Cowley v Builders Trade Centre (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cowley v Builders Trade Centre (NSW) Pty Ltd [2025] NSWPIC 253
APPLICANT:	Cynthia Cowley
RESPONDENT:	Builders Trade Centre (NSW) Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	4 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 11A(1) and section 33; psychological injury; whether injury sustained “wholly or predominantly” as a result of action by the respondent in respect to “performance appraisal” and/or “discipline”; whether the respondent’s actions were “reasonable”; whether the applicant had suffered incapacity as a result of the psychological injury; cases cited; Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Fitzgerald JA in Manly Pacific International Hotel Pty Ltd v Doyle, Kooragang Cement Pty Ltd v Bates, Northern NSW Local Health Network v Heggie, Dunn v Department of Education and Training, Irwin v Director-General of Education, Ivanisevic v Laudet Pty Ltd, and Melder v Ausbowl Pty Ltd; Held – applicant has no current work capacity and has not had any current work capacity since the date from when weekly compensation is claimed; respondent has not satisfied its onus of establishing the defence under section 11A(1).
DETERMINATIONS MADE:	The Commission determines: 1. That the respondent has not satisfied its onus of establishing the defence under s 11A(1) of the Workers Compensation Act 1987 (1987 Act). 2. That the applicant has no current work capacity and has not had any current work capacity since 31 July 2024 being the date from when weekly compensation is claimed. 3. The respondent is to pay the applicant pursuant to s 37 of the 1987 Act: (a) $1,456 per week from 31 July 2024 to 30 September 2024; (b) $1,488 per week from 1 October 2024 to 31 March 2025, and (c) $1,496 per week from 1 April 2025 to date and continuing subject to statutory indexation. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Cynthia Cowley (applicant) has brought proceedings in the Personal Injury Commission (Commission) against Builders Trade Centre (NSW) Pty Ltd (respondent) in which, in summary, she alleges that she sustained a psychological injury on the deemed date of 9 October 2023 as a result of not being trained for her new role as a store manager, not being advised of her responsibilities, excessive amounts of work, lack of support and assistance from her manager and being investigated and accused by the respondent of fraudulent transactions in respect to discounts given to a staff member.
The applicant claims ongoing weekly compensation from 31 July 2024 pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act).
The parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) as at the date of injury at $1,790.
The applicant commenced with Jenson Pty Limited who traded as Mitre 10 Kemps Creek in 2016. The applicant was second in charge for one of the three owners whom she would assist with such matters as customer service, smaller deals, negotiating sales purchasing stock. It is the applicant’s evidence that she did not complete any invoicing, banking, accounts, stock counts, price increasing or managerial duties nor was she part of any big deals with suppliers.[1]
[1] Application to Resolve a Dispute (ARD) p 1.
On 1 December 2022 the business was sold to the respondent. It is the evidence of Mr David Wansey, the respondent’s General Manager, that he acted as the “lead” on the purchase of the store.[2]
[2] Reply p 116.
When the business was sold the applicant was promoted to the role of store manager with the respondent. The applicant had been recommended by the previous owners as the most suitable of the retained employees to stand in as a management option until they got established.[3]
[3] Reply p 119.
The respondent in or about September 2023 noted some unusual transactions where stock had been sold under margin but had not been received into the system. The respondent investigated these transactions. Those investigations included Mr Wansey meeting with the applicant on 5 October 2023.
Following the meeting with applicant on 5 October 2023 the applicant was invited to a show cause meeting on 9 October 2023. The applicant has not returned to work since the show cause meeting and her employment with the respondent was subsequently terminated due to her absence from work.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the respondent asserts pursuant to s 11A(1) of the 1987 Act that no compensation is payable for the psychological injury as the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal and/or discipline, and

(b) the respondent disputes that the applicant has suffered an incapacity for work as a result of the alleged injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 28 March 2025. Mr James McEnaney, counsel, instructed by Serah Almaet, solicitor, appeared for the applicant, who was present. Mr Boris Necovski, counsel, instructed by Shiraz Biscevic, solicitor, appeared for the respondent. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Lodge Additional Documents lodged on behalf of the respondent dated 1 May 2025 (RALAD);
(d)    documents attached to an Application to Lodge Additional Documents lodged on behalf of the applicant dated 7 March 2025 (AALAD), and
(e)    statements by the applicant dated 29 August 2024 and 18 September 2024 which were tendered without objection by the respondent at the arbitration hearing.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Injury

It is not disputed that the applicant has sustained a psychological injury.

Section 11A 1987 Act

The respondent asserts pursuant to s 11A(1) of the 1987 Act that no compensation is payable for the psychological injury as the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal and/or discipline.
Section 11A(1) states:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Thee respondent carries the onus of establishing the defence under s 11A(1).[4]

“wholly or predominantly”
[4] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 (Sinclair).

For the defence under s 11A(1) to apply the psychological injury has to be “wholly or predominantly” caused by the reasonable action taken or proposed to be taken by or on behalf of the employer in respect to one of the specified matters.
Whether actions, in respect of one of the specified matters, were the whole or predominant cause of psychological injury is “a question of fact and degree, which involves consideration of all the factors which produced (the worker’s) condition”.[5] Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[6]
[5] Fitzgerald JA in Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 (Doyle) at [8].
[6] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Bates).
In summary, the applicant alleges that she sustained a psychological injury on the deemed date of 9 October 2023 as a result of not being trained for her new role as a store manager, not being advised of her responsibilities, excessive amounts of work, lack of support and assistance from her manager and being investigated and accused by the respondent of fraudulent transactions in respect to discounts given to a staff member.
In the respondent’s submission there is nothing in the medical evidence to suggest that the applicant’s symptoms commenced prior to the commencement of the investigation into the transactions in question or prior to the show cause meeting on 9 October 2023 apart from some reference to the applicant attending a medical place the day prior to the show cause meeting. In the respondent’s submission the evidence supports that the psychological injury was wholly or predominantly caused by actions taken by the respondent in respect to performance appraisal and/or discipline.
To be able to determine 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 performance appraisal and/or discipline it is necessary to first consider the parameters “discipline” and “performance appraisal”.
In respect to “discipline” Sackville AJA observed the following at [59] in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie):
“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.”
In respect to “performance appraisal” Geraghty J in Dunn v Department of Education and Training [2000] NSWCC 11; (2000) 19 NSWCCR 475 (Dunn) referred to his earlier unreported decision in Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998 (Irwin) in which he said such appraisal should be “formal, somewhat like an examination or a test rather than an extended and continuing assessment”.
For present purposes the applicant’s allegations as to the cause of her psychological injury can be divided in two. The first group of allegations being those that relate to her not being trained for her new role as a store manager, not being advised of her responsibilities, excessive amounts of work, lack of support and assistance from her manager etc. The second group is being investigated and accused by the respondent of fraudulent transactions in respect to discounts given to a staff member.
In summary it is the applicant’s evidence that following her promotion to store manager a number of issues arose including issues in respect to the opening of customer accounts, payroll, access to the internet, the installation of cameras, a faulty saw used by customers, dead stock, the giving away of stock by Mr Wansey, the hiring of staff by Mr Wansey without consulting the applicant, the cost of wages, staff and staffing.
In summary it is also the applicant’s evidence that she was overworked, not given sufficient training for her new role, that there was a lack of communication with Mr Wansey, that she was not given sufficient support in particular by Mr Wansey and that she felt neglected and overwhelmed.
In summary it is the evidence of Mr Wansey that the applicant managed her own roster, that he would visit the store once or twice a week, that the applicant was provided with the time, resources and guidance she needed to manage the store and that many of the administrative functions were being done at the head office. In the opinion of Mr Wansey, the applicant did not optimise the available resources.
It is the evidence of Mr Wansey that apart from the rostering matters he believes that the applicant performed her duties running the store day to day “adequately”.[7]
[7] RALAD p 11.
Mr Wansey does appear to concede that the applicant was working long hours it being his evidence that the applicant worked “unnecessarily” long hours in store with lots of overtime[8] and that during the time that he worked with the applicant she did say she was tired and working long hours. It is Mr Wansey’s evidence that the applicant never expressed that she was suffering from any adverse psychological symptoms from work.[9]
[8] Reply pp 117-118.
[9] RALAD p 12.
On 11 August 2023 Mr Wansey sent an email to the applicant which appears to acknowledge difficulties which the applicant was having at that time with rostering and that the applicant had worked 71 hours a couple of weeks prior and that the applicant had then worked 11 hours on a Saturday which had left her “so exhausted that you’re sick for 3-days. This is unsustainable, and I won’t allow it for your own sake.”[10]
[10] RALAD p 21.
It is the applicant’s evidence that concerns were raised by management about discounts which had been applied to some transactions. That she made a number of requests, which were declined or not responded to, to speak to Mr Wansey to go through the issues and explain the situation which left her with “crippling anxiety”.
It is the applicant’s evidence in her statement of 29 August 2024 at [31] that on or around 30 September 2023 she drove to see Mr Wansey as she was not eating, sleeping or functioning and needed the transaction issue to be sorted.
The applicant met with Mr Wansey on 30 September 2023. It is the applicant’s evidence that at this meeting Mr Wansey mentioned potential fraudulent transactions without giving any details. That Mr Wansey told the applicant that they would have a meeting with her on 5 October 2023. It is the applicant’s evidence that she asked Mr Wansey if she could meet with him before that as she didn’t “like to leave things to linger and would prefer fixing them right away” to which he said “that's your problem not mine.”[11]
[11] ARD p 5.
It is the applicant’s evidence that she began to develop anxiety symptoms after the meeting with Mr Wansey. That she was unable to sleep, eat or function properly. That she had increased anxiety about what Mr Wansey wanted to have the meeting about and why he was contacting staff instead of discussing matters with her. She was not provided with any written confirmation of the meeting or the purpose of the meeting.[12]
[12] ARD p 6.
Following the meeting on 5 October 2023 the applicant received on the morning of 6 October an invitation to attend a show cause meeting on 9 October 2023. It is the applicant’s evidence at [33] of her statement of 29 August 2024 that prior to the meeting on 9 October 2023 she was unable to sleep and eat and was quite suicidal about the meeting especially around the mistrust issue. At [34] that she attempted unsuccessfully to contact the respondent’s employee assistance provider (EAP). That on the Sunday night before the meeting she was extremely agitated. That she had taken excessive medication on the Friday and Saturday. At [36] that she was so overwhelmed on the Sunday and over medicated she went to a suicide prevention centre Head to Health where she stayed for a few hours.
It is also the applicant’s evidence that she was referred to Dr Biing Liang Yin from Our Medical Home in Penrith on whom she attended on 8 October 2023 and who certified her unfit for work from 8 October 2023 to 15 October 2023.[13]
[13] ARD p 7.
A clinical record from Head to Health dated 8 October 2023[14] records that the applicant consulted the practice late on the evening of 8 October 2023. The warning signs were recorded as going quiet, cranky, withdrawal, isolate and hide, changes in sleep pattern and irregular eating. The triggers were noted as frustration and work expectations.
[14] ARD pp 286-287.
A medical certificate by Dr Yin dated 8 October 2023 certified the applicant as unfit for work from 8 October 2023 to 15 October 2023 due to depression and anxiety.[15]
[15] RALAD p 40.
It is the applicant’s evidence that during the meeting on 9 October 2023 both Mr Wansey and Karine Coupez, the respondents Human Resources (HR) Manager kept going over the “main line” of questioning and kept referring back to the broken trust and stating that the applicant misused the trust and created a trust issue. It is the applicant’s evidence that it was this that triggered the decline in how she was feeling. It is the applicant’s evidence that she cried a lot during the meeting. The applicant was so distressed that Ms Coupez had to help the applicant walk out to her son who was picking her up.[16]
[16] ARD p 8.
It is the applicant's evidence in her statement of 29 Aug 2024 at [48] that she was experiencing stress and anxiety due to the overwhelming amount of responsibility to staff, manager and the owners, without any support from management. That these symptoms were present before the incident with the discounts. That the show cause meeting on 9 October 2023 caused a significant exacerbation of her symptoms.
It is the applicant’s evidence in her unsigned statement that the “main trigger for the claim was the show cause meeting”.[17]
[17] Reply pp 21.
The evidence of Mr Wansey and Ms Coupez supports that the applicant became extremely upset and distressed during the show cause meeting.
On 13 October 2023 the applicant attended on Dr Rowe. The clinical record of the attendance records that the applicant had suffered an exacerbation of depression and anxiety due to work stress. The clinical record records that the applicant was unsupported at work, working 60 hours per week and that she felt very apprehensive about a meeting with manager/owner in respect to a query regarding fraudulent transactions. The clinical record records that the applicant had an emotional breakdown over the weekend, had suicidal ideation like stepping into a passing truck.[18]
[18] AALD p 269.
Sylvana Mizzi, psychologist, or Michelle Carrera, counsellor, (there is some uncertainty as to who authored the report due to the sign off which refers to the report being written by Michelle Carrera whilst the report is signed by Sylvana Mizzi) reported on 27 August 2024[19] that the applicant had an incapacity to work due to not only the final incident that happened at work but also the lead up to that incident that happened. Such as “being over worked”, “not being listened to or taking seriously”, “Reaching out for help in desperate times of need and being turned away”. In the opinion of the author, for the applicant, the message from these actions was detrimental, causing internal struggle, panic and feelings of being overwhelmed.
[19] ARD pp 94-97.
In the author’s opinion the downward spiral in the applicant’s mental health occurred due to being:
“…overworked, underprepared for her position and feeling as though her thoughts, opinions and/or concerns where not being heard or taken seriously. When the applicant did want to reach out for help or make things right, she was made to feel as though there was no help and support for her, which only escalated her mental state.”
The applicant relies on a forensic report of Dr Abdal Khan, psychiatrist, dated 14 November 2024.[20] Dr Khan records a history of the workplace events which is largely consistent with the applicant’s evidence.
[20] ARD pp 85-92.
In the opinion of Dr Khan, the applicant endured protracted work-related stressors whereby she felt overworked, unsupported, ignored and dismissed by senior management and subjected to unfair disciplinary action in relation to some transactions at her workplace. In the opinion of Dr Khan these experiences resulted in deterioration of her mental state and caused her to suffer a relapse of her pre-existing bipolar disorder with her current episode being a major depressive episode. In the opinion of Dr Khan, the applicant’s employment was the main contributing factor to the aggravation of a disease.

The respondent relies on a forensic report Dr Nadeem Anwar, psychiatrist, who provided a forensic report to the respondent dated 13 June 2024.[21] Relevantly the doctor records that the applicant reported that she managed well at work and in her personal life until the meeting on 9 October 2023, that at the meeting she became extremely upset and overwhelmed, that she stopped working after the meeting because her psychological symptoms rapidly aggravated and that if there had been no meeting on 9 October 2023 she would have continued working.
[21] Reply pp 54-65.
In the opinion of Dr Anwar, the meeting on 9 October 2023 aggravated the bipolar disorder causing major depressive episode. On balance of probabilities, it is the doctor’s opinion that the predominant cause for the injury is the meeting with management on 9 October 2023.
Having considered the evidence I am of the view and find that the psychological injury was wholly or predominantly caused by the actions taken or proposed to be taken by the employer in respect to “discipline”.

The allegations made against the applicant were serious in nature with the applicant being investigated for what the respondent considered potentially fraudulent and/or dishonest conduct. There was an investigation into that conduct following which a show cause meeting was held on 9 October 2023. The respondent’s letter of 6 October 2023[22] inviting the applicant to the show cause meeting advised the applicant that the investigations into allegations that she had engaged in fraudulent activities, acted dishonestly, not in good faith, and not respectfully of the trust the respondent had concluded and that in the respondent’s view the applicant had been dishonest, not acted in good faith, and did not respect the trust the respondent had placed in her and that the respondent was considering terminating her employment. The letter advised that respondent wanted to give her an opportunity to show cause as to why her employment should not be terminated.
[22] ARD pp 49-53.
The actions of the employer were not in respect to “performance appraisal”. There was no examination or assessment of the applicant’s work performance. It is the evidence of Mr Wansey that apart from issues in respect to rostering he considered the applicant had performed her duties adequately. The actions taken by the employer were to investigate the applicant’s conduct and on completing those investigations the respondent considered disciplinary action in the form of the termination of the applicant’s employment.
There is no medical evidence that the applicant sought or obtained treatment for any psychological condition associated with her employment with the respondent prior to attending on Head to Health and Dr Yin on 8 October 2023 the day prior to the show cause meeting.
In my view the evidence supports that whilst the applicant did not develop any symptoms of injury until the respondent started questioning the discounts applied to certain transactions. The evidence of the applicant is that she suffered “crippling anxiety” after the respondent questioned the transactions, that she went to see Mr Wansey about the allegations on 30 September 2023 about the transactions as she was not eating, sleeping or functioning. Her condition appears to have deteriorated prior to the show cause hearing with the applicant seeking medical assistance and culminated in the applicant becoming so distressed and distraught during the show cause hearing that she was crying and sobbing and needed assistance to walk.
Prior to the concerns in respect to the discounts applied to certain transactions being raised the applicant appears to have been functioning in her job and was not seeking medical treatment. I accept that the applicant may have felt tired, stressed and frustrated but there is no evidence to support that she had suffered a psychological injury.
The opinion of Sylvana Mizzi/Michelle Carrera is in my view consistent with this conclusion. It is their opinion that the issues which the applicant complained of at work prior to the transactions being raised have also contributed to the applicant’s injury this is because when the applicant did want to reach out for help or make things right, she was made to feel as though there was no help and support for her, which only escalated her mental state.
I prefer the opinion of Dr Anwar to Dr Khan. Whilst I have some reservations as to whether the participation in the actual show cause meeting caused the injury or whether the injury had been sustained following the issue of the letter inviting the applicant to the show cause meeting I am of the view that nothing turns on the distinction. The applicant’s condition clearly deteriorates following the issue of the show cause letter with the applicant seeking medical assistance on 8 October 2023 and the evidence supports that the applicant’s distress during the show cause meeting on 9 October 2023 was severe and her condition clearly deteriorated further at that time.
Dr Khan simply states that the applicant’s experience enduring protracted work-related stressors whereby she felt overworked, unsupported, ignored and dismissed by senior management and subjected to unfair disciplinary action resulted in deterioration of her mental state however he does not provide an opinion as to when that deterioration occurred and there is no evidence that the applicant had suffered an injury prior to the allegations in respect to the transactions being raised or that she had developed any significant symptoms. The applicant’s evidence is that she develops significant symptoms following the allegations being raised.

Reasonable action

In Heggie Sackville AJA observed at [59]:
“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.”
Geraghty J in Irwin said:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”

In Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss CCJ said:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
The test of reasonableness is objective. In Heggie Sackville AJA observed at [59]:
“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.”
Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action.[23] One must look at the entire process to see if it was reasonable action within s 11A.[24]
[23] Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.
[24] Sinclair.
I am of the view and find that the actions of the respondent were not reasonable for the following reasons.
I accept the applicant’s submission that the conduct which the applicant was accused of was serious in nature involving dishonesty and in the respondent’s view potentially fraudulent in nature. I also accept the respondent’s submission that it is reasonable for an employer to investigate such conduct and take disciplinary action if the allegations are proven.
Apart from the accusations made in respect to the transactions the applicant had not been the subject of any disciplinary action nor counselled for any work performance issues or breach of company policies or procedures.[25] The applicant appears to have been trusted and respected by the previous owners of the business as they recommended the applicant to the respondent as the most suitable of the retained employees to stand in as a management option until they got established.[26]
[25] Reply p 118.
[26] Reply p 119.
Apart from rostering matters (which were an issue of contention between the applicant and Mr Wansey) Mr Wansey is of the opinion that the applicant performed her duties “adequately”.[27]
[27] RALAD p 11.
As previously discussed the respondent discovered a few unusual transactions where stock had been sold under margin but had not been received into the system. It is the evidence of Mr Wansey that these transactions were investigated. They looked at where the stock had come from, who ordered it and how it had been sold.[28]
[28] Reply p 119.
It is the applicant’s evidence that on 28 September 2023, she became aware of two transactions processed by her colleague Ms Rhonda Gant which were heavily discounted. One transaction was for some Makita power tools and the other for a Makita lawn mower. The applicant raised these transactions with Ms Gant and cancelled the transactions and entered a new transaction with the correct staff discount and moved the deposit that Ms Gant had paid onto the new transaction. The applicant asked Ms Gant to pay the balance which she refused to do.[29]
[29] ARD p 4.
On or about Thursday or Friday of that week Mr Wansey called the applicant’s second-in-charge, Cassie, who did not answer the call. They then returned Mr Wansey’s call at which time he questioned a Makita transaction. It is the applicant’s evidence that she believed this was in relation to Ms Gant’s transactions as she had already informed Mr Wansey about the 'parked dockets' that they use for doing ticketing and labels.[30]
[30] ARD p 4.
It is the applicant’s evidence that she later found out that Ms Gant had taken the products and had not paid the balance. This was an issue the applicant wanted to raise with Mr Wansey, so on Saturday 30 September 2023 she drove to see Mr Wansey at the store. The meeting was not pre-arranged.[31]
[31] ARD p 5.
It is the applicant’s evidence in her statement of 5 March 2025 that she met with Mr Wansey on 30 September 2023 and that he mentioned potential fraudulent transactions. The applicant thought that Mr Wansey was referring to the transactions involving the Makita tools and told Mr Wansey that she hadn’t known about the transactions and what she had done to rectify the situation. It is the applicant’s evidence that it is at this point that Mr Wansey notified her that there were other transactions however he didn't give the applicant any details but told the applicant that they would have a meeting with her on 5 October 2023. It is the applicant’s evidence that she asked Mr Wansey if she could meet with him before that as she didn’t “like to leave things to linger and would prefer fixing them right away” to which he said He said “that's your problem not mine.”[32]
[32] ARD p 5.
The applicant’s earlier statement of 29 August 2024 does not provide the same level of detail as her later statement of 5 March 2025 as to when she was told of the particular transactions being investigated nor does it provide the same detail in respect to the circumstances and background surrounding her going to see Mr Wansey on 30 September 2023.
Due to the lack of detail and the structure of the statement it could be inferred (the statement contains no evidence directly on point) from the applicant’s statement of 29 August 2024 that the applicant was advised of the transactions which were being investigated prior to the meeting on 30 September 2023. I am not of the view that the statements are contradictory in respect to those events but am rather of the view that the statement of 29 August 2024 lacks clarity due to its lack of detail and confused structure.
The evidence of the applicant in her statement of 5 March 2025 is directly on point and unambiguous that at the time of the meeting on 30 September 2023 she was not provided with the details of the transactions under investigation. There is no evidence from the respondent as to when the applicant was given details of the transactions in question.
On the evidence before me the applicant was at no stage given in writing either the details of the suspected fraudulent transactions being investigated or notice of any allegations being made against her.
The applicant’s evidence is uncontested that she did not become aware of the details of the suspected fraudulent transactions which the respondent was investigating until during the meeting with Mr Wansey on 5 October 2023. I accept the applicant’s evidence.
It is the evidence of Mr Wansey that the meeting on 5 October 2023 was informal, a fact finding exercise. That at that stage no one was being disciplined and that he presented invoices and snapshots of what the computer screen would have looked like when they were invoicing the products.[33]
[33] Reply p 120.
In my view this was a very poor and unfair way to conduct an investigation. Having not been given even the details of the transactions, yet alone the details of the issues with the transactions with which the respondent was concerned, the applicant was given no opportunity to consider the transactions, make any investigations into the transactions which she may have thought were required or gather any relevant evidence.
The respondent’s failure to provide the information becomes more significant in light of the timing of the meeting in the investigative process. Whilst Mr Wansey refers to the meeting as being informal and a fact finding exercise, in reality it was far more serious.
The meeting occurs at the end of the respondent’s investigations by which time the respondent appears to have been investigating whether Ms Gant and the applicant had an explanation for their conduct.
In my opinion this is supported by the evidence of both Mr Wansey and Ms Coupez, the Human Resources Manager. It is the evidence of Mr Wansey that following the meeting he went to Ms Coupez seeking her guidance as to how to proceed. It is the evidence of Ms Coupez that Mr Wansey wished to terminate the applicant’s employment and that she helped him with the procedure that needed to be followed and the setting up of a show cause meeting. The applicant then receives an email at approximately 9.00am the following morning, on 6 October 2023, which has attached to it a show cause letter from the respondent.
In my view the actions of the respondent were not reasonable. The allegations against the applicant were serious in nature and the applicant has not had those allegations put to her and was not given the opportunity to prepare a response to those allegations.
It is the applicant’s evidence that there was an agreement between Ms Gant and Mr Wansey, that Ms Gant could purchase building materials at cost price as she was building a new home. It is the applicant’s evidence that whilst she was not a party to the conversations, she overheard two conversations in respect to Ms Gant’s discount.[34] The applicant cannot recall when she overheard Mr Wansey telling Ms Gant that she could have the discount but believes it was before the takeover of the business.[35] It is the applicant’s evidence at [18] of her statement of 29 August 2024 that she is unsure as to whether the agreement was in writing. As previously noted it is the evidence of Mr Wansey that he was the “lead” in respect to the purchase of the business.
[34] ARD pp 3-4.
[35] ARD p 4.
It is the evidence of Ms Gant that she had an agreement with the previous owners that she could purchase building products at cost price for the house that she was building and that when the respondent took over the business the previous owners advised Mr Wansey of this agreement, and he confirmed that he would validate it. It is the evidence of Ms Gant that she and the applicant were both present during this conversation and that the applicant was aware of this agreement.[36]
[36] ARD p 19.
Mr Wansey denies any such agreement.
It is the applicant's evidence in her statement of 29 August 2024 at [28] that she processed the transaction based on the agreement. At [39] that Ms Gant was adamant that she was entitled to the further discount and “forcefully adamant that she was not paying anything more than the cost price.” The applicant admits at [39] that she did not check with Mr Wansey, which was her mistake that she should've checked. That in hindsight she should have gone to Ms Gant after realising it was wrong the next day and fixed the issue noting that when she was completing the transaction there were alerts which came up notifying her that she was selling the goods under cost which she accepted because it was for her house.
The respondent submits that this represents an admission of guilt on the part of the applicant. It is not necessary for me to determine whether the applicant committed the actions which she is accused of. Relevantly my responsibility is to determine whether the action taken or proposed to be taken by or on behalf of the respondent with respect to discipline were reasonable.
However, I am of the view that it is not an admission of guilt. It is unclear what the applicant is referring to when she says: “I should have gone to Rhonda after realising it was wrong the next day”. The applicant previously talks of how she had not checked with Mr Wansey and that she should have checked. She subsequently talks of the alerts which came up when putting the transactions through. When she says that “it was wrong” it is unclear as to whether she is speaking of the alerts and about the form of the transaction as appearing wrong on the computer system. Critically however the applicant continues to maintain that there was an agreement in place and that she had no reason to believe that Ms Gant was not entitled to the discount.
Significantly the applicant was not accused of making a mistake or failing to follow the correct process. She was accused of dishonesty.
It is the evidence of Ms Gant that she was dealing with the suppliers directly and when they sent over the invoice, they invoiced the previous owners. That there was a lot of back and forth with the suppliers and it took them eight months to get the invoice directed to the new owners. It is also the applicant’s evidence that the incorrect details, incorrect store name, number, account and pricing on invoice took months to correct. That it took extra time to input the invoice due to price discrepancies.[37]
[37] ARD p 11.
On 5 October 2023 the applicant attended the meeting with Mr Wansey. It is the evidence of Mr Wansey that during the meeting he asked for an explanation about how they got to this stage and what they did afterwards, that he asked how they got the transaction finalised, how they organised the driver to pick up the goods from the supplier and deliver them directly to the house instead of the store.[38]
[38] Reply p 120.
It is the applicant’s evidence that Mr Wansey was very hostile and said, “I am hijacking the meeting' and then raised the issue with the invoices where Ms Gant was sold building products at the discounted price.”[39] It is the applicant’s evidence that Mr Wansey talked “at” her and did not give her the opportunity to get a word in as he continued to talk over her and that he made accusations accusing her of fraudulent transactions.[40]
[39] ARD p 6.
[40] ARD p 6.
It is the applicant’s evidence that Mr Wansey said that they had looked at her emails and found a paper trail. The applicant does not state whether she was shown these emails.
It is the applicant’s evidence that she was confused as she had raised the problems with Mr Wansey regarding the Makita products and Ms Gant’s response when the applicant asked her to pay the balance. It was also, still the applicant’s impression that the agreement was in place. Mr Wansey then walked out of the meeting.

It is the applicant’s evidence that she followed Mr Wansey out of the store and asked him to speak about it and sort it all out that day. However, Mr Wansey told the applicant that he was not going to change his way of investigating. It is the applicant’s evidence that she was confused as in her view there wasn't an investigation but rather an assumption.[41]
[41] ARD p 6.
The meeting notes by Mr Wansey[42] confirm that the meeting was not in relation to the transactions for the Makita power tools and lawn mower but rather in respect to the transaction involving the purchase of building materials by Ms Gant as well as the purchase of some timber posts by the applicant.
[42] RALAD pp 36-38.
The notes record that the applicant was questioned about the transactions. That the applicant reported that she recalled overhearing a conversation between Mr Wansey and Ms Gant saying that Ms Gant could have the material at cost in response to which Mr Wansey notes “(this did not happen)”.
The notes give no indication that Mr Wansey sought any further information in respect to the alleged conversation(s) such as when the conversation(s) took place, who was present at the conversation(s) or what was said. Given the serious nature of the allegations as well as the applicant’s previous good record those inquiries should in my view have been made.
Such inquiries were necessary in my view to test the veracity of the applicant’s claim, to confirm or otherwise the memory of Mr Wansey as the alleged conversations had occurred sometime prior to the meeting on 5 October 2023 and additionally Mr Wansey would have been very busy at the time of the conversation(s) as they appear to have occurred around the time that the business was being purchased, to identify sources of potential evidence as to the alleged agreement such as other witnesses or participants to the conversation(s) as well as to explore whether the applicant could have been operating under a misperception or misunderstanding of an actual conversation which would be relevant to whether the applicant had acted dishonestly.
The notes also record that Mr Wansey asked why the goods were entered on Sympac nearly six months after they were purchased form the supplier. In response to which the notes record “again she blamed the reissuing of the invoice, makes no sense.” The applicant had previously advised that the initial invoice had the wrong store number. The notes do not record that Mr Wansey discussed with the applicant in any detail the chain of events following the issuing of the initial invoice on 31 March 2023 such as the events involved including the chronology in having the issues with the invoice rectified.
Interestingly Mr Wansey had asked the applicant when the pricing for the goods ordered by Ms Gant had been provided to her to which the applicant stated that she had never seen an invoice. Mr Wansey responded that the invoice was readily available showing her a copy which he had obtained from the supplier. Even though the applicant had advised Mr Wansey that she had never seen the initial invoice but had also told Mr Wansey that the invoice contained some incorrect information Mr Wansey does not appeared to have explored with the applicant the chain of events such as how she had become aware of any errors in the invoice if she had not seen it, to where or to whom the initial invoice had been sent (Mr Wansey had obtained a copy from the supplier), when the applicant became aware that the goods had been invoiced and who had conducted the discussions with the supplier in respect to the corrections to the invoice.
The notes record that the applicant told Mr Wansey that Ms Gant began discussions with the supplier in respect to the goods in question in late February and that Ms Gant had ordered the stock in March. The applicant also told Mr Wansey that Ms Gant had organised the pickup and delivery of the stock. The applicant admitted that she had made a mistake in authorising the delivery of the goods.
The notes also record that the applicant was questioned by Mr Wansey in respect to the purchase of some timber posts at a reduced price. The applicant explained that in her understanding the stock was “dead stock” and that she should be able to have it at cost price or better. Mr Wansey disputed that the stock was “dead stock” referring to recent sales of the stock. The applicant attempted to differentiate her purchase on the basis of the lengths of the timber which Mr Wansey did not accept on the grounds that the posts were sold by the metre and that the applicant, even as a store manager, did not have the right to determine what was “dead stock”.
There is nothing recorded in the notes to indicate that Mr Wansey undertook any investigation into the applicant’s belief as to why she considered the stock “dead stock”, the applicant’s understanding of what constituted “dead stock”, whether she was aware of and familiar with any policies and processes around “dead stock”. In my view given that the applicant was being/would be accused of acting dishonestly such inquiries should have been made.
Mr Wansey noted that about 40 minutes after the meeting the applicant and Rhonda telephoned him offering to pay for the transactions in question in full.
The respondent submits that this represents an admission of guilt. I do not accept this submission. The applicant was ultimately accused of acting dishonestly. The offer could have been made for a number of reasons unrelated to guilt in relation to acting fraudulently or dishonestly, such as not wishing to be subjected to the investigative/disciplinary process(s) (it is a consistent theme in the applicant’s evidence that she wanted to have the matter dealt with and over) and/or fears for their jobs whilst still believing that they had done nothing wrong or out of a concern that they may or did make an error in that they should have checked with Mr Wansey before applying the discount to the goods purchased by Ms Gant (the applicant in her evidence states that she should have checked) and/or incorrectly identifying stock as “dead stock”.
Mr Wansey took his findings, including invoices, from the informal meetings to Ms Coupez, to ask her advice on how to proceed. Ms Coupez advised that two separate show cause meetings should be held. The show cause meetings were set up four 9 October 2024.[43]
[43] Reply p 120.
It is the evidence of Ms Coupez that Mr Wansey first raised his concerns with her at the “end of September/October 2023” about some potentially fraudulent activity committed by the applicant and another staff member. Ms Coupez had a couple of conversations with Mr Wansey prior to the meeting, regarding working out a strategy on what would happen next. After reviewing the documentation, Mr Wansey advised management that he wanted to terminate the applicant’s employment. Ms Coupez informed Mr Wansey that there was a process that needed to be followed, and this is when Ms Coupez assisted Mr Wansey in setting up the show cause meeting.[44]
[44] Reply p 109.
On 6 October 2023 at 9.31am the applicant received an email from Mr Wansey which had attached to it a show cause letter from the respondent of the same date.[45] The letter advised the applicant that the investigations into allegations that she had engaged in fraudulent activities, acted dishonestly, not in good faith, and not respectfully of the trust the respondent had concluded.
[45] ARD pp 49-53.
The letter advised the applicant that it was the view of the respondent that the applicant had been dishonest, not acted in good faith, and did not respect the trust the respondent had placed in her and that the respondent was considering terminating her employment.
The letter advised that the respondent wanted to give her an opportunity to show cause as to why her employment should not be terminated, giving her the opportunity to provide the respondent with any comments or further information that she would like considered as to why her employment should not be terminated.
The applicant was invited to attend a meeting on 9 October 2023 with Ms Coupez and Mr Wansey. The applicant was invited to bring a support person to the meeting and also to contact Mr Wansey if she had any questions in relation to the letter.
The letter also acknowledge that this could be a difficult time for the applicant and advised that there was a free and confidential counselling available through the respondents EAP but provided no contact details.
The show cause letter is the first document that the applicant receives in respect to the investigations or disciplinary process from the respondent. The letter in my view is deficient.
The letter did not advise what the allegations were, which allegations had been substantiated or the basis on which they had been found to be substantiated. The applicant had not previously been provided with the allegations made against her. This left the applicant in the position of having to glean from the meeting with Mr Wansey on 5 October 2023 what she was being accused of, a meeting which Mr Wansey states was conducted for the purposes of fact finding.
Whilst the applicant was presented with some documents during the course of the meeting on 5 October 2023 it is unclear whether she was shown all the documents relating to the matter and whether she was given access to copies of the documents. There is also no evidence that the applicant was aware of the outcome of any investigations conducted by the respondent with Ms Gant. Given the nature of the allegations being made against them those investigations may have raised matters that the applicant needed to consider and respond to. In my view these deficiencies significantly affected the applicant’s ability to prepare for the show cause meeting.
In my view the applicant was also not given sufficient time to prepare for the show cause meeting including the securing a support person. The applicant is only advised of the transactions being investigated during the meeting on 5 October and therefore was not given the opportunity to prepare prior to the meeting of 5 October. The applicant is advised of the show cause meeting on the morning of Friday 6 October, with the meeting is to take place on Monday 9 October. It is the applicant’s evidence that she worked a 12 hour shift between the time of receiving the show cause letter and the meeting being held.[46]
[46] ARD p 7.
The letter is also deficient in not providing the contact details of the EAP provider. It is the applicant’s evidence that the notification of the show cause meeting exacerbated her anxiety and stress to an unbearable point. That she attempted to contact the EAP service, but the letter provided no contact information. That she called the respondent’s head office, but they were unable to assist. I accept the applicant’s evidence which is not challenged by the respondent, and which is consistent with her having wished to obtain assistance having attended on Head to Health and Dr Yin on 8 October 2023.
It is also the applicant’s evidence which is unchallenged that when she called the respondent’s head office she had also asked if she could speak to someone regarding the show cause letter but was advised that no one was available.[47]
[47] ARD p 7.
It is the applicant’s evidence in an unsigned statement that on Sunday 8 October 2023 she was so overwhelmed and over medicated that she went to a suicide prevention centre Head to Health and stayed there for a few hours. It is the applicant’s evidence that she gave Mr Wansey and Ms Coupez a doctor’s certificate during her show cause meeting.[48] The applicant’s attendance on Head to Health and Dr Yin on 8 October 2023 has been previously discussed above in respect to “wholly or predominantly”.
[48] Reply pp 23-24.
The first show cause meeting was held with Ms Gant who had the applicant as her support person. At that meeting Ms Gant said she was tired and didn't want to go through the process and was going to resign which was accepted.
The applicant had her son (by phone) as her support person but hung up on him shortly after the meeting commenced. It is the applicant’s evidence in her unsigned statement that she hung up because she was getting too upset and she did not want him to be listening to what was going on and her being upset whilst he was driving.[49]
[49] Reply p 24.
There is no dispute on the evidence that the applicant became highly emotional during the meeting, that she asked on more than one occasion to stop the meeting before stating that she wanted to continue or that during the course of the meeting she provided a medical certificate to Mr Wansey and Ms Coupez, presumably the certificate from Dr Yin of 8 October 2023.
It is the applicant’s evidence that during the meeting both Mr Wansey and Ms Coupez questioned her, went through everything many times and kept referring back to the broken trust and stating that the applicant misused the trust and had created a trust issue.
It is also the applicant’s evidence that at the show cause meeting she was not given the chance to speak or show her paperwork, that it was hard to try to explain to Ms Coupez as she did not understand the paperwork at all.[50] The evidence of Ms Coupez appears to support the applicant’s evidence with Ms Coupez stating that Mr Wansey went through the issues, that the applicant agreed with what had been done (the applicant does not deny and on the evidence has never denied that she put the transactions through) but denied any wrongdoing which is also broadly consistent with the evidence of Mr Wansey that the applicant attempted to say that he had said they could have the products at cost price.[51] During the meeting the applicant was also critical of Mr Wansey’s management style. It is Mr Wansey’s evidence that he told the applicant that he did not accept her criticism.[52]
[50] ARD p 12.
[51] Reply p 122.
[52] Reply p 122.
It is logical that the applicant would have attempted to show Mr Wansey and Ms Coupez any paperwork which she had gathered. The show cause meeting was her first opportunity to do so having not been advised which transactions were being investigated prior to the meeting on 5 October.
Whilst Ms Coupez states that the applicant was “not accepting any responsibility of what she did wrong” [53] and Mr Wansey states that it was a false statement that there was an agreement with no documentation or emails to back it up. Neither Mr Wansey nor Ms Coupez give evidence in any detail as to what the applicant was trying to say about the transactions and demonstrate with her paperwork. I accept the applicant’s evidence.
[53] Reply p 110.
It is the applicant’s evidence that she cried a lot and that she got so distressed that she could not speak or stand up and could hardly breathe.[54] Ms Coupez states that the applicant advised on three separate occasions that she couldn’t do the meeting and wanted to stop, to which they all agreed and asked her if she wanted some water before attempting to adjourn the meeting. It is the evidence of Ms Coupez that the applicant would then continue to speak and then advise she wanted the meeting over.
[54] ARD p 8.
It is Ms Coupez evidence that the applicant did not advise that she had been mentally impacted until the first time she said she wanted to stop the meeting, at which stage she mentioned that she had been discharged from a medical place the night before. Ms Coupez believes that the applicant also advised that she had not slept or eaten since she received the show cause meeting letter. It is the applicant’s evidence that she advised them at the commencement of the meeting.
It is Ms Coupez evidence that she asked the applicant if she was okay to continue. The applicant wanted to proceed saying it would be worse if they continued to wait.
It is the evidence of Ms Coupez that the applicant ended up getting into such an emotional state that she could not even talk. Ms Coupez intervened as the applicant was not well emotionally, she asked the applicant if she wanted water and provided tissues. She asked Mr Wansey to leave the room which he did. Ms Coupez stayed with the applicant for another ten minutes during which time the applicant collapsed against a wall and leaned forwards as if she was going to vomit. Ms Coupez had to help the applicant downstairs which “was a long process” and organise someone to pick her up.
In my view the show cause meeting was not a fair process. Apart from the issues previously mentioned in respect to the meeting on 5 October 2025 and the show cause letter provided to the applicant. It is not until the show cause meeting that the applicant has an opportunity to meet the allegations made against her, after having time (albeit very limited) to prepare. The allegations which are very serious, involving dishonesty and having been talked of as involving fraudulent conduct, have never formally been put to the applicant which as previously discussed negatively impacts on her ability to meet those allegations and defend herself.
By the time the applicant attends the show cause meeting the respondent has already decided the issue of her guilt and has moved past the investigation phase. The applicant’s guilt having been decided, it appears that little consideration was given to what the applicant had to say in her defence at the show cause meeting.
It is also my view that the show cause meeting should have been adjourned when the applicant first asked for the meeting to be stopped. The applicant at that stage was obviously distressed and at least by that point according to the evidence of Ms Coupez the applicant had disclosed that she had been discharged from a medical place the night before and that she had not slept or eaten since she had received the show cause meeting letter on Friday morning.
Whilst the applicant may have wished to proceed, the respondent should have been concerned about her condition to do so and furthermore it was not fair to the applicant to do so. In the circumstances, given the applicant’s distress and the information provided to the respondent, the applicant’s mental wellbeing should have been a concern, and serious consideration given to the applicant attending on an appropriate medical practitioner for treatment and guidance as to when the meeting could be resumed. In addition, the applicant’s capacity to function and to effectively participate in the meeting and show cause was clearly compromised. The applicant was emotionally distressed, and she had not slept or eaten in three days. Furthermore, her opportunity to prepare for the meeting had also been clearly compromised both as a result of her psychological state but also because in addition to working a 12 hour shift since being notified of the meeting she had also lost time attending a medical facility.
It was submitted on behalf of the respondent that the respondent cannot be criticised for continuing the meeting when the applicant wished to, and was saying that it would be worse if they did not continue. I reject this submission. The point of the meeting as proclaimed by the respondent in its letter to the applicant was for the applicant to show cause. If there were concerns as to the applicant’s functional ability to undertake that task there was no point in the meeting continuing. The process was unfair. If the respondent held concerns as to the impact that cessation of the meeting would have on the applicant, they could have offered to assist the applicant to access appropriate medical assistance. At the very least they could have expressed their concern to the applicant and encouraged her to access their EAP service provider immediately after providing the contact details.
In the end the applicant was never advised of the outcome of the meeting.
On 18 December 2023 the applicant emailed Mr Wansey advising that with advice from her psychologist she needed to cut communication as it was causing mental, emotional and physical stress. The applicant advised that she thought that she was strong enough to handle communication “but obviously I am not.” The applicant wrote “This is Not your fault, it’s mine and I apologise.”[55]
[55] Reply p 33.

The respondent submits that this is an admission of wrongdoing or guilt by the applicant. I do not accept this submission. The sentence “This is Not your fault, it’s mine and I apologise” needs to be read in context.
The preceding emails[56] discuss such matters as overtime payments, gift cards, Christmas shutdown, the applicant’s aims at work for the respondent, financial hardship, sick leave and a fall which the applicant had suffered. In the email of 18 December 2023, the applicant refers to her own mental frailty and the advice that she had received to cut from her psychologist. Given the context of the email, I am not of the view that the applicant is making any admission of guilt in respect to the transactions which were the subject of the investigation.
[56] Reply pp 33-338.
The respondent submits that the applicant was obligated to check if a discount could be applied by virtue of some agreement. The applicant in her evidence admits that she made a mistake in not checking with Mr Wansey before applying the discount. However, as I have previously observed the applicant was not accused of making a mistake. She was not disciplined and ask to show cause because she made a mistake or failed to follow some procedure. She was accused of dishonesty.
In the respondent’s submission the evidence supports that the applicant new that she had done the wrong thing. The respondent submitted that it is concerning that the applicant put on a new statement in these proceedings which omitted her earlier evidence in her statement of 29 August 2024 at [39] to making a mistake in not checking with Mr Wansey in respect to the discount and at [41] to having done the wrong thing and that the evidence of the applicant should not be accepted.
The respondent also submitted that the applicant’s conduct in pursuing Mr Wansey to talk about the issues and the level of the applicant’s anxiety in respect to the allegations and her reaction to the show cause letter and meeting is consistent with her having known that she had done something wrong.
It is not necessary, as previously discussed, for me to reach a conclusion as to the truth of the allegations which were made against her. The issue to be determined is whether the action taken or proposed to be taken by or on behalf of the respondent in respect to discipline was reasonable. Further, the fact that the applicant may have felt that she had done the wrong thing by not checking with Mr Wansey before applying the discount is not the issue. The applicant was not accused of making a mistake or not following a process she was accused of dishonesty. The applicant dos not deny the transactions but has consistently claimed that there was an agreement that Ms Gant could purchase building products at a discount.
For the above reasons I am of the view and find that the disciplinary process including the investigation was unfair to the applicant and that the respondents conduct was not reasonable. I therefore find that the respondent has not satisfied its onus of establishing the defence under s 11A(1) of the 1987 Act.

Incapacity

That the applicant sustained a psychological injury is not disputed
In the opinion Dr Khan who reported on the applicant on 14 November 2024 the applicant is totally incapacitated for work due to the ongoing impact of the subject injury on her mood regulation, motivation, energy, sleep patterns, appetite, attention, concentration, memory, ability to tolerate stress and pressure, coping mechanisms, self-confidence, self-esteem, self-identity and trust in interpersonal relationships.
The respondent relies on the opinion of Dr Nadeem Anwar, psychiatrist, who provided a forensic report to the respondent dated 13 June 2024.[57] In the opinion of Dr Khan the show cause meeting on 9 October 2023 aggravated the applicant’s pre-existing bipolar affective disorder causing major depressive episode which was continuing.
[57] Reply pp 54-65.
In the opinion of Dr Anwar, the applicant lacked the capacity to participate in vocational rehabilitation and work in any role, with any employer on part or full time, with or without restrictions for 6 months at which time she could be reassessed.
Sylvana Mizzi/Michelle Carrera reported on 27 August 2024[58] that the applicant had no capacity for work at that time due to her mental state.
[58] ARD pp 94-97.
All the Certificates of Capacity in evidence certify the applicant with no current work capacity
The medical evidence all supports, and I find that the applicant has no current work capacity and has not had any current work capacity since 31 July 2024 being the date from when weekly compensation is claimed.

[2025] NSWPIC 253

4 June 2025