Dickens v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dickens v Westpac Banking Corporation [2025] NSWPIC 492
APPLICANT:	Viisti Dickens
RESPONDENT:	Westpac Banking Corporation
MEMBER:	Fiona Seaton
DATE OF DECISION:	19 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted psychological injury; defence under section 11A(1) raised with respect to retrenchment; weekly benefits and treatment and related expenses disputed; Held – the respondent has not discharged its onus of establishing on the balance of probabilities the applicant’s accepted psychological injury was wholly or predominantly caused by reasonable action taken by or on its behalf with respect to retrenchment within the meaning of section 11A(1); weekly benefits and medical expenses payable.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant sustained a psychological injury pursuant to s 4 of the Workers Compensation Act 1987 (1987 Act) deemed to have occurred on 22 March 2022. 2. The respondent’s actions with respect to retrenchment were not reasonable within the meaning of s 11A of the 1987 Act. 3. The respondent has not discharged its onus to establish a defence pursuant to s 11A of the 1987 Act. 4. The respondent is to pay the applicant weekly benefits compensation for the period 22 March 2022 to 17 September 2024 pursuant to ss 36 and 37 of the 1987 Act. 5. The respondent is to pay the applicant’s reasonably necessary medical or related expenses pursuant to s 60 of the 1987 Act. The Personal Injury Commission orders: 1. The respondent is to pay the applicant weekly compensation pursuant to ss 36 and 37 of the 1987 Act at the maximum weekly compensation amount in accordance with s 34 of the 1987 Act as indexed for the following periods: (a) 22 March 2022 to 10 July 2022 - no current capacity; (b) 11 July 2022 to 24 July 2022 - current work capacity 25.6 hours per week; (c) 25 July 2022 to 30 November 2022 - no current capacity; (d) 1 December 2022 to 30 April 2023 - current work capacity 15 hours per week (2 days); (e) 1 March 2023 to 9 January 2024 - current work capacity 7 hours per week; (f) 10 January 2024 to 7 February 2024 - current work capacity 28 hours a week; (g) 8 February 2024 to 3 April 2024 - current work capacity 37.5 hours per week; (h) 4 April 2024 to 28 April 2024 - current work capacity 3 hours per week; (i) 29 April 2024 to 8 August 2024 - no current capacity; (j) 9 August 2024 to 7 September 2024 - current work capacity 22 hours per week; and (k) 8 September 2024 to 17 September 2024 - current work capacity 23 hours per week. 2. The respondent is to pay the applicant’s reasonably necessary medical or related expenses pursuant to s 60 of the 1987 Act on production of accounts, receipts and/or Medicare notice of charge. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Viisti Dickens was employed by the respondent as Executive Manager in its Environmental, Social and Governance (ESG) Program from 15 November 2021 until
27 May 2022 when she was made redundant.
The applicant lodged a worker’s injury claim form on 11 October 2023 with respect to a psychological injury due to the unreasonable actions of the respondent and the workplace environment prior to, during and following medical leave.
A notice of dispute pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) was issued on 19 October 2023 as no formal diagnosis of the applicant’s condition had been made, and the available evidence indicates any condition was wholly or predominantly caused by actions taken by the respondent with respect to retrenchment and/or dismissal pursuant to s 11A of the Workers Compensation Act 1987 (1987 Act).
A further dispute notice was issued on 1 February 2024 withdrawing the primary injury dispute relying on the opinion of Dr Young, independent psychiatrist, but otherwise maintaining the s 11A defence.
The dispute was maintained on 23 May 2024 following internal review. A further dispute notice was issued on 20 June 2024, a further internal review outcome was issued on 15 November 2024, a fourth dispute notice was issued on 3 January 2025 and a fifth on 1 May 2025. Prior proceedings were discontinued in the Personal Injury Commission (Commission) on 22 October 2024 and 31 March 2025.
The applicant lodged an Application to Resolve a Dispute in the Commission on 8 May 2025 for psychological injury with date of injury 22 March 2022 claiming weekly benefits and medical expenses.
The dispute was listed for conciliation conference and arbitration hearing on 4 July 2025.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to retrenchment pursuant to s 11A of the 1987 Act;
(b) the extent and quantification of the applicant’s entitlement to weekly benefits pursuant to ss 36 and 37 of the 1987 Act; and
(c) whether the applicant is entitled to the payment of medical expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 4 July 2025 in Sydney. Mr William Carney appeared for the applicant instructed by Mr Khris Narsimullu, legal representative. Mr John Gaitanis appeared for the respondent instructed by Mr Rahul Balan, legal representative. Mr Anota was also present.
During conciliation the applicant’s Application to Lodge Additional Documents dated
24 June 2025 was admitted.
Agreement was unable to be reached to resolve the claim during conciliation. I am satisfied 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 the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties requested the matter be determined ‘on the papers’ and having determined this was the appropriate course to take in these proceedings, directions for submissions were made on 4 July 2025. Submissions have since been lodged with the Commission.
I am satisfied sufficient information has been supplied in connection with the proceedings so that a determination of the issues in dispute may be made without holding a hearing in accordance with s 52(3) of the Personal Injury Commission Act 2020 and Procedural Direction PIC2.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s Application to Lodge Addiitonal Documents dated 24 June 2025 and attached document;
(d)    applicant’s written submissions dated 25 July 2025;
(e)    respondent’s written submissions dated 8 August 2025; and
(f)    applicant’s submissions in response dated 15 August 2025.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicant’s evidence

The applicant relies on her statements signed on 9 July 2024, 16 October 2024,
28 March 2025 and 11 April 2025.
The applicant was employed as Executive Manager, ESG by the respondent for program management office set up across seven workstreams as well as governance and implementation.
She has more than 20 years proven experience in program management and implementation.
During the interview process between August and September 2021 for the role with the respondent, its Chief Sustainability Officer made representations to the applicant that the role was ongoing for 18 to 24 months, reconfirmed by email on about 17 January 2022 when the Chief Sustainability Officer said she would continue in her role to support program management for the ESG program with a change in the reporting line.
Immediately prior to commencing with the respondent the applicant was diagnosed with two separate conditions, Hashimoto’s/thyroid autoimmune disease and fibroids.
The applicant acted in the roles of Program Management Officer (PMO) and Program Director (PD). Before her medical leave the applicant was asked to do executive assistant work booking meetings as well as PMO, PD and Executive Manager ESG Program work simultaneously, which are large workloads.
For three to four weeks during December 2021 and January 2022 the applicant acted as both PD and Executive Manager ESG Program with no additional pay or reward.
The applicant had been working across seven workstreams including those directly engaging with key business stakeholders, data and the net zero program but immediately before taking medical leave she was put on change and communications streams by Ms Ludgate. She did not agree to this and felt forced into this new role.
The applicant moved her planned surgery date from January to February 2022 to accommodate her team and program delivery requirements, and she took on extra work during that time working in two roles simultaneously. She worked until 9.00pm the night before her surgery and long hours in the weeks prior to it.
She interviewed a candidate as a temporary contract backfill for her role while she was on medical leave. A new role was created which she was not made aware of until her redundancy notification and a direct appointment was made to the additional role with the same job title after her redundancy notice.
A third program management role was added to start on 28 March 2022 the day before the applicant’s medical leave and the applicant was not aware of that role being created or approved as an ongoing role. She thought it was meant to be a temporary backfill via a consultant or contractor subject to additional funding approval.
Her failure to be redeployed by the respondent was unreasonable as there were directly comparable roles of Program Director, Executive Manager ESG Program, and Program Manager. None were made available to her during the redeployment process yet others were directly appointed to those roles.
On 22 March 2022 the applicant was informed she was made redundant.
Two additional roles were created and directly appointed during the six to eight week redundancy notification period; Executive Manager ESG Program (the same job title as the applicant’s original role and PD), and Program Officer. Neither role was disclosed to the applicant or offered to her.
The Executive Manager ESG Program role that commenced in May 2022 during her deployment period was directly comparable to her previous role. She asked the respondent several times to be considered for that role and she was refused.
The restructure was not a genuine cost saving as the same comparable roles were re-hired and the team expanded, not reducing from three to two roles as alleged.
The applicant reached out internally for roles and was told they were already filled despite being the advertised roles provided to her by Mr Spratt and other internal referral. She asked Mr Spratt, Ms Ludgate and the human resources representative why she was not offered equitable treatment for comparable roles for which she had relevant skills and experience, including the new Executive Manager for ESG Program role. She was not consulted about or invited to apply for any of the 3.3 program roles which all commenced prior to 25 May 2022. She did not decline any roles.
Shortly after she completed her redeployment in late May 2022 additional roles commenced in the ESG and Sustainability team – Executive Manager, Sustainability Disclosures, Senior Manager, ESG Program and Head of ESG Business Integration from April 2023. The applicant was never offered and believes she was excluded from these roles by the respondent.
The applicant sets out a number of her concerns about the examination held with Dr Young, independent psychiatrist.
The applicant suffered from mental distress, depressed mood, feelings of poor treatment and injustice, acute anxiety and hospital presentations, social withdrawal and difficulty sleeping, as well as hair loss, irritable bowel, shoulder and back pain, chest pain and headaches.
She commenced a mental health care plan in April 2022 and saw a psychologist. Her mental health symptoms delayed her recovery from surgery.
In July 2022 the applicant did eight days teaching at UTS and had no further work for four to five months from July and August to December 2022. In December 2022 she taught at UTS for around two days full time equivalent and continued teaching in March 2023 for four to six hours across two to three days per week for that semester. She commenced consulting work on about 8 January 2024 for about 28 to 30 hours a week increasing to nine days a fortnight from February 2024 to about 3 April 2024.
The applicant continues to experience severe symptoms, poor mood and anxiety and physical impacts. The way she was treated by the respondent, used then tossed out because of her medical conditions, and the respondent responding with inaccurate responses has caused her injury and impacted on her recovery.
In her second statement the applicant describes becoming aware of pursuing a workers compensation claim, which is not in issue in these proceedings.
In the detailed statement of 28 March 2025 the applicant responds to statements provided by Mr Thomas Spratt, Ms Allie Bridge and Ms Ronna Ludgate.
Her work as Executive Manager, ESG for four months was 95% program management work which was ongoing and never stopped. She discussed with her previous manager Ms Turner and then Ms Ludgate that her role was to be backfilled while she was on medical leave by short term contractors, Mr Maxwell then following his resignation by Mr Bhovar, with the intention she would return to work after four to six weeks medical leave.
Ms Ludgate changed her role to be a significantly smaller remit to focus on change and communications immediately prior to her medical leave, about which she complained at the time.
Instead of her role being backfilled during her medical leave it was cut and replaced.
She was not provided with reasonable time to respond during the consultation period, less than two working days while she was on medical leave.
The decision had already been made to cut her role which was unreasonable and unjust during her medical leave and the redundancy process was not fair at all.
The organisation chart circulated during the redundancy consultation showed two team members at the time of the restructure in February 2022; her role of Executive Manager, ESG Program and Ms Amber Rowland’s role of Program Director. At the time of her retrenchment it increased to 3.3 people including the appointment of an Executive Manager, ESG Program.
The applicant was fully capable of performing any of the three roles and was not provided with an opportunity, never having refused them as the respondent says.
The additional Executive Manager ESG role, directly comparable to the applicant’s role, was directly appointed in May 2022. She was not offered an opportunity to apply for the role.
She describes not being provided with any job descriptions by the respondent, and only junior and non-comparable role descriptions have been provided. A significant number of roles provided to her were at final stages, unsuitable or already directly appointed.
In the CTO (I understand this to be Chief Transformation Office) and ESG Program team the applicant was the only one retrenched and not directly appointed. Ms Ludgate, Ms Rowland, Ms Vasudeva, Mr Bhovar and Ms Molina were directly appointed.
The applicant sets out detailed responses to the statements of Mr Spratt, Ms Berridge and Ms Ludgate which will be referred to where relevant. Annexures to the statement include the Executive Manager ESG Job Description, the applicant’s curriculum vitae (CV), emails and correspondence.
One annexure is an email from Ms Siobhan Toohill, Group Head of Sustainability for the respondent, dated 27 January 2022 providing an update on the ESG Program and changes in the ESG Program team effective from 31 January 2022. It includes “Viisti Dickens will work with both Amber and Ronna to support ESG change and project management.”[1]
[1] ARD page 53.
There is a text message on 16 March 2022 from Ms Ludgate hoping the applicant is recovering well and asking if she is able to make the meeting in her diary for the next day at 11.45am re structure.
In her statement of 11 April 2025 the applicant describes her efforts to respond to three new respondent witness statements attached to the respondent’s s 78 notice of January 2025.
In the applicant’s response to the further witness statements provided by the respondent with its reply dated 23 June 2025, she expresses concerns about the further statements and describes what she views as being inconsistent or contradictory.
The applicant says she never complained about doing any project management work to Ms Ludgate. She had been performing 95% program management work in her role and the work was required and ongoing with a requirement to backfill her role while on medical leave.
Mr Bhovar was appointed to a new role of Program Manager on 24 February 2022, the day before the applicant went on medical leave and he was not available to commence in the role until late March 2022, at which time the applicant expected to be back at work. There is no statement provided by the respondent from Mr Bhovar.

Other documents

Other documents with the ARD include the Executive Manager, ESG Program Job Description dated 21 July 2021, various email chains, ESG Program slides, emails regarding the applicant’s ex gratia sick leave, the applicant’s Complaint to the Australian Human Rights Commission dated 25 November 2022 and the respondent’s written response of
6 September 2023, the applicant’s claim form and various dispute notices and requests for internal review.
The applicant’s email to Ms Berridge dated 21 March 2022 sets out a timeline of events in her request for a deferment of the four week deployment period;
(a)    she joined the respondent on 15 November 2021 with her contract stipulating a requirement to remain in the role for a minimum 18 months, reinforced during the interview process;
(b)    the applicant moved across in good faith from another full time role at another organisation incurring financial loss by way of lost bonus of 30% of on par salary;
(c)    during the interview process the applicant was informed the requirements of the role were being re-defined and would include a focus on program management as well as change and communications, she requested an updated job description stipulating the role focused on program management, governance and stakeholder engagement across all workstreams and across the business (which is what interested the applicant);
(d)    she was shocked to find in December 2021 she had some very unexpected medical issues which required surgical intervention and she informed her then manager on 17 December 2021 and human resources on 20 December 2021;
(e)    in response to her reinforcing she intended to continue working post-surgery and her concern not to let the respondent down given the scope of the work and size of the team, she was verbally assured her role and work would be ongoing;
(f)    after the three week shutdown over Christmas 2021 (two of which were unpaid as the applicant had no accrued annual leave) there was a week of informal changes to the ESG program which were formally communicated on 25 January 2022;
(g)    the applicant informed her managers her date of surgery was tentatively
28 January 2022 which was then deferred to 25 February 2022;
(h)    on 15 February 2022 changes to the Sustainability team were announced and the applicant enquired and was told the intent was for the team to remain intact but with a different reporting line;
(i)    it was discussed and agreed before she went on medical leave that her role would be backfilled on a short term basis as she was to continue working on the ESG program post-surgery;
(j)    in good faith the applicant interviewed Mr Bhovar for what was clearly communicated to her as an additional Project Officer/PM role (not a replacement for her role);
(k)    following completion of a key deliverable the applicant went on medical leave on 25 February 2022;
(l)    she was notified her role was being made redundant on 17 March 2022 while on medical leave, and
(m)     Mr Bhovar was confirmed as Project Manager from 29 March 2022.

Ms Berridge’s email to the applicant on 6 April 2022 advises the applicant had received 12 days of ex gratia sick leave until 5 April 2022 and any further leave would be unpaid sick leave. If she was unable to return to work on 6 April 2022 any deployment would be delayed.

Dr Peter Young, independent psychiatrist

On 22 January 2024 Dr Young, qualified by the respondent, reports the applicant is currently certified as fit to work seven and half hours per day, four days per week and she has been working part time at 28 to 30 hours per week.
Dr Young took a history of the applicant being psychologically well and asymptomatic when she commenced working for the respondent in November 2021. After commencing in the role there was a very high workload however she experienced no significant psychological stress or problems in relation to that aspect of her work.
Shortly after commencing the applicant attended an annual check up and was found to have further fibroids, she was diagnosed with Hashimoto’s thyroiditis and she required surgery. She had a period of leave over the Christmas closure and returned to work in January when she covered two positions. She had good feedback on her performance and was fine mentally. She worked full time with overtime until her last day of work prior to surgery on
24 February 2022 and she anticipated returning to work in four to six weeks, possibly involving some part time work from home.
Dr Young takes a history of the restructuring discussions, her initial surprise and shock, her unsuccessful application for an internal role and that she was made redundant while on medical leave.
The diagnosis made by Dr Young is of adjustment disorder arising out of and in the course of her employment with the respondent which is a substantial contributing factor. There is likely a minor contribution due to predisposition shown by a history of previous psychological symptoms and concurrent general health issues. Dr Young apportions 70% to employment with the respondent, 20% to non-work factors, and 10% to pre-existing factors.
Dr Young comments that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by the respondent with respect to her redundancy and retrenchment.
It is appropriate that the applicant is certified as fit to work 30 hours per week in a role somewhat less complex than her pre-injury duties. There is a degree of symptom exaggeration indicated in Dr Young’s opinion.
On 4 June 2024 Dr Young’s supplementary report comments on Dr Neale’s assessment. Dr Young generally agrees with Dr Neale’s assessment and opinion, and he agrees that the applicant could return to an equivalent pre-injury role.

Dr Stuart Morris, treating general practitioner

Dr Morris reports on 17 January 2024 the applicant’s mental health was severely impacted by being made redundant while on medical leave, and she was expecting to go back to her job based on verbal agreements before going on medical leave.
Dr Morris referred the applicant to Ms Catt, psychologist, in April 2022 and from
January 2024 to Ms Chai, psychologist. The applicant attended the emergency department on three separate instances in July 2023 with chest pain and she was diagnosed with panic attacks, confirmed by a cardiologist.
In Dr Morris’ opinion the conduct of the respondent alleged by the applicant has severely exacerbated her pre-existing anxiety, and there are new diagnoses of panic disorder and workplace induced post-traumatic stress disorder.
The clinical Records of Dr Morris are with the ARD.
Dr Morris’ certificates of capacity for date of injury 22 March 2022 include diagnoses of exacerbation of work-related stress, anxiety and insomnia (psychological injury), possible new panic disorder and workplace induced post-traumatic stress disorder.
Dr Morris certifies the applicant as having the work capacity as follows;
(a)    10 October 2023 to 9 January 2024 4.5 to 7 hours per week;
(b)    10 January 2024 to 7 February 2024 28 hours per week;
(c)    8 February 2024 to 3 April 2024 37.5 hours week over a 9 day fortnight;
(d)    4 April 2024 to 1 May 2024 3 hours per week;
(e)    29 April 2024 to 8 August 2024 no current capacity;
(f)    9 August 2024 to 7 September 2024 maximum 22 hours per week, and
(g)    19 September 2024 to 6 December 2024 maximum 23 hours per week.

Ms Vyda Chai, clinical psychologist

On 12 March 2024 Ms Chai takes a history of post-traumatic stress disorder and panic attacks following workplace stress and redundancy while recovering from major surgery during medical leave in February 2022, and she describes her treatment.
On 1 October 2024 Ms Chai reports symptoms following significant workplace stress and redundancy by the respondent while recovering from major surgery during medical leave in February 2022.
On 16 November 2024 Ms Chai confirms she has treated the applicant since
10 January 2024. Ms Chai diagnoses post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder.
The workplace-related trauma and subsequent redundancy have had a profound impact on the applicant’s ability to maintain consistent employment in Ms Chai’s opinion. Ongoing care is essential to her recovery process.

Wage and medical expenses documents

The applicant has provided a Wages Schedule from 22 March 2022 to 17 September 2024 including the maximum capped amount of $2,282.90 with pre-injury average weekly earnings of $4,805.44, and a total loss of $198,187.13.
The medical expenses schedule totals $7,842.20 for general practitioner and psychologist consultations with accounts and receipts provided.
The applicant’s post 2020 tax records and individual tax returns for 2022 to 2024, and income statements from the respondent, UTS and BDO are with the ARD, along with the respondent’s payslip of 2 June 2022, Retrenchment Payment Schedule and letter of retrenchment and certificate dated 27 May 2022.

Respondent’s evidence

The various s 78 notices and s 287A internal review notices are relied on by the respondent as well as Dr Young’s reports of 22 June 2023 and 4 June 2024 referred to above.
The s 78 notice of 3 January 2025 is attached to the reply and includes the following respondent’s witness statements.

Mr Thomas Spratt, senior career transition consultant

There are two statements of Mr Thomas Spratt dated 6 November 2024 and 20 May 2025.
In his statement of 6 November 2024 Mr Spratt describes being assigned as the applicant’s dedicated consultant for redeployment support once it was confirmed her position was to be made redundant. All correspondence was via phone, email or MS Teams.
The applicant was Executive Manager, Change and Communications – ESG and Mr Spratt has no detailed understanding as to the specific role deliverables. Her direct manager at the time was Ronna Ludgate and Allie Berridge was the head of human resources for the Business Unit.
The applicant was provided with a four week period of redeployment commencing on
26 April 2022, following extensions due to medical leave, in which to identify and secure another role internally, the standard timeframe across the respondent’s group.
It is important for an employee to drive an internal role search. Mr Spratt sent an initial email to the applicant on 26 April 2022 with a redeployment overview and support materials and requested a convenient time to meet to discuss support available, answer any questions and to understand her preference of outcome.
On 2 May 2022 Mr Spratt sent a follow up email requesting a convenient time to meet and a meeting was held on 3 May 2022. The applicant was open she had been away unwell and was clearly emotional regarding the restructure and quite vocal as to feeling a lack of support. He confirmed the applicant was aware of the Employee Assistance Provider (EAP).
It was clear the applicant’s interests lie within ESG and she wanted to continue in the role she was recruited for. There was a limited appetite at that time for roles outside ESG.
A further discussion was held on 6 May 2022. Mr Spratt sent a tailored list of 15 current open roles to the applicant on 11 May 2022 with instructions on the next steps if she was interested in applying. There were no active hiring requirements within ESG and the positions were roughly aligned with current remuneration plus where transferable skills could certainly be considered.
Mr Spratt advised the applicant he would liaise with the internal recruitment team and/or hiring managers to ensure a fast tacked recruitment process for a positive experience.
On 13 May 2022 the applicant requested further information on four roles and role descriptions and anticipated salary information as provided. The applicant opted not to progress with any of those roles.
On 17 May 2022 the applicant applied for a role ‘Strategy and Design Lead’ but following an interview that ultimately did not progress.
Mr Spratt requested an extension of the redeployment period which Ms Ludgate supported and it was extended to 27 May 2022.
On 24 May 2022 the applicant enquired about two roles in the ESG Program and Mr Spratt relayed the enquiry to Ms Ludgate. It was confirmed that both roles were materially different from the applicant’s role and one of the role options was in fact offered to the applicant for consideration however she declined to proceed.
On 24 May 2022 Mr Spratt sent some further internal roles to the applicant to consider, newly appointed secondment opportunities of between 6 and 12 months and about $20,000 below her current salary and she opted not to progress with those options.
Mr Spratt does not agree the manner in which the applicant’s redeployment process was facilitated was unreasonable; she was contacted on day one, provided with all relevant support tools for review and an external provider was engaged to provide one on one career coaching support to update her resume and LinkedIn etc; she was emotional following restructure and she was encouraged to connect with the EAP, her primary focus was to secure an ongoing role within ESG or nothing at that time, she was urged to widen her view with a commitment to fast track the next stages, she did widen the type of role she would consider, she did not proceed with the 15 roles he collated, she did later submit an application and he liaised with all parties to secure an extension to her redeployment end date.
In a further statement dated 20 May 2025 Mr Spratt responds to the applicant’s statement commenting on his first statement.
Mr Spratt confirms he is unable to advise on opportunities provided for comparable roles within the CTO which are reviewed and actioned by her Business Unit. The applicant was very discontented with the organisational change and redundancy and felt her leadership team and head of human resources were responsible for this, but he does not recall her specifically calling this out regarding Ms Ludgate. Whether she was offered a Senior Project Manager role in the ESG program at any time is for her Business Unit to answer.

Ms Allison Berridge, head of human resources, corporate services

There are two statements of Ms Allison Berridge dated 8 November 2024 and 20 May 2025.
Ms Berridge knew the applicant from late January 2022 when she advised and consulted on the organisational change which impacted her role as part of the group wide changes.
The restructure was announced in very late February 2022 effective on 1 March 2022 with over 1,200 roles impacted.
The applicant was provided with a consultation period around the decision made to the structure and the roles required within the applicant’s team. A standard consultation pack and PowerPoint consultation pack are used to outline the rationale and reasons for the change. Structure charts are provided showing the current structure, the impacted roles and a new structure chart. There is then a timeline of when they will consult with employees and seek their feedback.
Ms Berridge and Ms Ludgate spoke with the applicant many times through the consultation process to explain this at length repeatedly, getting the same questions and giving her the same feedback.
Ms Berridge is not able to provide a description of the applicant’s role and work duties off the top of her head but the position title was an executive manager level role in Change Communications for the ESG program. An executive manager role is reasonably senior, a level below a Head of level role that reports to general managers that report to group executives that report to the CEO.
Leading seven streams in corporate services Ms Berridge had a very consistent process in place to make sure she was organised across each stream. The first aspect was around functional alignment of roles which affected the applicant’s role within Group Sustainability, and the second aspect was of course cost efficiency and a reduction of the number of roles sought across the group.
In an ideal world it would be lovely to have all three roles of program director, another PMO style role and change and communication stakeholder management role, but on a prioritisation basis based on the financial target they could only retain two roles not three.
The applicant’s change and communications position was not prioritised. Of course it would have been nice to have that continue through the whole of the project but it was slightly more desirable rather than essential at that point. The decision maker in this process was Ms Ludgate.
Ms Berridge describes the consultation pack, a really simple format that steps through and makes sure they meet their Enterprise Agreement obligations, a communications plan, a run sheet scheduling meetings to make sure they have conversations with staff.
There were talking points with the applicant to explain why the changes are occurring across the group and that her role is impacted, and her feedback was sought around implementation of changes.
The overall changes were announced on 15 February 2022. The conversation with the applicant was held on 17 March 2022 when she was provided with the consultation pack and structure chart and had the opportunity to provide feedback by 21 March 2022.
Ms Berridge recalls the applicant was very aggrieved through the process and kept asking why she was not appointed to another role. She had previously declined that role because she did not want to do that type of work so Ms Berridge had a number of conversations with her.
Ms Berridge understood she had previously communicated to Ms Ludgate that she was not interested in doing project management and she had declined a separate PMO role. She was not interested in doing project management and project management governance. She said she did not want to move into that role and wanted to remain in change and communications so somebody else was appointed to that role.
The applicant was actually involved in the recruitment of that role and agreed that the person placed in that role was a good candidate. Obviously then sometime later these changes then occurred and the applicant turned around and said why can’t I be appointed to that role and we said well, you didn’t want to do it and we have appointed someone else. Ms Berridge is not sure she would have had the right skill for that role anyway.
The applicant asked repeated questions and there was a lot of back and forth and she was not accepting any of the responses.
They obviously cannot pause consultation because one person is on leave. The applicant was available for the scheduled phone call and they did not spring the change on her or not tell her or anything like that, she was certainly consulted with.
The applicant was on ex gratia leave during the consultation period, generously supported by her leaders especially as she had only been with the group for about two months at the time, and she received paid leave in advance. Ms Berridge suggested to the leaders they were possibly being too generous. This was well over and above being a kind supportive leader.
The standard group approach is four weeks redeployment and hers was put on hold as she was on leave but she continued to be unwell for quite a number of weeks and her leave continued to be extended until they got to the point they were unable to continue to support ex gratia leave. If you are on unpaid sick leave that is fine.
The applicant returned to work at some date and commenced redeployment that was extended. Ms Berridge was not directly involved in the redeployment.
Ms Berridge describes the redeployment process. The applicant had that extended by one week because she had an application in progress but she was unfortunately unsuccessful. The final stage is retrenchment.
The applicant was not considered for the two ESG roles filled by Ms Vasudevan and Ms Molina as these were at notably lower levels than the applicant’s level 6 role. The program manager role is level 5, about 20% less in salary, and she had previously indicated she was not interested in performing a project management role so it is not comparable. The portfolio manager’s role is actually a level 3 role, about 40% less in salary than level 6, and very different work and remuneration.
The manner in which the applicant’s redeployment and redundancy was facilitated was not unreasonable. It was completely in line with the enterprise agreement and processes.
In her further statement of 20 May 2025 Ms Berridge says it is incorrect that the ESG team expanded form two roles to three. The new structure chart shows the Project Manager role which had not yet commenced which is why it was not reflected in the ‘current’ structure chart.
The Program Manager role was required so it was retained in addition to the Program Director role but this was not the applicant’s role or responsibilities as she had previously advised that she did not wish to do that work which is why another role was recruited.
The structure change was seeking cost efficiency and to reduce the number of roles.
The applicant had three not two business days for the consultation period and this was not unreasonably short, being in line with the enterprise agreement and standard business processes. All employees had the same consultation duration.
The two roles the applicant continues to refer to where employees were directly appointed were not comparable roles.
The Executive Manager ESG Program role had the same title but was a level 5 with lower remuneration and different responsibilities.
Ms Berridge says the applicant’s role was not EM ESG Program doing program management but EM Change and Communications.
Ms Berridge says again that the applicant had advised Ms Ludgate that she was not interested in doing project management, had declined a separate PMO role and confirmed her preference to remain in change and communications.
An additional role was recruited into the team in February 2022. Mr Bhovar commenced in March 2022 however the role was already offered and accepted hence was considered part of the size of the team. The responsibilities of that role were project management which the applicant did not want to do hence the appointment of the role.
They were then required to reduce roles which was not known at the time of that appointment. This does not change the applicant’s position being made redundant.
Whether the applicant believes she was capable of performing other roles and not provided with the opportunity to apply is not relevant as the roles were not vacant and that is why she did not have the opportunity to apply.
The Executive Manager ESG role appointed in May 2022 is not directly comparable (not being the same role level and remuneration). The applicant’s personal perception that she had suitable skills for this role is not relevant.
Ms Berridge notes Mr Bhovar was appointed before it was known the number of roles would be reduced and the applicant was involved in the recruitment process as she did not want to do that work.

Ms Ronna Ludgate, head of BT transformation

There are two statements of Ms Ronna Ludgate dated 12 November 2024 and 20 May 2025.

On 12 November 2024 Ms Ludgate describes that when she worked in her role in
January 2022 the applicant was in the role of Executive Manager Change and Communications for the ESG program, with requirements of integrated change and communications plan for internal and external stakeholders and developing and driving the governance and implementation of the ESG plan.
At the time the applicant said she preferred not to do the program management and administrative side and wanted to focus on change and comms, so they agreed to change the role to focus more on that. They assumed at that time they would run the change and comms centrally but that later changed. Each business area is very bespoke and different and they wanted this built into their in-house training centre. The applicant’s role was not required anymore.
The group change was announced in February 2022. This was a completely new team for the respondent and adjustments need to be made as things change and mature. The applicant had been leaning in and doing a bit of both program manager and change and comms.
On 16 February 2022 Ms Ludgate had a discussion with the applicant about the change and soon after that she went on leave. She told her she could not guarantee keeping both the PMO and the applicant’s role and the applicant said her preference was not the PMO role if only one role could be maintained. Ms Ludgate inferred she was not interested in the PMO role so she offered it to someone else.
The applicant was on medical leave from 25 February 2022 to 26 April 2022. They had someone else supporting in that role while she was on leave.
The change was announced while she was on sick leave. Ms Ludgate contacted her and she had the opportunity to be part of the consultation. There were 1,200 people included in the change, this was not just about the applicant, and they could not hold it back for one person who happened to be on medical leave.
The two new roles commenced in the ESG area on 23 May 2022 were not directly comparable to the applicant’s role so they did not think they had any obligation to offer them to her. One was a very junior role and the program manager role was again relatively junior but also the applicant said she did not want that role and it was not about change and comms.
The applicant went through a standard process that everyone who gets made redundant goes through however because she had been on sick leave they actually ended up providing her with a four week extension to commence redeployment until she was fit to return to work. She was provided with an additional 12 days of ex gratia paid sick leave. Her redeployment period was extended by another week as she was hoping to get a role so she was paid again for another week.
Ms Ludgate would say they did substantially more than what they would do for anyone else in that situation.
In her further statement of 15 May 2025 Ms Ludgate recalls the applicant complaining about doing any project management work before going on medical leave and so that type of work was removed from her responsibilities and her role was made purely a change and comms type role.
The ESG team expanding to 3.3 roles is not about the number of roles but the type of roles required. The applicant’s role was no longer required and the only roles available were more junior or administration roles which she had indicated previously she did not want.
The applicant was absolutely given an opportunity to be directly appointed to comparable roles within the CTO and worked with a transition consultant.
They were very generous and very flexible around continually moving her return date from medical leave in line with her medical leave requirements without question.
There was only a Project Manager role in ESG, not a senior project manager role, and as she did not want to be a project manager she was not offered that position.
The Executive Manager ESG Program role was not a comparable position and she did not want to do project management.

Applicant’s submissions

The applicant’s written submissions form part of the Commission’s record. These are summarised below.
The applicant’s claim arises from the following events that occurred in her employment with the respondent;
(a)    on 17 December 2021 she informed the respondent she needed sick leave to have surgery unrelated to her work;
(b)    she had been performing well in her role and performance was not an issue;
(c)    in early February 2022 the respondent announced a business restructure in which 1,200 jobs would be lost;
(d)    on 6 February 2022 the applicant’s work duties were changed so that her seven work streams became three;
(e)    on 18 February 2022 in a one-on-one meeting with Ms Ludgate the applicant was told to copy all her files onto a shared drive, a series of future meetings were cancelled and the applicant believed she would not have a job when she came back from surgery scheduled for 25 February 2022;
(f)    while on leave the applicant was told the ESG program was to be restructured and her position made redundant;
(g)    over the next two months the applicant believed she would be offered a new role in the ESG Program which was ongoing but despite jobs on offer she was not offered any role despite representations made, and
(h)    other internal roles considered by the applicant for which she had the relevant skills and experience were already filled or not actually available.
The applicant submits the respondent has the onus of proof when assessing if it acted reasonably in relation to ‘termination’ and/or ‘discipline’ in its s 11A(1) defence. Reasonableness must be judged on all the circumstances that gave rise to the redundancy/redeployment which forms the basis of that defence with reference to Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [13] and [14].
The applicant contends the respondent acted unreasonably for the following reasons;
(a)    telephoning the applicant while she was recovering from an operation to tell her she was to be made redundant;
(b)    informing the applicant she needed to participate in a response to her job being cut not only while on leave but within two days;
(c)    not being offered jobs that were advertised or told of roles she could have done with no assistance provided in applying for jobs or considering the suitability of roles;
(d)    the respondent was aware at the time that the applicant was concerned about the redundancy and redeployment process;
(e)    numerous factual disputes concerning the respondent’s conduct during the redeployment process including as to whether she was offered a ‘project management job’;
(f)    conflicting information on cost reduction and team size reduction when an additional person was appointed to the team the day before the applicant’s medical leave, and
(g)    the more favourable treatment of others appointed to program management roles.
The applicant submits it is the whole of the respondent’s behaviour that amounts to unreasonable conduct and in reality the respondent had made up its mind to dispense with the applicant’s services, inferred from Ms Ludgate’s statement of 12 November 2024.
The respondent did not act reasonably towards the applicant in her submission in the redundancy/redeployment process and it has not discharged its onus in regard to the defence in s 11A of the 1987 Act.

Respondent’s submissions

The respondent’s written submissions form part of the Commission’s record. These are summarised below.
There is no dispute the whole or predominant cause of injury was the reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to retrenchment and/or dismissal pursuant to s 11A(1) in the respondent’s submission.
The sole issue to be determined is whether those actions or proposed actions were reasonable, requiring an objective assessment of the relevant action in the context of the circumstances and knowledge at the time.
The applicant’s submissions as to the ‘untruthfulness’ of witnesses relied on by the respondent ought to be disregarded as highly prejudicial and with no foundation in fact.
The respondent relies on the statements of Ronna Ludgate, Allie Berridge and Thomas Spratt as well as documents annexed to the reply, and submits the following in support of the reasonableness of the respondent’s actions;
(a)    the employer correctly initiated a consultation process after a business decision was made to effect significant redundancies across the organisation;
(b)    the restructure is a significant event and it is not plausible these events were constructed to manipulate the applicant out of her employment;
(c)    the applicant’s redundancy was genuine and legitimate, reflecting the business needs of the respondent;
(d)    although the applicant was on medical leave at the time the consultation process commenced it was not reasonably possible for that process to be delayed for the applicant;
(e)    failing to inform the applicant of the changes and not inviting her in the consultation process would have been more unreasonable in the circumstances, and
(f)    the respondent provided the applicant with significant support during her medical leave to facilitate and ease her back into work to commence the redeployment process.
The respondent submits the applicant’s redeployment process was conducted in a reasonable manner.
The applicant was offered roles to redeploy to within the organisation that were broadly commensurate with her remuneration and skills, as set out in the respondent’s witness statements.
It was not unreasonable for the applicant not to be redeployed into an ESG role as such roles were either unsuitable or not vacant, the respondent submits.
The respondent’s submission is that it is clear when considering the evidence that the applicant’s role was made redundant for valid reasons and the redeployment process was conducted in a reasonable manner. She was provided with a consultation pack, additional personal leave to accommodate a return to work, her redeployment was extended to reflect that, she was provided a career transition consultation to assist in redeployment, and with assistance with applications for redeployment.
In the circumstances the applicant’s subsequent retrenchment was not unreasonable where reasonable efforts were made to support and redeploy her.
As the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to her retrenchment and/or dismissal she is not entitled to the claimed compensation.
In relation to incapacity the applicant has the onus to prove she was incapacitated and when, and she cannot do so. She commenced employment at UTS on 11 July 2022 and as a consultant to BDO from 18 December 2023 to 12 April 2204. Dr Young’s opinion is she has capacity to perform her pre-injury duties and hours and there is no evidence disputing this. There should be an award for the respondent and a finding that incapacity is not made out.
Should the matter be determined in favour of the applicant a general order for medical expenses is appropriate.

Applicant’s submissions in reply

The applicant performed two management roles concurrently and demonstrated ability and capability as program director and program manager.
Mr Bhovar was appointed as Program Manager during the applicant’s medical leave without her knowledge, contrary to the respondent’s argument of cost cutting and redundancy.
The applicant refers to inconsistencies in the respondent’s witness statements and the failure to refer to information such as emails from the applicant. The respondent has not addressed the content of email evidence submitted where the applicant raised concerns and issues which were not addressed.
The applicant submits she has questioned and raised concerns about the way the process was applied to her particular case and she believes it was not a genuine redundancy process.
While the respondent witness says the applicant’s role was not required anymore, the evidence is that over 90% of tasks undertaken by her and the key areas of ‘program management’ were ongoing. The team had a further staff member added and increased from two to three.
The applicant also submits;
(a)    there is no evidence of ‘cost efficiency’;
(b)    it was unreasonable not to adjust the redundancy process to take into account the applicant’s sick leave, and the respondent failed to at least keep her fully informed, coupled with the lack of access she had to the ‘redeployment’ process Mr Spratt was undertaking;
(c)    the provision of sick leave cannot be said to have any bearing on the reasonableness or otherwise of the respondent’s actions;
(d)    the applicant was not given adequate time to respond to the redundancy package and no evidence has been provided to suggest redeployment;
(e)    there is no evidence the applicant’s sick leave and recovery period were considered when she was subjected to the redundancy process;
(f)    the applicant interviewed Mr Bhovar in good faith for a temporary role and was not advised in regard to any change in her role;
(g)    there is no evidence the applicant was told the jobs on offer in the ESG were junior roles or not suitable for her, and
(h)    the applicant’s and the respondent’s witness statements are inconsistent.
The applicant’s submission is the s 11A defence is not made out.
The applicant has had periods of employment since being made redundant but it has never been full time or consistent employment. The medical evidence supports her inability to work for a significant duration of time.

FINDINGS AND REASONS

Were the respondent’s actions reasonable with respect to retrenchment

Section 11A(1) of the 1987 Act is as follows:
“(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.”
It is not in dispute that the applicant has sustained a psychological injury that was wholly or predominantly caused by action taken by the respondent with respect to retrenchment.
The sole issue to be determined as the respondent submits is whether the actions taken with respect to the applicant’s retrenchment were reasonable, which requires an objective assessment of the relevant action in the context of the circumstances and knowledge at the time.[2]
[2] Northern NSW Local Health Network v Heggie [2013] NSWCA 225 (Heggie).
In Commissioner of Police v Minahan[3] Foster AJA cited with approval a passage from Irwin v Director-General of School Education which includes that the test of reasonableness is less demanding than the test of necessity but more demanding than the test of convenience.
[3] [2003] NSWCA 239 at [27].
The principles set out in Heggie regarding the application of s 11A include that the respondent bears the burden of proving the action was reasonable, and the entire process involved in the retrenchment may be considered. It is not enough that the employer believed in good faith the action that caused the psychological injury was reasonable, or even that it believed it was compelled to act as it did.
Any individual blemishes within the retrenchment process will not mean the applicant’s retrenchment was not ‘reasonable action’, as a course of conduct may be ‘reasonable action’ even if particular steps are not.[4]
[4] Department of Education & Training v Sinclair [2005] NSWCA 465 at [97].
Actions with respect to the applicant’s retrenchment include informal discussions on a restructure in January 2022, the change made to the applicant’s role in late January or February 2022, the announcement of a business restructure in February 2022, the recruitment and appointment of a new ESG role in February 2022, the advice to the applicant on 22 March 2022 that her position was to be made redundant with two business days to provide feedback, the redeployment process leading to her retrenchment on 27 May 2022, and the creation and appointment of an additional ESG role in May 2022.
I accept the respondent’s submission that in general the redeployment process as described by Mr Spratt in particular appears to have been conducted in a reasonable manner, and although not determinative,[5] that the respondent’s procedures were generally followed.
[5] Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98 at [102].
Weighing the evidence and considering the parties’ submissions, I have come to the view that actions taken by the respondent with respect to the applicant’s retrenchment are not reasonable in all of the circumstances for the reasons discussed below.
There were four main overlapping actions in the retrenchment process that were in my view unreasonable.

Applicant’s role changed to Executive Manager Change & Communications, ESG Program

The applicant was recruited over a period of two months and three or four interviews into the role of Executive Manager, ESG Program and commenced in the role on 15 November 2021.
Her reporting Manager was Ms Turner, Head of Sustainability Communications. The ESG team comprised of two people, Ms Rowland, Project Director, and the applicant.
The applicant’s Job Description refers to the role as part of the Project Management Office team. The focus of the role was to develop and drive the governance and implementation of the Group ESG Plan, involving working with teams across the bank to deliver program outcomes. It required proven expertise in project management, governance, change and communications, particularly within complex change or transformation programs.[6] It required deep project management skills and experience in governance of large transformation or change programs of work.
[6] ARD page 29.
The applicant appears particularly well suited to the role with over 20 years’ experience.[7]
[7] ARD page 33.
On 27 January 2022 Ms Toohill, Group Head of Sustainability, sent an email copied to the applicant advising that effective from 31 January 2022 Ms Ludgate would be taking the role of Head of Transformation Delivery ESG, Ms Rowland would continue to focus on ESG program delivery reporting to Ms Ludgate, and the applicant would work with Ms Rowland and Ms Ludgate to support ESG change and project management.[8]
[8] ARD page 53.
The applicant’s evidence is that immediately before taking medical leave she was put on change and communications streams by Ms Ludgate. Ms Ludgate changed her role to be a significantly smaller remit to focus on change and communications, about which she complained at the time. She did not agree with this and felt forced into this new role.
I prefer the applicant’s account of the way in which her role changed from Executive Manager, ESG to Executive Manager, Change & Communications, ESG based on the following;
(a)    Ms Ludgate’s evidence is that in January 2022 when she started in her role, the applicant was in the role of Executive Manager Change and Communications for the ESG Program. This is not correct. The evidence is that she was recruited and employed from 15 November 2021 in the position of Executive Manager, ESG;
(b)    Ms Ludgate describes the applicant as leaning in and doing a bit of both program manager and change and communications. This appears to accord with her role description as Executive Manager, ESG, and she was also covering the Program Director’s work while the Director was on leave;
(c)    Ms Ludgate’s evidence is that she recalls the applicant complaining about project management work before going on leave, so that was removed from her responsibilities and her role was made purely a change and communications role;
(d)    in a series of emails between the applicant and Ms Turner on 28 January 2022 the applicant raises a concern that she kept being asked to draft emails and coordinate meetings which meant time away from important things. Ms Turner suggested that be discussed, but she thought at present there was no-one else to pick up those kinds of tasks[9];
(e)    there appears to be no evidence suggesting the applicant expressed interest in reducing her role to focus on change and communications and reduced from being across seven to three streams;
(f)    Ms Ludgate describes the role requirements of the Executive Manager Change and Communications for the ESG Program as “integrated change and communications plan for internal and external stakeholders and developing and driving the governance and implementation of the ESG Plan”[10] however there is no job description in evidence or explanation as to how the change in the applicant’s role was effected;
(g)    there is in evidence an undated structure chart “Current Interim Structure – CS CTO” showing the applicant’s position as EM Change & Communications, ESG Program.[11] There is no indication as to how the ESG team was increased from two positions to three, particularly given Ms Turner’s email of 28 January 2022 discussed above, and the informal discussion of cost cutting and reduction of roles across the group in January 2022;
(h)    Ms Berridge’s evidence is that the applicant’s preference was to remain in change and communications, however Ms Berridge appears to have relied on Ms Ludgate’s description of the applicant’s preferences in this and other matters, some of which are discussed further below, and
(i)    Mr Spratt’s evidence includes that it was clear the applicant’s interests lie within ESG and she wanted to continue in the role she was recruited for.
[9] ARD page 40.
[10] Reply page 38.
[11] Reply page 152.

The applicant’s role was changed to what appears to have been a new role created in the context of discussions about restructure and cost cutting. Shortly thereafter that role was no longer required, leading to the applicant’s retrenchment.
I find this action to have been unreasonable in all of the circumstances.

Did the applicant decline a Project Management role

Ms Ludgate’s evidence is that she checked in with the applicant when she started in her role in January 2022 and the applicant said her preference was not to do the program management and administrative side.
The applicant’s preference not to undertake some administrative tasks accords with the email exchange with Ms Turner referred to above. There does not appear to be other evidence of the applicant stating a preference not to do program management.
The applicant’s evidence is that she did not complain about project management work and she in fact asked to remain across seven program workstreams. She had been performing 95% program management in her role, and the work required was ongoing. This is consistent with her Job Description as Executive Manager, ESG.
The applicant’s evidence is that she was not asked or invited to apply for any program management roles that were relevant to her skills and experience and that reflected the work she had been successfully performing.
Around 16 February 2022 Ms Ludgate states she discussed the applicant’s changed role in change and communications and soon after that the applicant went on leave. Ms Ludgate’s intention and hope was to keep the applicant’s role (by this time change and communications) and the PMO role, but she could not guarantee it.
Ms Ludgate asked the applicant if she would be interested in the PMO role if only one role could be maintained and the applicant stated this would not be her preference, “so based on that I inferred that she was not interested in the PMO role, so I offered the role to someone else.”[12]
[12] Reply page 39.
Ms Ludgate notes in her statement of 15 May 2025 that the applicant’s role was primarily a project management role and on that basis the project management role would have been suitable for her, but this is what she complained about, and as she did not want to do the project management piece that was taken off her.[13]
[13] Reply page 146.
Ms Berridge’s evidence is that the applicant had previously declined a role because she did not want to do that type of work. She understood the applicant had previously communicated to Ms Ludgate that she was not interested in doing project management and she had declined a separate PMO role. She was not interested in doing project management and project management governance, she did not want to move into that role and she wanted to remain in change and communications.
Mr Spratt’s evidence includes that Ms Ludgate confirmed to him that one of the roles that were later created in ESG was in fact offered to the applicant for consideration however she declined to proceed. This is apparently separate to the PMO role which the respondent says the applicant declined.
I prefer the applicant’s evidence on this issue. Ms Ludgate initially inferred the applicant was not interested in the role and there is no evidence the applicant declined it.
The retrenchment process was unreasonable as decisions were taken based on an incorrect assumption that the applicant was not only not interested in program management roles but had in fact declined a role.

‘New’ Program Manager role created and filled by direct appointment

The applicant’s evidence is that before she took medical leave on 25 February 2022 it was agreed that her role would be backfilled on a short-term basis, given she was to continue working on the ESG program post-surgery.
Some of her role had been moved out of her work scope by Ms Ludgate and put under the purview of Mr Maxwell, a temporary contractor. Due to Mr Maxwell’s resignation after a short period, in good faith the applicant interviewed Mr Bhovar with Ms Rowland for what was communicated to her as an additional Project Officer/PM role, not as a replacement for her role.
This third program management role was created the day before the applicant started medical leave and she was not aware it was an ongoing role. She thought it was a temporary backfill subject to additional funding approval.
The applicant’s evidence is that the need to backfill her role was conflated with a significant change to scope and then elimination of her role, creating a ‘new’ role to do the ongoing work she had been performing, although the ‘new’ project role and person were not in place at the time of the restructure.
Mr Bhovar was appointed to the role 24 February 2022[14] but was not due to commence in the role until 26 March 2022.[15]
[14] ALAD page 2.
[15] Reply page 152.
Mr Bhovar’s ‘new’ role replaced the applicant’s actual role in her view, although the applicant had been told by Ms Ludgate that Mr Bhovar was a potential ‘temporary contractor”.[16]
[16] ARD page 21.
The applicant’s evidence is she was not made aware a role with the same job title had been created and a direct appointment made until her redundancy notification.
In an email to Ms Berridge on 21 March 2022 the applicant questioned how the duties and role of the new Project Manager role are distinct from her job description, other than job title and exclusion of the change management quotient of work and a potential difference in remuneration.[17]
[17] Reply page 56.
Ms Berridge’s evidence is that she understood the applicant had previously communicated with Ms Ludgate that she was not interested in doing project management, she had declined a separate PMO role and so somebody else was appointed. Another role was recruited because the applicant advised she did not wish to do that work.
Ms Berridge says Mr Bhovar was recruited into the team in February 2022 before it was known the number of roles would be reduced from three to two, and the applicant was involved in the recruitment process as she did not want to do that work.
All three roles could not be retained, the applicant’s role was not prioritised and the decision maker was Ms Ludgate.
Again as an aim of the restructure was cost efficiency it appears inconsistent that a ‘new’ role was created and filled on the day before the applicant’s medical leave commenced.
In the circumstances, the action of creating an ongoing role and filling it by direct appointment without the applicant’s knowledge in the context of the retrenchment process was in my view unreasonable.

Additional Executive Manager, ESG role created

Despite an aim of the restructure being cost efficiency and a reduction in the number of roles, in May 2022 during the applicant’s redeployment period two new positions in ESG were created and filled by direct appointment.
The Executive Manager ESG position was not disclosed to or offered to the applicant, and her evidence is that she did not have an opportunity to apply for the role.
Ms Berridge confirms the Executive Manager ESG Program role, while having the same job title as the position the applicant was recruited into, was at a lower Role Level (5) with lower remuneration (about 20% of Level 6 remuneration) and different responsibilities so that it was not comparable.
Ms Berridge also says the applicant’s role was not Executive Manager ESG Program doing program management but was Executive Manager Change & Communications, discussed above.
Ms Berridge was of the view the applicant’s personal perception that she had suitable skills for the role is not relevant, however it is clear the applicant does have suitable skills for the role as she had recently been recruited into a similar role at a higher level by the respondent.
Ms Ludgate’s evidence is also that the Executive Manager ESG Program role was not a comparable position and the applicant did not want to do project management.[18]
[18] Reply page 146.
Mr Spratt’s evidence is that on 24 May 2022 the applicant enquired about the two roles in the ESG program and he relayed the enquiry to Ms Ludgate. It was confirmed both roles were materially different from the applicant’s role and one of the role options was in fact offered to the applicant however she declined to proceed, which appears incorrect on the evidence.
The evidence is that other members of the ESG team were directly appointed into the positions of Program Director, Project Officer and Executive Manager, ESG Program and the applicant was not provided the opportunity to apply.[19]
[19] ARD page 22.
The restructure involved the loss of 1,200 jobs, the applicant’s medical leave in this period added difficulties, and Ms Ludgate and Ms Berridge do not appear to have been familiar with the applicant’s work with the respondent or the depth of her experience. Particularly in a large organisation there are likely to be blemishes in a retrenchment process and those blemishes will not necessarily mean the process is unreasonable.
In this case on an objective assessment of the actions including those discussed above and in the context of the circumstances and knowledge at the time, the respondent’s actions in the applicant’s retrenchment process were unreasonable.
I do not accept the respondent has satisfied the onus that its actions with respect to retrenchment were reasonable in accordance with s 11A and compensation is payable to the applicant.

Entitlement to weekly benefits

The applicant provides a wages schedule claiming the maximum weekly compensation amount under s 34 of the 1987 Act as indexed for the period 22 March 2022 to
17 September 2024 less her actual earnings.
The applicant’s capacity for work must be assessed. Clause 9, Schedule 3 of the 1987 Act defines no current work capacity as follows:
“An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work either in the workers pre-injury employment or in suitable employment.”
An injured worker has current work capacity:
“if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”
With respect to her work capacity, the applicant’s statement evidence is that she worked for 8 days at UTS in July 2022, had no current work capacity until December 2022 when she was certified for 2 days a week which increased to 4 to 7 hours a week from March 2023 to November 2023 then increased to 30 hours a week from December 2023 to January 2024.
The medical evidence relied on by the applicant includes the certificates of capacity of Dr Morris which are set out above. These support that the applicant had current work capacity for various periods from October 2023 to 17 September 2024, and no current capacity between 29 April 2024 and 8 August 2024.
Dr Morris refers in his report to noting in a medical certificate that the applicant was medically certified off work from 25 February 2022 to 1 June 2022.
On 22 January 2024 Dr Young says the applicant is certified as fit to work 30 hours per week which is appropriate in his opinion, she is likely to be able to upgrade to normal duties and hours within one to three months and he then says the current restriction of 28 to 30 hours is reasonable. On 4 June 2024 Dr Young is of the opinion the applicant is capable of working full time in an equivalent to pre-injury role.
On the basis of the available evidence the applicant had the following periods of capacity;
(a)    22 March 2022 to 10 July 2022 - no current work capacity;
(b)    11 July 2022 to 24 July 2022 - current work capacity 25.6 hours per week;
(c)    25 July 2022 to 30 November 2022 - no current work capacity;
(d)    1 December 2022 to 30 April 2023 - current work capacity 15 hours per week (2 days);
(e)    1 March 2023 to 9 January 2024 - current work capacity 7 hours per week;
(f)    10 January 2024 to 7 February 2024 - current work capacity 28 hours a week;
(g)    8 February 2024 to 3 April 2024 - current work capacity 37.5 hours per week;
(h)    4 April 2024 to 28 April 2024 - current work capacity 3 hours per week;
(i)    29 April 2024 to 8 August 2024 - no current work capacity;
(j)    9 August 2024 to 7 September 2024 - current work capacity 22 hours per week; and
(k)    8 September 2024 to 17 September 2024 - current work capacity 23 hours per week.

The applicant is entitled to the payment of weekly benefits pursuant to ss 36 and 37 of the 1987 Act in respect of her work capacity for the periods above.
The applicant’s pre-injury average weekly earnings are $4,805.44 so that the maximum weekly benefits amount pursuant to s 34 of the 1987 Act as indexed are payable.

Entitlement to medical expenses

The respondent is to pay the applicant’s reasonably necessary medical or related expenses as a result of her injury pursuant to s 60 of the 1987 Act.

SUMMARY

The applicant sustained a psychological injury pursuant to s 4 of the 1987 Act deemed to have occurred on 22 March 2022.
The respondent’s actions with respect to retrenchment were not reasonable within the meaning of s 11A of the 1987 Act.
The respondent has not discharged its onus to establish a defence pursuant to s 11A of the 1987 Act.
The respondent is to pay the applicant weekly benefits in accordance with the periods of capacity set out above at the maximum weekly compensation amount pursuant to s 34 of the 1987 Act.
The respondent is to pay the applicant’s reasonably necessary medical or related expenses pursuant to s 60 of the 1987 Act on production of accounts, receipts and/or Medicare notice of charge.

[2025] NSWPIC 492

19 September 2025