Davies v Connor Clothing Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Davies v Connor Clothing Pty Ltd [2021] NSWPIC 209
APPLICANT:	Nadine Davies
RESPONDENT:	Connor Clothing Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	25 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum benefits for psychiatric injury suffered by store manager; store staff unhappy with her performance and complained to management; efforts made to support and encourage worker unsuccessful; further complaints received and informal conversation in food hall of the mall where the store was situated referred to the involvement of HR and formal proceedings; worker resigned before investigations completed; worker alleged suicide attempt by cutting wrists as a result of being bullied; hospital notes showed attendance some weeks before with forearm laceration following domestic accident; worker’s credit seriously damaged; issue only section 11A; worker submitted credit issue not relevant and respondent actions not covered by the definitions in section 11A; respondent alleged evidence showed that relevant actions were “proposed to be taken”; written submissions ordered as to meaning of phrase “proposed to be taken”; Held- credit issue relevant regarding the circumstances of the meeting, although pertinent aspects corroborated by respondent’s witness; worker’s evidence not accepted if uncorroborated; consideration of phrase “proposed to be taken;” informal meeting sufficient to comply with construction of phrase; Award respondent.
DETERMINATIONS MADE:	The Commission finds:- 1. The respondent is entitled to the protection afforded by s 11A of the Workers Compensation Act 1987. The proposed actions taken by the respondent with regard to performance appraisal were reasonable. The Commission determines:- 1. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Nadine Davies, the applicant, brings an action for lump sum compensation against Connor Clothing Pty Ltd, the respondent, for psychological/psychiatric injury alleged to have occurred on a deemed date of 31 July 2019.
Dispute notices were issued on 9 December 2019 and 24 April 2020.
The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) For the purposes of s 11A of the Workers Compensation Act 1987 (the 1987 Act), were the actions taken by the respondent actions that were “proposed to be taken”?
(b) If so, were those actions reasonable with respect to performance appraisal and/or discipline?

PROCEDURE BEFORE THE COMMISSION

This matter was heard over two days 8 March 2021 and 12 April 2021 via video link. On the both days Mr Luke Powell from Turner Freeman, lawyers, instructed Mr Craig Tanner of counsel for the applicant. Ms Melinda Hatfield from Barker Henley, lawyers instructed Ms Lyn Goodman of counsel. Also present were Mariah Moujalli, Technical Specialist, Naresh Sehgal, Claims Manager and Perry Peralta from EML. 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)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) containing clinical notes;
(c)    Reply and attached documents, and
(d)    ALD containing financial records of the applicant’s employment from 14 August 2019 to 30 June 2020.

Oral Evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

Ms Davies was born in 1993 and on 19 October 2018 commenced work at the respondent’s retail stores for men’s apparel, Connor Clothing, situated in the Westfield shopping mall at Liverpool. She is married with three children. She was employed as the Store Manager, a position she had some previous experience of with other employers. Ms Davies was employed on a set roster working 38 hours per week with a 60 minute lunch break per day.
On 31 July 2019 Ms Davies emailed her resignation to the respondent’s management personnel, specifically Mr Luke Alicandro, Area Manager, Mr Shannon Whelan, National Manager/ Head of Retail, and Mr Daniel Aquilina, State Manager.
At the time Ms Davies wrote her letter of resignation she had been off work on annual leave since 20 July 2019. She advised that she had accepted an offer of another position elsewhere, and that her last day with the respondent would be 7 August 2019.
In her email, Ms Davies alleged that she had been bullied by Mr Aquilina, and that she had to seek medical help. She said: [1]
"I have decided to leave Connor due to a number of reasons them being the extreme mis treatment of myself by Daniel Aquilina
The mis treatment being mention above as discussed with Daniel Aquilina and Shannon Whealan is the bullying I have endured at the hands of Daniel being called "arrogant and patronising" asking for guidance and training and being told by Daniel "this is not apart of his role and I need to take accountability for improvement and come up with my own ways to improve" as well as "Nadine you are being patronising and making everything my problem where you should be trying to resolve the problem"
Due to this and other reason I have had to seek medical help which will be an ongoing struggle for me. I am more then happy to discuss this further with you as I would hate to see another person go through the suffering that I have been through at Connor.
The team has said to me they are being pressured by Daniel to say/make up incriminating things about me that are not true.
There are 2 team members that have had an issue working with me for various reasons none of which were unresolvable and once this issues were brought up to me with Jason Hallab (former area manager) we were working on fixing these.
When Jason resigned and Daniel took over as area manager for my store the first ever conversion Daniel and I had was him trying to bully me out of my position saying "I'm not trying to threaten you with your job but I have spoken with HR and I am taking there advice" once hearing this I asked for a formal meeting with him and HR as I felt attacked and bullied and expressed this in these words to Daniel over the phone after telling him this I had to have the next day off .work as I could not physically and mentally deal with the bullying and intimidation any longer. I had asked Daniel serval times about the meeting with HR and every time he would reply with "I am waiting to hear back from Karen, she has all the information" (As written).
[1] Reply page 55

Ms Davies had consulted a GP, Dr Emanuel Papapetros, at the Edensor Road Family Medical Centre the day before, on 30 July 2019.[2] Ms Davies saw Dr Eric Lim at the Workers Doctor, on 9 August 2019.[3] She lodged a claim for lump sum compensation on the same day, 9 August 2019.
[2] ALD dated 25 February 2021, page 89
[3] Ibid page 5.
In dispute notices dated 9 December 2019 and 4 June 2020, the respondent admitted that Ms Davies had suffered a psychological injury that had been wholly or predominantly caused by its actions regarding performance appraisal and/or discipline. However, these actions were alleged to have been reasonable, thus affording it the protection given by s 11A of the 1987 Act.
By relying on this section, the respondent accepted the onus of proof to establish its defence.
Ms Davies made a statement dated 27 November 2020, in which she outlined the events which led to the onset of her condition. This will be discussed in due course, but as the onus has shifted to the respondent, it is preferable to firstly consider the evidence on which it based its defence.

Mr Aquilina

Email dated 11 July 2019 to HR

The State Manager, Daniel Aquilina sent an email to Ms Symonds dated 11 July 2019, which followed a discussion about complaints received by staff at the Liverpool store regarding
[4] Reply page 2.
Ms Davies’ management.[4]
The email set out a chronology of Mr Aquilina’s involvement with the store. Mr Aquilina said that on Wednesday 29 May 2019 he received a phone call from one of the staff members at the store, Ms Sam MacDonald. Ms MacDonald told him that two staff casuals, “Cindy” and “Andrew,” wanted to reach out to Mr Aquilina, as they had unsuccessfully attempted to do so with the Area Manager at that time, Mr Jason Hallab.
Mr Aquilina arranged to meet Cindy and Andrew the following Friday, 7 June 2019. He recorded the complaints about Ms Davies as follows:
·        Nadine took random smoke breaks during the day.
·        Nadine took long lunch breaks of up to one and a half hours per day.
·        When Mr Hallab would pull Nadine up over her smoke breaks, she would take over 15 minutes to do the rubbish and come back smelling of smoke.
·        Nadine did not follow process which resulted in cash variances.
·        Nadine put “too much pressure on the team to get things done while she walks around the store and looks busy while actually doing nothing.”
·        A new casual was incorrectly entered in the system by Nadine so that he was not paid until the second in command, “Kharlee,” sorted it out.
·        The team had spoken to Mr Hallab earlier in May, but after three weeks nothing had happened, hence Mr Aquilina’s involvement.
Mr Aquilina then spoke to Mr Hallab, and followed it up with an email, which has not been lodged. Mr Aquilina told Mr Hallab to discuss the matter again with Ms Davies.
Mr Aquilina said that on 29 June 2019 “Andrew” spoke about a transfer in order to “…get out of Liverpool.” Mr Aquilina also reported that “Cindy” had found work elsewhere.
Mr Hallab left on 30 June 2019, and on 2 July 2019 Mr Aquilina had a meeting with Kharlee about the “issues in Liverpool now that Jason had left.” The store was then directly reporting to Mr Aquilina. Kharlee was concerned that none of the team wanted to work with
Ms Davies. Mr Aquilina recorded Kharlee’s complaints as follows:
·        Nadine gets everyone to do everything and the team perceive her to be lazy.
·        Kharlee worked the previous week in Burwood and felt supported by the Burwood SM and realised that things were not right in Liverpool. Expressed that there is no organisation within the Liverpool store.
·        No daily structure, minimal support and no training of any team members until Jason forced her to start using coaching books for team members. This only came into effect in May 2019 after Nadine working in the business since October 2018.
·        The Liverpool team don't trust Nadine. There are a lot of white lies and believe
·        Nadine has the gift of the gab and can get her way out of anything.
·        The Liverpool team don't trust Nadine. There are a lot of white lies and believe Nadine has the gift of the gab and can get her way out of anything.”

Mr Aquilina then said that he spoke to Ms Davies that same afternoon “regarding all of the above.” He said:
“Nadine continuously shifted the blame onto the team saying that she has never had these issues in any other job, so it must be the Connor team ganging up on her. I expressed to Nadine that these casuals started with the business at all different times (some have been with Connor for years whilst others are only new) and that they are all saying the same things. I expressed to Nadine that her name keeps coming up and that she is the common denominator.
Nadine expressed a victim attitude and started getting emotional towards the end of the conversation so I cut it short as I didn't want her to be upset and get embarrassed with many people around her. I told her to think about how we can make this work and asked her to bring some ideas to me in order to find a win/win solution.”

Mr Aquilina said that he spoke to Ms Davies the following day, 3 July 2019. He said:
“…she told me she had no ideas and that if anything needs to happen that I should make the decision. I was a little disturbed by this ….”
A meeting was held, also on 3 July, by Mr Alicandro with the Liverpool team. It concerned “the way forward” and “personal branding.” Mr Aquilina said that the following day:
“… I asked Nadine how she felt about the meeting and what she got out of it and her response was 'yes it was great, and I learnt a lot but I don't care about personal branding because I don't care about what people think of me”.

Mr Aquilina expressed his disproval of this attitude. He said that on 10 July 2019 further concerns about Ms Davies’s behaviour came from another staff member, “Sam.”
Mr Aquilina recorded Sam’s concerns as follows:
(i) On 29 June 2019, Security visited the store as Ms Davies had been seen having an argument with her husband. Her attendance that afternoon was erratic, and she left the store.
(ii) Ms Davis puts refunds under other team members’ ID so that they at times start the day in the negative when a refund was put through the team member’s name before his/her shift had started. This complaint was also made by Kharlee and Andrew.

Mr Aquilina further said in his email that on 6 July 2019 Ms Davies called in sick to work without notifying him. Although she claimed she called him on two occasions he was unsure as to why he did not receive them, as he received many calls that morning. Although the reason for Ms Davie’s day off was said to be because her son was ill with no-one to look after him, she was seen shopping in the centre with her husband by Sam.
Mr Aquilina noted that Andrew had called him that day (11 July 2019) seeking a transfer to the Narellan store because of the conditions at Liverpool, which included that new casuals were not being trained.
Mr Aquilina completed his email by saying:
“These are the notes I have so far.
Is there anything that stands out to you for me to formally take this forward?”

Mr Aquilina did not mention his second meeting with Ms Davies in the food court that day in the email, but referred to it in his later statement, to which we shall come presently.

Email to HR 12 July 2019

As indicated, this email was directed to the Human Resources Manager, Ms Karen Symonds. Mr Aquilina followed up with a further email to Ms Symonds at 06.58 the following day. He said:[5]
“I explained to her that if these issues are not fixed it will result in a formal discussion which may result in a formal warning based on advice from HR.
Nadine did just call me yet again making a statement that she is going to put a formal complaint into [the National Manager] based on my investigation.
I believe the call to me was intended to intimidate and scare me with no other hidden message.”
[5] Reply page 1.

Email HR to Mr Aquilina

Ms Symonds response later on 12 July 2019 was:
“I WOULD monitor …… but in any of these…… where is [sic] the consequences if issues are not fixed ?”
“Andrew” was Mr Andrew Trieu. Mr Trieu sent an email to Mr Aquilina on 14 July 2019,[6] which set out in writing the complaints he had made to Mr Aquilina. Mr Trieu also made a statement dated 13 September 2019 which again confirmed what he had told Mr Aquilina. He said that he spoke to Mr Aquilina because Ms Davies was being extremely lazy in her duties and this put a lot of pressure on the rest of the staff. He described Mr Aquilina as being “very professional in his behaviour”. Mr Aquilina did not speak to anyone in a derogatory manner. He was always “for the company.”
[6] Reply page 337.
“Cindy” was Ms Cindy Lim. She provided an undated six page document entitled “Hey Dan!”[7] It too set out a series of complaints about Mr Davies’ conduct at the Liverpool store. She named a number of “red flags” about Ms Davies’ behaviour from when Mr Hallab had become Area Manager, and she named specific events on different dates, again confirming the account that Mr Aquilina had described, but in considerably more detail. Ms Lim spoke of Ms Davies’ dishonesty, and her inefficiency in carrying out her duties. In her statement she described Mr Aquilina as an approachable and “really nice guy”, who never spoke in a negative way about other staff, including the applicant, notwithstanding that Ms Lim had written the above document criticising her.
[7] Reply pages 57 – 63.
“Sam” was Ms Samantha Truong. She sent Mr Aquilina an email on 12 July 2019, following his meeting with her on 10 July 2019. Ms Truong complained of events “off the top of head” that occurred on four dates - 18 December 2018 (an incorrect refund); 9 May 2019 (another incorrect refund); 26 June 2019 (Ms Davies’ late arrival and early departure); 29 June 2019 (a further instance of late arrival and early departure).
“Kharlee” was Ms Kharlee Rangitonga. She was Assistant Store Manager to Ms Davies, her team leader, and had been working with her from January 2019. Ms Rangitonga said that she had sought the meeting with Mr Aquilina of 2 July 2019 because of the issues within the store.
These witnesses all made statements in which they confirmed the complaints reported by
Mr Aquilina. There is no utility in repeating their concerns. Ms Rangitonga gave further relevant particulars which I will come to presently.

Mr Aquilina’s statement

Mr Aquilina also made a statement on 17 September 2019.[8] He stated that the applicant was employed in October 2018 as Store Manager. She was supervised by the Area Manager, who was Mr Alicandro from 19 October 2018 to 18 February 2019, and Mr Hallab thereafter until 28 June 2019. Mr Aquilina said:
“During this time Mr Hallab was reporting to me complaints regarding the Claimants procedures at work and how long-term casual staff wanted to move locations. Before any solution were established. Mr Hallab resigned. Mr Hallab was with the Employer for eight years.”
[8] Reply page 315.
Mr Aquilina said that the unrest and complaints within the Liverpool store was the subject of a meeting between Mr Whelan and himself. He said:
“It was decided that the Claimant would be managed by myself in the
Liverpool Store. This was due to the alarming amount of transfers the staff were submitting which was creating a concern. The performance of the store was going backwards. Mr Whelan advised me to investigate the issues and help to provide support and mentoring for the Claimant.”

Mr Aquilina stated that he encouraged Ms Davies to talk to her staff members about the store issues, “in house if possible.” He said:[9]
“…If the issues could not be resolve[d] I was available to talk to the Claimant at any time. The Claimant spoke to me at times and had access to the National Manager. Mr Whelan and Human Resources Mrs Karyn Symonds.”
[9] Reply page 319.
Mr Aquilina confirmed the chronology he had set out in his email of 11 July 2019. As to the meeting in the food court on 2 July 2019, he said that he spoke with Ms Davies to discuss the issues raised, and how she felt the team was responding to her management. He repeated that Ms Davies became upset. He said:
“So, I decided to end the conversation as I was aware, we were in public.”
When he spoke to Ms Davies on 3 July 2019 he said:[10]
“I was aware the Claimant was having difficulty in dealing with the
Managerial role and I want to help without upsetting her. I thought the Claimant was smart and had potential to be a good Store Manager. The Claimant seemed like she was trying to improve her skills and sounded motived but did not come up with any strategies.”
[10] Reply page 320.

He referred to a meeting held by Mr Alicanto at Warwick Farm that afternoon. Mr Aquilina said that he organised Ms Davies’ attendance in order “to give the Claimant as much training as possible with another staff member.”

Mr Aquilina referred to the second face to face meeting, which followed his email of 11 July 2019. He said that he advised Ms Davies that he was coming into the store after lunch “to discuss the issues and to give the Claimant [an] opportunity to put forward her ideas.” He said:
“I was hoping the Claimant had made some solutions to the issues with the help of the Store Management meeting but once again the Claimant refused to provide solution to provide a way to move forward.”
Mr Aquilina concluded by saying:
“The Claimant was well liked at the beginning of her employment. At the end of the Employment nobody al the store trusted her due to her lying and manipulation. The Claimant stated she had cancer at a stage in her life and this was why she was taking time off work. She did not supply any doctors' certificates and due to the sensitive nature, we did not press it further.”

Ms Rangitonga

Ms Kharlee Rangitonga made a statement on 16 September 2019.[11] As I indicated above, she had additional relevant information to that relayed by Mr Aquilina. Ms Rangitonga said that Ms Davies was a “really good worker” for the first two months, but that once they were comfortable working with each other, Ms Davies “left everything to other workers or me.”
[11] Replay page 309.
Ms Rangitonga said:
“In early June 2019, the Claimant came into work with a cut on her arm. The Claimant explained that she was very upset with a family issue and she went to feed her dog in his kennel. Somehow, she lent down and cut her arm.”

She said that she attended the meeting conducted by Mr Alicandro at Warwick Farm on 3 July 2019 which was referred to by Mr Aquilina. At the meeting she said that Ms Davies’ made her feel uncomfortable by making silly remarks, trying to get a reaction because
Ms Rangitonga had spoken to Mr Aquilina. Ms Rangitonga said that Mr Aquilina was nothing but professional, and she had never felt bullied or harassed by him. He was engaged with what she had been saying and took notes. Ms Rangitonga was “happy that something was being done.”
Ms Rangitonga said that Ms Davies was well liked when she started but “when her true colours came out” Ms Rangitonga realised that Ms Davies was lying and lazy. She said “I do not trust the Claimant at all.”

Mr Shannon Whelan

Mr Shannon Whelan was the Head of Retail, National Manager. He made a statement date 3 September 2019 in which he stated that Ms Davies started with the company on 19 October 2018 in the position of Store Manager. He noted that there had been no work performance issues in the first six months of her employment. He said that between May and June 2019 Mr Jason Hallab had raised some issues with Mr Aquilina, the State Manager regarding other employees’ complaints about Ms Davies’ work ethics.
Mr Whelan said that he had spoken with Mr Aquilina about the issues. At paragraph 17 he said[12]:
“Together we decided that a soft approach to the Claimant staffing issues would be the best way to achieve a positive result. Mr Aquilino was requested to speak to the Claimant regarding her staffing issues. Unfortunately, a positive outcome was not established from these informal meetings with the Claimant.”
[12] Reply page 37.
Mr Whelan said that the Liverpool branch was a large store with at least two staff rostered on at all times with Ms Davies as Store Manager delegating all of the tasks.
He stated that there were weekly budgets per branch with each team member contributing to the store budget. If the budget was met each team member would get a commission. The Store Manager would receive 1.5% of the store turnover. He said the Store Manager received over $20,000 per year extra in commission if the budget was met for the year. If a sale within the store was made for over $300 then a 5% bonus would be distributed to the sales person.
He said that other staff members complained about the way Ms Davies dealt with the commissions. She was accused of manipulating prices to gain extra commission for herself, but these complaints were not fully investigated as Ms Davies resigned prior to any follow up from Mr Aquilina (at [22]).
So far as supervision was concerned, Ms Davies was managed first by Mr Luke Alicandro from 19 October 2018 until 18 February 2019 when he was replaced with Mr Hallab until 28 June 2019.
At [24] Mr Whelan said:
“During this time Mr Hallab was reporting complaints to Mr Aquilina regarding the Claimants procedures at work and how long-term casual staff wanted to move location. Mr Aquilina briefed me on these complaints. Before any solution were established, Mr Hallab resigned. Mr Hallab was with the Employer for eight years.”
Mr Whelan said that he and Mr Aquilina met to discuss the unrest and complaints within the store, and decided that Ms Davies would be managed by Mr Aquilina. Mr Whelan said:
“This was due to the alarming amount of transfers the staff were submitting which was creating a concern.”
He said the performance was going backwards and Mr Aquilina was to investigate the issues and “help to provide support and mentoring for the Claimant.”
Mr Whelan said that the company had operating procedures and policies in place which were presented to all staff members on induction and were available on the internet at any time. There were also weekly emails to the stores giving updates.
Mr Whelan said that the monthly reports were submitted from each store where there was an issue. He was aware that meetings were conducted with Ms Davies by Mr Aquilina to discuss matters of concern following a number of complaints that had been received from other staff members.
Mr Whelan said that Ms Davies had spoken to him at 6:30pm on 12 July 2019 in a telephone call. He said[13]:
“I listened the Claimant issues and provided advice to move forward. I asked the Claimant to discuss these issues with her team directly and the Area Manager. I also encouraged her to take some accountability for the unrest in the team. I offered support if she needed extra help”
[13] Reply page 39 at [29].
Mr Whelan noted that the first six months employment by Ms Davies was satisfactory. He said[14]:
“I was quite aware of the high turnover in the busy Liverpool store and was prepared to help the Area Manager and Store Manager when and if required.”
[14] Reply page 40 at [31].
Mr Tanner referred to this statement, submitting that it would appear there was a high turnover of staff in any event and it was not suggested that Ms Davies was the cause of it. In view of the context of the evidence, I think it more likely that Mr Whelan was referring to the turnover of the business, rather than the staff.
Mr Whelan explained the hierarchy within the business. He said that the State manager,
Mr Aquilina, reported the store progress to him, the National Manager. The Area Manager – variously Mr Alicandro and Mr Hallab – reported to the State Manager.
Mr Whelan explained that “during this period” he was speaking to Mr Aquilina at least once every two days, and that during those conversations he was told about the concerns with the Liverpool store regarding “the disgruntled staff and low figures”. “This period” I assume to be the period following the initial six months of Ms Davies’ employment. Mr Whelan said[15]:
“33. During this period Mr Aquilina and myself spoke on many occasions regarding the unsatisfactory work of the Claimant, These issues included cash management, lack of trust between Manager and team, time theft, transaction fraud, manipulating KPS to better reflect the Sales on the Claimant’s personal result, and low sales performance productivity. I requested that Mr Aquilina reported the Liverpool store progress directly to myself from 7 June 2019. This was discussed in a Management Meeting regarding staff performance.”
[15] At [33].
Mr Whelan said that as these issues were building up, Mr Aquilina was directed by him to provide a full report to Ms Symonds, which was the reason for Mr Aquilina’s 11 July 2019 email.
Mr Whelan noted the two meetings Mr Aquilina had with Ms Davies, describing them as “face to face informal coaching meetings.”
Mr Whelan said that he spoke directly with Ms Davies on 12 July 2019, and that she did not indicate that she had any major issues with Mr Aquilina. The issues regarding staff were discussed but Mr Whelan said that he felt “with time all could be resolved with the store”. He said that he found Ms Davies to be ‘bright and [bubbly]” and he encouraged her to accept the guidance of Mr Aquilina to resolve the issues in store[16].
[16] At [36].
Mr Whelan then referred to an earlier face to face store managers meeting he attended on 16 June 2019 at Hurstville with Ms Davies. He said she appeared to be happy and willing to improve store productivity and staff performances.
He said that she went on annual leave from 20 - 29 July 2019 and emailed her resignation on 31 July 2019.
He did not believe that Mr Aquilina had behaved in a bullying manner towards Ms Davies at any time. He said her performance was not satisfactory and Mr Aquilina needed to discuss those issues.
He was fully aware of the actions taken by Mr Aquilina at these informal discussions and was ‘hoping for a positive outcome for all involved” [at 39]. He said:
“40. Mr Aquilina and I were discussing moving the Claimant to another store in Campbelltown to offer her a fresh start with a new team. However, Mr Aquilina was investigating a few complaints regarding the company procedures with the Claimant.”
Mr Whelan said that he was aware Ms Davies smoked because this was an issue with staff as to the amount of time she would take for a break during her shifts. He said that the claimant was not well liked by her staff, which reported her to be “lazy and took all the royalties for herself”. He said that she started as a good worker, but ended her employment with many complaints and unsatisfactory performance issues.

Ms Karen Symonds

Ms Symonds was Human Resources Manager, and made a statement dated 4 September 2019.[17] She confirmed the circumstances under which Ms Davies was employed, saying that she commenced on 30 October 2018. She confirmed her induction over a two week period.
[17] Reply page 44.
At [13] she said that on 11 July 2019 she had discussed Ms Davies’ work performance with Mr Aquilina. Mr Aquilina had received two formal complaints by other staff members which needed to be resolved, as they were ongoing and had not been solved by Mr Hallab.
She referred to her email mentioned above saying at [33]:
“I responded to Mr Aquilina [stating] he should monitor the situation and start to think of consequences if the issues continued.”

The Applicant’s claim

The respondent’s evidence sought to establish on the balance of probabilities that although its actions caused Ms Davies’ psychological injury, those actions were reasonable, and thus constituted a complete defence to Ms Davies’ claim. I turn now to the evidence relied on by Ms Davies.

Ms Davies

Ms Davies made a statement dated 27 November 2020. When she joined the company in October 2018 she had been provided with a written job description, an employment contract and an employment declaration, which she signed. She also underwent an induction of two weeks training and attended a number of training courses.
She described her duties at paragraph 26[18]:
“My duties included open and closing the store, stock taking, customer service, discrepancy management, rostering of staff, train and developing the team, banking, visual merchandising, conducting and planning store meeting, reporting to Area Manager and hiring and termination of staff….”
[18] ARD page 4.

Ms Davies maintained that she was not made aware of company procedures and policies regarding the safe operation of the tasks she was expected to carry out. She said at [29] that she was aware that she could ask for assistance from other employees, but when she did ask the State Manager Mr Aquilina and the National Manager, Mr Whelan, she was not given any help but was “questioned on my ability to perform my duties and attacked when spoken to on various telephone calls”.
Ms Davies said that she was injured at work during the afternoon of 2 July 2019. She was working at the T-Shirt table with Ms Rangitonga when Mr Aquilina arrived at the store and suggested that they both go out and have a discussion. Mr Aquilina suggested the food court, Ms Davies said at [33].
She said that they sat down in front of the Ali Baba Kabab Shop on a table opposite each other. She said that she was not informed to prepare any notes and she was not aware of what he was going to say. She said that his body language was hostile and she felt intimidated before the meeting started. She said:
“It was hard to concentrate in the food court with so many distractions….. there were people everywhere listening to our conversation. I felt embarrassed.”

Ms Davies reported that Mr Aquilina had said that “the team was not happy with my performance in the store”[19].
[19] ARD page 5 [35].
Ms Davies asked for specific details and Mr Aquilina was alleged to have indicated his laptop saying that the issues were all there, saying “I don’t have the time to get them out now”.
Ms Davies said that the meeting lasted for an hour and a half.
Ms Davies then continued that it was alleged that all of the staff did not want to work with her and that they were going to quit if she did not leave.
Ms Davies said she kept asking for a reason but never got “a straight answer”.
Ms Davies said that she asked for training to improve her skills but was told that it was not part of Mr Aquilina’s role and that she needed to change to come up with her own ways to improve. He said to her “You’re the manager”. She said at [36]:
“Mr Aquilina directed me not to speak to any other staff member and threatened to terminate my employment if I did. I was exhausted and defeated at the end of the meeting. After this meeting I was so upset to know that nobody liked me and everyone was going to quite their job because of me and plus I was going to have a pay reduction”.

Ms Davies said that on many occasions Mr Aquilina said that she was not the right “culture fit” for the job and that she would be happier somewhere else.
Ms Davies stated that at the end of the conversation she told him she was confused. She did not feel guided or trained and she felt attacked by Mr Aquilina.
Ms Davies said that over the next two weeks Mr Aquilina called the store and she would speak to him regarding the figures for the day. She said “I would mention the previous conversation we had regarding my transfer” but he said he was too busy running the state to talk to her and would dismiss what she had said.
Ms Davies then made the following statement:
“39. I could not sleep or eat and I felt like I was on my own. I was not coping with this negative behaviour from Mr Aquilina. At night my mind would race and I would go over the situation continually. I felt trapped with no escape. My family needed me to work and I was not good enough. I lost control of my emotions and I grabbed a kitchen knife on the floor and started to cut my wrists. I did not feel any pain. I was in my bedroom all alone, blood all over me.
40. My husband came into the room after having a shower. He said." what the hell are [you] doing." He wrapped a towel around my arm and drove me to the hospital. I told the hospital that I cut my arm on a piece of metal. I was still in shock in denial. It wasn't until my husband asked me some questions that I realised I tried to take my life over the bulling from Mr Aquilina. I have never tried to harm myself before. I have had difficulties in my life but nothing that affected me in this manner.”
Ms Davies then said that her husband insisted that she go and see a doctor, which she did on Monday 28 July 2019, seeing a doctor named Dr Papapetros at the Andsor Medical Centre located on Andsor Road Andsor Park. She said that an antidepressant, Lexapro, was prescribed and she was referred to a psychologist at a business called “Mind Ways”. She said that she called Mind Ways but it had no availability so she did not make an appointment, saying “it was due to the fact I was still not coping”.
Ms Davies then referred back to 11 July 2019, when Mr Aquilina again told her that they would have another meeting in the food court. She said:
“…I told him I did not want to participate in this meeting, if we did not have an agenda but he insisted I follow him.”
Ms Davies said that during this conversation her progress as Store Manager was discussed. She said that she felt she was “behind the eight ball” from the outset. She said that she had been trying “extra hard” to accommodate the staff and she was feeling positive. When she asked Mr Aquilina if he had any positive feedback, he replied “No. The team is not happy with you”.
At this Ms Davies started to cry whilst Mr Aquilina, she said, just smirked at him. She said that she “controlled myself” and asked how could she improve. He said[20]:
“ ‘He replied "are your being patronizing and making your problems mine.’ I kept saying ‘what patronizing’. Mr Aquilina said ‘no wonder the team doesn't like you. your arrogant. I have spoken to HR and fair work and will be taking their advice regarding you’. That's was when I realised that Mr Aquilina wanted me out of the position. I really started to doubt myself and was feeling emotionally drained….”
[20] ARD page 7.
The following day, 12 July 2019, Ms Davies said she contacted Mr Whelan and said she made a “verbal complaint” about Mr Aquilina’s behaviour. This was dismissed and she was asked about the staff performance instead. She said as a result she felt “very alone and like a hole was pulling me in”. She said “I broke down with no support and I felt everyone did hate me”. She continued to attend her shifts she said but was “spiralling further into depression.” She had organised annual leave from 22 July to 29 July 2019 but she resigned, she said on 31 July.
She said she contacted her lawyer on 9 August 2019 and she was provided with “another doctor’s details.” She then went to see Dr Joshua Lee on the same date, 9 August 2019. She had been on Lexapro and Melatonin since she had seen Dr Papapetros on 28 July 2019.
She said that Dr Lee provided her with another “script for Lexapro and Melatonin”. Dr Lee referred her to Dr David Kumagaya, Psychiatrist, whom she saw on 19 August 2019. She was certified fit for work she said, from that date until 23 August 2019, but not with the respondent. A further certificate was issued to the same effect. Dr Lee organised Dr Eric Lim, “a senior doctor” to obtain a full report.
She said she commenced work at “Rebel” on 14 August 2019.

MEDICAL EVIDENCE

Clinical notes

Liverpool Hospital

The respondent lodged clinical notes in an Application to Admit Late Documents.[21] These included notes from Liverpool Hospital. These showed that on 5 June 2019 Ms Davies had attended the Emergency Department at with a laceration of her arm. It was noted that
[21] ALD dated 25 February 2021.
Ms Davies had no GP.
The entry stated:[22]
“Partner built new dog kennel this afternoon
Nadine cut forearm on colourbond sheet metal
Isolated injury.
[22] ALD page 112.
Was very upset post – hyperventilating and vomited”
Ms Davies was noted as an “ex-smoke” and on examination the entry read:
“Alert. Well perfused
Has 5 – 6 cm transversal laceration to L forearm down to adipose tissue
Gapping but edges easily apposed
Neurovascular
RMU nerves motor and sensory intact”
The entry showed that the impression was a simple laceration of the forearm which had been closed with 7 4.0 sutures.

Dr Papapetros

The respondent also lodged clinical notes from the Edensor Road Family Medical Centre. These showed that on 30 July 2019 the applicant consulted Dr Emanuel Papapetros[23].
[23] ALD page 89
Dr Papapetros noted three reasons for consultation.
The first was that Ms Davies was unwell with coryzal symptoms, which consisted of congestive rhinorrhea and cough with green phlegm. She was also suffering from hot and cold sweats, and was lethargic. Dr Papapetros noted that her son had recently been unwell with the same symptoms.

The second entry was that she wished to stop smoking. The entry said that she had previously been smoking 10 – 15 cigarettes per day and managed to stop smoking “for a couple of years.” The entry noted that “over the past few months has been under increasingly levels if stress and has started smoking again”.
The third reason for the attendance was noted as “depression,” and Dr Papapetros noted that Ms Davies had been taking Citaloparam for number of years and had weaned herself off them. It was noted that she complained of a low mood again and wanted to re-start, the main stressor being work related “getting bullied by manager at work”. “Feels everything would be OK if it wasn’t for work situation”.
Ms Davies then consulted Dr Lim of “The Workers Doctor” practice, whom she saw for the first time on 9 August 2019. She does not appear to have consulted Dr Papapetros again.

Dr Lim

Dr Eric Lim wrote an “Initial Consultation Assessment” on 9 August 2019. He took a general history of the allegations made by Ms Davies, but he did not record any attempted suicide by her.

EXPERT EVIDENCE

Dr Kumagaya

Ms Davies was referred by Dr Lee of the Workers Doctor practice to Dr David Kumagaya, Consultant Psychiatrist, who reported on 31 October 2019. His report was a progress report, and of little forensic value.

Dr Khan

Ms Davies was referred to Dr Abdal Khan, Consultant Psychiatrist, who reported on 28 October 2020.[24] He took a history of significant difficulties with Mr Aquilina from the first meeting with him, and that he had made allegations that her team did not like her in the food court. She said that Mr Aquilina ‘got inside her head’ and made her feel like everything was her fault. Dr Khan took the following history:
“..In July 2019, Ms Davies attempted suicide by cutting her left forearm…”
[24] ARD page 48.
Dr Khan also recorded that Ms Davies denied any suicidal ideation “or any further episodes of deliberate self-harm.” Dr Khan found that there was no evidence of any psychomotor disturbance, no abnormalities of speech or thought form, her cognition was predominantly intact, and she had appropriate insight and judgement. He noted that Ms Davies was then employed by another organisation.
Dr Khan diagnosed a major depressive disorder with anxious distress.

Dr Teoh

Dr Ben Teoh, Consultant Psychiatrist, gave two reports for the respondent dated 14 October 2019 and 11 November 2019 respectively. In his report of 14 October 2019, Dr Khan took a history that in June 2019 Ms Davies had cut her wrists and presented to Liverpool Hospital. He recorded that in June/July 2019 “Daniel” became her manager and that he was “unfairly critical of her.”
Dr Teoh found a diagnosis of Major Depression in partial remission, the main contributing factor to which were her allegations of unfair treatment and harassment by the manager.
In his report of 11 November 2019 Dr Teoh acknowledged receipt of the Factual Investigation, which he said did not support Ms Davies allegations. He thought that
Ms Davies was suffering from a pre-existing condition. In view of the acceptance by the respondent that Ms Davies’ condition was wholly or predominantly caused by its actions, that opinion does not require further examination.

SUBMISSIONS

Ms Goodman

Ms Goodman referred to the email of 12 July 2019 sent by Mr Aquilina to Ms Symons, the Human Resources Manager. Ms Goodman submitted that it was quite clear that formal steps would have to be taken. Ms Goodman submitted that it followed that the reason for the 11 July 2019 meeting was to discuss informally Mr Davies’ non-performance.
Ms Goodman referred to Mr Aquilina’s belief that he had been threatened by Ms Davies in a telephone call following the meeting of 11 July 2019.
Ms Goodman summarised the evidence that led up to the meetings of 2 July and 11 July 2019. She submitted that, whilst criticism had been made that no notice was given to
Ms Davies about the meeting of 2 July 2019, the evidence showed that it was intended to be an informal meeting and that, there being no suitable separate meeting rooms within the store, the food court afforded some privacy. In context, Ms Goodman submitted, it was reasonable to go and sit in the food court for the purposes of this discussion.
Ms Goodman referred to the comments reported by Mr Aquilina following the 2 July 2019 meeting, noting his disappointment at Ms Davies’ response to his encouragement.
Ms Goodman noted that notwithstanding that informal discussion, Mr Aquilina received further complaints from staff on 10 July 2019, which led to the further meeting on 11 July 2019. Ms Goodman submitted that the conduct of the applicant as described by her fellow employees in various respects affected Ms Davies credit. She referred to some of the matters outlined by Mr Aquilina in his email of 11 July 2019. Ms Goodman submitted that
Ms Davies was clearly not telling the truth, and that she had a reputation amongst her team as being a liar.
Ms Goodman submitted that the respondent’s interactions with the applicant had at all times been reasonable, in that she had been taken to one side rather than spoken to in the store in the presence of her team. She submitted that the option of going to the food hall for a conversation was preferable, as strangers would be less interested in the conversation between the applicant and Mr Aquilina.
Ms Goodman submitted that the respondent had met its onus under s 11 A. She said that the categories relied on were performance appraisal and/or discipline. She conceded that the performance appraisal was not formal, in that it was not a mandated process whereby an employee’s record with the company such as compliance with KPIs were discussed. Nonetheless, she submitted that the actions of the respondent’s management, having been made aware by the applicant’s own team of her alleged misconduct, was “perfectly reasonable” in context.
The purpose of the meeting, Ms Goodman argued, was to bring those complaints to the applicant’s attention so that she could “lift her game.” This meeting occurred in the food court because it was away from the store. The same submission was made as to the second meeting in the food court on 11 July 2019.
Ms Goodman submitted “these were not actions taken in respect of performance appraisal and discipline but were actions taken in respect of proposed performance appraisal and perhaps discipline.” Ms Goodman submitted that the steps taken by the respondent were preliminary to taking such actions. She submitted that such actions were not able to be taken because Ms Davies resigned before anything further could occur. Ms Goodman noted that prior to her resignation, Ms Davies had been off work on annual leave since 20 July 2019.
Ms Goodman submitted that I would not find any evidence whatsoever of bullying and harassment, submitting that the respondent’s own policy required some element of repetition before it could be so defined. The two meetings in the food court could not be seen as repetitious bullying, because they were concerned to encourage Ms Davies to “lift her game.” At the end of the day, Ms Goodman submitted, her role was as store manager which required her to manage the people within the store.
Ms Goodman traversed the medical evidence and submitted that I would not accept various opinions given by Ms Davies’ medical practitioners that any bullying or harassment occurred, as they found. She submitted that the histories taken were of such generality as to be meaningless. A proper evaluation of the evidence would show that Ms Davies psychological problems began when she was confronted by the complaints of her team.
In discussion at the end of her submissions, Ms Goodman’s attention was drawn to the content of the Liverpool hospital ED notes of 5 June 2019. Ms Goodman submitted that
Ms Davies’ credit was seriously affected by what she had said about that visit, and that I would not accept anything she said without it being corroborated. Ms Goodman submitted also that I would not believe Ms Davies’ assertions within the hospital notes, that she had recommenced smoking because of the stresses at work. Ms Goodman submitted that one of the common themes from the different employees under her management was of her smoking habit.

Mr Tanner

Mr Tanner submitted that the issue to be determined was within a narrow compass as liability had been admitted the onus was therefore on the respondent to satisfy the provisions of
s 11A.
Mr Tanner submitted that although Ms Goodman had made submissions adverse to the credit of the applicant, the question of credit was of no relevance in this case.
The onus was on the respondent to show that the psychological condition was wholly or predominantly caused by its actions regarding discipline or performance appraisal. It was submitted that the respondent did not establish that its actions were concerned with either topic. He said if it was found that the actions were in regard to discipline or performance appraisal, those actions have been shown to have been entirely unreasonable.
Mr Tanner took me through the applicant’s version of events. He said the conduct of
Mr Aquilina in taking Ms Davies out to the food court to discuss matters was “astonishing”. Ms Davies felt intimidated and embarrassed having this sort of conversation in the presence of the public. Mr Tanner said that moreover the meeting constituted an ambush as there had been no prior warning that Ms Davies’ performance was to be criticised.
Mr Tanner submitted that the meeting of 2 July indicated that there was a breakdown in her performance being alleged for the first time, in a food hall. Mr Tanner submitted that the action of Mr Aquilina in saying that he had information regarding other employees’ complaints in his laptop was also embarrassing.
Mr Tanner submitted that the issue raised by the respondent was not performance appraisal. Performance appraisal required an analysis of the applicant’s failure and non-performance to be identified by measures being put in place to deal with it.
Neither, Mr Tanner submitted, was the meeting a disciplinary action as alleged. This was obvious from the approach that Mr Aquilina and others had admitted in their statements that it was up to Ms Davies herself to remedy her performance. That approach was not reasonable, nor was within normal parameters of performance appraisal or discipline.
Mr Tanner referred in passing to Ms Davies’ allegation that she had become so distressed that she cut herself with a kitchen knife, saying that her allegation was not correct because the hospital notes showed it happened at an earlier time and for a different reason.
I understood Mr Tanner to submit that this evidence was not relevant.
Mr Tanner submitted that there had been no notice given to Ms Davies of the purpose of the 11 July meeting, and he emphasised that she did not want to participate in it. She started to cry, he said, whilst Mr Aquilina smirked, saying no wonder the team did not like her.
Mr Tanner referred to the evidence to the effect that Ms Davies was told to improve her performance. He said that Ms Goodman had spent a long time “to no legitimate end” saying that bullying and harassment had not been proven.
Mr Tanner noted that Mr Aquilina alleged that Ms Davies attempted to shift blame to the team, and he cut the meeting short which, said Mr Tanner, was exactly what Ms Davies had said. It was hardly reasonable that the respect and confidentiality regarding the issues that had arisen in the workplace should be discussed in the setting of a food court, rather than a proper business setting, which he said was the office at Waterloo, some 32 kilometres away.
Mr Tanner then referred to the evidence of Mr Whelan. Mr Tanner suggested that
Mr Whelan was at pains to say that management wanted a soft response, so that the question of discipline or performance appraisal was not engaged.
Mr Tanner submitted that the actions demonstrated by the respondent was “simple managerial action … to intervene to get a positive result with all pulling in the same direction”. Mr Tanner submitted that the complaints had not been shown to have been fully investigated. The evidence demonstrated that they had been made as early as 7 June when Mr Aquilina first heard the complaints, so that there were several weeks in which the allegations could have been investigated, but were not.
Mr Tanner submitted that there was no evidence before the Commission that showed the allegations were of any substance. Whilst there was evidence that the complaints were repeated by Mr Hallab, that was not probative evidence, coming as it did from Mr Whelan. There was no detail supplied of the alleged drop off in performance or sales, and in the event that it existed, one would have thought that Ms Davies would have been presented with the proof, Mr Tanner said.
Mr Whelan’s statement showed that the intention of the respondent’s managers was to support and mentor Ms Davies. Mr Whelan’s evidence showed that the object of the respondent’s actions had been to try and get Ms Davies to take accountability. It could not be said that the dealings by the respondent with her was in a disciplinary setting. The allegations set out by Mr Whelan as to Ms Davies’ poor cash management, and of fraud by her were serious, but were not supported by specific evidence Mr Tanner said.
Mr Tanner submitted that Mr Whelan’s evidence “blows the defence out of the water.” It was important and revealing that the purpose of the two face to face meetings was said to be to conduct informal coaching meetings in order to resolve the issues by guidance.
Ms Symonds said that the approach was that Mr Aquilina wanted to create a “win/win” situation. He explained the problems and expected Ms Davies to solve them. That conduct was not related to performance appraisal or discipline, but was a way of purporting to manage a management problem in the respondent’s business.
Mr Tanner submitted that the rumblings from Ms Davies team may have been noted, and it might have been necessary to take formal steps, but at the stage of the 11 July 2019 meeting, it was not formal; it was simply an informal discussion and therefore not within the terms of s 11A.
Mr Tanner referred to Bluescope Steel v Markowski[25] and an Arbitral decision, McKell v Woolworths Matter 3089/19, in speaking to a checklist for managing underperformance and the initial steps to be taken and the formal steps issued by Fairwork.com.au/leaving.
[25] [2013] NSWWCCPD 69 (Markowski).

Ms Goodman in reply

Ms Goodman said that the meetings of 2 and 11 July 2019 fell within the framework of s 11A because its terms also included the phrase “proposed to be taken”.
She submitted that the evidence of the misbehaviour was before the Commission in the form of statements or emails from the team members. She said in answer to a question that one of the proposed actions was that Ms Davies would be transferred.

Further written submissions

Following discussion at the end of submissions, directions were issued as to the supply of written submissions regarding the interpretation of the phrase “proposed to be taken” within |
s 11A. I am grateful to counsel for their additional work.

Mr Tanner

Mr Tanner submitted that, in the light of the concession by the respondent that the two meetings in the food court of 2 July 2019 and 11 July 2019 were informal discussions that it followed that such could not be described as performance appraisal or disciplinary actions.
The respondent had submitted that although the meetings were not relevant s 11A actions per se, nonetheless they complied with the section because the meetings presaged actions proposed to be taken. The applicant’s resignation forestalled such actions.
Mr Tanner kindly reproduced the definition given in The Macquarie Dictionary, and submitted that “proposed action” in the present context would be evidenced by communication to a worker, either orally or in writing, that a meeting was to be convened at a future time for the purposes of considering allegations of misconduct or to appraise the workers performance. Thus, he argued, for the respondent to succeed it needed evidence that it had put forward details of impending action in the relevant field, and formed a purpose or design to implement such action with the worker.
Mr Tanner submitted that the evidence did not disclose such an intention, notwithstanding that the respondent’s managers had the prerogative and authority to take such action. In the absence of such evidence, the requisite communication to Ms Davies had not been made.
Mr Tanner referred to the inaction of Ms Symonds, which demonstrated that she did not propose any action after being asked by Mr Aquilina whether there was anything that “stands out for you for me to formally take this forward?”
Mr Tanner again referred to Mr Whelan’s concession that the purpose of the two meetings was for “informal coaching.” Mr Tanner described the situation the respondent found itself in as an organisational challenge for it and the discontented workers. Mr Whelan had expressed the hope that the matter could be resolved within the store, which attitude did not suggest either disciplinary action or performance appraisal.
Moreover, Mr Tanner argued, the expert medical evidence garnered on behalf of the respondent confirmed that the main contributing factor to Ms Davies’ injury was the unfair treatment and harassment by Mr Aquilina. Mr Tanner submitted that the unfair treatment and harassment were perceived by Ms Davies following the two meetings with Mr Aquilina. Objectively speaking, I understood Mr Tanner to argue, and notwithstanding that perception, there was no evidence that Mr Aquilina conveyed any suggestion that Ms Davies would be formally subjected to the relevant process, be it performance appraisal or discipline.
Mr Tanner said that there needed to be a causal chain connecting the condition of the worker to the conduct of the respondent.
There was no evidence that either disciplinary action or performance appraisal were either considered, or proposed, Mr Tanner argued. There was no evidence that such actions had been communicated, nor of any intention to do so, to the applicant. It was further necessary to establish by way of expert medico – legal evidence that a causal relationship existed between the worker’s psychological condition and the proposal to proceed with such action.
Mr Tanner referred to Manly Pacific International Hotel v Doyle[26] – a case that was concerned with the action of transfer – where Fitzgerald JA said at [6]:
“…The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.”
[26] 1999 NSW CA 465.
Mr Tanner submitted that it was the communication that was the injurious event. As to whether a communication is reasonable not, Mr Tanner referred to Ritchie v Department of Community Services[27], a decision of the Compensation Court of Armitage CCJ. who cited relevant authority and agreed at [47] with the following definition, applied mutatis mutandis:
“The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.”
[27] 1998 NSW CC 40.
When applied to the provisions of s 11A, Armitage CCJ said that the test was an objective one where the consequences of the respondent’s conduct must be weighed against the reasons given for it. Subjective assessments from either side of the record accordingly would not be determinative.

Mr Tanner submitted that there was no evidence that would establish conduct on behalf of the respondent that could be interpreted as being action that was proposed to be taken. Even if there were, Mr Tanner argued, on an objective basis the respondent could not argue that its actions had been reasonable.

Ms Goodman

Ms Goodman submitted that the meetings on 2 July 2019 and 11 July 2019 were reasonable actions, relevantly to the argument, proposed to be taken. At the time that Mr Aquilina contacted Ms Symonds on 12 July 2019 it was apparent that the respondent was contemplating formal action. Moreover, Ms Goodman submitted that Mr Aquilina had explained to Ms Davies that if the issues discussed were not solved, formal warnings and discussions would result, involving HR. The purpose of those meetings was to alert
Ms Davies to the deficiencies in her performance, but they also constituted action proposed to be taken in the relevant fields.
Ms Goodman referred to evidence regarding whether the psychological condition had been caused wholly or predominantly by the actions of Mr Aquilina in holding the meeting of 11 July 2019.
Ms Goodman submitted that there did not appear to be any authority for the meaning of the phrase “proposed action” in s11A. She submitted that nonetheless the words in the section must be given meaning.
Ms Goodman contended that s11A was designed to cover situations both where the employer actually took action, and where the employer proposed to take action. She referred to evidence in this matter that supported the latter proposition.

DISCUSSION AND FINDINGS

Mr Tanner submitted that the applicant’s credit was not relevant, as the onus was on the respondent to satisfy the provisions of s 11A. Whilst it is trite law that the respondent bears the onus, I do not agree that the applicant’s credit therefore becomes irrelevant, with respect. The question of reasonableness must be approached from an objective standpoint, and depends on the particular facts of the case.
Whilst there is some common ground as to the actions taken by the respondent, there is considerable disparity as to whether they were reasonable, and indeed whether they were “actions” that brought respondent within the protection afforded by the provisions of s 11A of the 1987 Act. There are accordingly two aspects to this case; the question of reasonableness, and the nature of the actions taken by the respondent.
Section 11A provides relevantly:
“(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.”

Reasonableness

The test for reasonableness was considered by DP Roche in Markowski from [190]:
“190. The often-quoted statements by Geraghty CCJ in Irwin and Truss CCJ in Ivanisevic v Laudet Pty Ltd (unreported, Compensation Court of NSW, Truss CCJ, 24 November 1998) (Ivanisevic) remain the best guide to determining reasonableness. In Irwin, Geraghty CCJ said:
‘The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.’
191.   In Ivanisevic, Truss CCJ said:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
192.   These passages were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Minahan at [42], where his Honour said:
“I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in his Honour’s judgment. The words ‘reasonable action’, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.”
193.   Determining if an employer’s actions were reasonable requires an objective assessment of those actions (Jeffery at [50]). It is not enough that the employer has complied with its own protocols; those protocols must be objectively reasonable (Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad[2008] NSWWCCPD 139; 7 DDCR 193 at [45], [47], [48], and [63]). …. A manager’s demeanour will always be relevant to an assessment of reasonableness, but many other matters must also be considered. As each case will depend on its own facts, it would be unhelpful to attempt to list those matters. Suffice to say that, consistent with Irwin, questions of reasonableness will always involve questions of fairness in all the circumstances.
194.   As noted above, the test of reasonableness is one of fairness, having regard to the rights of the employee and the objectives of the employer. BlueScope’s objective was to arrange its workforce in the most effective way to meet its business needs and to ensure the efficient running of the Slab Yard. To that end, it decided to transfer Mr Markovski from B crew to C crew.
195.   However, weighing Mr Markovski’s rights against BlueScope’s objectives, and having particular regard to the events in 2010 and 2011, I am firmly of the view that BlueScope’s actions with respect to the implementation of the decision to transfer Mr Markovski were not reasonable. I have largely, but not exclusively, based this conclusion on the failure to give Mr Markovski any notice of the meeting at which he was told of the transfer, and on the way the meeting was conducted, which includes the failure to give Mr Markovski the opportunity to have a support person present.”
The resolution of the first dispute as to reasonableness depends on whether I can accept the evidence of Ms Davies, or that of the respondent’s witnesses. Ms Davies said she resigned on 31 July 2019 because she had been mistreated by Mr Aquilina and Mr Whelan.
Mr Aquilina was described as being “arrogant and patronising” and her statements described her inability to cope his negative behaviour towards her, until she became so distressed that she attempted suicide by attempting to cut her wrists with a kitchen knife, and was rushed to Liverpool Hospital.

The alleged suicide attempt

Ms Davies alleged that when she attempted to speak to Mr Aquilina over the two week period prior to her suicide attempt, he would “dismiss” her, saying he was too busy running the state to talk to her. She said that at a meeting on 11 July 2019 following her suicide attempt, Mr Aquilina “smirked” at her and she realised that he wanted her out of her position. She did not suggest that Mr Aquilina knew of her suicide attempt at the time of this meeting.
Ms Davies described her suicide attempt in paragraphs 39 and 40 of her statement. At [41] she said that her husband “insisted” that she go and see a doctor, which she did on 28 July 2019. Ms Davies was thereby indicating that she was so emotionally affected by
Mr Aquilina’s conduct that she attempted to kill herself. The positioning of this allegation in her statement implies that it occurred after the meeting with Mr Aquilina of 2 July 2019 but before their second meeting on 11 July 2019.
The attempted suicide history was taken by the medico-legal experts Dr Khan and Dr Teoh.
Ms Davies’ graphic description of her cutting her wrists with a kitchen knife, of being “all alone” in her bedroom, and having “blood all over me” would have been a clear sign of how badly Mr Aquilina’s behaviour had affected her. However, there are a number of matters to be considered regarding this serious allegation.
Firstly, the Liverpool Hospital notes do not confirm her story. The notes recorded that on 5 June 2019, about four weeks earlier, Ms Davies presented at the Emergency Department with a deep laceration to her left forearm. The triage notes recorded that her injury was concerned with the building of the Davies’ dog kennel by her partner. Ms Davies had cut her forearm on colourbond sheet metal. It was clearly a nasty gash, and Ms Davies was hyperventilating and vomiting.
In her statement, she maintained at [40] that she lied to the hospital, and that it was “the bullying from Mr Aquilina” that had made her try to take her life.
However, Ms Davies also gave an explanation to Ms Rangitonga at the time, “early June 2019”, which was consistent with what she had told the hospital. Ms Rangitonga’s account of what Ms Davies said to her differed in minor detail, but nonetheless confirmed the hospital record. She reported that Ms Davies said she was very upset with a family issue and somehow cut her arm when she was feeding the dog.
Additionally, there has been no statement given by Ms Davies’ husband, the absence of which without explanation gives rise to an inference that his evidence would not have assisted her.
The evidence of Ms Davies’ first attendances for medical treatment also raises significant doubts. It is simply not credible that Ms Davies would attempt suicide on 5 June 2019 – or even between 2 and 11 July 2019 - and then wait until 28 July 2019 before seeking medical help – particularly when she said her husband insisted that she see a doctor at the time of the event.
The clinical notes from Dr Papapetros did not even give the impression that Ms Davies’ primary reason for the attendance was her psychological condition, although one must always exercise caution in drawing conclusions of fact from clinical notes.[28] Ms Davies had organised her annual leave to begin on 20 July 2019, and despite her assertions that she was “spiralling into depression,” took no time off before then, neither did she seek any medical attention. The attendance on Dr Papapetros occurred after she had been away from the workplace for eight days, exercising her annual leave. Ms Davies did not explain why it was that she did not seek treatment for her psychological condition until 28 July 2019. Even had her suicide attempt been made between 2 July and 11 July 2019, as she tried to infer, it defies belief that she continued at work for a further fortnight or so without complaint or treatment.
[28] See Qannadian v Bartter Enterprises Pty Ltd [28] [2016] NSWWCCPD 50.
The strongest inference arising from Dr Papapetros’ clinical notes was that her primary reason for attending Dr Papapetros was her coryzal symptomatology which she had apparently caught from her son. This was the first complaint noted.
The record showed secondly that Ms Davies was concerned about her smoking habit.
Dr Papapetros noted that she had been smoking 10-15 cigarettes per day, but had stopped smoking “for a couple of years.” Dr Papapetros’ entry recorded that she had started smoking again over the past few months because of her increasing levels of stress at work.
The complaint regarding the workplace bullying appeared in the notes as a third subject.
Dr Papapetros offered to refer the applicant to a psychologist, which he noted Ms Davies was “happy to consider.” (In fact she did not make an appointment, after calling the “Mind Ways” psychologists and finding they had no availability).
However, the most remarkable feature about both this consultation, and indeed that of
Dr Lim, was that no history of a suicide attempt was given.
These matters lead inevitably to the regrettable conclusion that Ms Davies has deliberately and maliciously perpetrated a lie.
The allegation of attempted suicide by Ms Davies demonstrates an extraordinary disdain for the truth. She gave the history of her attempted suicide to both medico-legal experts, and to this Commission. The most charitable view of her deliberate lie is that it might perhaps show that she suffers from some psychological deficit. However, whatever the explanation, it also destroys her credit, and I accept Ms Goodman’s submission that I would not accept anything Ms Davies said that was not independently corroborated.

Ms Davies’ smoking habit

As to Ms Davies’ indication to the triage nurse on 5 April 2019 that she had stopped smoking (ex-smoke) and to Dr Papapetros that she had resumed smoking because of increased levels of stress, I disbelieve her statements. The cause of her psychological condition had been, on Ms Davie’s own account, the meeting of 2 July 2019 in the food court. She did not depose to any problems prior to that event. The evidence from other witnesses also shows that until about April 2019 – six months after she commenced – her conduct as store manager had been exemplary, but after that time a number of issues arose, which included her smoking. I do not accept that she was an ex-smoker on 5 June 2019, or that she had started smoking because of stress at the workplace. There was no stress in April 2019. The evidence indicates that it is more probable that she had been smoking at all material times.

The food court

I do not accept that the locale where the two meetings of 2 July and 11 July 2019 took place was inappropriate, given the circumstances under which they took place. The respondent in an ALD dated 25 February 2021 lodged a floor plan of the Liverpool store, with a letter from Ms Symonds explaining that although there were two storerooms but they did not have chairs or windows, with the additional difficulty of a fire door and electrical switch board in the “back” room. Moreover, team members would store their bags in those rooms. Ms Symonds said:[29]
“Due to lack of space, it is normal procedure for some meetings to be held in an area of close proximity to the store, quite often the Food Court.”
[29] ALD dated 25.2.21, page 1.

I accept that evidence. It was unremarkable that informal work related meetings would take place in the food court.

Factual findings

The evidence persuades me of the following facts.

Background

From 29 May 2019, Ms Davies’ performance as store manager was of concern to the management of the respondent’s Liverpool store. It had become apparent that Ms Davies had been the common denominator in a number of different complaints from different workers.
Ms Davies had performed well in the first six months after she commenced on 19 October 2018. Her Area Manager was then Mr Alicandro, who was replaced by Mr Hallab on 18 February 2019. Mr Hallab resigned on 28 June 2019, but he had complained to the State Manager about Ms Davies’ procedures, and reported that long-term casual staff wanted to transfer to other locations. This would appear to have been towards the end of his tenure. Mr Hallab’s concerns had been the subject of meetings between the National Manager and the State Manager.
The State Manager, Mr Aquilina was also notified of the problems with the applicant’s management on 29 May 2019, when Ms Sam MacDonald phoned him. Ms MacDonald appeared to be Area Manager of another store. Mr Aquilina was told that two casual staff members had tried to reach out to Mr Hallab, without success.
As a result of what he was told, Mr Aquilina arranged for a meeting with the two casual staff members, Mr Trieu and Ms Lim. This took place on 7 June 2019, and Mr Aquilina repeated their concerns in his email of 11 July 2019.
Following the meeting on 7 June 2019, that afternoon Mr Aquilina told Mr Hallab to discuss the problems with Ms Davies. Ms Davies agreed that she had been in such discussions with Mr Hallab in her letter of resignation.
The National Manager, Mr Whelan, discussed the issues arising from the Liverpool store at least every two days with Mr Aquilina. At a management meeting Mr Aquilina was asked to report directly to Mr Whelan from 7 June 2019. Mr Aquilina was put directly in charge of the store on 1 July 2019.
On 29 June 2019 Mr Trieu enquired about a transfer to Mr Aquilina, and on 2 July 2019
Mr Aquilina met with the Liverpool store second-in-charge, Ms Rangitonga, to discuss further concerns about Ms Davies’ management.
The complaints covered a range of issues. There were suggestions of banking irregularities and Mr Whelan mentioned the question of fraud. Ms Davies was said to be lazy and untrustworthy, and her smoking habits were upsetting the staff. From an objective viewpoint a responsible manager might well have suspected that some of the staff had personal grudges against Ms Davies, and that some of the complaints might well turn out to be baseless or exaggerated. However the dysfunction within the store was evident and management had to address it. It appeared that the Liverpool store was not performing well – “going backwards” as Mr Whelan put it.
Having been seized of the issues, Mr Whelan and Mr Aquilina determined on a strategy to deal with them. Mr Aquilina was directed to “investigate the issues and help to provide support and mentoring” for Ms Davies. This attitude is what prompted the first meeting with Ms Davies in the food hall on 2 July 2019.
I accept the respondent’s submissions that Mr Aquilina’s intent was to assist Ms Davies to deal with the problems in her team. I accept also that Mr Aquilina was well regarded by the staff members he dealt with. Ms Lim described him as “approachable,” “positive” and noted that even though she had written a seven page document about Ms Davies, he did not speak of her in a negative way – or of any staff. Ms Rangitonga described him as “professional” and engaged with the detail she gave him. She had never felt bullied or harassed by him. Mr Trieu also described Mr Aquilina as being “professional,” and who never spoke to anyone in a derogatory manner.

The meeting of 2 July 2019

The tenor of the first meeting in the food court on 2 July 2019 is generally not in dispute.
Ms Davies took exception to the criticisms that Mr Aquilina relayed to her about her performance. She said she asked for particulars, and Mr Aquilina said that Ms Davies continuously shifted the blame to her team. Mr Aquilina asked her to have a think about how to make “this work”, from which I infer he meant how Ms Davies could solve the apparent discontent within her team. This is consistent with Ms Davies' contention that she kept asking for “a reason” but did not get a “straight answer.” Mr Aquilina noted that Ms Davies refused to take responsibility and became upset. Ms Davies said that she asked for training to improve her skills and Mr Aquilina said “You’re the manager.”
Whilst I have strong reservations about any assertion made by Ms Davies that is not corroborated, to the extent that her evidence was in similar vein to that of Mr Aquilina, it is apparent that she became upset that her management performance was being criticised.
I do not accept that the meeting lasted for an hour and a half, as stated by Ms Davies.
Mr Aquilina said he terminated the conversation when Ms Davies became upset for the very reason that they were in a public space. Neither version of the conversation indicated that the meeting went for very long.
I also reject Ms Davies’ evidence that Mr Aquilina threatened Ms Davies with termination at that first meeting if she spoke to members of her staff. Mr Aquilina said that the purpose of the meeting was to encourage her to find solutions to the problems, which would have entailed speaking to her team members. Moreover, Mr Aquilina stated that he actually requested that she speak to her staff to resolve the issues in house, and encouraged her to do so.
I reject Ms Davies’ description of Mr Aquilina’s “body language” as being “hostile”. I do not believe that she felt intimidated before the meeting started. I do not believe Ms Davies when she said she did not get a “straight answer” from Mr Aquilina.

I accept that Mr Aquilina’s motives were originally to help Ms Davies deal with her managerial role without upsetting her, and that she was regarded as being smart and had good managerial potential. I note that she had demonstrated that potential in the first six months of her employment, and had been described as “bright and bubbly” by Mr Whelan. The meeting at Warwick farm of 3 July 2019 at which Mr Aquilina arranged Ms Davies’ attendance was evidence of this motivation.
I accept Mr Aquilina’s account of his conversations with Ms Davies over the next few days, and that he became disturbed by her attitude, which demonstrated a lack of interest in either solving her management issues, or as to her reputation.
Whilst there was some corroboration for Ms Davies’ assertion that she was in contact with
Mr Aquilina over the following two weeks (in fact it was nine days, but nothing turns on that discrepancy), I do not accept her version of what was said. I accept that she did not notify
Mr Aquilina that she was off sick on 6 July 2019, and I think it likely that Mr Aquilina’s suspicions were correct that she made no attempt to call him, despite her assertion to the contrary.
I have strong doubts that Ms Davies was telling the truth when she alleged that over that two week period that Mr Aquilina would “dismiss” her comments and say he was too busy running the State to talk to her. That assertion was made at paragraph 38 of her statement, immediately before her misrepresentations regarding her supposed suicide attempt in the following paragraphs. Her description of Mr Aquilina’s conduct over the previous two weeks was designed to give verisimilitude to those false allegations, and are accordingly to be treated with a great deal of circumspection.
Moreover, she made no effort to describe the content of her alleged conversations, and the generality of her comments were consistent with her tendency to improvise exaggerations and untruths, as noted by her staff.

The meeting of 11 July 2019

I accept that Mr Aquilina’s patience had been tested when he had the second meeting with Ms Davies in the food court on 11 July 2019, following his meeting with Ms Truong the day before, which revealed further irregularities in Ms Davies’ management practices; and following receipt of notice by Mr Trieu that he was seeking a transfer to the Narellan store for the same reasons.
I do not believe that Ms Davies said anything to Mr Aquilina about an agenda, as she alleged, at that second meeting. However there is some corroboration for her assertion that Mr Aquilina said he had spoken to HR.
Mr Aquilina’s account of that meeting was extremely scant, and in many ways unsatisfactory as an answer to Ms Davies’ allegations. He simply said he was hoping that Ms Davies would put forward some ideas, but “once again” had failed to do so. However, he had written the email of 11 July 2019 to Ms Symonds of HR which set out the problems caused by
Ms Davies’ management, prior to his meeting with Ms Davies. He had done so at the direction of Mr Whelan, and he concluded with a query as to “formally” taking the matter forward.
In his email to Ms Symonds early the next morning on 12 July 2019, Mr Aquilina confirmed Ms Davies’ account that he had said to her that if the issues were not fixed “it would result in a formal discussion which may result in a formal warning based on advice from HR.”
Ms Davies was disturbed about the implications of what Mr Aquilina had said, as Mr Aquilina advised Ms Symonds in that email that he had just received a call in which Ms Davies had threatened to make a formal complaint to Mr Whelan, which Mr Aquilina interpreted as an in terrorem comment.
I accept that Ms Davies did in fact contact Mr Whelan, as her assertion was corroborated by him.
I am accordingly satisfied that it was the actions of the respondent in making known to
Ms Davies on 11 July 2019 that formal steps regarding her performance were being contemplated that were wholly or predominantly the cause of her psychological condition. Whilst Ms Davies might well have been concerned following her initial meeting with
Mr Aquilina on 2 July 2019, I accept Mr Aquilina’s evidence that when he spoke to her on the following days and the inference that Ms Davies was not showing any alarm, albeit that she declined to show any enthusiasm for his advice.

MEDICAL ISSUES

The clinical notes

I have already considered the relevant clinical notes in discussing the issue of Ms Davies credit.

Medico–legal reports

The respondent has admitted that the psychological condition suffered by Ms Davies was wholly or predominantly caused by the actions of the respondent. I observe that part at least of the history accepted by Dr Khan and Dr Teoh was the evidence of the alleged suicide attempt, which I have found to be untrue. Dr Khan also opined that Ms Davies had recommenced her smoking habit as a result of work-related stressors, which I have also found to be untrue.
However Dr Khan found that the events since early July 2019 were causative of her depressive disorder and to that extent his opinion is consistent with my finding above, that it was the meeting of 11 July 2019 that caused Ms Davies’ psychological condition. I do not accept Dr Khan’s opinion that Ms Davies’ psychological injury was a result of bullying harassment and intimidation by Mr Aquilina. Had Dr Khan been aware of the deliberate deception being practised on him regarding the false suicide attempt history I am not convinced that his opinion as to causation would have been the same. It is not inconsistent with Dr Khan’s view, or that of Dr Teoh in his first report, that Ms Davies suffered a psychological reaction on being confronted with evidence of her poor performance as Store Manager.
I discount Dr Khan’s opinion that Ms Davies’ condition was not caused by reasonable administrative action pursuant to the categories set out in s 11A of the 1987 Act. He acknowledged that the defence had been raised in the s 78 Notice, but conceded that the factual investigation and the report of Dr Teoh were not available for review. Without those documents he was unable to give a view as to s 11A.
Dr Teoh was also supportive in his first report that the events since Mr Aquilina became her manager in June/July 2019 were causative of her depressive disorder. In his second report Dr Teoh was shown the factual report, and altered his opinion to suggest that Ms Davies’ condition had been caused by a pre-existing condition. However, he did not explain either what was in the factual report nor the basis of his change of view as to causation.
I therefore accept that Ms Davies’ condition has been wholly or predominantly caused by the actions of the respondent.

“Proposed to be taken”

As indicated, I called for written submissions following argument as to the interpretation of the phrase “proposed to be taken” in s 11A. It is a fundamental precept of statutory interpretation that meaning must be given to every word of a legislative provision.[30]
[30] Project Blue Sky v ABA [1998] HCA 28 at [71].
Counsel for the respondent submitted that there was no authority on the meaning of the phrase, and both counsel submitted that for the phrase to be applicable, there must be some evidence that had indicated to the worker that action was proposed to be taken.
Ms Davies was entitled to have the issue brought to her attention and to receive appropriate counselling. The evidence I have accepted establishes that this was the purpose of
Mr Aquilina’s meeting of 2 July 2019.
However the second meeting of 11 July 2019 had a different emphasis. Mr Aquilina had hoped that Ms Davies would have had time to address her performance issues, but found at the meeting that she continued to refuse to cooperate.
I have criticised the details of Mr Aquilina’s evidence in this regard, but the content of his email to Ms Symonds on 12 July 2019 makes it clear that he had warned Ms Davies that formal steps were to be taken in view of her attitude.
Moreover, the fact that Mr Aquilina had written his detailed report about the issues to HR immediately prior to that meeting is a further indication that the respondent had determined to take the first step in formalising its actions in accordance with its policy and procedure as to performance appraisal, and probably discipline as well.
It is nothing to the point that the HR manager, Ms Symonds, appeared nonplussed at
Mr Aquilina’s enquiry, as this occurred after the causative meeting had been held, and
[31] Northern NSW Local Health Network v Heggie [2013] NSWCA 255.
Ms Davies had been made aware that her actions would be the subject of “formal discussions and formal warnings based on advice from HR.” Matters occurring subsequent to the causative event are not relevant in s 11A cases.[31]
Similarly, that no investigation was immediately commenced before Ms Davies went off on annual leave and then resigned is not to the point, as the causative event had already occurred. I accept Mr Whelan’s evidence that the complaints regarding Ms Davies’ financial management had not been fully investigated by Mr Aquilina when she resigned.
Mr Tanner relied on Mr Whelan’s statement that a “soft approach” was decided, but I am satisfied that he was speaking of the company’s initial response to the complaints.
Mr Whelan’s evidence was that as the issues “were building up” he directed Mr Aquilina to provide a full report to HR. Although Mr Whelan described the meetings of 2 July 2019 and 11 July 2019 as “informal coaching meetings” he was not the person conducting them, and, as I have found, the second meeting whilst being informal, went further than simple coaching. The direction given by Mr Whelan to involve HR was a clear indication that further action was contemplated, and I am not convinced that Mr Whelan’s attention to detail was a precise as it could have been. The fact of the involvement of HR prior to the second meeting was evidenced by the emails of 11 July 2019 and 12 July 2019, which are objective, contemporaneous and independent support for an intention manifested by management to take matters beyond an informal stage.
The question thus arises as to whether these actions are capable of being seen as actions “proposed to be taken” within the provisions of s 11A.
The phrase “taken or proposed to be taken” has sometimes been used without distinguishing between the two concepts. For example, in South Eastern Sydney and Illawarra Area Health Service v Nikolis[32] DP Roche said at [130]:
“Whilst there may well be circumstances where repeated absenteeism or lack of punctuality over a prolonged period, in the absence of appropriate medical certificates, can give rise to action with respect to performance appraisal, I do not accept that the present matter is such a case. There is no persuasive evidence that the meetings in question, or [the manager’s] conduct in general, can be properly characterised as action taken or proposed to be taken with respect to performance appraisal. If the employer intended the action to be so characterised, I would have expected much clearer conduct and appropriate notification to Ms Nikolis that her work performance was being assessed.”
[32] [2009] NSWWCCPD (Nikolis).

The hypothetical situation outlined by the Learned DP is not dissimilar to the facts in the present case, in that the respondent has proved that there were circumstances that could give rise to an action with respect to performance appraisal. As I have found, the manager’s conduct in the present case can properly be characterised as being relevant to performance appraisal. By the term “appropriate notification” DP Roche seemed to be implying that the notification be communicated in accordance with the HR policy within the respondent company.
Once that communication was made, then it would in all probability be described as “action taken” with respect to performance appraisal rather than “action proposed to be taken”, as it would have been notified in accordance with policy and procedure.
The distinguishing feature about this case is that, although the intent to proceed to formal notification was communicated, none was issued as the applicant resigned before any investigation could be completed.
As I have indicated, both Counsel in their submissions agreed that the phrase “proposed to be taken” envisaged that there would be situations where an employer did not actually take action, but was able to prove that it proposed to do so.
I agree that the phrase has to be defined in order to give it work to do, that is, the sense in which meaning could properly be given to the phrase to make it useful and pertinent. As used in current definitions of performance appraisal the terms “taken or proposed to be taken” appear to be interchangeable. In Project Blue Sky Brennan J said at [71]:
“…. a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". (Footnotes omitted).
I was not referred to any material such as the Second Reading Speech that would show the legislative intent in the inclusion of the phrase in s 11A, but it is in keeping with the object of the provision that an employer should not be liable for actions it took regarding the regulation and performance of its business, provided those actions were reasonable. The inclusion of the phrase “proposed to be taken” is in keeping with that object, and allows for situations such as the present case.
I do not think it was the intention of the legislature that an employer should be made liable simply because it had not got to the stage of moving to a formal performance appraisal or disciplinary proceedings in accordance with its policy and procedure. The term “proposed to be taken” I find to have been included in s 11A to provide protection for an intermediate stage when it had communicated its intention to take the matter forward, but some factor intervened, such as the injured worker resigning before the formal procedure had been instigated. This is a matter of fact which turns on the circumstances of each case.
In Nikolis DP Roche examined the characteristics required to define a performance appraisal. From [126] he said:
“126. As to whether the meetings, or the Health Service’s conduct in general, can be characterised as action taken or proposed to be taken with respect to performance appraisal, the Arbitrator referred to two relevant authorities (Irwin and Bottle) and concluded that they did not meet the tests in those authorities (Reasons at [59]). The Health Service’s submissions have not advanced any persuasive reason why a different conclusion should be reached on review.
127. The Arbitrator said (at [56]):

“In Irwin v Director of General School Education NSW CC (18 June 1998 unreported)Geraghty J said: -
‘Performance appraisal is more like a limited, discrete process, with a recognized procedure to which the parties move in order to establish an employee’s efficiency and performance.’
In Bottle v Wielan Consumer Pty Ltd [1999] NSWCC 32; (1999) 19 NSW CCR 135)Nielsen J took a narrower view of the words performance appraisal. He said:-
‘Consistent with my decision in Yeo v Western Sydney Area Health Service [1999] NSWCC 1; (1999) 17 NSW CCR 573 an assessment preliminary to demotion, transfer or retrenchment, dismissal or discipline would be part of those respective processes. There would be no need for there to be a supervision for performance appraisal. That, again, leads me to the view that performance appraisal is putting a value or putting an estimate of value (that is monetary value) upon the work being performed by the employee’.”
128. Acting Deputy President Handley also considered the meaning of performance appraisal in Ponnan v George Weston Foods Ltd[2007] NSWWCCPD 92 (‘Ponnan’) where he said (at [25]):
‘I understand ‘performance appraisal’ to mean a process involving the employer discussing with the worker his or her performance at work: this could include, for example, discussing the degree of efficiency with which the worker undertakes his or her duties or the number of mistakes made by the worker in performing his or her duties.’

I am in general agreement with Acting Deputy President Handley’s statement in Ponnan. In the present case, however, the evidence is that whilst Ms Nikolis’ work performance and efficiency was “on the slower end of the scale”, “that wasn’t an issue” (see [66] above)…”

It can be seen that the facts in the current case did not amount to a performance appraisal in the sense defined by the above authorities. The subject phrase “proposed to be taken” however recognised that not all cases of performance appraisal are able to proceed to that stage.
In Nikolis the Learned DP found on the facts before him that the respondent had at no stage indicated to the worker that it was progressing to an appraisal of the applicant’s work performance. In the present case I am satisfied that such an indication was made, as I have found, at the meeting of 11 July 2019.
I am satisfied that the respondent at all times behaved reasonably. To cite DP Roche again in Nikolis, he stated at [31] that a worker was entitled to first have the issue brought to his/her attention and to receive appropriate counselling. For the reasons given above, I am satisfied that Ms Davies was well aware of the issues she was causing, and I am also satisfied that she was resistant to the efforts by management to counsel her. DP Roche then said:
“…. If the worker’s attendance continues to be unsatisfactory, then an employer may, in an appropriate case, move to the next step and advise that the matter has become a performance issue…”

The issue that caused Ms Davies’ psychological condition was clearly her work performance. It has not been suggested otherwise (except perhaps by Dr Teoh in his second report, whose opinion I have rejected). I do not find that Mr Aquilina’s conduct at the meeting of 11 July 2019 was unreasonable. I accept that it may have provoked a psychological injury, but the applicant is not entitled to compensation as it was caused by reasonable action with respect to performance appraisal.
For these reasons I am satisfied that the respondent is entitled to the protection afforded by
s 11A of the 1987 Act. The proposed actions taken by the respondent with regard to performance appraisal were reasonable.
There is an award in favour of the respondent.

[2021] NSWPIC 209

25 June 2021