Dennis v NSW Fire Brigades
[2007] NSWWCCPD 165
•31 July 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dennis v NSW Fire Brigades [2007] NSWWCCPD 165
APPELLANT: Robert Dennis
RESPONDENT: NSW Fire Brigades
INSURER:Allianz Australia Treasury Managed Fund
FILE NUMBER: WCC9151-06
DATE OF ARBITRATOR’S DECISION: 31 October 2006
DATE OF APPEAL DECISION: 31 July 2007
SUBJECT MATTER OF DECISION: Psychological injury; evidence; section 11A Workers Compensation Act 1987; meaning of ‘discipline’.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Steve Masselos & Co
Respondent: Hicksons
ORDERS MADE ON APPEAL: Time to appeal the Arbitrator’s determination dated 31 October 2006 is extended until 29 November 2006.
The Arbitrator’s determination dated 31 October 2006 is revoked and the following order made:
“The matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal. Costs of the first Arbitration are to follow the result of the second arbitration.
BACKGROUND TO THE APPEAL
On 29 November 2006 Robert Dennis (‘the Appellant Worker /Mr Dennis’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 31 October 2006.
The Respondent to the Appeal is NSW Fire Brigades (‘the Respondent Employer/the Fire Brigade’).
Mr Dennis started work for the Respondent Employer as a fire fighter in May 1986. He worked at various fire stations up until April 2003 at which time he started in the Fire Safety Division (‘FSD’) of the Respondent Employer as a Fire Safety Officer under the leadership of Chris Jurgeit.
Mr Dennis made an earlier claim against the Respondent Employer and filed an Application to Resolve a Dispute (matter WCC 5179-05) in the Commission in April 2005. The basis for this claim was that Mr Dennis suffered psychological injury as a result of, among other reasons, a workplace conflict with Mr Jurgeit, his team leader. This claim was settled on 12 October 2005 following a conciliation conference and a “Certificate of Determination – Consent Orders” was issued on 17 October 2005 making the following orders:
“1. Award to the Respondent in respect of all claims for weekly benefits up to 12 October 2005 as the Respondent has paid all periods of incapacity by way of sick leave and/or wages.
2. That the Applicant is granted leave to amend the ARD to delete from Part 4.1 the words ‘date and continuing’ and insert therein ‘12 October 2005’.
3. Award to the Applicant’s [sic] in respect of section 60 of the Workers Compensation Act 1987 expenses to date, up to the sum of $3,500 inclusive of any HIC charge.
4. That the Respondent pay the Applicant’s costs as agreed or to be assessed.”
The settlement also “noted” the following:
“(a)Respondent agrees to re-credit the Applicant’s sick leave of 812 hours taken in the period 5/1/05 to 12/10/05.
(b)Respondent agrees to pay the Applicant’s treatment with Dr J Kontroni [sic] at one consultation per month for a period of 6 months up to 30/4/06.
The Respondent agrees to only pay travelling expenses to attend each treatment with Dr Kontroni [sic] up to 60km for a return trip.”
Mr Dennis returned to work on 8 November 2005 on a graded return to work plan, taking up a research position in the Risk Management Directorate under the management of Chris Lewis of the Fire Investigation and Research Unit (‘FIRU’).
On 9 December 2005 Mr Dennis had a further altercation with Mr Jurgeit over the use of work vehicles. As a result of that altercation Mr Dennis completed another workers’ compensation form and ceased work. He has not returned.
Mr Dennis received voluntary weekly compensation until 28 March 2006 when Allianz Australia Workers Compensation NSW Ltd (‘Allianz’), the Respondent Employer’s insurer, ceased payments after having given notice of its intention to do so by letter dated 14 March 2006.
On 16 June 2006 Mr Dennis filed in the Commission an Application to Resolve a Dispute (‘the Application’) seeking weekly compensation in the sum of $1,348.67 per week from 29 March 2006 to date and continuing and medical related expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) as a result of injury in the form of anxiety and depression caused by the “Nature and conditions of applicant’s employment involving harassment/under staffing as well as harassment upon return to work by the applicant’s former Team Leader and now Inspector Chris Jurgeit”.
The Respondent Employer filed its Reply to Application to Resolve a Dispute (‘the Reply’) on 10 July 2006 disputing, among other things, that Mr Dennis received an injury as alleged or at all. It disputed that Mr Dennis’ employment after 12 January 1997 was a substantial contributing factor to the alleged injury or that the general nature and conditions of Mr Dennis’ employment with the Respondent contributed to any injury as alleged. It also relied on section 11A of the 1987 Act in that Mr Dennis’ “injury (if any) was wholly or predominantly caused by the reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion appraisal [sic], discipline, retrenchment or dismissal of the applicant or provision of employment benefits of the applicant”. (Reply paragraph 1.6)
The claim proceeded to arbitration on 6 October 2006 and the Arbitrator issued a determination and written statement of reasons to the parties on 31 October 2006 in which she found in favour of the Respondent Employer.
Mr Dennis seeks leave to appeal this determination.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 31 October 2006, records the Arbitrator’s orders as follows:
“1. Award for the Respondent.
2. The matter is certified as complex.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in finding:
(a)that there had been no injury to the worker within the meaning of the 1987 Act (‘injury’), and
(b)that the Respondent Employer had successfully established a defence under section 11A of the 1987 Act (‘section 11A’).
There is also an issue as to whether the appeal has been filed in time and, if not, whether time to appeal should be extended until 29 November 2006.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case as the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was filed on 29 November 2006 and, prima facie, was filed outside the 28-day period prescribed in section 352(4) of the 1998 Act. As a result, I issued the following direction to the parties on 13 June 2007:
“1. The appellant seeks leave to appeal against an Arbitrator’s decision made on 31 October 2006 (Part 16 Rule 16.2(2) Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). The Appeal Against Decision of Arbitrator was lodged with the Commission on 29 November 2006 and has therefore been lodged outside the 28 time limit in section 352(4) and Part 16 Rule 16.2(1) of the 2006 Rules.
2. The appellant is directed to file and serve on or before 4.30pm on Wednesday 27 June 2007 written submissions setting out why time to appeal should be extended under Part 16 Rule 16.2(11) of the 2006 Rules.
3. The respondent is to file and serve on or before 4.30pm on Wednesday 11 July 2007 its submissions in response.”
As a result of the above direction the Appellant Worker made the following further submissions on 25 June 2007:
a)the Certificate of Determination was issued on 31 October 2006 and served on Mr Dennis’ solicitor through the document exchange (‘DX’) and received by them on 2 November 2007;
b)under Part 8 Rule 8.1(6) of the Workers Compensation Commission Rules 2006 (‘the Rules’) a document forwarded by the Commission by DX is, for the purposes of the Rules, served on the day following the day of leaving in the DX box of the person to whom it was addressed;
c)section 36(1) of the Interpretation Act 1987 provides that:
“(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.” (emphasis added)
d)therefore, calculating time from 2 November 2007 the appeal was filed in time (Rewitu Pty Ltd v The Registrar of the Workers Compensation Commission & anor [2007] NSWSC 441 (‘Rewitu’));
e)if it is held that the appeal was filed out of time, it is submitted that time to appeal should be extended because:
(i)the Respondent Employer will suffer no prejudice;
(ii)it is in the interests of justice that the time to appeal be extended;
(iii)the Commission may dispense with compliance with any of the requirements of the Rules (Part 1 Rule 1.6(2));
(iv)the exercise of the Commission’s discretion should not be bound by the Rules and should be exercised whenever sufficient cause is shown in the circumstances of the particular case;
(v)the period involved is “de minimus” in comparison to the prejudice that would be suffered by the Appellant Worker if time was not extended;
(vi)it would be a denial of natural justice if the Commission refused to allow the filing of an appeal “contiguous” to the time required by the Rules;
(vii)Part 1 Rule 1.6(2) confers a discretion that should be exercised in a manner that “furthers the purpose of the statutory context in which it appears”, and
(viii)it is “fair and just for leave to be granted to file an appeal contiguous to the period prescribed in the Rules.”
The Respondent Employer made the following further submissions on 9 July 2007:
a)time to appeal should be calculated from 31 October 2006 and the appeal is out of time;
b)Rule 8.1(6) does not apply as that Rule deals with documents served by the Commission. The time limit for appeals against a decision by a Commission Arbitrator is set out in section 352(4), which provides that “an appeal can only be made within 28 days after the making of the decision appealed against” (emphasis added) and not 28 days after the decision is served on the parties;
c)Rewitu concerned an appeal under section 327 of the 1998 Act, not section 352;
d)the Appellant Worker has provided no explanation as to why he has not complied with the 28 day time limit;
e)the current proceedings have been on foot in the Commission since June 2006 and costs have been incurred in defending the claim, and
f)the appeal should be rejected for being out of time.
Discussion and Findings – Extension of Time
The first question is: is the appeal out of time? For the reasons set out below, it is my view that the appeal has been filed outside the 28 day period in section 352(4):
a)an appeal against an Arbitrator’s decision must be made within 28 days “after the making of the decision appealed against” (section 352(4));
b)an Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act” (Rule 16.2(2));
c)a certificate under section 294 (the ‘Certificate of Determination’) was issued in the present matter on 31 October 2006 and time under section 352 runs from that date;
d)applying section 36 of the Interpretation Act 1987 the “given date” for the reckoning of time under section 352 is 31 October 2006 and time to appeal is calculated “exclusive of that day” (emphasis added);
e)Rule 8.1(6) provides that if the Commission serves a document by DX the document is served “on the day following the day of leaving in the DX box of the person to whom it was addressed” (Rule 8.1(6)(c)). It does not provide that the “given date”, under the Interpretation Act, is the date of service of the Certificate of Determination;
f)therefore, in the present matter, time runs from 1 November 2006. Allowing 28 days from 1 November 2006 (including 1 November 2006) means that the last day to appeal within time was 28 November 2006, and
g)it therefore follows that the appeal, having been filed on 29 November 2006, is out of time.
To the extent that Rewitu has found to the contrary, I do not agree. That decision did not involve section 352 and has no direct application to the matter before me.
Should time to appeal be extended? An extension of time in which to appeal is governed by Rule 16.2(11), not by Rule 1.6(2). Rule 16.2(11) provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
For the following reasons I am satisfied that time to appeal should be extended in this matter:
a)the Certificate of Determination was not received by Mr Dennis’ solicitors until 2 November 2006, one day after it should have been received if it had been placed in his solicitor’s DX on 31 October 2006;
b)the appeal is only one day out of time;
c)no prejudice has been identified by the Respondent Employer;
d)the Appellant Worker has a strongly arguable case, and
e)in my view, to lose the right to appeal would work a substantial and demonstrable injustice to Mr Dennis.
I therefore extend the time to appeal until 29 November 2006 and grant leave to appeal.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) at [134]. To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
BACKGROUND AND EVIDENCE
The full impact of the events in November/December 2005 cannot be appreciated without an understanding of the background to this matter.
Mr Dennis joined the Fire Brigade in 1986 and worked at a number of city stations for about 17 years. For a number of years he maintained two residences, one in Sydney and one near Suffolk Park near Ballina. He worked in Sydney but divided his time between Sydney and Suffolk Park.
In April 2003 he was appointed as a fire safety officer with the FSU on a higher salary. On his return from leave in May 2004 Mr Dennis found that Mr Jurgeit had allegedly altered a report he (Mr Dennis) had written. Relations between the two men deteriorated from that time with Mr Jurgeit criticising Mr Dennis for his dress and hair. On 10 June 2004 Mr Dennis consulted his general practitioner, Dr Chow, complaining of being “under some stress at work, harassed by colleagues” and suffering from headaches and insomnia (report Dr Chow 28 March 2005, page one).
Mr Dennis also alleges that at about this time he was denied the chance to relieve in a higher position. In September 2004 Mr Dennis submitted a grievance complaint about Mr Jurgeit and a Mr Honeybrook alleging that he had been harassed and bullied. Mediation took place but Mr Dennis was unhappy with the outcome.
In November 2004 Mr Dennis was counselled on several occasions about his behaviour towards members of the public in meetings. Mr Dennis concedes that he became quite angry while attending a meeting in November 2004 where Mr Honeybrook allegedly changed his mind over an issue. After this Mr Dennis was told he was to be kept on desk duties and away from public contact and arrangements were made for him to attend an anger management course. On 26 November 2004 Mr Dennis consulted a different doctor at Dr Chow’s practice and gave a history of “not sleeping well, lots of stresses at work, headache, poor appetite and getting angry easily in the past 5 weeks” (report Dr Chow 28 March 2005, page one). He was advised relaxation techniques and issued a medical certificate for the next few days.
On 8 December 2004 Mr Honeybrook received a telephone complaint about Mr Dennis’ conduct at a meeting earlier in the year when Mr Dennis was alleged to have been rude and disrespectful. That complaint was repeated in an email to Mr Honeybrook on 10 December 2004. On the afternoon of 10 December 2004 Mr Honeybrook removed Mr Dennis from contact with the public while the complaint was investigated.
Dr Chow saw Mr Dennis on 13 December 2004 and took a similar history to that recorded by his colleague on 26 November 2004 but with the additional mention of depressed mood. On this date “the case was made into a work cover [sic] claims [sic]” and Mr Dennis was referred to a private psychiatrist (report Dr Chow 28 March 2005, page one). As a result of the delay in getting an appointment with the private psychiatrist, Mr Dennis was referred to the Mental Health Services of St George Hospital whose psychologist saw him around 21 December 2004.
He was referred by the Fire Brigades’ insurer to a psychologist of the Psychology in Practice Pty Ltd group, Ms Duncan-Watt. After interviewing Mr Dennis, Mr Honeybrook, Ms Matthews (the Respondent Employer’s human resources manager) and Dr Chow, Ms Duncan-Watt prepared a 28-page report dated 30 December 2004. Significantly, the reported included histories from Mr Dennis and the Fire Brigade. Ms Duncan-Watt also had Mr Dennis complete the Depression Anxiety Stress Scales (‘DASS’), a set of three self-report scales designed to measure the negative emotional states of depression, anxiety and stress. On the DASS tests Mr Dennis obtained the following scores (report Ms Duncan-Watt 30 December 2004, page 11):
“Depression: moderate range
Anxiety: extremely severe range
Stress: moderate range”
Ms Duncan-Watt diagnosed Mr Dennis as having an adjustment disorder with anxious mood. Her conclusion was based on Mr Dennis’ clinical symptoms such as sleep disturbance, increased headaches, shakiness of his hands, feelings of stress, heightened emotionality and anger, increased heart rate, appetite disturbance and anxiety about the future (report Ms Duncan-Watt 30 December 2004, page 25). In addition, she noted that her consultation with Dr Chow was consistent with that diagnosis as was the psychological testing. There were “no specific personal or domestic contributing factors identified to his current psychological symptoms” (report Ms Duncan-Watt 30 December 2004, page 26). The substantial contributing factors to Mr Dennis’ difficulties were identified by Ms Duncan-Watt as:
a)the issues that have arisen at work where he felt undervalued and overlooked for ‘acting up’ opportunities and picked on in terms of his dress and appearance in general, and
b)most importantly, the performance management issues that have arisen where he has received two warnings and is about to undergo the investigation of a further serious complaint.
The performance management issues were presumably those identified in paragraphs [38] and [39] above.
Ms Duncan-Watt felt that Mr Dennis would benefit from psychological counselling in relation to managing his emotional reactions though she considered he was fit for work.
On 19 January 2005 Mr Dennis came under the care of Mr Kotroni, consultant psychologist at Mullumbimby.
Mr Dennis was off work from December 2004 until May 2005 when a graded return to work was arranged at the Fire Brigade’s Lismore office. He worked without problem at Lismore between 18 May and 18 August 2005 when he was told that he would have to return to the Sydney FIRU office (report Mr Raue, clinical psychologist, 7 March 2006, page 25). He again went on sick leave from August to 8 November 2005. In that period his compensation claim was settled in October 2005 in the terms set out at paragraphs [4] and [5] above.
In a report dated 28 September 2005 Mr Kotroni recorded:
“Mr Robert Dennis presented with symptoms of severe anxiety due to a stressful work situation that he described as bullying, harassing, unsupportive, judgemental, not following proper procedures, and being personally attacked where he was told he was lazy and incompetent. Mr Robert Dennis has been traumatized by these events as he prides himself on his work ethic, his skills and his work history. As a result Mr Robert Dennis has suffered emotionally, mentally, socially and occupationally.
Mr Robert Dennis has seen a psychiatrist and been prescribed medication, suffers from panic attacks, low mood, increased emotionally [sic], intrusive thoughts, anxiety, avoidance and depression as well as fears regarding his future at work in his prior office. Despite the above Mr Robert Dennis has functioned well in the Lismore Zone office and has received positive feedback regarding his work..
It is my professional opinion that continuing Mr Robert Dennis’ work placement in Lismore is the best option available. It decreases the anxiety and negative symptoms associated with the negative work episodes. In addition, it provides positive self-value to Mr Robert Dennis by allowing him to use his skills acquired over 12 years of study in the fire safety field in a productive manner, as well as assisting Mr Robert Dennis to maintain his community ties and support network that he has established in the area which is critical to assist him in coping with his negative symptoms.” (emphasis added)
On 29 September 2005 Dr Chow wrote a short report headed “To Whom It May Concern” stating that he largely agreed with Mr Kotroni’s clinical findings and plan of action as set out in his report of 28 September 2005. Dr Chow added:
“Therefore at this stage, it would be most prudent that Mr Robert Dennis remain at the Lismore branch, rather than return to Sydney until his level of self esteem, interpersonal issues with staff in Sydney, depressive and anxiety symptoms become better controlled with the aid of further counselling and medication.” (emphasis added)
On 2 October 2005 Mr Kotroni reported as follows on Mr Dennis:
“It is my professional opinion that an unsupported ungraded return to work would be psychologically challenging for Mr Robert Dennis. Despite these concerns I am prepared to support the return to work for Mr Robert Dennis in that it allows a chance for him to resolve this ongoing dispute, have meaningful employment and positive regard for his self. In the long run given a lack of further options, the return to work may be the only way to move ahead psychologically, and thus I support it.” (emphasis added)
According to progress notes prepared by Nanette Whatman, the Fire Brigade’s rehabilitation officer, (covering the period 30 September 2005 until 7 February 2006) on 25 October 2005 Mr Dennis requested a return to work at Lismore. Ms Whatman made it clear that that was not an option.
The return to work in November 2005 was under a return to work plan prepared by the Fire Brigade. Mr Dennis was to work as part of the FIRU team to, among other things, assist with research into the contributing factors associated with fires, injuries and fatalities in class one buildings. The initial return to work plan did not include fire safety work or inspections, the area of Mr Dennis’ expertise. His supervisor was to be Chris Lewis, not Mr Jurgeit.
On 8 November 2005 (the first day back at work) a meeting was held with Mr Dennis, Ms Matthews and Mr Lewis at which Mr Dennis allegedly expressed the view that the Fire Brigade had not done enough to resolve the grievance issues he raised in 2004 (see A26 in Ms Matthews record of interview, 31 August 2006). He was advised that he could appeal if he wished.
At a meeting with Ms Whatman on 10 November 2005 Mr Dennis expressed frustration at not being allowed to “RPID” (presumably, ‘return to pre-injury duties’) but he agreed to attend a course on interpersonal skills. He also stated that he did not feel he was being constructive at FIRU and that it was a waste of time to read and research to commence projects for others to complete at a later date. On 14 November 2005 it was noted that “attending inspections to be the goal for next month”.
Ms Whatman’s notes record that Mr Dennis was off work with a medical certificate on 15 and 16 November 2005 “due to feelings of anxiety”. On 24 November 2005 Mr Dennis stated that he felt “trapped” in the office and that he would like to resume attending some inspections and “that he had an issue with being managed and wasn’t coping well and that a lot of this was his own issues”. In response Ms Whatman noted:
“Due to Rob becoming increasingly agitated about not going out of the office it was agreed that he could complete 2 x inspections per week agreed upon by Chris Lewis. Rob was happy with this. Psychological appointment next week and Rob would not be attending due to taking 1 day S/L and the rest as time owed.”
Ms Whatman advised Mr Lewis of the above agreement by phone on 24 November 2005.
With the prior approval of his supervisor (Mr Lewis) Mr Dennis was to conduct site inspections on Friday 9 December 2005. Whether Mr Lewis agreed that the inspections were to be done by Mr Dennis alone or with another person is the subject of conflicting evidence. The resolution of this issue is not determinative of the appeal. To carry out the inspection Mr Dennis ‘booked’ a Fire Brigade car early on the morning of 9 December 2005. Mr Jurgeit challenged him about taking a car for site inspections. Mr Jurgeit had not been informed of the meeting on 24 November 2005 when Ms Whatman gave approval for Mr Dennis to perform two inspections per week. Exactly what Mr Jurgeit said, when it was said and how he said it is the subject of conflicting evidence. Mr Jurgeit states that in his first contact with Mr Dennis on 9 December 2005 he was “not abusive or angry”. Mr Dennis states that Mr Jurgeit confronted him “in an extremely agitated state, demanding to know why I had booked the car out for the afternoon” (Mr Dennis’ statement 23 March 2006, page two).
After Mr Dennis told Mr Jurgeit on 9 December 2005 that he had been given permission to perform inspections, Mr Jurgeit sent an email to Mr Lewis who responded the same day saying “I have spoken to Nanette [Whatman] and she has given approval for Rob to undertake ‘a couple’ of inspections per week. I will see if I have an email that states that” (emphasis added) (statement Mr Jurgeit 27 February 2006, page two). It is not known what time this email was received by Mr Jurgeit as the email itself is not in evidence but its contents have been reproduced in Mr Jurgeit’s statement of 27 February 2006. The email made no mention of the inspections having to be in the presence of another person as is suggested in Mr Lewis’ record of interview on 31 August 2006. Mr Lewis agreed that he had been kept informed (by email from Mr Dennis) of Mr Dennis’ proposed inspections on 9 December 2005 and that he gave approval for them (by email) on the understanding that he would be with a Mr Fuller (see Mr Lewis’ record of interview 31 August 2006, Q55). Whether that understanding was conveyed to Mr Dennis on 8 or 9 December 2005 is unclear. Neither of those emails is in evidence. Mr Dennis’ evidence is that he had been requested by Mr Fuller to conduct the inspections. Whether Mr Fuller expected Mr Dennis to merely accompany him or conduct the inspection on his own is unknown, as Mr Fuller did not give evidence.
Copies of the emails that are in evidence indicate that Mr Jurgeit wrote to Ms Whatman at 8:30am on 9 December 2005 in the following terms:
“In recent times Rob has been increasingly involving himself in fire safety work. My understanding was that he was limited (in terms of his involvement with FSD) to assisting in peer reviews. Lately, I find that he’s been going out on inspections of building sites, and today wants to go out to do complaints by himself.
Rob tells me that he was informed by you that he could ‘do a couple of inspections’.
If you have given him the go ahead to do this, I have no problem.
I have checked my records and, apart from the return to work plan for Rob when he was at Lismore, I do not have a corrent [sic] one. Could you please supply me with the most current plan. I also need to know whether he is fit for operational duties.
Please feel free to give me a call on the numbers listed below.” (emphasis added)
The assertion above that if Ms Whatman had given approval for the inspections Mr Jurgeit would have had “no problem” is not correct. In his statement of 27 February 2006 Mr Jurgeit made it clear that the Fire Brigade’s standing orders prevented Mr Dennis taking a car home because he was on “alternate duties, he was not considered to be able to act as an operational firefighter, nor was he considered to be on call as a specialist” (Mr Jurgeit’s statement 27 February 2006, page three). It is clear that Mr Jurgeit would not have allowed Mr Dennis to take the car even if Ms Whatman had “given him the go ahead”.
At 8:36am on 9 December 2005 Mr Jurgeit wrote the following email to Mr Dennis:
“I have been unable to contact Nanette at this stage so I have left a message. I’ve also sent an email to her requesting an up-dated RTW plan.
Until I have confirmation that you are able to conduct site inspections, including complaints, I ask that you do not carry out these tasks.
Thank you.”
Later on 9 December 2005 Mr Dennis completed and submitted a “Notification of Injury, Illness, Exposure & Near Miss” (‘NIIENM’) form stating in it that his injury/illness was “anxiety/depression” and describing the injury/illness as having occurred as follows: “I am being harassed & restrained from doing my work. This is resulting in the above illness.”
Notwithstanding the content of Mr Lewis’ email quoted at [57] above Mr Jurgeit refused to allow Mr Dennis to take a Fire Brigade car or do the inspection. He gave the following reasons in his statement of 6 March 2006:
a)in doing the inspection Mr Dennis would be working in Fire Safety (Mr Jurgeit’s area of supervision) but without Mr Jurgeit having seen a return to work plan;
b)Mr Dennis would be carrying out a possibly sensitive inspection and Mr Jurgeit was concerned about his previously aggressive manner with clients. Mr Jurgeit did not know if Mr Dennis was still “abrasive in his manner”;
c)Ms Whatman had advised him to manage Mr Dennis “accurately” during his return to work, and
d)Mr Dennis had no claim to take a car home on the weekend, as he was not on call.
On 11 December 2005 Mr Dennis attended on Dr Chow and was given a WorkCover medical certificate diagnosing “anxiety/depression” but with no description of how the injury is alleged to have occurred. The doctor ticked “yes” to the statement that in his opinion Mr Dennis’ employment was a substantial contributing factor to the injury and declared him unfit for work from 12 December 2005 until 6 January 2006.
On 12 December 2005 Ms Whatman recorded in her notes:
“P/C from Chris Lewis and Chris Jurgeit. Rob left work early on 9/12 due to Chris questioning Rob attending inspections. Chris Lewis was working from home and I was on flex. Chris did not liaise with Chris Lewis. Advised that at 1:30 he became aware of Rob requesting to take a vehicle home as he had arranged an inspection at 3:00 on the way home. Chris J did not feel that it was appropriate that he have a vehicle over the weekend as he was unsure if Rob was fit to respond to incidents. Chris J requested copies of RTW Plan and M/C. Chris Lewis advised that he would supply copy of RTW Plan. I advised that the issue relating to the car was a management issue and not related to the RTW Plan. NW” (emphasis added)
Mr Dennis completed a “Workers Compensation Claim Form” on 14 December 2005 in which he stated that his injury occurred as a result of “bullying & harrasment [sic] by manager led to anxiety”.
In “Case Management Notes” completed by Natalie Morris on 13 December 2005 the following appears:
“Called Rob Dennis today regard NIIENM form for Anxiety/depression. Asked Rob as to how this has occurred. Rob informed me last 18 months there has been a grievance with C Jurgeit and Mgr J Honeybrook. Boss falsafied [sic] report & did everything to get rid of him (Rob) out to the section.
Off work for 6 months from Dec last year due to being stressed/depressed. Came back part time for 3 months at Lismore. Was informed could not work at Lismore even though Dr’s said it was good for him. Sick leave was running out, therefore, had to RTW.
RTW plan was drawn up. Went back to work under another Mgr and rehab and the 1st chance his old Mgr had started to harass him.
Medical certificate will be faxed through today.”
Under “how did it happen?” the following appears, “bullying and harrassment [sic] from Mgr at work. Relates to previous claim.”
Mr Dennis’ claim for compensation was declined by letter from Allianz dated 14 March 2006 “pursuant to section 11(a) [sic] of the Workers Compensation Act 1987” and because “claimant is not suffering from a recognised diagnosable disorder”.
In a report dated 20 May 2006 Dr Chow outlined his contact with Mr Dennis from 26 April 2005 to 11 April 2006. The most relevant contacts were recorded as follows:
“7/11/2005Patient informs me that he was transferred back to Chullora to work, in a different building than before, and he was coping well.
11/12/2005Claims to have been harassed recently by his boss (did not state who), and he just walked out on his work on 9/12/05. Was certified unfit for work from 12/12/05 to 6/1/06.
4/1/2006Claims to be stressed. Awaits psychology review (?with own private psychologist) and stress management course. Unfit for duty 7/1/2006 to 17/2/2006.
21/2/2006Still unfit for duties, certificate from 18/2/2006 to 13/4/2006. Booked in for Assertiveness Course on 13/4/2006.
11/4/2006Still unfit for duties. Extended certificate from 14/4/2006 to 14/5/2006. On this date patient elects to change to a different ‘nominated treating doctor’ for convenience sake. I believe he planned to stay in Byron Bay.
The prognosis of [sic] Mr Dennis with regards to returning to his usual place of work at Chullora remains guarded, as can be judged from his pattern of starting and stopping work when he was stationed at Chullora in November 2005.
Despite [being] under therapy for his anxiety and depression, there will still be interpersonal collegial issues at his previous place of work which will not [be] likely to be resolved. I am of the opinion that Mr Dennis would be better off to work in other branches of the NSW Fire Brigade and not to return to Chullora.”
Mr Kotroni reported on Mr Dennis on 6 June 2006. After noting the concerns he had about Mr Dennis’ “ability to return to work without support or changes to the work place”, he recorded the following history at page two:
“On the 1st of March 2006 Mr Robert Dennis represented to the writer’s office and reported that he had lasted three weeks at work. Mr Robert Dennis stated that in the period he felt unvalued, that his manager would not follow the work plan, and he was not supported. This Mr Robert Dennis states lead [sic] to an increase in his anxiety and depression symptoms and he was no longer able to cope at work.”
At Mr Dennis’ initial presentation to Mr Kotroni (in January 2005) he complained of the following symptoms:
“…headaches, panic attacks, anxiety, attention / concentration / memory problems, sleep difficulties, depression, emotional mood swings, tearfulness, negative ruminations, self-worth issues, fear, hypervigilence, lack of motivation /energy, suicidal ideation, heightened arousal, intrusive ruminations, nightmares, avoidance behaviour and agitation.”
These symptoms varied in intensity and duration over time but:
“Mr Robert Dennis has always met the diagnosis for anxiety and depression. At the last treatment session Mr Robert Dennis has been having nightmares regarding suicide and killing himself yet denies any suicidal intent at present.” (emphasis added)
In Mr Kotroni’s opinion Mr Robert Dennis was suffering from major depression and generalised anxiety disorder that resulted from his “feeling bullied, harassed, unsupported, disempowered, judged, and being personally attacked at his work place”. Mr Dennis reported no previous episodes of anxiety or depression.
On 7 March 2006 John Rause, clinical psychologist, prepared a 29-page report for Allianz dealing with Mr Dennis’ claim. In it he took statements from all of the main parties but he did not subject Mr Dennis to any psychological testing. He identified a number of areas where he felt that Mr Dennis’ history was inconsistent. For example, Mr Dennis complained of almost complete withdrawal and lack of activity since 9 December 2005, which did not seem to be a true reflection of his current level of activity (page 18). He also noted Mr Dennis said that his mood was better in January and early February 2006 when he was on annual leave than it was when he subsequently went onto sick leave (pages 18-19). Mr Rause also had doubts about Mr Dennis’ ability to accurately report his history.
At page 21 Mr Rause stated that the matter had been going on for some time but it was difficult to determine whether it was the same series of events that had been going on since 2004. Mr Dennis’ current reaction “seems to have been directly related to anger at a decision made about his ability to attend an inspection he had planned to do and his complaints that this was done unfairly”. Mr Rause felt that that event had to be “viewed in the context of previous events and the history on his return to work program in which he was quite satisfied when he was temporarily placed at Lismore and his wish to return there” (page 21). He stated at page 21 that:
“Mr Dennis is angry and feels unfairly treated. However it is my view that he has made a conscious choice that he does not want to continue working in the circumstances that he was in. While I am sure he was agitated on the day Mr Jurgeit would not permit him to do the safety inspection, I am still not of the opinion that his reaction would warrant a specific psychological diagnosis. He seems to have made a conscious choice that he would not continue with his return to work program as it was established.”
On 7 April 2006 Robyn Bartlett, Industrial Psychologist, engaged by the Fire Brigade, interviewed Mr Dennis and Mr Jurgeit and prepared a document headed “Summary Report on Assessment of Workplace Conflict, Greenacre” on 28 April 2006. Mr Dennis indicated that he was under the care of a therapist and taking anti-depressant medication and did not feel capable of returning to work or participating in any type of conflict resolution. Under “Summary and Recommendation” Ms Bartlett stated:
“It appeared, based on the interview with Mr Dennis that he was not psychologically fit to return to work at that point, or to participate in mediation. It was of grave concern that after such a prolonged absence there did not appear to have been a substantial improvement in his state of mind. There also did not appear to be an ability to resolve his current workplace concerns.
Therefore I recommend that other options may need to be considered and discussed in relation to Mr Denis [sic] and his future employment with the NSW Fire Brigades.” (emphasis added)
ARBITRATORS REASONS
In a detailed and carefully prepared Statement of Reasons for Decision (‘Reasons’) the Arbitrator made the following statements or findings:
a)that the medical evidence in support of Mr Dennis’ claim that he suffered a psychological injury was “very thin” but the Respondent Employer’s medical evidence was equally problematic (Reasons, paragraph 46);
b)Mr Dennis relied on Dr Chow primarily, the other reports being “referable to the condition he suffered in 2005 and from which he had recovered at the time of his return to work in November 2005” (Reasons, paragraph 46);
c)if Mr Dennis suffered an aggravation of the previous injury as a result of the events of December 2005, he had “no medical evidence to support it [the aggravation] apart from the WorkCover medical certificates issued by Dr Chow from November 2005” (Reasons paragraph 46);
d)Dr Chow’s certificates for the periods 18 February to 13 April 2006 and 11 April to 15 June 2006 did not certify that Mr Dennis’ employment was a substantial contributing factor to the injury (Reasons, paragraph 46);
e)she agreed with the Respondent Employer’s submission that Mr Kotroni’s report and opinion “suffer from the fact that Mr Kotroni did not take a history of the events of 9 December 2005 which the Applicant alleges caused him injury or aggravation of the previous injury” (Reasons paragraph, 47), and
f)Mr Dennis carried the onus of establishing that he suffered an injury within the meaning of the legislation and on the evidence before her she was “not satisfied that the Applicant, as a result of the events of 9 December 2005, suffered an injury, being a psychological injury. The evidence of Dr Chow is inconclusive and the evidence of Mr Kotroni does not take these events in December 2005 into account. I am also not satisfied on the medical evidence that Mr Dennis suffered an injury being an aggravation of a pre-existing condition. The Applicant’s medical evidence simply does not support this conclusion.” (Reasons, paragraph 49)
SUBMISSIONS
Mr Dennis submits:
(i)that the Arbitrator erred in attempting to determine the issue of injury solely upon the available medical evidence and ignoring the opinion of Robyn Bartlett in her report dated 28 April 2006. The approach she took was to look for a “definitive medical opinion that identified work place events which caused an aggravation of the Applicant’s condition” (Appellant Worker’s submissions, paragraph 13);
(ii)Mr Kotroni comes very close to establishing that workplace events caused an aggravation of Mr Dennis’ condition;
(iii)a proper analysis of all the facts, as follows, supports a finding of injury:
(a)Mr Dennis had suffered a psychological injury previously at work;
(b)he had returned to work in an acknowledged fragile psychological state;
(c)he had been agitated about workplace matters in November 2005;
(d)he reported a high state of psychological discomfort on the morning of 9 December 2005 after his first contact in a management sense with Inspector Jurgeit;
(e)he reported to his treating psychologist, Mr Kotroni, that he was no longer able to cope at work as a result of an increase in anxiety and depression symptoms;
(f)Dr Chow, Mr Kotroni and Ms Robyn Bartlett all supported a finding that Mr Dennis suffered from an identified psychological condition that affected his capacity to work after 9 December 2005, and
(g)there is no evidence that Mr Dennis’ psychological state resulted from anything other than the nature and conditions of work during his return to work between October & December.
(iv)it was not appropriate for the Arbitrator to make a finding as to the Respondent Employer’s section 11A defence in the absence of a finding of injury and this finding necessarily detracts from the reliability of her finding on injury;
(v)the determination on section 11A misconceives the submissions on this point in the following ways:
(a)the Respondent Employer submitted that any injury was wholly or predominantly caused by the reasonable actions of the employer in respect of discipline of workers, however none of the matters relied on by Mr Dennis constitute discipline, and
(b)the action of the Respondent Employer was not reasonable in the following respects: the manner in which Inspector Jurgeit spoke to the Mr Dennis; Inspector Jurgeit had not been informed about the arrangements by which Mr Dennis was to perform inspections and was not permitted to perform any supervisory role in respect to Mr Dennis, and matters pertaining to the discipline of Mr Dennis were the responsibility of Chris Lewis.
(vi)Counsel for the Respondent Employer cross-examined Mr Dennis at great length and at one point attempted to suggest to Mr Dennis that he had deliberately come into conflict with Inspector Jurgeit having already determined to make a further claim for workers compensation. Despite objection, and the rejection of the question, Counsel for the Respondent made a submission in support of that proposition, and
(vii)the Arbitrator appears to have adopted this very submission as part of her reasoning in paragraph 64 of her determination and therefore it is submitted that this is a denial of procedural fairness. Not only were the relevant matters not pleaded, the Arbitrator’s rulings made it clear that she did not need to hear from Mr Dennis’ legal representative on the issue.
The Respondent Employer submits:
(i)the Arbitrator in her Statement of Reasons noted that Mr Kotroni did not take a history of the events which Mr Dennis alleged caused him injury on 9 December 2005 and noted that the only evidence that Mr Dennis could rely on was the medical certificates of Dr Chow from November 2005 which did not certify that Mr Dennis’ employment was a substantial contributing factor to the injury;
(ii)it was open to the Arbitrator to weigh the evidence of Mr Dennis against that called on behalf of the Respondent Employer and find that the onus of proof had not been satisfied by the Appellant;
(iii)the report of Robyn Bartlett was not relied on at the arbitration and therefore constitutes fresh evidence;
(iv)the Appellant Worker seeks to provide a medical opinion and this does not constitute a ground for appeal;
(v)the Respondent relies on the decision of Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339 (‘Kushwaha’) in which ‘discipline’ was given a broad meaning which would include the actions of Mr Jurgeit in December 2005 to rebut the Appellant Worker’s submission that Mr Jurgeit’s actions did not amount to ‘discipline’ for the purposes of section 11A;
(vi)the Arbitrator deals with the Appellant Worker’s submissions relating to section 11A in paragraphs 63 and 64 of her Statement of Reasons and there is no error of law on the part of the Arbitrator;
(vii)the Appellant Worker has failed to show how the disallowed question and submission from the Respondent’s counsel were adopted by the Arbitrator, and
(viii)it was open to the Arbitrator to find that the Respondent Employer acted reasonably.
DISCUSSION AND FINDINGS
Injury
The Appellant Worker correctly submits that the Arbitrator ignored the evidence of Ms Bartlett. The Respondent Employer argues that Ms Bartlett’s report was not relied upon at the arbitration and it is ‘fresh evidence’ that should not be considered on appeal. That is not correct. The report from Ms Bartlett was attached to the Respondent Employer’s Application to Admit Late Documents dated 3 October 2006 that was admitted into evidence (T15.42) and addressed on by counsel for Mr Dennis (T58.21).
The Arbitrator’s failure to refer to Ms Bartlett’s report was a significant omission in a case where the Arbitrator felt that Mr Dennis’ medical evidence in support of his claim that he suffered a psychological injury was “very thin”. Ms Bartlett was an industrial psychologist retained by the Fire Brigade who spoke with both Mr Jurgeit and Mr Dennis. As such her opinion that Mr Dennis was “not psychologically fit to return to work at that point, or to participate in mediation” was entitled to considerable weight in assessing whether Mr Dennis had sustained a psychological injury. Her further opinion that “it was of grave concern that after such a prolonged absence there did not appear to have been a substantial improvement in his state of mind” was also of great importance in the determination of the nature and extent of Mr Dennis’ injury. Ms Bartlett suggested no other cause of Mr Dennis’ condition other than the conflict at work the subject of the current claim thus providing support for a finding that Mr Dennis’ employment was a substantial contributing factor to his condition.
The evidence dealing with the events of November/December 2005 had to be considered in the light of the medical evidence prior to Mr Dennis’ return to work. That evidence was that it would have been prudent for Mr Dennis to remain at Lismore rather than return to Sydney (Dr Chow 29 September 2005) and that an unsupported ungraded return to work would be psychological challenging for him (Mr Kotroni 2 October 2005). Even the Fire Brigade’s evidence before the November 2005 return to work was that Mr Dennis had an adjustment disorder with anxious mood and that there were no specific personal or domestic contributing factors (Ms Duncan-Watt 30 December 2004). If the Arbitrator intended to say that Mr Dennis had fully recovered by November 2005, the evidence did not support that conclusion. Mr Dennis was on a graded return to work and was not back to full unrestricted duties by 9 December 2005. This was one of the reasons why Mr Jurgeit refused to allow Mr Dennis to take the car on 9 December 2005 (see paragraph [59] above).
The Arbitrator’s reference to the Appellant Worker relying ‘primarily’ on Dr Chow was not accurate. Mr Dennis relied on certificates and reports from Dr Chow, reports from Mr Kotroni, the report from Ms Bartlett and the progress notes from Ms Whatman. Dr Chow’s evidence was set out not only in his certificates but also in his reports of 28 March 2005, 29 September 2005 and 20 May 2006. The report of 20 May 2006 was of importance because it recorded an attendance on 11 December 2005 when Mr Dennis complained of having been harassed by his boss on 9 December 2005. Whilst the Arbitrator thought it was significant that Dr Chow’s certificates of February/April 2006 and April/June 2006 did not state that Mr Dennis’ employment was a substantial contributing factor, Dr Chow’s certificate of 11 December 2005 did state that employment was a substantial contributing factor to the injury. Whilst it may be argued that such a statement in a medical certificate is a bare statement of a conclusion and is entitled to little or no weight (see Edmonds), in the present matter it must be read in the light of all the evidence in the case which is overwhelmingly to the effect that there was no other cause of Mr Dennis’ psychological condition.
The Arbitrator’s rejection of Mr Kotroni’s evidence because he “did not take a history of the events of 9 December 2005” failed to consider all of the relevant evidence and failed to appreciate that Mr Dennis’ alleged injury as a result of the nature and conditions of his employment in general “involving harassment/under staffing as well as harassment upon return to work by the Applicant’s former Team Leader and now Inspector Chris Jurjeit” (see annexure to Mr Dennis’ Application). The events of 9 December 2005 were an example of the kinds of complaints Mr Dennis made about his work.
In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 731-2 (‘Makita’) Heydon JA said:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.” (emphasis added)
Judge Armitage considered the above cases in Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76 where he stated:
“In Paric at the above reference, Samuels JA refers to the situation where facts stated in an expert’s report do not completely correspond to the facts proved at trial, and held that where there is a ‘fair climate’ for the acceptance of the expert’s opinion, this may occur, notwithstanding the discrepancy just referred to, relying on various authorities which his Honour cited from America and elsewhere. His Honour said that this question is essentially one of fact and degree.”
In the present matter the history in Mr Kotroni’s report of 6 June 2006 was that Mr Dennis:
a)felt undervalued;
b)his manager would not follow the work plan, and
c)he was not supported.
Mr Dennis’ NIIENM form referred to him being “harassed and restrained” from doing his work. The Case Management Notes (see paragraph [66] above) referred to his old manager (Mr Jurgeit) harassing him.
In light of the history of this matter it is understandable that Mr Kotroni did not take a detailed history of the events at work on 9 December 2005. That does not, however, mean that his opinion was of no weight. Mr Kotroni’s note that the manager would not follow the work plan was correct on one view of the evidence. Mr Jurgeit did not know that Mr Dennis had been authorised to perform two inspections per week and by refusing him permission to do the inspections on 9 December 2005 he was acting contrary to the change in the work plan that had been approved by Ms Whatman on 24 November 2005. His note that Mr Dennis felt undervalued and that he was not supported related to Mr Dennis’ reaction to the events at work “in the last three weeks at work”. Those events were well documented (see Ms Whatman’s note of 24 November 2005 in her progress notes set out at paragraph [54] above) and Mr Dennis’ reaction, in light of the history between himself and Mr Jurgeit, was not surprising. Therefore, given the history of the matter and the other corroborative evidence of Mr Dennis experiencing problems in November/December 2005, I believe that Mr Kotroni’s history did provide a ‘fair climate’ for the acceptance of his opinion and the Arbitrator was in error in giving it no weight.
Whilst an Arbitrator always has to “weigh the evidence” from each side (see Respondent Employer’s submissions paragraph 1.4.2) the Arbitrator in the present matter was in error in failing to consider the evidence of Ms Bartlett, failing to give weight to Mr Kotroni’s reports, not giving due weight to the history of the matter, finding that Mr Dennis had recovered from his earlier problems and in not giving due weight to all of the evidence dealing with the events of November/December 2005.
Therefore, the Arbitrator’s finding that Mr Dennis did not sustain an injury arising out of or in the course of his employment must be revoked.
Section 11A
The Respondent Employer argued that its actions came within section 11A because they amounted to ‘action taken or proposed to be taken with respect to discipline’ (T63). Section 11A(1) of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
On this issue the Arbitrator found:
a)that the events of 9 December 2005 and the actions of Mr Jurgeit were ‘in respect of discipline’ (Reasons, paragraph 62);
b)Mr Dennis’ actions in seeking to take a car home and in seeking to perform inspections on his own were outside the scope of his return to work plan (Reasons, paragraph 62);
c)Mr Jurgeit was entitled to question and investigate it and was justified in telling Mr Dennis that he could not perform the inspections nor take the car home which were properly characterised as “learning or instruction (on the terms of the return to work plan and its implementation)” (Reasons, paragraph 62);
d)the actions of Mr Dennis on 9 December 2005 indicated that his judgment was impaired at the time of the encounter with Mr Jurgeit and that his recollection of events was coloured by his determination to bring things to a head with Mr Jurgeit (Reasons, paragraph 64);
e)there was no independent evidence to support the proposition put forward by Mr Dennis that Mr Jurgeit acted unreasonably in the manner or the content of what he said to him on the morning of 9 December 2005 (Reasons, paragraph 64);
f)Mr Jurgeit’s decision to disallow the use of the car was reasonable action in relation to discipline “within the broader sense of the term” (Reasons, paragraph 64), and
g)therefore, the Fire Brigade had established a defence under section 11A and Mr Dennis’ psychological injury of ‘anxiety and depression’, if any, was “wholly…caused by reasonable action taken or proposed to be taken by or on behalf of the Respondent with respect to…discipline” (Reasons, paragraph 65).
The Arbitrator’s reference to the ‘broader sense’ of the term ‘discipline’ was a reference to the decision of Judge Neilson in Kushwaha where his Honour stated at [152]:
“It can be seen, therefore, that the primary meaning of ‘discipline’ is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. It is this narrow meaning which weighed on my mind in Bottle’s case. However, the word used in an Act of Parliament must be given its full meaning, unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).”
For the purposes of the current appeal I am prepared to apply the meaning of discipline accepted by Judge Neilson in Kushwaha.
The Appellant Worker’s challenge to this part of the decision is that it was not appropriate to make a finding under 11A in the absence of a finding of injury because section 11A is irrelevant unless and until there is a finding that the particular worker suffered a ‘psychological injury’. Having found that Mr Dennis suffered no such injury it was not necessary to determine the 11A issue. I reject this submission. It is not only common practice for decision makers to determine secondary issues; it can save time and costs. The Arbitrator was entitled to consider the section 11A issue in the alternative, in the event that her finding on injury was incorrect.
It is also argued that the refusal by Mr Jurgeit to allow Mr Dennis access to a car constituted communication of a management decision that cannot conceivably have amounted to ‘discipline’ of Mr Dennis by the Fire Brigade. I agree with this submission. Even adopting the broad definition of ‘discipline’ used by Judge Neilson in Kushwaha there was nothing in the actions of Mr Jurgeit that could be described as “instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition”. Similarly, there was nothing in Mr Jurgeit’s actions that amounted to “punishment [or] chastisement”. It was impossible for Mr Jurgeit to have imparted any ‘learning or instruction’ to Mr Dennis ‘on the terms of the return to work plan and its implementation’ as he was not aware of the terms of the plan (see paragraph [58] above).
It is arguable that the Arbitrator was incorrect when she said that by seeking to take the car home and do the inspections Mr Dennis was doing something “outside the scope of” the return to work plan (Reasons, paragraph 62). The question of inspections came up with Ms Whatman on 24 November 2005 when it was expressly agreed that Mr Dennis could complete two inspections per week or as agreed by Mr Lewis, though it is unclear if those inspections were to be with another Fire Brigade employee or on his own. Ms Whatman’s typed notes make no reference to those inspections having to be conducted in the company of another person (see paragraph [54] above). Whilst Mr Lewis’ record of interview clearly states that the inspections were to be in the company of another Fire Brigade employee, his email to Mr Jurgeit on 9 December 2005 is silent on that issue.
Even assuming (without deciding) that the inspections on 9 December 2005 were to be conducted by Mr Dennis in the presence of another Fire Brigade employee, I do not accept that Mr Jurgeit’s actions on that day amounted action taken or proposed to be taken in respect of ‘discipline’ under section 11A. If the action taken or proposed to be taken was not with respect to ‘discipline’ then it does not matter if the Fire Brigade’s actions were reasonable or unreasonable. Control of the Fire Brigade’s cars and decisions about who was entitled to use them, and in what circumstances, was clearly a management issue. Ms Whatman said as much in her note of 12 December 2005 quoted at [64] above. Whilst the decision was influenced by Mr Jurgeit’s understanding about the restrictions under which Mr Dennis was working under his return to work plan, nothing about that plan made the decision ‘action taken or proposed to be taken with respect to discipline’.
A consideration of the facts in Kushwaha reinforces the above conclusion. In that case the conduct complained of as coming under the term ‘discipline’ consisted of adverse reports about the worker by her supervisors concerning her conduct, poor communication and lack of diligence. In dealing with those issues Judge Neilson said at [154]:
“I have no hesitation in finding that the process adopted by the respondent, of drawing the applicant’s unsatisfactory work performance to her attention, in asking her to improve that performance, of suggesting ways that could achieve that end, of offering assistance and or training was ‘discipline’ using the wider sense of that word. Accordingly, the respondent has made out a defence under s 11A.”
There is no suggestion of any unsatisfactory work performance in the present matter. The decision to deny Mr Dennis that use of a car on 9 December 2005 was purely a management decision that did not involve any instruction or chastisement.
Further, the Arbitrator’s assertion at paragraph [64] of her Reasons that there was no independent evidence that Mr Jurgeit acted unreasonably incorrectly reversed the onus of proof on this issue. The employer carries the onus of establishing all elements under section 11A and it was not for Mr Dennis to prove that Mr Jurgeit acted unreasonably.
The defence under section 11A has not been established.
Finally, in cross-examination counsel for the Respondent Employer suggested that Mr Dennis had deliberately set himself up “in order to encourage a confrontation” with Mr Jurgeit (T36.37). This question was disallowed after objection by counsel for Mr Dennis but counsel for the Respondent Employer made submissions to the same effect at T44.8. Whether the Arbitrator was influenced by this submission is unclear. Her Reasons at paragraph [64] merely refer to Mr Dennis having put himself in a position on 9 December 2005 that would “bring him into direct conflict with Mr Jurgeit”. I do not understand that finding to have been an acceptance of a proposition that was disallowed in cross-examination. Needless to say counsel for the Respondent Employer should not have addressed on the matter in circumstances where cross-examination had been disallowed. In view of the findings I have made above, however, it is not necessary for me to rule on this issue.
CONCLUSION
In view of the significant credit issues raised in this matter and the uncertainty surrounding whether Mr Dennis was permitted to carry out unsupervised inspections as at 9 December 2005, it is not appropriate for me to conduct the re-determination of this matter that is now required. In addition, it would be prudent for the parties to consider whether further evidence needs to be called on the issues I have discussed above (excluding section 11A) and on the question of ongoing incapacity. The appropriate course is for the matter to be remitted to a different Arbitrator for the matter to be re-determined in accordance with the reasons in this decision and that is the course I propose to adopt.
DECISION
The Arbitrator’s determination dated 31 October 2006 is revoked and the following order made:
“The matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal. Costs of the first Arbitration are to follow the result of the second arbitration.
Bill Roche
Deputy President
31 July 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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