Dare v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Dare v State of New South Wales (NSW Police Force) [2023] NSWPIC 207
APPLICANT:	Daniella Dare
RESPONDENT:	State of New South Wales (NSW Police Force)
senior Member:	Kerry Haddock
DATE OF DECISION:	8 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly benefits and lump sum compensation; respondent did not dispute that the applicant had sustained psychological injury; respondent claimed to have a defence pursuant to section 11A relying on actions with respect to promotion, performance appraisal and/or provision of employment benefits; parties agreed that if liability dispute determined in favour of applicant, claim for lump sum benefits to be referred to a Medical Assessor (MA) with deemed date of injury being date of claim for permanent impairment and claim for weekly benefits to be determined after issue of Medical Assessment Certificate; consideration of Department of Education and Training v Sinclair, Kooragang Cement Pty Ltd v Bates, Northern NSW Local Health Network v Heggie, Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd and Ritchie v Department of Community Services; Held – psychological injury wholly or predominantly caused by respondent’s action with respect to promotion and/or provision of employment benefits; respondent’s action not reasonable; matter remitted to President of the Personal Injury Commission for referral to MA for assessment of permanent impairment; matter to be listed for further preliminary conference after issue of Medical Assessment Certificate.
determinations made:	1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 14 March 2022 (deemed) – disease (b) Body system/parts: psychological/psychiatric disorder (c) Method of assessment: whole person impairment 2. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. 3. The matter is to be listed for further preliminary conference before me after the issue of the Medical Assessment Certificate, for directions as to the claim for weekly benefits.

STATEMENT OF REASONS

BACKGROUND

The applicant, Daniella Dare (Ms Dare) is employed by the respondent, State of New South Wales (NSW Police Force) (NSWPF) as a general administration support officer (GASO).
Ms Dare has sustained a psychological injury arising out or in the course of her employment with NSWPF.
On 9 July 2021, the applicant completed an Incident Reporting Form. The date of the incident was stated to be 7 April 2021, caused by “psychological factors”. There was said to be “Bullying and Harassment – by your commander/manager”.
The applicant stated that she was on her second day back after three weeks leave, the first week of which was for “mental health reasons”, and the next two weeks were planned annual leave.
“On that particular day”, she advised her supervisor and the duty officer she was “struggling and not coping with stuff which I flagged in my CMS (career management system)”. She was then taken to the duty officer for a meeting. The meeting “felt like an ambush” and there was a lack of support and understanding for the mental health issues she had raised. She felt as though her supervisors were irate with her for raising them.
The Incident Reporting Form recorded that the applicant had no current work capacity. Her expected date of return to work was 27 July 2021.
On 26 October 2021, the respondent’s insurer, Employers Mutual Limited (EML), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for injury on 7 April 2021. It disputed that Ms Dare had suffered a compensable psychological injury, and in particular that she had suffered any bullying and harassment; and that employment had been the main contributing factor to any aggravation “(etc)” of a pre-existing psychological condition.
EML maintained that the applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to promotion and/or performance appraisal and/or discipline and/or the provision of employment benefits. It disputed liability for payment of weekly benefits or medical treatment.
EML issued the applicant with a further notice dated 5 July 2022. The notice was in substantially similar terms to the first notice, except that it also disputed liability for her claim for permanent impairment compensation.
The applicant lodged an Application to Resolve a Dispute (the Application) on 27 November 2022.
The applicant claimed to have sustained injury, deemed to have occurred on 7 April 2021, due to the aggravation, acceleration, exacerbation, or deterioration of a disease. She claimed that whilst she was employed as a GASO, she “was in receipt of conduct which she perceived to be bullying and harassment.”
The applicant claimed weekly benefits from 7 April 2021; and permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) of $59,890 in respect of 22% whole person impairment (WPI).
The respondent lodged its Reply on 21 December 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the respondent has a defence to the claim pursuant to s 11A of the 1987 Act, because the applicant’s psychological injury was wholly or predominantly caused by its reasonable action with respect to promotion, performance appraisal and/or provision of employment benefits.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for preliminary conference before me on 19 January 2023. Mr Amos appeared for the applicant, who was present; and Ms Kheir appeared for the respondent.
The Application was amended to delete the words “as general administration support officer (GASO)”.
Mr Amos was unable to advise the date of injury on which the applicant relied. The applicant was directed to advise the respondent of the date of injury on which it relied on or before 27 January 2023.
The applicant sought to amend the Application to plead that she had sustained a disease, in addition to the aggravation, acceleration, exacerbation or deterioration of a disease. This was opposed by the respondent and not pressed.
The matter was listed for conciliation/arbitration hearing on 27 February 2023. Mr Adhikary of counsel, instructed by Mr Cameron, appeared for the applicant. Mr Perry of counsel, instructed by Ms Kheir, appeared for the respondent. Ms Mitreva of EML attended, but was excused from part of the proceedings, as she had another commitment in the Commission. She was available to provide instructions by telephone, had she been required to do so.
As the applicant’s representatives had mistakenly believed the hearing would proceed on the Teams platform, Mr Cameron and the applicant attended by Teams.
Mr Adhikary appeared in person, but due to the delay occasioned by the error, it was not possible to conclude the matter in the time available. It was agreed that Mr Perry would make his submissions, Mr Adhikary would provide written submissions, and Mr Perry would then provide in writing any submissions in reply on which the respondent wished to rely. At the conclusion of the time allowed for submissions, the matter would be determined “on the papers”.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,405.40. It was agreed that, should the dispute be determined in her favour, the medical dispute as to her WPI would be referred to a Medical Assessor; and the matter would then be listed for further preliminary conference before me for directions to be made with respect to the claim for weekly benefits.
The deemed date of injury for the claim for WPI is 14 March 2022. The documents to be provided to the Medical Assessor were agreed to be the Application and attached documents and the Reply and attached documents.
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 and attached documents;
(b)    Reply and attached documents;
(c)    Respondent’s wage schedule, and
(d)    Application to Admit Late Documents filed by the applicant, dated 2 February 2023, and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Daniella Dare

It is necessary to refer in some detail to the applicant’s evidence, due to the issues and her submissions, which make extensive reference to her statement.
The applicant provided an unsigned statement, dated 18 August 2021, to an investigator retained by EML.
She had previously suffered a work-related psychological condition in 2012. A claim was lodged with EML, and she was off work for around two months. This was not a reoccurrence of that claim.
For most of her eight years with NSWPF, she had been relieving within finance or administration clerk 5/6 roles, at times relieving in higher grade roles.
Her frustrations started when the Major Incidents Group (MEIG) started to shut down in 2017. She was the only civilian who did not go onto “workers comp” due to the stress caused back then. “I feel that I make an application for a better position I have been knock backed” [sic].
She had inquired with Blaise Bovard (Mr Bovard) for details as to why another staff member obtained a substantive position without it being advertised. He told her for over 12 months he could not provide any clarification of why this occurred.
She spoke to Mr Bovard regarding a 12-month temporary (clerk) 3/4 position that had been advertised at Surry Hills. She told him she was 35 years old and wanted to go somewhere. She was sick of relieving and wanted a substantiative position.
Mr Bovard told her this was a “grey area”, and he could not hold her position at Inner West (IW). She became very upset and broke down. She said there had been other staff that had been promoted that were junior to her. This was just before he was about to announce the promotion of another girl to a substantive position without advertising it.
She felt she was being threatened that her position at IW was not going to be held for her if she went to another command on secondment.
She recently transferred to IW, where she was asked if she was interested in being the backup and learning the executive officer (XO) position. She agreed and was looking forward to the opportunity. She mentioned and continued to mention that she did not want her past eight years' experience in GAO (general administration officer) roles to be forgotten, and after so long relieving her main aim is/was to secure a permanent clerk 5/6 position.
She was at a loss on how to further her "career" (more so job), especially within Central Metropolitan Region (CMR). At her current command, a GASO had been relieving in a GAO position continually for around 18 months. This opportunity was never advertised.
“While I don't expect roles to be given on a silver platter to me, for them to at least be competitive or at the very least be able to apply, registering interest is all I would ask to be able to feel like myself and even other employees have the chance to better our careers.”
There were GASO staffing issues at IW, which meant applying for EOIs (expressions of interest) outside the command would be rejected, and had been rejected for others, so she did not even try. It made it quite difficult knowing one of their peers had been given an opportunity to relieve for so long to the detriment of other GASOs who did not have a chance to better themselves but helped with her career.
Recently an IW GAO position, as she had always expressed interest in, considering her extensive relieving history and experience, was permanently filled without advertising or even communication from management on how they were filling the position.
“Made even worse” was a meeting she had with her manager days before the announcement of the role being filled, and her concerns for things not being at the very least competitive were confirmed. Her reason for transferring to IW was due to similar incidents at her previous command.
Training opportunities were not being sent to the admin (administration) team and simply being given to others. She only ever heard of opportunities when other managers or peers notified her. She was successful in gaining a few.
She attempted to seek some advice from a manager more senior to the command PAM (police area manager). She was then ridiculed by her PAM in an email to the rest of the admin team where they were told they were never to approach senior management and only speak to her if they had any issues. Once again, she felt like she was at a loss where to go for help or guidance.
In 2017, she gained the 6-max increment within the clerk 5/6 grade. She could not start learning PAM or bettering herself because substantive clerks 5 or 5/6 were considered before her. Her experience in GASO, XO, GAO HR and finance and some rosters knowledge did not account [sic] for anything, although she could argue she had more experience than most people being given permanent, relieving, or training positions and opportunities.
The effect of the past eight years of constant relieving, trying, instability, constantly asking for answers or feedback, applying, yet watching others not have to dance through hoops and simply be given opportunities, had been devastating to her mental health.
[She had] feelings of embarrassment seeing others with half the experience succeed ahead of her, constantly having peers comment their upset and disbelief, and not being sure how to respond, feelings of not being worthy, like a stick in the mud and not moving in the past eight years. “I am no better off than I was on my first day…even after years of hard work and relieving”.
Positions and roles [were] being given to others by not making it competitive or transparent, “makes you feel like they don’t want you there, like it’s a secret to keep you out.”
[There was an] effect on her family, her parents not understanding why she had not progressed to anything, most recently being hugely depressed and battling mental health issues due to work stress in the week of her brother's wedding.
She had lost an average of $600 a fortnight and was not able to buy a house because she could not prove her wage of eight years was permanent. She did not feel proud of her career and was embarrassed to talk about it, “even affecting my choices on having children”.
On numerous occasions she asked for feedback on what she was doing wrong, why she was never being supported or considered in being competitive, at the very least, and had never been given anything to work on.
She had never been told she was doing something wrong, or her work was not good enough, so she was at a loss on how she could better her career “or be punished for this”. She would continue to come in to work, tick her box, go home, and apply for the few rare positions where she could hopefully get a permanent position that she felt supported her and what she wanted from a career.
She was on her second day back after three weeks leave. The first week was for mental health reasons, and the next two were planned annual leave. On that day, she advised her supervisor and the duty officer she was struggling and not coping with stuff that she flagged in her CMS. She was then taken to the duty officer for a meeting.
The meeting felt like an ambush and there was lack of support and understanding of the mental health issues she had raised. She felt as though her supervisors were irate with her for raising the issues.
She was aware of a girl she had trained, who was using the tricks she taught her, and getting ahead of her. She felt she had shown loyalty to NSWPF and was getting nothing in return. Because of this, she was self-harming.
The applicant’s second statement is dated 4 February 2022.
She joined NSWPF in 2012. She is a GASO. She has not returned to her role since 27 June 2021.
During her career with NSWPF, she had been bullied and harassed.
In 2012, she was employed as a GASO at PTC (Police Transport Command) in August. In November she left on a WorkCover bullying claim. Her manager and co-workers were harassing, teasing, and making unsavoury comments towards her, in her presence and absence. She was frequently and purposely excluded from office and social engagements.
In around January-February 2013, she was placed at Hornsby Police Station after the WorkCover incident.
In around September, she was told she would be moved to Parramatta pay team (not a permanent position). She was living at the Northern Beaches, [involving] 3.5 hours travel on public transport. She lost her position due to the bullying and harassment, not due to her fault.
She felt it was really unfair that they expected her to work at Parramatta five days a week. The thought of the added travel costs and time really stressed her out. She asked for the decision to be reviewed but was told it was reasonable for them to make her go.
She went for one day, and when she got home, she was extremely upset. She did not get home until 8.00pm. Her parents were overseas, and her pet was left alone in the dark.
She started to feel trapped, like getting home late and leaving so early was her normal. She did not know how to handle the stress, so she drank a full bottle of wine when she was not a big alcohol drinker.
She then decided to harm herself. She used a large butcher’s knife and cut her arm. This was the first time she had self-harmed. She felt crazy and was drunk. She called a sergeant and sent him a photo. She thought it was funny at the time. He called the police and ambulance, she was taken to a mental health ward, and let out the next day.
The day she was released, she had multiple calls, as a rumour she had tried to kill herself was going around.
In around October 2013, she had a meeting with work force safety and was told she would be medically discharged if she was not going to cooperate with returning to work. She “found that funny” as she was more than willing to return, but within travelling distance as she had originally applied for.
She had given up at this stage, and said, “do it then, medically discharge me.” She was not sure they had the grounds when she was willing to work and more than capable at her job.
In around October, a few days after the meeting, she was placed at MEIG, and soon became permanent as a GASO clerk 1/2. She also started to learn a finance officer (FO) clerk 5/6 role.
She continued to work “happily” as a clerk 5/6 FO, learned vision control in the POC (Police Operations Centre) and started to learn the POC manager role, equivalent to a clerk 9/10.
She was never made permanent in the clerk 5/6 role although she did the job continuously for four years. She was relieving for all that time. For various reasons the HR command would not approve the role to be placed permanent, “which is now known because we were soon to be dissolved.”

She went on holiday overseas for one week. This was her last holiday overseas. She was scared to leave for too long, as she was always fighting for higher grade roles and relieving opportunities. She had felt since this date that she could never relax and needed to stay in Australia to be able to act on any opportunity quickly and keep fighting for a position or training opportunity.
At the end of 2016, MEIG assistant commissioner Allan Clarke went off with mental health issues and never returned. This was very sad, “as we adored him”. Working at MEIG with him were the best years of her working life.
They got a new acting commander (AC) and soon lost most of the senior police, as they resigned or went off with mental illness. They were replaced with senior police with well-known and documented questionable reputations.
Around this time, they were advised that MEIG would be dissolved and were not told what would happen to their jobs. She and her team were under immense stress, watching senior police they had worked with for years being pushed out unfairly and replaced against policies.
Around the start of 2017, she was asked to do something she was uncomfortable with and raised the issue. Soon after questioning a few financial decisions made by the new senior police, without any consultation, her job was advertised as a temporary 12-month position.
She started to receive calls from people interested in the position. She was unsure of what they were talking about, as the role description did not exist. She soon realised it was her own job. Even though there was less than a year to go, they had advertised a temporary position, using an incorrect position description. The contact for the job was not the business manager, as is correct practice, but a questionable inspector brought on by the new AC from HR command.
She was extremely upset, and the business manager had no idea what had happened but was cut out of any involvement. Against her will, she applied for her own position and gained an interview.
At the interview, the third panel member had not turned up. She later asked him why, and he said he felt the process was unfair and pressured not to give her the role.
She was unsuccessful and was notified by a “generic unsuccessful email”. She was extremely upset, embarrassed, and in shock. A weekend away was ruined. She came back from Canberra on a Sunday night and self-harmed for the first time since 2013.
She had Googled images of self-harm, hoping it would calm her. Instead, she became a little fixated and started to read articles on how to self-harm without people knowing. She cut her right wrist and had a permanent scar by which she had been embarrassed in the past.
The successful candidate for the FO clerk 5/6 was someone who had barely processed an invoice before. That is “not even a drop in the ocean” for the skills needed.
She was very upset and was a few months off gaining the 6-max increment within the clerk 5 role. She “managed to scramble”, found a new relieving 5/6 position, and kept her increment.
Around the same time, the relieving AC started to get the business manager and other staff to ask if she would be interested in a clerk 3/4 position being created to assist the new FO who had gained her old position and was struggling, causing frustration with the lack of finance support.
She was being told that the relieving AC said he regretted what had happened to her. She was not interested in being employed temporarily at a lower grade to assist the new operator deemed better than her. Her mental health and the mental health of the team she once worked with were seriously compromised, and she did not want to be part of the team the new senior police were implementing “as it was all very questionable practices”.
The relieving opportunity ended, and she found another 5/6 relieving position at an education command sub-unit. She also put in a grievance about what had happened with her role. Nothing came of it. It was given to an inspector she “believe[s] by policy not fit to do the investigation due to conflicts of interest.”
Around this time, at a farewell function, the inspector who headed the panel for her role, whom she felt was slightly intoxicated, apologised, saying she had to, and didn’t want to do it. She was “without doubt referring to the job interview”, as she otherwise did not have anything to do with her.
Around September 2017, she was asked to relieve in the POC manager role, TSO4 grade, which is similar to clerk 9/10. This was for about three months. She stayed on, assisting the substantive [employee] in the position to design an upgrade for the POC.
With a new acting AC in MEIG’s final few months, she was reinstated as FO clerk 5/6. She was happy to do this as she had great respect for the new AC and the finances needed to be cleaned up and closed.
It was her understanding that around this time a report was written by her business and HR managers, that was supported by the chain of command, to Deputy Commissioner Catherine Burn that she be given the FO clerk 5/6 position permanently as she had performed it for four years.
Ma’am Burn sent the report with her support to industrial relations, where it “apparently” was not supported, as the policies did not support giving relieving staff positions without them being advertised and made competitive. She was then told that anyone who performed a role for more than 12 months could be given the permanent appointment, as they agreed what happened to her was not fair.
In December 2017, MEIG was dissolved. There were big issues with her colleagues and where they would be placed. The original plans for them to be kept together and turned into a newer command were changed. She felt this was because of false gossip of her co-workers being incompetent.
Her clerk 1/2 role that she held permanently was the only one to go across. She refused the offer, as it was combining with PTC, the original command where she was employed and experienced bullying.
She instead chose to work at Sydney City Local Area Command (SC) with a very supportive manager. From this point, whenever she saw the acting AC who she felt allowed her role to be taken from her, he would ask where she was working and whether she would be interested in working again with him and his team. Her answer was always a definite no.
She was thankful for her decision as similar issues that she spoke about had come to light. He and his other questionable staff had since resigned.
She started at SC in the first week of December 2017, after being offered the GASO clerk 1/2 She accepted this over PTC and was losing about $500 to $600 a fortnight.
On 26 December 2017, a family member was killed in a road accident, and another two were placed on life support. She had to take a few weeks off to care for and assist her family. The two family members on life support also later passed away. SC command was very supportive of her.
She returned to work in mid-January 2018, to a new relieving position at a unit called charges, under the CMR office. She was told this was a senior constable’s position and she should be paid at the clerk 3/4 rate, but she never was. So much was still going on with her family, and being new to the command, she didn’t fight for or ask for anything additional.
She was told she was being supported to start relieving at St George command in the GAO clerk 5/6 position, but was unable to, due to her family accident and needing time off. This led to her not relieving as a clerk 5/6 for more than six months, and she lost the 6-max increment she had spent four years building.
In mid-2018, she relieved for a few weeks as GAO clerk 5/6 at Botany Bay, then also as XO clerk 3/4. She then started relieving as AO clerk 5/6, all within CMR.
Even though the clerk 5/6 was a short time, she was still made to apply and was successful. Being made to apply did not bother her, as that is correct policy, and she would rather win, not be given, positions. Her supportive boss from SC had now left.
During her time relieving as clerk 5/6, she was asked to assist with the absence and need for region emergency manager officer (REMO) clerk 7/8. This was not a relieving position but was additional work. She was happy to assist, as after almost five years of being a clerk 5/6 she was looking for new skills and areas.
She was encouraged to apply for the permanent position of REMO and was told that while her application was quite exceptional for someone with minimal experience, she was not considered because they wanted someone to start straight away. The role remained vacant for another six to eight months and continually had staffing issues.
Her relieving stint at CMR ended in December 2018 and she returned to work at SC, where she still held her permanent GASO clerk 1/2 position.
She was a GASO clerk 1/2 from January 2019 to about April 2019. An email went out to all staff, including her manager, Jacquie Goulding. Jacquie did not forward it to her or the administration team. A friend forwarded it to her, knowing she was trying to keep her clerk 5/6 GAO skills going.
The position was at Burwood command. Her manager supported her application for the relieving opportunity, and she gained the position. She was also given the finance director position for the 2020 Police and Emergency Services Games. This was a big job with a lot of added work, which was unpaid and volunteered, but she was still fighting for a permanent 5/6 position, so she accepted it.
At this time, CMR also ran a GAO recruitment talent pool, which she applied for, and made the list. A course EOI list was sent to her by a friend and not her substantive manager. She applied and was successful.
In November 2019, she was told she needed to return to SC, as they needed all admin staff present. She returned to being a GASO clerk 1/2, losing approximately $300 to $400 fortnightly.
In 2020, a bullying case against another employee was going on. She felt it was unfair towards one person, and thought the team was aware of this. She was not directly involved but was interviewed. She found it quite stressful, as she felt the accused employee was not mentally stable. She also felt bullied, but this did not affect her too greatly, other than added stress and feeling uncomfortable at times in the office.
An email that was not forwarded to her was sent to all managers for a training program. She received it from an old manager. The program was for permanent 5/6 workers to learn how to be a PAM.
She was not a permanent 5/6, but could argue she had the same, if not more, experience than most substantive 5/6s being offered the opportunity to apply. She emailed the course coordinator, who informed her she could apply, but permanent 5/6s would take precedence. She applied and was supported by her manager.
In around February she became aware that an email had been sent out for a CMR GAO training program for staff hoping to gain a permanent GAO clerk 5/6 position.
She was not sent this email by her PAM and found out it was given to another GASO who had no intention of being a GAO. It was too late by the time she found out, as the course had started.
She felt extremely upset as this was now a pattern, and she had not known of three opportunities she had to fight for or find out about on her own. She contacted the CMR business manager, Tania Madgwick, for advice about the issues she was having with her PAM, as she had expressed her concern for her career in a meeting and it got her nowhere.
The advice was that Jacquie Goulding was an extremely good manager and she just had to work with it. Ms Goulding did not have to tell her about any opportunities, and maybe she should just leave NSWPF.
She felt she was not given any help. She asked about a lateral transfer and was told IW was desperate for a GASO. She completed a report for transfer. Before she sent it through the chain of command, she sent the SC commander, Gavin Wood, an email on 19 February 2020 asking for a confidential conversation.
She wanted to discuss her reasons for transferring. As she knew he wanted all GASOs at SC, she wanted to ensure he would not reject her application without knowing she was not feeling supported at SC.
She received a reply stating that she should speak to Jacquie Goulding and not him about any issues. She said to a colleague “I bet he bcc’d (blind copied) Jacquie into this reply.”
Within less than a minute, she had Jacquie Goulding calling to say, “we’re having a coffee now you and I”. At this coffee, she was very snappy and condescending, starting the conversation “similar to”, “right, what’s going on? Why are you wanting to talk to the commander?”
She managed to tell a white lie, saying it was because she had been advised to speak to him before submitting a transfer report, and that it wasn’t personal, and other reasons.
Jacquie Goulding’s response was “so it wasn’t to have a bitch about me then?” She was a bit taken aback by her not even trying to pretend the commander had not bcc’d her into an email she had asked him to keep confidential.
She told Jacquie Goulding she had spoken to Tanya Madgwick for advice about her career. She raised issues of opportunities not being shared or made competitive. She told her she wished for opportunities to be shared. Jacquie Goulding’s response was that she did not have to tell her anything.
She asked if there was a reason she was being held back and if there were areas she could improve. Jacquie Goulding gave her no feedback or anything to work on. She said she was great and knew her stuff.
She told Jacquie Goulding she was seeking a transfer to better her career and “to no surprise she was supportive of this.”
She was extremely upset that the commander had bcc’d Jacquie Goulding into the email. She felt betrayed, unsafe, and attacked for reaching out for help.
When she returned a few hours later, an email was sent to the admin team that she knew was targeted at her and she was extremely embarrassed. She knew it was incorrect. They were allowed to approach anyone for help and did not have to speak only to their PAM, especially when the issue was her and her behaviour towards them.
As a result, and “proven the same date”, she started to self-harm again, due to the frustrations with her career situation, feeling forgotten and lost in a system, or not in a popular group. She was watching members of these so-called groups get ahead. but felt she was purposely being left out and left behind. She felt at this point her self-harm turned into the problem it was today.
During these episodes of extreme frustration and fear of future and financial status and years of fighting she would furiously cut her body with a razor. After the incident in 2017 cutting her wrist, she decided to remove all sharp knives from her apartment.
She filmed and took pictures of her cuts. She also became increasingly fascinated with suicide and had decided that because at her age her life was going nowhere, she would simply give up. It gave her space to feel comfortable and OK with being a failure within her career. At 34 she was no better off than when she started with the respondent and in fact was only getting worse.
She regularly calmed herself by researching ways to kill herself, which she had decided to do once her mother and dog had passed away. She also frequented the Gap and the cliffs along Vaucluse to calm her down.
This made her feel like there was a definite in her future and she was able to choose her ending and take back control of her life. She felt she had lost that over all the years of being pushed and pulled and moved and loaded up with work and getting nowhere and when asking for help being condemned for doing so.
She had no support and felt scared and alone within NSWPF. As she had decided she would be ending her life in a few years or decades, she started to shop more, look to cosmetic procedures, and was going out and being more reckless with her behaviour and finances, as she felt life was cheap.
In June 2020, she transferred to IW. On her first day she was confronted with the finance GAO position being relieved by Lucy Nipperess, a GASO 1/2, friend, and someone she helped and trained in finance when she started her employment with the police in 2018. She “felt a little slap in the face from this” as this was why she was transferring, and felt Lucy was part of the “group” supported by Tania Madgwick and other managers to get ahead before others more deserving.
This was going to be her last-ditch attempt to try to better herself, as she felt after this all her networking and options had run out. Her mental health was suffering and swaying between trying and being suicidal, her financial situation was still GASO wages, and she could not afford to see her psychologist. She also felt anger and that she should not be the one to pay for the psychologist as NSWPF caused this trauma.
On her first day at IW, she was asked if she would be interested in learning the XO position and being the backup for this position.
She enjoyed working at IW and quickly felt she was being relied upon a lot and being “loaded up” as the long term and other skilled civilian staff started to leave. She was OK with this for a while, as she felt capable and happy to help her command, show loyalty and hope it was all going towards showing she was capable of a role higher than grade 1/2.
On 15 October she had a liposuction arm surgery. Before her surgery she was told incorrectly and against policy advice by IW PAM Blaise Bovard regarding not being able to do court duties for two or three weeks after she returned to work. She was extremely stressed and upset, frequently crying but not self-harming, as she was enjoying the pain from her surgery.
She had found out she was rostered as court duties upon her return. Her arm surgery had not healed. She would regularly leak fluid from the incisions with vigorous movement.
Blaise Bovard put her through added stress the day before surgery and made her get a doctor’s certificate for what duties she could not do when she returned to work. This was during Covid times and put her at risk when he knew she was already feeling run down and a bit sick.
She later found out that what he had asked her to do was against policy. She had to get support from the union, and they had spoken about that. He then one day unannounced turned up at her desk to talk about it further. This made her uncomfortable, but they sorted it out.
On 4 March 2021, she went to Blaise Bovard’s office to ask about applying for a publicly advertised temporary 12 months clerk 3/4 position at a different command. She wanted to know if she was successful, whether it meant she would hold her position at IW and how it worked.
Blaise Bovard asked if she was looking to leave IW. She said she definitely was not but was getting scared and desperate. He told her that it would be a “grey area” if she applied and was successful.
He told her there was no way he would make sure she got the XO when that became available. She thought this was odd because the substantive XO had no plans to leave or retire soon. She also felt this to be some sort of threat.
She started to explain that she was scared, and at 35 felt she was going nowhere and in fact going backwards. She started to cry. Blaise Bovard told her to come into his office and close the door. They had what she felt was a good discussion.
She told him she was sick of relieving and wanted to secure a permanent GAO 5/6 role. She told him her concerns that the vacant GAO IW role was no longer competitive, with “Lisa” relieving in the role for over 18 months. It was never advertised and simply given to her. She was getting nervous because girls like Tara Baily (SC GASO) were getting all the opportunities and Lucy Nipperess was starting to get more relieving over her, as their managers supported and actively looked for roles for them. He told her to hang in there and something would come up.

She felt a little better and left the meeting feeling supported, but not supported in applying for the temp role advertised so she did not apply. “In hindsight”, she knows what Blaise Bovard said was untrue and she felt a little threatened and did not apply, believing that he knew her intents [sic] and would support her more in gaining a permanent 5/6.
On 8 March 2021 the first email she opened referred to the promotion of Lucy Nipperess. She was distressed reading this. She was upset by the language of “promoted”, as they do not get promoted. She felt blindsided, cheated, embarrassed, and knew her career or job with NSWPF was over.
She could not believe that after crying and being so broken only days before in front of Blaise Bovard that he could not have told her he had somehow managed to give Lucy Nipperess the permanent 5/6 she had been working nearly 10 years for.
She grabbed her bag and ran down the Marrickville station stairs. She was visibly upset. GASO Narelle Dickson and EDO Sergeant Kylie Hand asked if she was OK. She was shaking and felt as if she was having a nervous breakdown.
They went into Kylie’s office, and she threw her bag at the floor and screamed “I can’t do this anymore!” She covered her face and started to cry uncontrollably.
After some talk, she left and went to her doctor to get one week’s mental health leave, as the two weeks after that she was planned to be on annual leave.
She went home, self-harmed and filmed and photographed it. This had all happened in the weeks before her brother’s wedding on 20 March 2021. She felt terrible putting the stress on her family before the wedding.
Her family had to witness the many frustrating calls from acting inspector Michelle Morkos, telling her to just get over it and move on; and no one knew how Lucy Nipperess got this job because it was not advertised like it should have been.
Michelle Morkos also said she dropped off the promotions list which made no sense. She was getting increasingly angry and upset with Ms Morkos’ lack of knowledge and not understanding the civilian employment system well enough to comment. She was downplaying her upset, not knowing that she was carrying painful wounds and scars and was not trained or professional enough to be speaking to her in her state. Around the same time, she also received messages from Lucy Nipperess explaining her guilt and feeling like she was an imposter.
She returned to work on 23 March 2021. She was still stressed and upset and continually self-harming. She made it quite clear she wanted no interactions with Blaise Bovard, unless work related.
Blaise Bovard attempted to have a meeting with her. She declined without a witness and said she did not want to discuss the “situation” with him. She wanted everything in writing from this point or with witnesses present as she had felt lied to, cheated, and threatened in the past.
On 6 April 2021 she submitted her CMS, where they enter their career goals. She knew her career or job was over and that doing something so bold was her last cry for help.
On 7 April 2021 she was training GASO Rebecca Evans in admin at Marrickville. The duty officer that day was Michelle Morkos. Michelle saw her and interacted with her the whole day.
Around lunch time Michelle said to her “have you heard from Blaise? He was meant to call me.” She said no and within 10 minutes he turned up at her desk while she was with Rebecca.
Michelle came out of her office directly opposite her, where she could see her and had been staring at her all day and said, “right, come on we’re all having a meeting and I forgot to tell you”. She had decided that after the meeting on 4 March with Blaise Bovard she would never meet with him again without a witness or to be discussed in writing.
She felt completely ambushed by this meeting, and scared. She asked to go to the bathroom first. She went to the bathroom to call the union for advice. As she left the bathroom, Michelle was standing there and said, “oh I was coming to get you. We’re going to discuss this GAO stuff”. She went into the meeting with Blaise Bovard, Michelle and a union representative who had no idea about her issue and was not prepared.
The meeting started with Michelle saying, “right I’m going to let Blaise Bovard start and speak first”. He then talked so loudly and aggressively at her that she was quite taken aback.
During his talking, Michelle was looking at her, frustrated and rolling her eyes and fidgeting like she had better things to do, checking her watch, like this was just all too annoying for her. Anytime she tried to talk, she was yelled over with things like “LET ME FINISH!”. After a while Michelle threw her hands in the air and said “oh my god Daniella! For fuck’s sake just get over it! Just get the hell over it! And move on! It’s done! You can’t change anything!” She was so shocked she went beyond upset and felt almost outer body with it all.
They had a small break and when they returned the door was left open for everyone to hear their meeting. Michelle was laughing, scoffing, and shaking her head as if this was just all too ridiculous for her. She then checked emails while Blaise Bovard continued ranting at her.
At no point did anyone ask a simple “how are you?” or start the meeting “first of all how are you feeling?” This was really odd to not enquire for someone who had been off for three weeks “MH” (mental health) and just put out a cry for help. She understood that her doing this made them look bad, but as managers they should address the issues, not attack her.
Points in this meeting raised that did not make sense and made her even more upset included that Lucy was given the role because she applied for a role at Sutherland. She did not apply for this role because it was Sutherland and too far for her. Considering Blaise Bovard’s response to her wanting to apply for other roles elsewhere, she also did not apply, believing that if a role at IW came up, he would advertise for those in the city areas to register interest. In the past if you refused a job offer it had been known that you would be taken off the talent pool anyway.
She was told that he needed someone skilled straight away in the role and Lisa, who had been relieving for 18 months, was not yet skilled enough. She found that funny because Lucy would not have had any more experience than around 18 months. If, after 18 months, someone relieving was just not getting the role, why were they still being given the opportunity? If they hadn’t gotten it by now, they never would.
She was told they would soon be advertising the GAO relieving that Lisa was in, because he had just gotten advice from CMR. She doubted this was true. It was only since she and Narelle Dickson raised the issue of the 18 months never being advertised and simply given to Lisa that something had been done. Blaise Bovard had never advertised a position at IW as far as she was aware. He always piggy backed off other commands or region offices.
In this meeting, Blaise Bovard made her repeat back to him saying, “Say it! Go on say it! Admit that Lucy Nipperess is skilled!” She said “I know she is. I helped train her”. He was completely aggressive and demeaning towards her. At some point she felt he realised how aggressive he was being, and he said, “well I’m now advertising the relieving GAO position and I hope you apply.”
She felt so drained and used, like “wow everyone else gets the silver platter and I have to dance through the hoops and actually compete”. He also offered to maybe get her interview help, to which she said that that was not her issue and where was the point in that as there were no interviews anymore, nothing was competitive and that was her issue, but it seemed they hadn’t even read her CMS correctly and only cared for the parts that called out their faults, not her actual calls for help.
In the end she just wanted to get out of there. She was shaking and crying and frustrated. She wanted to run out and go to her usual methods of dealing with things. She just agreed with everything they said and left.
For the rest of the day, she was so upset and uncontrollably crying. She interrupted Rebecca Evans’ training to frequently break down and cry. She left work, pulled over and cried uncontrollably. She screamed and ground her teeth so hard, the next day she couldn’t clench her jaw. She scratched her face trying to rip her skin. She rang her mum in absolute fear of herself and at some point felt she may have even passed out for a very short time.
She got home and cut herself on top of healing wounds. That night GASO Narelle Dickson called her and stayed on the phone for a while. The night is a blur, but she also must have filmed a breaking down episode. She thinks she was in her car driving to the Gap late at night with her dog. She thought she would take her life, taking her dog so she would not suffer without her.
She did not sleep at all and at 4.00am on 8 April her face was swollen. She was in a lot of pain, her body was drained, and she had started to develop a very nasty flu.
On 8 April Blaise Bovard called her at her desk and said the XO was off sick and not returning to work and he needed her to fill in. She was doing XO duties once a week and relieving often because the substantive was not performing. Instead of putting the XO on a performance plan, the answer was to get her to do a large portion of her role once a week for no extra pay. This did not seem to work as she was off work a lot and not good with communication or training. She asked for extra training but got none, or it was put off.
Blaise Bovard needed her to fill in as XO because the region was coming to do an audit that day. This would have been extremely stressful for her as she was not an XO, had no training or hand over and little experience. This had been the case in the past, but she felt the command relied on her skills to self-teach or work things out for herself.
At first, she said yes. Still upset from the day before, she went to the bathroom and saw her leg, cut and with the faded writing. She couldn’t scrub it off as the area was raw. She contacted the union and asked them to send an email to the then commander Danielle Emmerton and Blaise Bovard to advise that she was no longer interested in the XO position, relieving, and would not assist them. She had stated many times she was done and just wanted to tick her box and move on, look for new employment.
On 7 May 2021 she emailed Blaise Bovard asking for leave. She wanted to take time to assess where and what she was going to do with her life. Her mental health was at a scary new low and she was unsure how to exist with the now addicted feeling and behaviours to cutting herself. She was frequently cutting and not always filming it, as it just became life. She had become increasingly attracted to the sight of wounds.
Blaise Bovard had the staff to cover her rostered positions. She was also a bit confused as to why he hadn’t asked Lucy Nipperess, “the GAO he just couldn’t do without her skills”. He could have asked her to cover XO or court or assist with station and rosters but then as she knew Lucy personally, she knew she did not possess those skills that she did, and he had come to rely upon.
Blaise Bovard was pushing for a verbal discussion or meeting. On 14 May he called her desk phone about six times and called other staff looking for her. She felt pressured and again unheard, so she sent her last email and left.
She contacted the duty officer acting inspector Vujakic, who was very supportive. The IW commander, Samuel Crisafulli, contacted her and said she was fine to take two weeks leave and he would deal with Blaise Bovard. She had always felt supported by superintendent Crisafulli. In 2018 whilst at CMR, he was the superintendent of the REMO position she was assisting in. He encouraged and assisted her with her application for the role.
On 1 June 2021 she returned to work. She tried to move on and during her time off spent most of it recovering but still cutting herself. After a few weeks she noticed she just was not coping anymore. She was answering questions and emails from Lucy as a GAO and her as a GASO. She was embarrassed by the news that had spread and whilst everyone was extremely supportive towards her, she just could not go on. The depression and couldn’t stop crying at her desk were just not ending [sic].
Her last shift was on 27 June 2021. Since then, she had been working on trying to recover and move away from self-harm. There was an incident with an insurance psychiatrist assessment that sent her over the edge, and it was at this point she decided to go on medication after the cutting had gotten out of hand and she broke a drinking glass to use, as a razor was no longer working for her.
She felt like after almost 10 years of one of the most varied skill sets and experiences of the NSWPF, she had amounted to nothing. She felt used by the organisation. She never said no. She worked many extra hours during policing operations because commanders were personally requesting she work on their operations.
She helped so many other staff members get ahead, win positions, gave advice and detailed training and yet she went nowhere while watching them get ahead. She had been chopped and changed and asked for help all along the way and never gotten the support needed from staff and managers. She felt like every time she asked for help the managers realised their faults and instead of offering change or asking how they could work together to fix things, “they instead attack and block you”.
She loved her job. She was good at her job. While she had so many great times and made hundreds of lifelong friends, she couldn’t allow her life to be gas lite [sic] and led on and go nowhere any longer. She was afraid of herself. She did not trust herself. She had permanent scars and a phone filled with her own gore. She had affected so many, family and friends, with her burden.
She had no idea who she was as a person anymore and questioned everything about her life. She no longer wanted to live or participate in society and only to exist until she could leave and rest permanently. None of this existed until she commenced employment with NSWPF and her first self-harm incident in 2014. She was truly broken as a human and it was simply time to go before she really left for good.

Applicant’s My Performance individual review comments

The applicant completed an individual review (the review) on 30 March 2021.
The review is lengthy, and I do not intend to reproduce it, but will refer to the main points. Much of it is repeated in the applicant’s statement evidence.
The applicant found the CMS process redundant and slightly insulting.
It had become increasingly difficult to feel she ever stood a chance of bettering herself or her job within CMR. “Made even worse” was a meeting she had with her manager days before the IW GAO position being filled, when her concerns for things not being at the least competitive were confirmed.
Her reason for transferring to IW was due to training opportunities not being sent to her, and simply given to others.
The effect of the past eight years of constant relieving, constant trying, constant instability, constantly asking for answers or feedback, constantly applying yet watching others not have to dance through hoops and simply be given opportunities, had been devastating to her mental health.
She had asked for feedback on what she was doing wrong, why she was never supported or considered in being competitive and had never been given anything to work on. She had never been told she was doing something wrong, or her work was not good enough, so was at an absolute loss on how she could better her career or be punished for this.
She would simply continue to come in to work, tick her box, go home, and apply for the few rare positions where she could hopefully get to a permanent position that she felt supported her and what she wanted from a career.

Email evidence

The Reply attaches copies of several emails between the applicant and employees of the respondent. I do not intend to reproduce their contents in full. Some of the copies in evidence are not complete, with parts of lines of text having been cut off. I have noted where this has occurred and where I am unable to discern the missing word/s.
On 5 March 2021, Mr Bovard sent an email to “Innerwestadmin”.
Mr Bovard advised that “Di” had taken a lateral transfer. Lucy Nipperess had “won a promotion” to replace her.
The next GASO roster had been uploaded.
Mr Bovard advised that there would be an audit that “had not been done for a couple of years” and which was expected to be a big task. He had primarily assigned it to one person for efficiency.
As the newest staff was about to finish its training, he would finalise recruitment for the remaining vacant GASO position and “hopefully” the selected person would join them in this roster period.
On 20 April 2021, Andrew (Andy) Wright, industrial officer, PSA (Public Service Association), emailed Mr Bovard.
Mr Wright advised that the applicant had asked that he contact Mr Bovard to advise that she no longer wished to perform relieving duties as either XO or GAO. She wished to be allowed to carry out her GASO duties in a tranquil way going forward while she explored other employment options. She also asked that she be given at least one day’s notice of future meetings with management so she could prepare herself and arrange support.
The email went on to note the applicant was rostered to relieve as XO on Wednesday, Thursday, and Friday that week, and asked that Mr Bovard arrange for someone else to carry out those duties.
On 28 April 2021, Mr Bovard emailed the applicant.
Having read the applicant’s My Performance comments, he thought she could do with some support. He hoped some of her frustrations may have eased since writing her comments, but “regardless, you should not consider my door is now closed because of what you have expressed”. He offered assistance in referring her to any services, or she should feel free to contact him if she just wanted to talk.
The email included links to various resources for assistance. Mr Bovard concluded that he “just wanted to reach out and hope that you are ok”.
On 7 May 2021, the applicant emailed Mr Bovard requesting two weeks leave for personal reasons. She had one week of leave coming up from 6 June 2021 to 12 June 2021, which she did not intend taking, and asked if it could be altered. Her annual leave balance did not cover the hours she wished to take. She would be happy to use extended leave if needed.
Mr Bovard emailed the applicant on 10 May 2021, asking her to call or see him to discuss. As she would see from the GASO roster, she was in an essential role that fortnight, and they were already accommodating other weeks.
On 11 May 2021, the applicant emailed Mr Bovard that she would rather not discuss it with him. She understood there were rostering issues, but “as mentioned it’s personal and needed. I can get notes from my GP if needed.”
On 12 May 2021, Mr Bovard emailed the applicant. He said that if she felt she could not discuss it with him, “you do need to explain why you need leave at such short notice to someone in management. Are you saying your leave is for medical reasons?”
Mr Bovard was doing his best to respect the applicant’s wishes, but she had to be able to talk to him. Email was not a sustainable way to communicate. As he had said before, he was sincerely concerned for her welfare and wanted to know she was OK.
The applicant sent a lengthy response on 14 May 2021. She advised she would be happy to discuss why she would be on leave with someone in management other than Mr Bovard or Ma’am Morkos. Given it was Friday and she had left for the day, she felt he was pushing her for a verbal discussion that would have to wait for her return as she would not accept any calls.
The applicant referred to the email from the union as “a bit vague”, but at the last two meetings she had had “discussions with you without sufficient preparation or witness”. She would prefer any communication in writing, given there were some things said in the last two meetings/discussions she wished she had in writing.

The applicant said if there was concern for her welfare, that should have been shown the moment she mentioned she was struggling and why, through the “My Performance” once she returned from sick leave, not the many calls she received from Ma’am Morkos while she was on leave, and “certainly not an ambushed [sic] meeting the next day where even a simple ‘how are you’ wasn’t asked.”
The applicant said she was taking Ma’am Morkos’ advice and just “getting the hell over it” and “moving on”. While on leave, she would be looking for new employment. All she asked was to take her leave, do her GASO role to the best of her ability and look for a new role, likely outside the police.
The applicant was happy to discuss work tasks with him but did not feel comfortable or trust discussing anything past that. It had been no secret she had been dealing with mental health issues with no appropriate or immediate support from IW PAC other than Ma’am Emmerton. She was looking after herself with the help of family and medical professionals and did not want any help internally.
The applicant’s advice was that in future:
“…if someone flags they are struggling, take a deep breath before you meet with them. Consider their voice before your own. Any support should be appropriate and immediate and your own anger of [sic: or] upset should be cast aside until you can be certain that person feels comfortable and/or supported in discussing their issues and let them lead that conversation not yourself or management present in an unplanned, no warning meeting with the door left opened for everyone else to hear and an aggressive undertone. An email weeks later with a few links on mental health is not sufficient and in some cases it may even be too late.”
The applicant was having revision surgery on her left shoulder on 26 July 2021. She would need one week off for recovery. “Given it’s a contentious issue”, she would let Mr Bovard choose whether to allocate annual, sick, or extended leave. She preferred annual or extended leave. She understood there may be rostering issues, but it was personal and needed. She could get notes from her GP (general practitioner) if needed.
On 14 May 2021, Mr Vujacic emailed Mr Crisafulli. He had been on the phone with the applicant.
Mr Vujacic recorded the “points of interest” as:
·        The applicant left work at 11:30am because of an argument with Mr Blaise, “which is an ongoing issue”.
·        She said she left because she could not be at work anymore after the argument.
·        Yesterday, she saw her GP about a migraine and mentioned her mental health issues because of work.
·        She would be seeing her GP again today and would get a certificate for today.
·        She wished to take annual leave for two weeks starting 17 May 2021. She said if it is not approved [cut off] …certificate for two weeks.
·        She would be staying at her parents and did not feel like harming herself.
·        She did not want the incident to be reported as a workplace injury (mental health), and rather have the [cut off].
·        She asked that Blaise and Michelle Morkos not call her.
·        She was happy for Mr Crisafulli to call her.
On what appears to be 27 June 2021, Mr Crisafulli sent the applicant an email with the subject line “checking in”. He had seen she was away from work and wanted to let her know she could call him “if there…” [cut off].
The applicant responded on 27 June 2021, thanking Mr Crisafulli. She advised she was “taking a bit of a break”, and following advice from her doctors and help, she had [cut off].
The applicant said that while it was no secret she did not “hold much thought for Blaise”, she would say that putting in a WorkCover certificate had… [cut off] “…a build-up of things happening over the past 9 years at work.”
Mr Crisafulli thanked the applicant for responding and concluded “take care”.
On what appears to have been 3 July 2021, the applicant emailed Mr Crisafulli asking if he would mind if she called to ask about a situation that had come up for her.
Mr Crisafulli responded on 3 July 2021 that he was working until midnight, and Ms Dare could otherwise call him tomorrow after 5.00pm. The mobile was his best number.
On 4 July 2021, Mr Crisafulli emailed Mr Bovard and Mr Alexander Liouthakis to advise that the applicant had contacted him over the weekend. She had an interview for a job with another… [cut off]. If she was successful, she would be on a contract until early next year. He had told her he would approve leave without pay. “She will submit…” [cut off but assumed to have said the applicant would submit the necessary application].
On 5 July 2021, the applicant emailed Mr Crisafulli to advise that the role had been filled internally and the interview was cancelled an hour before. She thanked him for his support.
On 5 July 2021, Mr Crisafulli emailed the applicant to thank her for letting him know. He said, “too bad the job didn’t work out but somethings [sic] these things happen for a reason.”

Evidence of Blaise Bovard

Mr Bovard is the PAM at IW. His statement is dated 3 September 2021.
He first met the applicant when she transferred to SC as a GASO. He did not have much interaction or a direct working relationship with her. She was mainly in the role of court process officer, whose office was in a different building.
On 26 March 2020, he received an email via the CMR business manager. The applicant was seeking a lateral transfer to a vacant GASO role at IW. She stated she wished to “further my skills within the GASO role and gain further experience and training within other higher-grade roles”.
He spoke to the applicant, who indicated she wanted to start anew, as she felt she was not getting the career development opportunities where she was. When she came into NSWPF she had been given higher duties opportunities without fully learning the GASO role. She was keen to master those duties at IW to enhance the skills that form the basis for many higher graded roles.
On 14 April 2020, the applicant started work as a GASO at IW. In their initial conversation, she indicated she wanted opportunities to learn higher duties. While they had staff developing in the role of GAO, he needed someone to learn the backup role to assist the XO. The applicant was keen to learn new duties and accepted. She was placed on relevant courses and rostered on for shifts specifically to assist the XO.
Since 2020, the applicant had been rostered for 15 shifts as XO assistant, and relieved as XO for several periods. He believed she performed the role competently and appeared to be happy with her career development. At no time did she express that she did not want the opportunities she had been given, or that she wanted to act in the GAO role instead.
Throughout her employment at IW, the applicant had always been engaging with him. He believed she felt comfortable raising personal and work-related issues. She often came to see him in his office. At no time would he say their relationship was strained or that she felt bullied by anything he had said to her.
Some time at the start of March (2021), the applicant came to see him and appeared to be upset. She expressed her frustration that the substantive XO was unlikely to be leaving any time soon and therefore she would not be able to be promoted into the role.
The applicant stated she wanted to be considered for the GAO role. Another GASO had been relieving in one of the two GAO positions, which was temporarily vacant due to the secondment of the substantive holder of the position. Up to this point, she had not expressed an interest in that role at their command.
At that time, he was already considering options to backfill the GAO role for the longer term. He had put forward paperwork to advertise an EOI. This was necessary, not only because of the length of time the position was to be vacant, but also as the fairest way to select staff for the opportunity. Others in his team had also expressed an interest in the role.
At about this time, also, the other substantive GAO (Ms Cristo) had submitted a lateral transfer application to SC. He was not prepared to support that application unless he could get someone with suitable skills and experience to come to IW. He considered the risk was too great to have no substantive GAO while a recruitment process was undertaken, so he utilised a common method to fill the role promptly without a loss of coverage – activation of a talent pool.
As the activation process had not been completed when the applicant came to his office, he was not in a position to mention it to her. To his knowledge, she was not on any active talent pool for the role of GAO, so could not be considered to fill the vacancy.
On 5 March 2021, he circulated an email to the administration team indicating that Ms Cristo would be leaving on 19 March and would be replaced by a new staff member, who had won a promotion into the GAO position. The applicant was on a Rostered Leave Day (RLD), so did not read the email until she returned to work the following Monday, 8 March 2021.
At mid-morning on 8 March 2021, he was advised by a sergeant at Marrickville Police Station (where the applicant was working), that she had gone off sick after she had read the email. The sergeant stated that Ms Dare did not want to speak to him.
A medical certificate was subsequently received indicating the applicant “has an exacerbation of her mental health and is unable to attend work.” She was certified unfit for work until 12 March 2021.
The applicant had previously requested two weeks’ recreation leave to attend her younger brother’s wedding but amended the leave to one week due to a low leave balance. He had heard that Ms Dare had wanted to be married with children by the age of 30, as an unrealised life goal, and that her younger brother’s wedding was likely to be causing her to feel down.
From 15 to 19 March 2021, the applicant was on recreation leave. She returned the following week, until she reported off sick with cold/flu from 31 March to 1 April. Easter long weekend was from 2 to 5 April.
He had been giving the applicant space since she went off sick on 8 March, to give her time for her concerns to dissipate. He wanted to encourage her to apply for the EOI for the GAO role but had heard she was disgruntled since receiving the email about the GAO appointment for the other position.
On 7 April 2021, he went to Marrickville Police Station and met with the applicant and acting inspector Morkos. The applicant wanted a support person for the meeting, so Andrew Wright was also present via her mobile phone.
He thought this action was excessive, given he just wanted to have an informal discussion about Ms Dare’s development opportunities, but was happy to accommodate her request if it made her feel more comfortable. During the meeting, she complained that she had not been given development opportunities at IW, which was clearly not true.
For the week 19 to 24 April 2021, the substantive XO was certified off sick, so he approached the applicant to relieve in that role for the week. While she had personal matters planned for her RLD on 20 April, she said she would be prepared to act in the role for the rest of the week.
On 20 April 2021, the email from Andrew Wright referred to above, on behalf of the applicant, was received.
Other arrangements were made for the XO role and the applicant was not contacted about that role or supporting that role after that time. She was removed from future shifts rostering her to support that role.
At about that time, he had read comments by the applicant on her 6-monthly performance review that made him concerned for her mental health. Bearing in mind her request to be given notice of any meeting and not wanting to talk to him, he sought advice from the AC on the best strategy to respond to her comments and offer her welfare support.
On 28 April 2021, he sent the applicant the email referred to above, offering her a range of support services available through NSWPF and associated organisations. He was conscious of her request that he not contact her. He thought he had only spoken to her twice since March.
On 7 May 2021, the applicant sent the email referred to above, requesting leave from17-28 May 2021, for personal reasons. As the coverage across the GASO team was already stretched, he sought that she come and see him about her request. She refused, so he asked her to contact someone else in management to clarify why she wanted the leave. He does not believe she did as he asked, but after he had a discussion with the commander, the leave was approved. He continued to respect her wishes that he not speak to her.
On 14 May 2021, the applicant was on administration GASO duties at Marrickville Police Station, a role that manages the store of spare uniforms for staff. The crime manager wanted some uniforms, so he called Ms Dare to ask her to look in the storeroom.
The applicant did not answer the phone, but immediately sent a long email that would have taken some time to prepare. This is the email referred to above.
The applicant had not returned to the workplace since 14 May 2021. Since she arrived at IW, he had made every effort to accommodate her wishes. He put in place processes to give her further career opportunity (development as back-up EO and advertising the GAO EOI) and had minimised his contact since March, out of respect for her compromised mental health. At no point had he bullied her, and although she may have missed previous career opportunities and appeared to be suffering mental health issues, this was due to no fault of the workplace.
He believed the applicant had applied for various higher-grade positions before coming to IW, but had no direct knowledge of how she performed, except that she felt she had been overlooked for positions she was more qualified to win than the successful applicants. He had a conversation with a convenor of one recruitment the applicant applied for, who indicated that she never contacted them for feedback on her performance at interview.
He believed the applicant was receiving medical treatment for mental health issues but had no information from her that her issues were work related. It did not appear to be affecting her work capacity, so he did not enquire about her personal life.
On the occasions he did check on the applicant’s welfare, she indicated she was OK. It was not until he received the medical certificate (in March 2021) that referred to her mental health that he became aware of the level of her issues. After that time, their relationship deteriorated, and he was not able to clarify with her what her health issues were about.

Evidence of Sam Crisafulli

Mr Crisafulli is a superintendent of police. His statement is dated 6 September 2021.
He first met the applicant in approximately 2018, when he was relieving as CMR region operations manager for six weeks. The applicant was performing an administration role in the region office. He had limited contact with her at that time.
He next met Ms Dare when she requested a transfer to IW as a GASO in early 2020. He was the commander of IW and was approached by his business manager, Blaise Bovard, who asked if he would accept her, and he agreed.
When the applicant transferred, he asked that she be trained to perform the role of “backup” XO. This is an important role, and they did not have a suitable backup.
All interactions between Mr Bovard and the applicant were appropriate, and in line with expectations for normal manager/employee. He had no knowledge of any interaction between them that he would consider bullying or harassment. There was no record of any events that could be described as bullying and harassment.
He could not recall the applicant reporting bullying and harassment. He was aware that towards the middle or end of March 2021, she did not wish to meet with or be directly managed by Mr Bovard. She indicated she did not wish to perform the role of backup to the XO or GAO.
Mr Bovard brought this to his attention. He asked that Mr Bovard continue to manage the applicant professionally, and as an employee she was expected to engage with her manager. It was common practice for all GASO employees to learn other roles so they could assist when other administrative employees were absent.
The applicant did not ever report feeling unsafe in the workplace. She told him she liked working at IW.
The applicant did not express to him that she was disappointed at her lack of promotion. However, Mr Bovard told him she was disappointed when another officer was promoted to a vacant GAO position in front of her. The position was filled by activating an eligibility list that the applicant was not on, because she had not applied. The position was filled in line with policy.
He was aware that the applicant became upset during the past 12 months following the suicide of an officer at Surry Hills. Many of them knew him, and his death was a trying time for everyone. He did not believe the applicant had a close friendship with the officer.
Once the applicant expressed her anxiety and concern about another officer whom he had placed on restricted duties due to a misconduct matter. The officer was now suspended, but regular welfare checks were being conducted. These matters were disturbing for all of them.
He invited the police chaplain to visit the station after the death of the officer at Surry Hills. There were numerous emails reminding all police of available EAP (Employee Assistance Program) and support services.
Towards the end of March 2021, the applicant terminated her shift early one day. From memory, she wanted to take annual leave. He asked her why and she said she was not feeling well and needed a break from work. She did not want to discuss this in further detail. He recalled she said she liked working in the command, liked the people, but not Mr Bovard, and did not like working with the substantive XO.
He had not received a formal complaint from the applicant. She submitted an injury notification on 7 April 2021. While it was unfortunate that she felt ambushed, there was no evidence of misconduct, bullying or harassment.

Medical evidence

Bondi Junction 7 Day Medical Centre

On 24 August 2015, Dr Kourosh Mahmoodi recorded that the applicant had been to hospital after her heart was racing. She had “a couple of time. Had once before.” She had the feel[ing] of a panic attack. “Not anxiety and no depress.”
On 10 September 2015, Dr Theo Aroney recorded “symptoms of nervousness, anxious. Claustrophobia” of two weeks onset. The applicant had similar two years ago, successfully treated with Pristiq. She had “work stress in the police force” and was seeing a psychologist.
On 15 September 2015, Dr Mira Drakos recorded panic attacks.
On 1 February 2016, Dr San Shuen Ku recorded anxiety disorder, panic attacks. “Denies work stress. Good supportive network. Nil safety issue.” The applicant was referred to a psychologist.
On 5 August 2016, Dr Benjamin Jarvis noted MHCP (mental health care plan). Dr [sic] Catherine Sinclair was seeing the applicant, who would like to continue seeing her. She would prefer private over public. There was no TOSH (talk of self-harm) or suicidality.
On 30 September 2016, Dr James Condoleon recorded “at work stress due to female boss – affects GIT (gastro-intestinal tract) – gets gastritis and cramps.”
On 4 January 2017, Dr Jimmy Wang recorded “Acute stress reaction. Change of job role. Had difficult year. Relationship breakdown. Sudden death in the family – aunty. Dr Wang was to renew the MHCP, and the applicant was referred to a psychologist. She was not keen on antidepressants.
On 9 January 2017, Dr Wang recorded that the applicant was going through a rough time at work. She needed a medical certificate for one week’s stress leave.
On 16 April 2018, Dr Kundan Giri recorded hair loss. There was a past history of significant stress due to an event a few months ago.
On 10 August 2018, Dr Giri recorded poor sleep; depressed mood; irrational fear; panic attacks; no delusions; no hallucinations; no suicidal thoughts; no substance abuse. “Traumatic experience last year, death of family members.” There was a past history of anxiety. The applicant had self-harm thoughts. A MHCP was completed, and she was referred to Ms Sinclair.

The applicant submitted that all clinicians do not agree in the way Dr Smith has purported. The clinicians have not dissected her injury, which is a disease injury and has been accepted as such, into a series of separate and unrelated episodes.
The applicant submitted that when Dr Smith’s opinion is not accepted, there is no appropriate evidence on which the respondent can rely to substantiate its defence.
As to the issue of reasonableness, the applicant referred to Heggie and Irwin.
The applicant submitted that I would not be satisfied that, in any event, the respondent’s conduct was reasonable.
The applicant submitted that, given Dr Smith’s opinion in his second report, the only event on which the respondent can rely, noting it is “that action” that has been indicated as the whole or predominant cause of injury that is to be assessed, is what occurred on 8 March 2021, that is, “her dissatisfaction with her career progression after failing to attain a promotion to a permanent position at a higher pay grade, causing Ms Dare to feel frustrated and unappreciated.” (Emphasis in original.)
The applicant submitted that the respondent was aware for years that she would like to apply for a permanent position, and she had made this known to multiple people.
The applicant submitted that the respondent never made it known to her, or gave her an indication, that she could have applied for the role that was obtained by Ms Nipperess.
The applicant submitted it was not reasonable for the respondent to contact her and tell her to get over it. It was equally not reasonable for Ms Morkos, who made those comments, to have done so at a time when she was on leave, and the respondent was already aware of her mental state.
The applicant submitted that the respondent’s purported explanation for having appointed Ms Nipperess does not make sense and is not demonstrative of reasonableness. It does not make sense, because why would a person apply for a role at Sutherland when the role pertained to the IW? She submitted the respondent’s explanation was not only unfair, but discriminatory, because she could not have applied for a role at Sutherland, as it was too far to travel.
The applicant submitted it was not reasonable for the respondent to have “ambushed” her with the meeting with Mr Bovard. If Ms Morkos forgot to inform her of the meeting, it ought to have re-scheduled it. The applicant referred to BlueScope Steel Ltd v Markovski.[8]
[8] [2013] NSWWCCPD 69.
The applicant submitted it was not reasonable for Mr Bovard to speak to her aggressively and angrily, particularly when the respondent was aware of her mental state.
The applicant submitted I ought to find the respondent’s actions were not reasonable as they were not fair.
The applicant finally submitted that the respondent’s defence pursuant to s11A of the 1987 Act ought to be rejected. An award in her favour ought to be made and the applicant [sic] be remitted to the President for referral to a Medical Assessor.

SUMMARY

Section 11A of the 1987 Act provides:

“No compensation for psychological injury caused by reasonable actions of employer

(1)     No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3)     A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)     This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(6)     This section does not extend the definition of ‘injury’ in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     …
(8)     …”

As the respondent conceded, it bears the onus of establishing a defence pursuant to s 11A of the 1987 Act. It relies on “promotion”, and to a lesser extent, “provision of employment benefits”.

Was the injury wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to promotion and/or provision of employment benefits?

“Wholly or predominantly” has been held to mean “mainly or principally caused” – Ponnan v George Weston Foods Ltd. [9]
[9] [2007] NSWWCCPD 92 (Ponnan).
Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd.[10] In the same case Roche DP dealt with the issue of causation, on the basis that Kooragang applied. He said: “causation is a question of fact to be determined on the evidence in each case”.
[10] [2008] NSWWCCPD 96.
Dealing first with the applicant’s evidence, which I have referred to in some detail above, it is clear that, although she also claims to have been bullied and subjected to reprisal, her injury has at least been predominantly caused by the respondent’s actions with respect to promotion and/or provision of employment benefits.
Ms Dare has given evidence that she was bullied in 2012 and submitted a claim. She self-harmed after being transferred to Parramatta in 2013. She was happy at MEIG, which was subsequently disbanded, and initially happy at IW.
The applicant felt bullied in 2020, but this did not affect her too greatly. She started to self-harm again after an interaction with Ms Goulding in 2020. This was after she had raised with Ms Madgwick issues of opportunities not being shared or made competitive. She was self-harming due to frustrations with her career, feeling forgotten and lost in a system, or not in a popular group. She watched others getting ahead while she was left behind.
The applicant’s evidence is replete with references to “fighting for higher grade roles and relieving opportunities”; someone being appointed to a position who did not have the skills needed; being extremely upset when a permanent GAO position was given to someone who had no intention of being a GAO (which was “now a pattern”); feeling she had lost control of her life over all the years of “being pushed and pulled and moved and loaded up with work and getting nowhere”; and getting nervous because “girls like Tara Baily” were getting all the opportunities.
The applicant’s transfer to IW was her “last-ditch attempt” to better herself, as she felt her networking and options had run out. She was OK with being “loaded up”, as she hoped it went towards showing she was capable of a role at a higher grade.
She was 35, and felt she was going backwards. She was sick of relieving and wanted a permanent GAO role. She felt blindsided, cheated, and embarrassed by Ms Nipperess’s appointment to a position for which she had been working for nearly 10 years. She had to “dance through the hoops”. Her issue was that nothing was competitive.
The applicant helped so many other staff members get ahead, while she went nowhere. She was “chopped and changed”, asked for help, and never got the support she needed.
The applicant referred in her review to similar themes of constantly relieving, trying, instability, asking for answers or feedback, applying, and watching opportunities given to others, and being at a loss as to how she could better her career. It was after she learned of Ms Nipperess’s promotion that she walked out of work.
The applicant referred to Hamad, submitting that, in the absence of medical evidence dealing appropriately with the topic, the respondent could not discharge its onus regarding the whole or predominant cause of the injury.
In Hamad, Snell DP said (at [88]):
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.” (Emphasis added.)
In my view, the medical evidence in this matter comprehensively supports the proposition that the applicant’s injury was wholly or predominantly caused by the respondent’s relevant actions. I agree with the respondent’s submissions. I have discussed the medical evidence in some detail above, but below are some extracts from that evidence.
By October/November 2020, the applicant had requested Dr Giri to close her previous claim.
The “trigger” for the applicant self-harming in March 2021, was that colleagues she had trained were getting jobs.
Ms Ogawa recorded that the applicant had an “amazing career” until 2017, when she got a “horrible boss” and lost a 5/6 job. She “kept fighting”.
The applicant started to think it was time to move from IW because she was going nowhere. There was no permanent position and she never got promoted. “It just killed” her when she saw the email congratulating Ms Nipperess.
Ms Ogawa reported that the applicant said that what caused her injury/symptoms was being repeatedly overlooked for promotion. Her failure to progress stopped her buying a house and having a child.
Dr Sturrock recorded that the applicant had been symptomatic for 4.5 years and was progressively worsening. She put this down to being bullied and harassed, being moved frequently, lacking support, and never being promoted.
Dr Smith recorded that the applicant began self-harming again in 2019, as others “got stuff handed to them on a silver platter”. He noted themes of frustration, feeling thwarted in her career, unfairly treated, overlooked, and held back. The applicant was stuck in rumination about her perceived unfair treatment and dissatisfaction with her career progression.
Mr Haralambous recorded a history that the applicant’s self-harm “went to another level” in about March 2020, as she constantly saw people being given jobs and training ahead of her.
Dr Lim recorded the applicant’s frustration at not being given a substantive position, and the process not being competitive or transparent. She was generally happy at IW but continued to be stressed about the lack of advancement.
The applicant was “blindsided” by Ms Nipperess’s appointment. She was overcome with distress and left work for one week.
Dr Lim referred to the applicant describing negative behaviour from various colleagues from the time she commenced work. However, she achieved periods of stability. She described reprisal in about 2016 or 2017 that impacted her opportunities for advancement. She experienced subsequent aggravations at SC and IW. The consistent theme was that her senior co-workers treated her in a prejudicial manner, affecting her opportunities for advancement.
Dr Abeya recorded that at the time the applicant left work, she had become increasingly frustrated and bitter about not receiving a permanent position. This had prevented her putting a deposit on a house and moving on with her life.
Ms Nipperess’s appointment was “a punch in [the applicant’s] guts”. This caused her significant distress. After many years of dedicated work, she had not been given the permanent position she had clearly earned.
Dr Abeya concluded that the applicant’s narrative was of injustice and, and her profound dissatisfaction with her career progression and sensitivity to interpersonal rejection appeared to have triggered ongoing negative thoughts. It was clear her identity was strongly linked to her position.
Having regard to the above, I determine that the applicant’s injury was wholly or predominantly caused by the respondent’s actions with respect to promotion and/or provision of employment benefits.

Was the respondent’s action reasonable?

Sackville AJA discussed “reasonableness”, in the context of discipline, in Heggie. His honour said (at [59]):
“(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 those 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.” (Emphasis in original.)
In Irwin, Geraghty J 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 Ritchie v Department of Community Services[11], Armitage J said:
“It is apparent that the test in this case is an objective one where one must weigh the consequences of the Respondent’s conduct against the reasons given for it. It follows of course from the objective nature of the test that the evidence given by the Applicant as to the perceived unreasonableness of the Respondent’s conduct or from the Respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
[11] (1998) 16 NSWCCR 727.
In Sinclair, Spigelman CJ observed that one must look at the entire process to see if it was reasonable action within s 11A of the 1987 Act. That includes looking at the circumstances surrounding the action, both before and after the action (Buxton v Bi-Lo Pty Ltd;[12] Melder v Ausbowl Pty Ltd[13]).
[12] (1998) 16 NSWCCR 234.
[13] (1997) 15 NSWCCR 454 at 458.
The applicant clearly had a longstanding psychological condition. It may be that the respondent’s actions in failing to promote her or appoint her to a permanent position had been reasonable and in accordance with accepted procedures.
The applicant was able to continue working, albeit with significant periods of leave, until 8 March 2021.
The applicant has submitted both that the only (her emphasis) event on which the respondent could rely was what occurred on 8 March 2021, while also submitting that it was not reasonable to contact her and tell her to “get over it” when she was on leave and the respondent was aware of her mental state, and that it was not reasonable to “ambush” her, or for Mr Bovard to speak to her aggressively, when the respondent was aware of her mental state.
On 4 March 2021, the applicant had a meeting with Mr Bovard, when she discussed her career prospects. She told him she was “getting scared and desperate”.
Mr Bovard gave evidence that as the activation process for the position of GAO had not been completed when he had this discussion with the applicant, he was not able to mention it to her. To his knowledge, she was not on any active talent pool for the position, so she could not be considered.
I accept that it was reasonable that Mr Bovard could not discuss the process of appointing the GAO with the applicant, or perhaps anyone else who did not need to know, at that stage. Given that he was aware of Ms Dare’s career aspirations, and likely disappointment, it would in my view have been appropriate to advise her of Ms Nipperess’s appointment before an email was sent to all interested parties.
The applicant became aware on 8 March 2021 that Ms Nipperess had been appointed to the position she desired, and for which she believed she was qualified. She became very distressed, and left work that day. She was certified as unfit for work until 12 March 2021, due to “exacerbation of her mental health”. She also had two weeks leave planned, but she returned to work on 23 March 2021.
Ms Dare’s evidence is that, while she was absent from work, she received “many” calls from Ms Morkos, telling her to “just get over it”, and that no one knew how Ms Nipperess got the job. I do not have any evidence from Ms Morkos, and no explanation has been advanced for the absence of such evidence. I accept the applicant’s evidence.
It is assumed that, from the language of “just get over it”, Ms Morkos must have known that the applicant was at least distressed by Ms Nipperess’s appointment, although Ms Dare’s evidence is that she did not know the extent of her condition.
It does not appear to me to be reasonable to repeatedly contact an employee who was absent from work and in distress to tell her to “get over” the distressing event. I do not accept that the respondent’s actions, through Ms Morkos, after the applicant left work on 8 March 2021, were reasonable.
The applicant’s evidence is that when she returned to work, she was still stressed, upset, and continually self-harming. She did not want anything to do with Mr Bovard.
On 6 April 2021, the applicant submitted the review, at a time when it appears she was still psychiatrically unwell. She described in it a devastating effect on her mental health. The respondent was clearly on notice of her condition.
The applicant has given evidence about the meeting on 7 April 2021 with Mr Bovard and Ms Morkos.
The applicant’s evidence is that, although Ms Morkos had seen and interacted with her all day, she did not mention any meeting, and said she had forgotten to tell her.
The applicant requested a support person, which Mr Bovard thought was “excessive”. She obtained the services of a union representative by phone but given she had had no notice of the meeting, he was unprepared.
Mr Bovard stated that, during the meeting, the applicant complained that she had not been given development opportunities at IW, which was not true.

Mr Bovard has not addressed the applicant’s evidence that he was loud and aggressive, made her repeat that Ms Nipperess was skilled, and that she was shaking and crying. He has not addressed her evidence about Ms Morkos’ behaviour, and, as I have noted, Ms Morkos has not provided any evidence about the meeting. The applicant’s email dated 14 May 2021 referred to how the meeting was conducted.
The applicant sustained a significant exacerbation of her injury as a result of the meeting on 7 April 2021. She self-harmed and considered suicide, although she returned to work the next day.
I do not accept that the respondent’s actions on 7 April 2021 were reasonable. An employee who was known to be vulnerable, and had again demonstrated this the previous day, was called into a meeting without any notice, and with inadequate time to fully brief a support person. According to her evidence, no one asked how she was, or how she was feeling. I infer from that that no one asked if she felt able to proceed with the meeting.
The applicant was again told to “just get over it”. Ms Morkos appeared to find the whole process ridiculous and a waste of her time. At one point, the door was left open so others could hear what was being said. The applicant was required to acknowledge that Ms Nipperess was a skilled employee, which she did not deny, having trained her.
None of these actions could be said to be reasonable.
The respondent accordingly does not have a defence to the claim pursuant to s 11A of the 1987 Act.
The parties agreed that, should the liability dispute be determined in the applicant’s favour, the claim for WPI would be referred to a Medical Assessor, with the deemed date of injury for that claim to be 14 March 2022, when the claim for permanent impairment compensation was made.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 207

8 May 2023