Coote v State of NSW (Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Coote v State of NSW (Western Sydney Local Health District) [2022] NSWPIC 189
APPLICANT:	Hiedi Coote
RESPONDENT:	State of NSW (Western Sydney Local Health District)
MEMBER:	Paul Sweeney
DATE OF DECISION:	29 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Worker totally incapacitated by accepted psychological injury; Respondent denies liability on the basis that injury was wholly or predominantly caused by action with respect to discipline, performance appraisal, and dismissal within section 11A(1) of the Workers Compensation Act 1987 (1987 Act); worker subjected to lengthy performance improvement plans prior to dismissal; Dunn v Department of Education and Training and Chisholm v Thakral Finance Pty Ltd t/as Novatel Brighton Beach discussed and applied; Held- that the respondent had not established that that the performance improvement plans were “performance appraisal” or that its other actions which fell within section 11A(1) were the whole or predominant cause of injury; award for worker during first and second entitlement periods; permanent impairment claimed referred to an Medical Assessor.
DETERMINATIONS MADE:	1. The applicant suffered psychological injury arising out of and in the course of her employment namely an adjustment disorder with anxiety and depressed mood. 2. The injury is a disease within section 15 of the Workers Compensation act 1987. 3. The respondent has not established on the balance of probabilities that the psychological injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline, performance appraisal or dismissal. 4. Throughout the first and second entitlement periods the applicant had no current earning capacity. 5. Respondent to pay the applicant weekly compensation on the basis of total incapacity during those periods pursuant to sections 36 and 37 of the Workers Compensation Act 1987. 6. Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60. 7. Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment, if any, as a result of psychological injury which notionally occurred on 24 August 2016 as a consequence of the applicant’s employment with the respondent before that date. 8. Medical Assessor to have access to the Application, the Reply and the documents attached to each.

STATEMENT OF REASONS

BACKGROUND

Hiedi Coote (the applicant) is a long-term employee of the Western Sydney Local Health District (the respondent). She commenced employment in an administrative role at the Children’s Hospital, Westmead in 1994 and occupied several other positions before being transferred to the role of management support officer of the respondent’s Interpreter Services on 6 September 2011.
The applicant’s role at Interpreter Services was to provide support to the manager, Gordana Vasic, and five other senior staff. It was intended that a significant part of her work would involve the processing of monthly charges and invoices.
In July 2012, the respondent implemented a new charging model and the processing of charges was undertaken by another employee. After a period of training on the new system, the applicant was required to again assume responsibility for the raising of charges and invoices from 1 July 2014. However, she was unable to perform that role to the satisfaction of the respondent.
In September 2014, a performance improvement plan (PIP), was implemented and the applicant was relieved of responsibility of processing charges and invoices.
In December 2015, the respondent advised the applicant that she would be required to recommence the role of processing invoices and charges in line with her position description. Due to her absence on leave, the applicant did not recommence the task of processing charges and invoices until May 2016. Once again, she was unable to perform the processing work to the satisfaction of the respondent. A further PIP was implemented.
On completion of the PIP, on 23 August 2016, the applicant was advised that a recommendation to terminate her employment would be sent to the respondent’s chief executive officer for his consideration.
Between the closure of the PIP on 26 August 2016 and 4 November 2016, the applicant was absent from work on recreational or sick leave. On 4 November 2016, the respondent sent a letter to the applicant requiring her to show cause why her employment should not be terminated. No response was forthcoming. A letter of termination of her employment was forwarded to the applicant on 3 January 2017.
During 2016, the applicant sought medical treatment for a psychological condition. On 18 September 2016, Dr Shaukat, her general practitioner referred her to Dr Samir Benjamin a psychiatrist who diagnosed an Adjustment Disorder with Anxiety and Depressed Mood. It is common ground that the applicant suffered a psychiatric injury arising out of and in the course of her employment and that she has been incapacitated for work since the cessation of her employment.

PROCEEDINGS BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

By these proceedings the applicant claims weekly payments of compensation from 8 February 2016 and continuing and permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). She alleges that her psychological injury was caused by:
“bullying and harassment, interpersonal conflict, victimisation and lack of support and training that occurred during the course of her employment”.
While the respondent initially denied that the applicant suffered an employment injury, by a dispute notice of 11 July 2018, it withdrew that denial. It maintained, however, that the applicant’s psychological injury was caused by reasonable action taken by it with respect to “performance appraisal and/or discipline and/or retrenchment or dismissal” as those terms are used in s 11A(1) of the 1987 Act.
By that notice the respondent specifically denies that the applicant’s psychological injury was caused by bullying, harassment or victimisation. It also sets out in great detail the history of “performance issues with your invoices and charges”, which were initially identified in October 2011 and the various attempts to ensure that the applicant performed the processing work in accordance with her job description. These attempts culminated with the performance review (PR) meeting of 23 August 2016, at which the applicant was advised that a recommendation would be made to terminate her employment due to her “inability to meet the substantive demands” of her position.
When the matter came on for conciliation and arbitration on 29 March 2022, Mr de Meyrick, of counsel, appeared for the applicant and Mr Hanrahan, of counsel, appeared for the respondent. The conciliation and arbitration was conducted audio visually. While some attempt was made to conciliate a resolution of the dispute, I was informed by Mr Hanrahan that the respondent was not prepared to make any offer of settlement in the circumstances of the case. His client had adopted the same approach at the telephone conference in the matter some weeks previously.
I am satisfied that the parties, who were represented by experienced lawyers, have had ample opportunity over the last several years to resolve the issues in dispute. It is apparent, however, that they are unable to agree on the threshold issue of whether s 11A(1) extinguishes the applicant’s right to compensation.

EVIDENCE

The documents before the Commission are as follows:
(a) The Application to Resolve a Dispute and the documents attached, and
(b) The Reply and the documents attached.
There was no objection to any of the documents referred to above at the arbitration hearing. Neither counsel sought to adduce further written or oral evidence.

SUBMISSIONS

The submissions of counsel are recorded and it is unnecessary to reiterate each of the arguments made by counsel at the hearing.
I should record, however, that Mr Hanrahan referred to the reasoning of the Court of Appeal in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (9 August 2013) (Heggie). He submitted that it was necessary for the respondent to prove that its actions with respect to discipline etc were objectively reasonable. He referred to the evidence of Dr Smith the respondent’s qualified psychiatrist who expressed an opinion that the applicant’s psychological injury was caused by actions which, he argued fell within s 11A(1) of the 1987 Act. In contrast, Dr Chow, the applicant’s qualified psychologist had not “acknowledged” the undoubted disciplinary action undertaken by the respondent prior to the applicant’s dismissal.
Mr Hanrahan then took the Commission through Ms Vasic’s statement and the appended chronology. He made no attempt to delineate what actions of the respondent fell within discipline or performance appraisal. He referred to the evidence of Ms Vasic that the applicant’s work was not “up to scratch”.
Mr de Meyrick submitted that the respondent had not established that its actions with respect to discipline etc were the predominant cause of the applicant’s psychological injury or that these actions were reasonable. He submitted that the respondent’s qualified doctor, Dr Smith had been given an inadequate history. He did not consider causes of psychological injury other than discipline, dismissal and performance improvement. The applicant argued these other causes were significant. They included overwork, bullying and victimisation of the applicant by Ms Vasic. In this respect he referred to the evidence of Ms Kaffesh and several complaints recorded by the applicant throughout her employment to the respondent’s Human Resources (HR) Department relating to her alleged mistreatment by Ms Vasic.
Mr de Meyrick also submitted that it was unreasonable for Ms Vasic to oversee the applicant’s PIP and make recommendations in respect of dismissal given the long history of friction between them.
It will be necessary to return to the submissions of counsel in resolving the issues in dispute. It is first necessary, however, to set out compendiously the lay evidence in the matter. What follows is not intended to be a comprehensive survey of every aspect of the evidence. Rather, I set out the salient points so that the way in which the Commission has resolved the dispute might be understood by the parties.
The applicant’s initial statement dated 4 April 2008 merely affirms the truth of the following documents:
(a)    chronology of workplace events;
(b)    supporting documents to chronology;
(c)    record of reports of bullying and harassment;
(d)    letter of complaint dated 21 April 2016, and
(e)    statement alleging fraud and mismanagement by Gordana Vasic.
By the chronology the applicant says that in late 2012 or early 2013 she took over processing of invoices. She states that she “questioned a few invoices which had no receipts to match the claim”. She asserts that this was the “start of a tense and uncomfortable relationship between the manager and myself”.
The appellant recounts that in 2013 the invoicing process changed. When she was reassigned to the system, she states that the “manager put overwhelming pressure and the burden was left to me to take over a few of Ailene’s roles, as no one in the unit did the invoicing”. “Ailene” is a reference to Ailene Valencia-Lim, the call centre manager.
The applicant says that following an annual general meeting on 11 January 2013 the relationship with Ms Vasic further deteriorated. She states:
“I particularly felt uncomfortable as I sat aside her door & moved to the other side of the room to avoid awkwardness (moved across the room in June July 2013). On 16 September 2014 a performance development review meeting took place at which Ms Vasic apparently criticised the applicant’s attention to detail in finance processing despite ‘extensive training begin (sic) provided over a long period of time’”.
The applicant did not accept this criticism. She phoned Bernice Pitt of HR and informed her that she felt that Ms Vasic was retaliating as a result of their “tense” relationship.
As a result of the concerns raised by Ms Vasic, a PIP was implemented and on 1 October 2014 the applicant attended a meeting which lasted for approximately an hour. During that period 18 or more issues were raised by Ms Vasic relating to the period between 2011-2014. The applicant states that during the meeting:
“I emotionally fell apart, this was followed by a shhhh as I was emotionally wailing and then me covering my mouth with a scarf I had around my neck to bite my emotions.”
On 2 October 2014, the applicant logged a formal complaint with Ms Pitt of HR outlining the events of the meeting the day before and requesting “an intervention as I felt the process was getting personal and felt harassed and bullied which had been very upsetting for me”. No response was received to her letter of complaint.
At a subsequent PIP meeting on 11 December 2014 a number of further issues were raised. However, Ms Vasic “provided positive feedback on PIP improvements mainly on invoicing that I got it right”.
At this time the applicant records that she felt she was treated differently by other members of staff, that she was excluded from team lunches and events, and that she was:
“constantly under overwhelming pressure that the manager intention [sic] was to try to get rid of me as she suggested this directly to human resources department”.
The applicant says that her grievance letters handed to HR were never actioned and that she felt that the expectations of the respondent that she reach “100% accuracy in all my tasks” was unreasonable. She asserts that her task was “done by business managers at a higher level in other local health districts”.
The applicant records that the first PIP came to an end with a meeting on 31 March 2015. Ms Vasic stated that she was “recommending that her manager to decide [sic] what he would like done with me”. Subsequently she was told by Ms Pitt of HR that the PIP case was closed and that she should “seek job vacancies”.
The applicant then refers to the initiation of the second PIP on 8 February 2016. She states that she applied for several positions with the respondent from that time without success. On 19 April 2016, she requested a meeting with Mr Vasic’s manager to “raise concerns of why her case is reopened”.
A meeting took place to implement the second PIP on 21 April 2016. The applicant says that:
“At the meeting I addressed my previous history with Auburn HR staff. Both myself and a unit manager raised my personal concerns, highlighted past and ongoing issues relating to the unit and my case. I was assured that this meeting was to be a new and balanced process.”
At a further PIP meeting on 26 April 2016, a “handful of unwarranted PIP issues” that had not been raised with her previously were addressed. She states that she withdrew from participating in discussions as she was aware that she “was unable to justify myself”.
At a further meeting on 26 May 2016, the only discussion revolved around “invoicing issues”. The applicant states that a training manual which had been created had only been forwarded to her on the day of the meeting and that her relationship with Ailene, who had undertaken her training over the past several years had become “distant & uncomfortable”.
The applicant says that on 23 August 2016 a further meeting took place which only lasted eight minutes. She continues:
“I was informed that the Service could no longer assist me with training and that a brief recommendation will be drawn up by the manager to her manager.”
The applicant continued to apply for an alternative position within the respondent but received no interview. She states that at this time she was working 10-12 hours a day to achieve the “100% benchmark that was set by the manager”. She says that she felt quite ill and took sick leave, visited her doctor and was referred to a specialist. She then recounts that after arriving home from medical care, a courier delivered a show cause letter from the manager on 3 November 2016. She states that the show cause letter had “many errors” and as she was ill she was not aware of extension dates. She says that she contacted her HSU representative to deal with matters as she had not “recovered my health”.
By a supplementary statement, dated 20 October 2021, the applicant reiterates that she had serious conflicts with Ms Vasic and began to be excluded from the team prior to any “adverse performance appraisal or disciplinary conduct”. The applicant also says that in addition to bullying she was subject to “unrealistic workloads and demands” and was “not trained properly”. She states that she first saw a counsellor through the EAP process in 2014 prior to the commencement of the first PIP.
The applicant then deals with the manifestations of her psychological injury noting that she experienced a “relapse of symptoms” in 2019 and experienced suicidal thoughts at that time. It is unnecessary to consider this evidence further given the limited issue which I have to determine.

Sholeh Khaffash

Ms Khaffash is an interpreter employed by the respondent. She records that when the applicant commenced work for Interpreters Services, Ms Vasic thought that she would be “an excellent fit and great assets [sic] in the team”. She continues:
“Gradually though, I witnessed that Hiedi’s relationship with Gordana Vasic deteriorated during the time that she worked in the team. Hiedi’s desk was outside Ms Vasic’s room and then she moved in with the Call Centre Officers’ big area in the middle of our office. After a while Hiedi moved into one of the interpreter’s rooms and sat beside me.”
Ms Khaffash reports that it was not unusual for people to come into conflict with Ms Vasic who had a “very abrasive management style” and had “numerous personal assistants” during the time that Ms Khaffash had known her.
Ms Khaffash observed that the applicant was ultimately “ostracised and excluded from the team”. In Ms Khaffash’s opinion she was “deliberately omitted from all email correspondence”. She also stopped receiving invitations to social events at work.
Ms Khaffash states that she saw Hiedi receiving “negative feedback from Ms Vasic with her voice raised”. She continues:
“Many of the team supervisors and other people in the Interpreters Service began to mistreat Hiedi as a result of the fact that Ms Vasic had turned against her.”
Ms Khaffash expresses the opinion that the applicant had not been trained in any of the systems operated by the respondent. She also recalls Hiedi being “visibly upset” as she walked out of Ms Vasic’s office.

Sandra Bromley

Ms Bromley is a former work colleague of the applicant. She states:
“Hiedi worked for me when I managed the area casual pool for SWAHS and the human resources help desk back in 2005.”
She recounts that she always found the applicant vibrant, happy and hard-working.
Ms Bromley records impressions of her encounters with the applicant after 2016 when she acted as a support person. She says that in 2016 the applicant was “totally stressed” with issues that she experienced at work. She recounts that she received a hysterical phone call from her in which she stated that “she didn’t know where she was” after a meeting with Ms Vasic. Ms Bromley found wandering around Cumberland Campus “almost as if she was in shock”. A second incident occurred when she received a phone call from the applicant who had fallen into garbage bins being “stressed to the point of not being able to think straight before a meeting with her manager”.
Following these events, Ms Bromley was asked to “oversee Hiedi at work and provide feedback as to why she was making errors”. When she came to do this she observed that:
“Hiedi followed all the instructions but was constantly worried and stressed that errors would be identified. I have found that is isn’t (sic) conducive to effective performance”.
Ms Bromley’s statement ends with an account of the applicant’s psychological state when she first knew her. She compares that situation to the present when she states that the applicant “finds it so very hard to even get out of bed”.

The applicant also relies upon two statements from her daughters which are not relevant to the issues that I have to determine.

Gordana Vasic

Ms Vasic provided a statement dated 24 February 2017. By her statement she confirms that the major part of the applicant’s role “was processing monthly charges and invoices” and to provide support to her and five other senior staff.
Ms Vasic states that she identified performance issues with the applicant’s work shortly after her appointment. She attaches to her statement a chronology in which she sets out:
“Performance issues with Hiedi’s work, and the action taken to train and support her to improve her work.”
Ms Vasic states that a PIP was implemented in September 2014 “to further support Hiedi” and a second PIP was implemented in June and July 2016. Ms Vasic then addresses some of the allegations made by the applicant in her statement.
Ms Vasic denies “excessive monitoring” of the applicant. She states that as she had been receiving reports of errors made by the applicant, “I asked my senior staff to copy me in on emails they sent her regarding errors she had made and asking her to correct the errors.”
Ms Vasic denies that she instructed anyone to exclude the applicant from emails regarding social functions. In respect of training, she states that while there was only training session for the new charging model in 2012, the applicant did not undertake these duties until June 2013, after Ms Ailene Valencia-Lim, the call centre manager, became sufficiently familiar with the system to provide her with one-on-one training.
In respect of the allegation of intimidation she says that she did not recall stating to staff that the applicant’s “got to go”. She continues:
“I did not ostracise Hiedi or sabotage her work. At times when Hiedi made certain errors with a particular part of her work, despite being provided with training and coaching, I avoided allocating her these same tasks, but I allocated other tasks within her role”.
Ms Vasic acknowledges that the applicant was offered a secondment to learning and development for six months but states that as she had arranged for Ailene to undergo training on the new charging model she did not approve the secondment.
Ms Vasic denies belittling Ms Coote or pressuring her in any way. She states that during PR meetings:
“I provided her with feedback about errors with her work. I also provided her with positive comments in relation to any task she was performing well or improvements she had made from the previous PR. I wrote those positive comments in the PR notes of her PIPs when appropriate.”
Ms Vasic also denies instructing anyone not to speak to the applicant. However she asked staff to copy her in on emails sent to the applicant so that she was aware of these issues/requests.
In respect of the meeting of 26 May 2016, she denies that she used “aggressive body language”. She acknowledges that she did ask the applicant:
“to look in my eyes and tell me again that she was only trained for 15 minutes”
That was because months of training had been provided to the applicant “as evidenced by her two PIPs”. Ms Vasic attaches a copy of the notes of this meeting compiled by Tracy-Lee Varga, a human resources manager.
In respect of the applicant’s concern that she was required to be 100% accurate in the charging process, Ms Vasic says that:
“Any finance or invoice-related task undertaken by any staff member must have 100% accuracy. During the second PIP process, Hiedi was relieved from other administrative duties and asked to focus solely on charges tasks. During this period she was provided with further training and support. I did not set her unreasonable deadlines or overload her with work, and I did not set her up to fail.”

DISCUSSION AND FINDINGS

The contents of their respective statements underscore the very different perspectives of the applicant and Ms Vasic in respect of the nature of their relationship during the applicant’s employment with Interpreter Services. For Ms Vasic, her interaction with the applicant was an attempt to equip her to perform the invoice processing role. That was a function that she was employed to perform.
From the perspective of the applicant, who plainly had difficulty performing this role, Ms Vasic’s actions were intimidating and unwelcome. The different perspectives are evident in the contemporaneous documents. After a performance meeting on 6 September 2014 the applicant emailed saying that she was upset and puzzled by Ms Vasic’s comment that she has had “underperformed despite … training provided over a long period of time”. Mr Vasic responded as follows:
“I can assure you that I provided the feedback after reflection on your performance and in the hope that you would accept this as an honest commentary on an area for your improvement. It is offered as a learning opportunity and not as a criticism”.
Ms Vasic went on to state in the email of 23 September 2014, that the applicant had undergone monthly training since August 2013 and that she was expected to have a good command of the system by April 2014.
These different perspectives also pervade the reports and opinions of the qualified psychiatrists. Although both concluded that the applicant had a depressive disorder, which totally incapacitated her for employment their identification of the cause was quite different.
Dr Chow was asked by the applicant’s solicitor whether the bullying and harassment described in her statement was the whole or predominant cause of her psychological injury. He responded thus:
“After the assessment and reviewing Ms Cootes’ statement, it would appear that her experience of bullying and harassment as described above ought to be the whole or predominant cause of her psychological injury and her current condition.
She has been working as an administration officer at Western Sydney Local Health District for 24 years. She reported being bullied and unfairly put on an improvement management plan by her manager.”
By contrast Dr Smith was asked to “express an opinion as to whether the work-related causative events were the main contributing factor to any disorder” that he diagnosed. He said:
“The work-related causative events were the process of the performance management, the possibility of termination and the subsequent termination of her employment.”
In a subsequent paragraph he stated that the predominant cause of her condition was the “performance management process commencing in 2014”.
He did however state that in his opinion it was possible that the applicant had “some cognitive impairment” that resulted in her performance problems and he suggested that neurological causes of her condition should be “excluded”.
While subjective impressions are relevant in determining the occurrence of injury, the question of whether the injury was wholly or predominantly caused by reasonable action with respect to performance appraisal, discipline or dismissal must be determined objectively. It is, therefore, probably appropriate to set out the legal principles which underpin my ultimate findings.
The exposition of the law relating to s 11A (1) in Heggie provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan [2003] NSWCA (24 September 2003) the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) (Irwin) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The 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 the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The judgment in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd [2001] NSWCC 167 (10 September 2001). I see no reason why this is not such a case.
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.
A PIP is not the equivalent of the phrase “performance appraisal” in s 11A. In Irwin Judge Geraghty referred to the performance appraisal as being something like an examination. That is something that occurs over a relatively short period of time. By contrast a PIP may persist over weeks, and training months and years.
In Dunn v Department of Education and Training (2000) 19 NSWCCR 475, after referring to his earlier decision in Irwin, Geraghty CCJ concluded that an enhancement program to which a teacher was subjected for well over a year did not fall within the phrase “performance appraisal”. In Bottle v Wieland Consumables Pty Ltd (1999) 19 NSWCCR 135, Nielson CC J followed the reasoning of Geraghty J. He expressed the opinion that the term performance appraisal was equivalent to a process of putting a monetary value on work. These cases are well-known and have been applied by members and the presidential unit of the Commission repeatedly.
In Chisholm v Thakral Finance Pty Ltd t/as Novatel Brighton Beach [2011] NSWWCCPD 39 (2 August 2011) at [159], Roche DP criticised an arbitrator for substituting the term “performance management” for “performance appraisal”. He stated that the former term is “not in s 11A and the Arbitrator erred in referring to it.”
To the above I add that I do not accept that instruction in the performance of work will ordinarily constitute “discipline” as that word is used in s11A. In Kushwaha v Queanbeyan City Council [2002] NSWCC 25 (25 March 2002), Judge Neilson in the former Compensation Court, after considering the definitions in the Shorter Oxford English Dictionary 3 ed and the Macquarie Dictionary 3 ed, said this:
“It can be seen, therefore, that the primary meaning of “discipline” is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in the sense in popular speech. It is the narrow meaning which weighed on my mind in Bottle’s case. However the word used in an Act of Parliament must be given its full meaning unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).”
In my opinion the context does require that the narrow meaning be given to the word. “discipline”. It appears in a section that refers to seven different actions of an employer which occur during the contract of employment. Each of the actions, other than “discipline”, occurs at a particular time in the course of the contract. It is, therefore, difficult to envisage that term “discipline” by way of exception constitutes a process that takes place on a daily basis over the entirety of the contract of employment as a supervisor instructs his staff in the management of their day to day work.
Rather, in keeping with the other words and phrases used in the section, it is more likely that discipline involves an element of chastisement and that it occurs at a particular time or times in the employer/employee relationship.
Finally, it is necessary to bear in mind that the words “with respect to” appear before the the seven nominated actions of the employer in the section. In Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465, the majority emphasised the importance of these words. The worker’s response to employment conditions encountered after a transfer may fall within the phrase “an action with respect to transfer”. Similarly, an action with respect to dismissal may run a long course.
In my opinion, it is likely that the applicant did not have the aptitude to perform the invoicing process which was an essential part of her role at Interpreter Services. The evidence does not support her repeated assertion that she was not adequately trained in the role or that the expectation that she be 100% accurate was oppressive. Rather, the evidence of Ms Valencia-Lim suggests that she made an effort to train the applicant, unsuccessfully, for many months in the new invoicing system which was introduced in 2012. As Ms Vasic states it is difficult to understand how the system could effectively operate at less than 100% efficiency. That is a legitimate expectation with all accounting systems.
In addition to her inability to fulfil the respondent’s expectation in respect of the invoicing process, it is clear that Ms Vasic had other concerns relating to the applicant’s suitability to perform as a support worker. Her reference to the applicant’s written English is one example of this.
When the applicant developed depressive symptoms, her ability to perform these aspects of her role further deteriorated. The respondent’s qualified psychiatrist, Dr Smith states:
“In my opinion, it is likely that her anxiety and depressive symptoms contributed significantly to poor performance in her role.”
I am not persuaded, however, that the applicant’s psychological injury was wholly or predominantly caused by the respondent’s actions in respect of discipline, performance appraisal or dismissal. It is true that the applicant’s dismissal in early 2017 and the respondents actions in 2016, which unequivocally fall within the phrase “actions with respect to dismissal” were causative of her psychological injury. However, the applicant says her symptoms commenced as early as 2014. This is accepted by Dr Smith.
Between 2014 and 2016, the applicant was subjected two lengthy PIP plans. In addition it is clear from the evidence of Ms Kaffash that the applicant became an outsider in the Interpreter Services facility, having moved from a desk outside Ms Vasic’s office to the interpreters room.
Dr Smith accepts that the PIPs or performance management, as he also refers to it, were instrumental in causing the appellant psychological condition. As I have indicated above PIPs and performance management are not the same thing as a performance appraisal. There may be elements of “performance appraisal” within a PIP or as part of performance management. The respondent, however, made no attempt to disentangle the PIP so as to establish on the balance of probabilities that some aspects of it were “performance appraisal” or “discipline” and that these aspects were the predominant factor in the applicant’s decompensation..
I also note that Ms Vasic described the PIPs as being commenced “to support” the applicant, which hardly suggests that they were part of a disciplinary process.
Thus, the opinion of Dr Smith does not assist the respondent to prove, as it must, that its actions in respect of “performance appraisal” or “discipline” or “dismissal” caused the applicant’s psychological injury. The doctor states that the “predominant cause” of her condition was the performance management process commencing in 2014. It, therefore, cannot be found that the predominant cause of the applicant psychological injury was “discipline” or dismissal. As “performance management” is not an action referred to in s 11A(1), the respondent’s case must fail.
I should add that I do not to accept that Dr Chow has an accurate history. He has merely recited what he has been told by the applicant. In this case that is not a complete or an accurate account of her circumstances. But the applicant does not have to prove that her psychological injury was caused by the actions of the respondent that fall within s 11A(1).
There is a long line of authority emanating from the Presidential Unit of the Commission that the word “predominantly” in s 11A can be equated to “mainly”: McCarthy v Department of Corrective Services [2010] NSWWCCPD 7 at [157]. In See v The Commissioner of Police [2017] NSWDC 6 (3 February 2017), Neilson DCJ noted that the word “mainly” was used in the 1987 Act in other contexts. In those circumstances, “predominantly” should be given a different gloss. At [138], he stated:
“Having reviewed the dictionaries and these authorities, I prefer to gloss “predominantly” with the adverb “chiefly”. To me it means much more than merely 51%, which is where “mainly” usually leads. To predominate something must eclipse each other factor and all other factors.”
It is unlikely that the distinction between “mainly” and “chiefly” causes practical difficulties in determining the issue in this case. The respondent has not proven that the applicant's psychological injury was either mainly or chiefly caused by reasonable action taken by as alleged in the s 78 Notice.
As the respondent’s defence cannot be maintained it is unnecessary to determine the issue of reasonableness. I note that Mr de Meyrick submitted that it was are not reasonable for Ms Vasic to implement the PIPs and make recommendations relating to the termination of the applicant’s employment given the long history of friction between them. But Ms Vasic was the applicant’s manager. She employed her to perform a particular role and I see no basis to find that it was unreasonable for her to make a recommendation that the applicant was not suitable for that role and that her employment should be terminated.
It is also unnecessary to decide whether the applicant was bullied and harassed. That also depends on one’s perspective and rarely assists in illuminating the causes of interpersonal conflict or perceptions of interpersonal conflict at work.

The Application claims compensation from 8 February 2016. That may be a mistake as the applicant was clearly paid wages during 2016. Plainly, she was still working on 23 August 2016. It is also possible that she took paid leave in the latter half of 2016. The parties can clarify and, if necessary, amend the deemed date of injury I have chosen when the Commission forwards a Referral in respect of the medical assessment.
In the circumstances, I only propose to find as follows:
(a)    The applicant suffered psychological injury arising out of and in the course of her employment namely an adjustment disorder with anxiety and depressed mood.
(b)    The respondent has not established on the balance of probabilities that the psychological injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline, performance appraisal or dismissal.
(c)    Throughout the first and second entitlement periods the applicant had no current earning capacity.
(d)    Respondent to pay the applicant weekly compensation on the basis of total incapacity during that period.
(e)    Respondent to pay the applicant’s medical and hospital expenses pursuant to s 60.
(f)    Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment, if any, as a result of psychological injury which notionally occurred on 24 August 2016 as a consequence of the applicant’s employment with the respondent before that date.
(g)    Medical Assessor to have access to the Application, the Reply and the documents attached to each.

[2022] NSWPIC 189

29 April 2022