Davis v Council of the City of Wagga Wagga[29], Nominal Defendant v Clancy[30], King v Collins[31]and Mastronardi v State of New South Wales[32], the Court of Appeal cautioned against placing too much weight on the clinical notes of treating doctors, given their focus on treatment, I expect that because of the applicant’s past history of psychological issues and ongoing medical treatment, Dr Nagulendran would have recorded a history of a stressful incident or injury if the applicant mentioned this to him.
[29] [2004] NSWCA 34.
[30] [2007] NSWCA 349.
[31] [2007] NSWCA 122.
[32] [2009] NSWCA 270.
This is particularly important when one observes the detailed entry in the doctor’s notes on
3 November 2020. The doctor referred to the applicant’s past health issues associated with deaths of her mother and cousin, teariness and the lack of sleep, as well as the encounter with Ms Da Silva on 3 November 2020.
Dr Nagulendran recorded that the reason for the visit was for anxiety and depression, a diagnosis that last appeared in his notes on 23 August 2020 and before that, on 26 May 2019. In the certificate issued by the doctor on 3 November 2020, he diagnosed an acute adjustment disorder sustained on that date. This was caused by a lack of support. This was reiterated in the capacity assessment. The entry on 6 November 2020 referred to the applicant still being upset by her treatment at work.
It seems from the certificates that Dr Nagulendran attributed the aggravation or exacerbation of her psychological condition to the event on 3 November 2020, however, in his report dated 20 March 2021, the doctor indicated that the applicant’s pre-existing psychological problems were exacerbated by the conduct of the respondent’s employees who told her that due to her age, she was unsuitable for her current role, and they unfairly criticised, bullied and harassed her. Therefore, he seems to be having a bet both ways.

Although the applicant did not consult Dr Aktar until 30 November 2020, the history that he recorded was that the applicant was advised or encouraged to change her role without her consent. She felt bullied and pressured, and there was a sense of a lack of support, as noted in December 2020.
Dr Jordan and Ms Iyer referred to a history of interpersonal difficulties with her manager and persistent bullying in the workplace.
Dr Khan reported a history that Ms Da Silva targeted the applicant by making inappropriate comments and threating and intimidating her. This history is somewhat vague and is not in keeping with the contents of the applicant’s statement. What is consistent is that she could not talk to Ms Da Silva, and she felt unsupported by her.
Dr Khan reported that there were no major issues between June 2020 and October 2020, which is consistent with the clinical notes of Dr Nagulendran. He described the discussion on 3 November 2020 in terms that were more in keeping with Ms Da Silva’s version of the discussion. The applicant said that Ms Da Silva pressured her to sign transfer papers, and she was unsupported, ignored and dismissed.
According to Dr Khan, the applicant had suffered an aggravation of a Major Depressive Disorder due to bullying, harassment, intimidation, discrimination, and lack of support by
Ms Da Silva. The applicant’s mental state had started to deteriorate before any transfer was raised. How he came to that conclusion is not entirely clear, and it seems inconsistent with the contemporaneous medical, factual, and documentary evidence which he had in his possession.
The history recorded by Dr Das referred to the applicant being discriminated against by
Ms Da Silva over a period of six months because she was a high risk due to her arthritis. However, there is no evidence that Ms Da Silva discriminated against the applicant in respect of her arthritis, and according to the applicant, she had not taken any time off work for that condition. He also reported that Ms Da Silva had made inappropriate comments and said that older team members were a high risk for injury. His history of the discussion on
3 November 2020 is disjointed and poor.
Dr Das reported that Ms Da Silva kept pushing her to leave because of her health issues. This came as a shock, and she found it humiliating and distressing to be spoken to like this. She continued to work, and she felt anxious and stressed about her complaint and the investigation that was undertaken after the deemed date of her injury.

Dr Das diagnosed a recurrent Major Depressive Disorder of moderate severity that was perhaps precipitated by grief following her mother’s death, and this was exacerbated following the event on 3 November 2020, and again after she was informed of the outcome of her grievance.
The applicant alleges that she was injured as a result of a number of incidents involving
Ms Da Silva that occurred in the period from May 2020 to November 2020. However, in her statement, the applicant does not suggest that she suffered any psychological impact as a result of the events prior to November 2020. The clinical notes record no such instances, and the history recorded by Dr Khan, namely that she had no major issues in the period June 2020 to October 2020, would seem to challenge such a proposition. In those circumstances,
I consider that the views of Dr Das on causation should be preferred.
Therefore, I am satisfied that the applicant suffered an aggravation of her pre-existing psychological condition on 3 November 2020. This was the whole or predominant cause of her injury, or as interpreted by Deputy President Roche in Temelkov, the main or principal cause.
It is true that neither Dr Khan or Dr Das refer to the words “wholly or predominantly”, but I do not see this as an issue. The applicant’s injury on 3 November 2020 was on the background of those earlier incidents, which obviously still played on the applicant’s mind, as evidenced by their inclusion in her grievance, in the histories recorded by Drs Khan and Das, and in her statement.

Was the applicant’s psychological injury wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer?

Given that I have determined that the applicant’s psychological injury was wholly and predominantly caused by the event on 3 November 2020, I now need to determine whether this injury was caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer. This involves two questions.
Firstly, whether there was action taken or proposed to be taken by the respondent with respect to a transfer, and secondly, whether such action was reasonable.
The facts and the evidence show that the applicant was not actually transferred to a store, so it is not necessary to consider whether the respondent was reasonable with respect to any past transfer action that had been taken. So, was there a proposal to transfer the applicant?
Whist Ms Da Silva’s evidence is unclear regarding the use of the word “transfer”, the applicant had no doubt about what was said and what Ms Da Silva had suggested. There seems little doubt that Ms Da Silva raised the option of a transfer during an informal discussion. This was only a suggestion and nothing more. No decision had been made.
Mr Perry’s submissions are similar, but he submits that putting such questions to a worker represents a proposal to transfer. So, it seems that one needs to consider the meaning of “propose”.

According to the Macquarie Dictionary, the word “propose” is defined as follows:
“propose
verb (proposed, proposing)

–verb (t) 1. to put forward (a matter, subject, case, etc.) for consideration,
acceptance, or action: to propose a new method; to propose a toast.
2.  to put forward or suggest as something to be done: he proposed that a     messenger be sent.
3.  to present (a person) for some position, office, membership, etc.
4.  to put before oneself as something to be done; to design; to intend.
5.  to present to the mind or attention; state.
6.  to propound (a question, riddle, etc.).
–verb (i) 7.  to make a proposal, especially of marriage.
8.  to form or entertain a purpose or design…”
The reference to “to put forward or suggest as something to be done” and “to put before oneself as something to be done” would seem to encompass Ms Da Silva’s suggestion or option of a transfer. It therefore follows that the applicant’s injury on 3 November 2020 was wholly or predominantly caused by action proposed to be taken by the respondent with respect to transfer. The next and final matter to consider is whether the respondent’s actions were reasonable.

The applicant fell ill on 2 November 2020, went to her doctor and she was told to take some time off work. The applicant called Ms Da Silva on 3 November 2020 to inform her that she needed a couple of days off, and it was in this context that Ms Da Silva raised the option of a transfer. The applicant did not want to move, and she resisted Ms Da Silva’s suggestion.
The medical evidence shows that the applicant was severely upset by this discussion and was under the impression that she had no option but to go. This was on the background of the comments made by Ms Da Silva at the meeting on 23 October 2020, so one can understand why the applicant reacted in the way that she did. Of course, her fears were allayed by Ms McHugh and Mr Fisher, but by that stage, the damage had already been done.
According to Irwin, whether an action is reasonable depends on an assessment of the rights of a worker against the objective of employment, having regard to questions of fairness. The manner in which the action is undertaken must also be considered.
According to Heggie, the rights of the employee should be considered, depending on the circumstances, and the fact that the employer acted in good faith, as seems to be the case in the present matter, is insufficient.
The evidence shows that Ms Da Silva was aware that the applicant had experienced bereavement and health problems since May 2020, and there were no performance issues. The applicant said that she had not required any time off work due to her arthritis. Therefore, it is not surprising that the applicant was not prepared to move to a store.

The applicant had worked at the respondent for 12 years, she loved her job, and she did not want to transfer to a store because she felt that she would be unsupported. She was not given any prior warning and the discussion on 3 November 2020 was out of the blue and came as a shock to her.
There seems little doubt that Ms Da Silva had good intentions, given the issues that had troubled the applicant over the previous six months or so, and it might be said that she was sensitive in the manner that she spoke to her, but that was not how the applicant perceived their discussion. She felt that she was being coerced and in her fragile state, this led to her decompensation. Whilst it might well have been in the applicant’s interests, the manner in which it was made should not be considered and its timing could not be seen as reasonable.
The applicant had called to advise that she was sick and needed a few days off. Ms Da Silva took the opportunity to discuss the applicant’s employment when the applicant was not in a fit state to do so. Any discussion about a transfer should have been done in a more formal context and in person.
In the circumstances, I do not believe that the respondent had proper regard to the applicant’s rights, and it failed to treat her fairly. The manner in which the option of a transfer was discussed was not reasonable, even though Ms Da Silva suggested the transfer in good faith.
I consider that armed with the knowledge of the applicant’s recent health issues, a reasonable employer would not have even raised, let alone pressed, the option of a transfer and would have acceded to the applicant’s request for a couple of days off work.
On her resumption, a reasonable employer would then have convened a meeting with the applicant at a mutually convenient time with adequate notice with a view to discussing how she was faring. If she was having any difficulties, the employer could then raise the possibility of the capacity assessment to enable both parties to assess her capacity to undertake her usual duties.
If her doctor identified restrictions, then a reasonable employer would undertake a worksite assessment to identify what jobs would be suitable for her. If no jobs could be identified, then perhaps a worksite assessment could be undertaken at a store, particularly given the applicant’s concerns about the lack of support in stores, and then the applicant could be presented with the results. Such action would allow both parties to be better informed, and the applicant would be in a better position to make an informed decision about her future employment.
In the circumstances, I am not satisfied that the applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer.

Extent and quantification of the applicant’s entitlement to weekly compensation

Given that there was no dispute about the extent of the applicant’s capacity, I do not need to address this issue.
The parties agreed that the applicant had no current work capacity at all times. Her PIAWE was agreed to be $820.54.
I was informed that weekly compensation and medical expenses were paid from
3 November 2020 to 25 January 2021 (12 weeks).
In accordance with s 36(1) of the 1987 Act, the applicant’s entitlement to weekly compensation during the first entitlement period is as follows:
(a) 26 January 2021 to 1 February 2021:
(AWE × 95%) − D
($820.54 x 95%) - $0 = $779.51 per week.

In accordance with s 37(1) of the 1987 Act, the applicant’s entitlement to weekly compensation during the second entitlement period is as follows:
(a) 2 February 2021 to date and continuing:
(AWE × 80%) – D =
($820.54 x 80%) - $0 = $656.43 per week as adjusted.

Therefore, the applicant will be entitled to an award in accordance with the above calculations.

Medical Expenses – s 60 of the 1987 Act

As the applicant has been successful in her claim, she is entitled to recover the cost of reasonably necessary medical, hospital and related expenses pursuant to s 60 of the
1987 Act.

FINDINGS

The applicant sustained a psychological injury arising out of or in the course of her employment with the respondent on 3 November 2020 (deemed).
The applicant’s employment was the main contributing factor to her injury.
The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer.
The applicant was paid weekly compensation and medical expenses from 3 November 2020 to 26 January 2021.
The applicant has had no current work capacity since 3 November 2020.
The applicant requires medical treatment as a consequence of her injury and the respondent is liable to pay reasonably necessary medical expenses.

ORDERS

The respondent to pay the applicant weekly compensation as follows:
(a) $779.51 per week from 26 January 2021 to 1 February 2021 pursuant to s 36(1) of the 1987 Act, and
(b) $656.43 per week as adjusted from 2 February 2021 to date and continuing pursuant to s 37(1) of the 1987 Act.
The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to
s 60 of the 1987 Act.

[2021] NSWPIC 313

30 August 2021