Dimopoulos v Jetstar Services Pty Ltd
[2021] NSWPIC 422
•20 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dimopoulos v Jetstar Services Pty Ltd [2021] NSWPIC 422 |
| APPLICANT: | Michael Dimopoulos |
| RESPONDENT: | Jetstar Services Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 20 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation resulting from primary psychological injury sustained in the course of the employment with the respondent; defence raised under section 11A(1) of the Workers Compensation Act 1987 relevant to discipline and/or performance appraisal; Held – the applicant’s psychological injury was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline and/or performance appraisal; the applicant’s claim for permanent impairment is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. The primary psychological injury that the applicant sustained in the course of his employment with the respondent, with deemed date of injury of 30 April 2019, was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline and/or performance appraisal. 2. The applicant’s claim for permanent impairment compensation resulting from primary psychological injury, with deemed date of injury of 30 April 2019, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. 3. The documents to be referred to the Medical Assessor together with this Certificate of Determination and Statement of Reasons are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents; c. Application to Admit Late Documents dated 2 September 2021 lodged on behalf of the applicant and attached documents, and Application to Admit Late Documents dated 9 September 2021 lodged on behalf of the respondent and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Michael Dimopoulos (Mr Dimopoulos) worked with Jetstar Services Pty Ltd (Jetstar) on a permanent part time basis, working a rotating roster. His work duties involved the loading and unloading of aircraft, which included operating ramp services equipment and handling baggage.
Mr Dimopoulos alleged he sustained primary psychological injury in the course of his employment with Jetstar as a result of bullying and harassment by his manager and colleagues, including being targeted, threatened and unfairly treated. Mr Dimopoulos alleged a deemed date of injury of 30 April 2019.
While Mr Dimopoulos’ claim for workers compensation resulting from his psychological injury was initially accepted[1], his claim was subsequently declined, with declinature notices dated 29 January 2020[2] and 1 December 2020[3] issued to him in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998. Declinature of
Mr Dimopoulos’ claim was grounded in defence raised under s 11A(1) of the Workers Compensation Act 1987 (1987 Act) relevant to discipline and performance appraisal.[1] Application to Resolve a Dispute (ARD) at page 14.
[2] Reply at page 11.
[3] Reply at page 17.
In these proceedings before the Commission, Mr Dimopoulos claims permanent impairment compensation payable under s 66 of the 1987 Act for 15% whole person impairment (WPI) resulting from primary psychological injury sustained in the course of his employment with Jetstar, with deemed date of injury of 30 April 2019.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the primary psychological injury sustained by Mr Dimopoulos in the course of his employment with Jetstar was wholly or predominantly caused by reasonable action taken by or on behalf of Jetstar with respect to discipline and performance appraisal, and if so
(b) the percentage permanent impairment suffered by Mr Dimopoulos as a result of the primary psychological injury he sustained in the course of his employment with Jetstar, with deemed date of injury of 30 April 2019.
PROCEDURE BEFORE THE COMMISSION
These proceedings came before me for teleconference on 26 August 2021. Ms Harley, solicitor appeared for Mr Dimopoulos and Ms Raiman, solicitor appeared for Jetstar.
Ms Banasiak from Allianz was present, as was Mr Dimopoulos.As Mr Dimopoulos’ claim did not resolve at teleconference, it came before me for conciliation/arbitration hearing on 15 September 2021. Mr McEnaney of counsel appeared for Mr Dimopoulos instructed by Ms Harley, and Mr Grant of counsel appeared for Jetstar instructed by Ms Malone, solicitor. Ms Moore from Allianz was present, as was
Mr Dimopoulos.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 2 September 2021 lodged on behalf of Mr Dimopoulos and attached documents (A AALD), and
(d) Application to Admit Late Documents dated 9 September 2021 lodged on behalf of Jetstar and attached documents (R AALD).
Oral Evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Review of the evidence
A brief summary of evidence follows.
Statements of Mr Dimopoulos
Mr Dimopoulos provided a number of statements, which are dated 8 July 2019[4],
22 September 2020[5] and 2 August 2021[6]. Mr Dimopoulos also provided a statement which is unsigned[7].[4] ARD at page 44.
[5] ARD at page 9.
[6] A AALD at page 1.
[7] ARD at page 1.
At the time of making his initial statement for an investigator Mr Dimopoulos described himself as married, with his wife “Maria” working on a full time basis. He said too he had three children “aged 12 10 and almost 2 years”. Mr Dimopoulos explained he commenced employment with Jetstar on 14 May 2012, and was employed on a permanent part time basis. He said while rosters were normally prepared four weeks in advance “there are changes made from time to time, for illness, unavailability, leave etc”.
Relevant to his psychological injury, in essence Mr Dimopoulos said that he sustained this injury in the course of his employment with Jetstar, and in his initial statement
Mr Dimopoulos made specific reference to the following:(a) an incident on Bay 49 involving Brett Lee;
(b) targeting by Mr Lee for being late for scheduled shifts;
(c) a verbal altercation involving Mr Bakkar on 26 November 2018;
(d) performance management plan due to continued late arrival for scheduled shifts, and
(e) a meeting on 30 April 2019.
Statement of Brett Lee
In his statement dated 10 July 2019[8] Mr Lee confirmed he has been employed with Jetstar since May 2017 and is the ramp services manager. Mr Lee explained he oversees the operation of the business and relevantly reporting directly to him are Mr Ali and
Mr Mourgelas, who are responsible for the direct supervision of the ground staff.[8] Reply at page 1.
Mr Lee explained that as part of the management system in place, a chronology of discussions, meeting and interactions with employees is kept. Mr Lee said every staff member has an electronic chronology and any conversation with a staff member relevant to lateness for work would be entered into the chronology.
Mr Lee denied there had been a targeting of Mr Dimopoulos, and said that at the time of providing his statement there were four other staff members on performance improvement plan for consistent lateness. He said relevant to Mr Dimopoulos’ performance improvement plan, Mr Dimopoulos had been informally counselled on a number occasions without a change in behaviour before the plan had been implemented. He considered the action taken by Jetstar relevant to Mr Dimopoulos’ performance improvement plan was entirely reasonable.
Mr Lee canvassed the verbal altercation involving Mr Dimopoulos and Mr Bakker, which had resolved. Relevant to the meeting on 30 April 2020, Mr Lee said the meeting canvassed a failure by Mr Dimopoulos to comply with personal/carer’s leave policy and was attended by Mr Mourgelas and Mr Ali.
Statement of Peter Mourgelas
In his statement dated 9 October 2019[9] Mr Mourgelas confirmed his role with Jetstar is that of ramp services duty manager, and as such he assists Mr Lee. Mr Mourgelas commenced working with Jetstar in January 2011. Mr Mourgelas said he was aware of Mr Dimopoulos’ lateness, about which he had discussions with Mr Dimopoulos. He considered Mr Dimopoulos was provided with ample opportunity to improve his lateness but didn’t, and accordingly he considered the action taken relevant to placing Mr Dimopoulos on a performance improvement plan was “entirely reasonable”. Mr Mourgelas said he saw no targeting of Mr Dimopoulos.
[9] ARD at page 73.
Mr Mourgelas said he had investigated the verbal altercation between Mr Dimopoulos and
Mr Bakker and said he cannot recall Mr Dimopoulos saying anything to him at that time of
Mr Bakker threatening him.Mr Mourgelas explained he attended the meeting on 30 April 2019 in the capacity as support person for Mr Ali. He said the meeting had been called due to a failure by
Mr Dimopoulos to comply with personal/carer’s leave policy. He said in the lead up to the meeting, the policy had been read to Mr Dimopoulos a number times and he had spoken to Mr Dimopoulos on 22 April 2019 about “his ongoing failure to bring in medical certificates for absences”. Mr Mourgelas described the meeting as “very short”. He said he cannot recall making any comment at all during the meeting.
Statement of Fahad Ali
In his statement dated 14 October 2019[10] Mr Ali said his role with Jetstar is also that of ramp services duty manager. Mr Ali has been employed by Jetstar for seven years. Mr Ali said he was aware Mr Dimopoulos had been late for work on a number of occasions and was aware Mr Dimopoulos had been placed on a performance improvement plan as a result. He denied Mr Dimopoulos was targeted by management because of lateness.
[10] ARD at page 80.
Mr Ali confirmed he had convened the meeting with Mr Dimopoulos on 30 April 2019 and that Mr Mourgelas attended as his support person. Mr Scmidt, the union delegate attended as Mr Dimopoulos’ support person. Mr Ali said that he had spoken with Mr Dimopoulos on 20 April 2019 relevant to non-compliance with policy regarding his absences on 5 and 6 April 2019 and with a continued failure to comply, the meeting was called.
With Mr Dimopoulos apparently not adequately explaining why he had not complied with policy relevant to these absences referred but confirming he was aware of the policy dictating personal/carer’s leave, when Mr Ali sought to remind him of the policy, Mr Ali said of
Mr Dimopoulos:“… he has stood up abruptly and said ‘“**** this, I’ve had enough’. He then placed his real time phone on the table and said ‘Have this’.
He turned and left the room.”
In an explanatory email to Mr Lee dated 3 September 2019, Mr Fared described the meeting on 30 April 2019 as a “casual meeting” that took place “a few hour [sic] after the notification to meet was given” and told Mr Lee that on his enquiry of Mr Dimopoulos as to why despite request he had not submitted his leave request he had been told by Mr Dimopoulos that he had not had the time.
Worker’s injury claim form
While the worker’s injury claim form completed by Mr Dimopoulos is dated 13 June 2019[11] is difficult to read, the circumstances of injury are described in the following terms:
“Work place harassment from management”.
Performance Improvement Plan
[11] ARD at page 11.
A performance improvement plan with a date of review of 19 December 2018[12] is unsigned by either Mr Dimopoulos or his nominated reviewer, Mr Campbell. However, the plan demonstrated Mr Dimopoulos had met expectations relevant to his “lateness for the start of a rostered shift” but had yet to meet expectations relevant to his “inappropriate communication”. Mr Dimopoulos’ performance was scheduled for further review on or about 14 February 2019. Comment made relevant to this review on 19 December 2018 was as follows:
“Today we had a Performance Improvement Review with Michael, Myself, Jo Woodcock & a support person Ryan Lewis. Michael has been on time for all shifts since starting the plan so the agreed score was that he met expectations (3). The second part of the plan was surrounding behaviours & displaying the JQ Brand Values. Michael agreed that his performance was unsatisfactory in this area after discussing a report of an altercation with another employee. Michael spoke about wanting to improve himself in this area whilst continuing to keep his time & attendance on track. The agreed score was that this was unsatisfactory (1). Will schedule another meeting for early February”.
Findings of the investigation into alleged conduct of Mr Dimopoulos
[12] Reply at page 34.
In a letter dated 12 March 2019[13] Jetstar advised Mr Dimopoulos of the findings of an investigation into two allegations of misconduct, the first being the use of offensive language on a Jetstar issued radio and the second being the refusal to carry out an allocated task. Only the first allegation was found to be “substantiated” and with Jetstar considering taking disciplinary action, Mr Dimopoulos was advised of a meeting to be convened on 18 March 2019.
Chronology
[13] ARD at page 39.
In a statement dated 8 September 2021 prepared by Gerard Ashford[14], Mr Ashford confirmed he was a Senior Work Health & Safety Advisor with Jetstar. He confirmed one of the documents that he provided to assist Procare with investigation into Mr Dimopoulos’ claim for compensation was the electronic chronology relevant to Mr Dimopoulos. Mr Ashford explained the chronology is similar to a diary or file note in which the ramp services duty managers and ramp services manager made entries about interactions with Mr Dimopoulos. He explained that all staff with Jetstar have an electronic chronology in which entries are made by management.
[14] R AALD at page 1.
The chronology relevant to Mr Dimopoulos[15] documented that on 1 January 2018 Mr Lee discussed with Mr Dimopoulos the possibility of a performance improvement plan “as there is a trend of being late to work” and from time to time thereafter there are entries relevant to
Mr Dimopoulos’ arrival times at work. When Mr Dimopoulos attended a meeting on 22 September 2018 relevant to “his lateness the day before”, “TC” (who I assume to be Tom Campbell) recorded of Mr Dimopoulos that he:“went on to say he was not happy with the way he was bullied by the RDM & GC4 regarding being told. I told Michael that if he felt bullied or harassed that there is a way to report this but before doing so it may be a good idea to read the policy regarding what is and isn’t considered bullying & harassment”.
[15] Reply at page 22.
On 31 October 2018, with Mr Dimopoulos noted as being 15 minutes late for a 5am start,
Mr Campbell recorded:“Currently putting together an attendance/performance plan due to consistent lateness. I spoke with Michael to advise him we are going down the formal path because of his history. Michael then told me that we are victimising people who are late”.
On 31 October 2018 Mr Campbell recorded he advised Mr Dimopoulos of the time for the formal performance discussion regarding his “poor time & attendance” and on 1 November 2018 it is recorded Mr Dimopoulos was to be issued with a formal warning and placed on a performance improvement plan for three months. On 19 December 2018 it is recorded by
Mr Campbell that during the performance improvement review relevant to Mr Dimopoulos time keeping, Mr Dimopoulos had “met expectations”.The chronology demonstrated a verbal altercation between Mr Dimopoulos and Mr Bakkar, which resulted in a mediation meeting on 13 December 2018, with apologies made and accepted. The chronology also demonstrated Mr Dimopoulos’ alleged misconduct regarding use of offensive language on a radio and a refusal to carry out an allocated task, which resulted in a findings meeting on 18 March 2019 and a written warning.
The chronology also demonstrated that from time to time Mr Dimopoulos had been spoken to about “leave noncompliance”, with a meeting being held on 30 April 2019 between Mr Dimopoulos and Mr Ali, with Mr Schmidt and Mr Mourgelas present for support. The meeting appeared centred on Mr Dimopoulos’ failure to enter sick leave for 5 and 6 April 2019 despite “numerous requests from ther [sic] RDM’s and conversations with Michael”.
Mr Mourgelas recorded:“… Fahed explained to Michael due to the numerous requests Michael could face disciplinary action. At this point Fahed mentioned that he was going to read him the Personal carers leave policy to which Michael stood up put his radio on the table and Said “have this” then he put his Real time phone on the Table and said “and have this I’ve had enough” and walked out of the room and staff room…”.
Factual reports
An initial factual report prepared by Procare is dated 17 July 2019[16]. The factual report canvasses five allegations made Mr Dimopolous, which are essentially noted to be:
(a) an incident on Bay 49 involving Mr Lee;
(b) the targeting of Mr Dimopoulos by Mr Lee for being late for scheduled shifts;
(c) an incident involving Mr Bakkar on 26 November 2018;
(d) performance management plan due to continued late arrival for scheduled shifts, and
(e) meeting on 30 April 2019 where it was alleged that Mr Dimopoulos was called a liar by management.
[16] ARD at page 55.
A second factual report was also prepared by Procare and is dated 16 October 2019[17]. This second factual report canvasses the investigator’s interviews with Mr Mourgelas and Mr Ali, both of who were present at the meeting on 30 April 2019.
Treating medical evidence
Walters Road Medical Centre
[17] ARD at page 69.
The clinical notes from Walters Road Medical Centre[18] indicated Mr Dimopoulos had been under the care of the doctors practising out of the centre for many years and on 30 April 2019 the following entry is recorded:
[18] ARD at page 93.
“apparently bullied at work
Works at Jetstar – ramp operator
8 years
few personal issues as well , financial stress
sister in law with terminal illness
poor sleep, arguing with partner regarding petty things
has struggles with his attendance in the past 12 months because of his family issues
feels threatened at work‘I just don’t feel like going to work as I feel scared and harassed’
…
Feels let down at work – was initially told that he had taken alot [sic] annual leave over the past 8 years and wwhen [sic] he tried to apply in advance fdue [sic] to family reasons, …;eave [sic] doesnt get approved”.The reason for this particular visit is said to be “workplace harassment”.
On review on 8 May 2019 the clinical records record that a Mental Health Care Plan was completed and an appointment with a psychologist was arranged for 5 June 2019. It is recorded also that Mr Dimopoulos had been seeing a counsellor through work, having last seen him in March and due to see him again “next week”. On review on 14 May 2019 the clinical records record that Mr Dimopoulos was feeling overwhelmed and stressed about work and “feels he is not being treated fair and managgement [sic] seems to be picking on him”.
New View Psychology
The clinical notes relevant to Mr Dimopoulos’ sessions with Mr Grapsias[19][20] indicated
Mr Dimopoulos attended on 5 July 2019 and 25 September 2019, with discussion at his initial consultation including being placed on a three month performance improvement plan relevant to his “coming in late” and the workplace meeting on 30 April 2019. Discussion at Mr Dimopoulos’ later consultation included the meeting on 30 April 2019 but also included a threat of stabbing by “Omar”.[19] ARD at page 90.
In his report dated 10 October 2019[21] Mr Grapsias reported Mr Dimopoulos had told him he had been subjected to bullying and harassment at Jetstar. Mr Dimopoulos reportedly explained to Mr Grapsias he did not feel he had been adequately supported at work and made specific mention of an incident he had reported when he had been threatened with a stabbing. He also made specific mention of having “been constantly brought into the office asked about his attendance” and having explained to management “that he had family issues with his children and his sister-in-law is terminally ill”. Mr Grapsias reported Mr Dimopoulos “feels quite upset for being placed on a performance improvement plan for coming into work a few minutes late”.
Independent medical evidence
Dr George
[21] ARD at page 142.
Mr Dimopoulos was psychiatrically assessed on 5 August 2019 by Dr George in his capacity as independent medical examiner. Dr George provided a report dated 15 August 2019[22].
Dr George noted Mr Dimopoulos ceased working on 30 April 2019 and reported that when asked about the reasons for this, Mr Dimopoulos said he had left work due to “harassment, victimisation and favouritism” and nominated “Mr Brett Lee” as the person who had intimidated him. Mr Dimopoulos reportedly explained:“What led to his leaving work was that he was taken into a meeting to discuss why he had taken Carer’s Leave for either one or two days. He said that his daughter had been admitted into Westmead Children’s Hospital and he said that, after he got back from Carer’s Leave, he was questioned about whether he had submitted a doctor’s certificate with respect to his Carer’s Leave. He indicated that he had but, apparently, one of the ramp managers, Mr Peter Mourgelas indicated to him that he believed he was ‘lying’ and had not submitted the medical certificates necessary”.
[22] Reply at page 75.
Mr Dimopoulos also told Dr George there were other meetings in which he had been criticised for arriving late for work and as a consequence had been placed on a performance improvement plan towards the end of 2018. He told Dr George that while “he believed he had rectified the problem and he was signed off at the end of the performance improvement plan”, there had been ongoing criticism of him in relation to him arriving late for work and he felt that others were treated more favourably when they were late for work.
Following interview, mental state examination and review of the documents made available to him, which are not identified by Dr George, Dr George diagnosed Mr Dimopoulos with adjustment disorder with mixed anxiety and depressed mood and said in response to specific questioning as to cause:
“Mr Dimopoulos appeared to suffer overwhelming panic attack in a meeting where he was being criticised. He decompensated after allegedly called a liar by a ramp manager. In this sense, his work appears to have been the main contributing factor”
In his supplementary report dated 2 December 2019[23] Dr George noted he had been provided with statements from “employees related to Mr Dimopoulos’ employment” and had been asked to provide comment on the cause of Mr Dimopoulos’ psychological injury with reference to the following five identified options canvassed in the initial factual investigation report:
(a) the incident on Bay 49;
(b) the targeting of Mr Dimopoulos for being late for scheduled shifts;
(c) the incident involving Mr Bakkar on 26 November 2018;
(d) the performance management plan due to continued late arrival for scheduled shifts, and
(e) the meeting on 30 April 2019 where it was alleged that Mr Dimopoulos was called a liar by management.
[23] Reply at page 83.
In response to the specific question “[B]ased on the allegations can you please advise which event has caused the diagnosis or was it accumulative?”, Dr George said:
“Certainly there does appear to have been an accumulation of events, which
Mr Dimopoulos had to answer in relation to his employment. Essentially, one of the main complaints was being late for work and, also, not submitting proper documentation for days off.Generally, the Statutory Declarations are not supportive of his account of events. It did appear that the precipitant was meeting with management on 30 April 2019, where he walked out of the meeting. Again, his account of events in regard to that meeting, do not match the account of events as set down in the Statutory Declarations.
Given the above information, I am left with the conclusion that his leaving work has come about due to reasonable actions by his employer. It does not appear that the adjustment disorder, with which he presents, can be related to his employment as such”.
Dr Takyar
Mr Dimopoulos was psychiatrically assessed on 23 September 2020 by Dr Takyar in his capacity as independent medical examiner. Dr Takyar provided a report dated 27 October 2020[24]. At the time of assessment Dr Takyar had available to him various statements prepared by Mr Dimopoulos and also the clinical records from Walters Road Medical Centre. Dr Takyar reported a history of Mr Dimopoulos feeling bullied at work by “some of my supervisors, one of my managers, one of the boys at work. It started in late 2017, [early] 2018”. Mr Dimopoulos reportedly explained:
“they’d unfairly intimidate me, they’d exclude me from certain tasks – taking a bag out to an aircraft, just to exclude me from doing … socialising. If I was in the same team, they wouldn’t include me if they sat down for lunch. I was sorta spoken to in a manner of … intimidated – if me and my leading hand for argument sake …my leading hand would talk me down as if I wasn’t of his [level], as if I couldn’t do the job, he specifically asked me”.
[24] ARD at page 28.
Mr Dimopoulos indicated to Dr Takyar that the leading hand to who he referred was
“Mr Omar B” and also made specific reference to an incident where he had been threatened by him “with a knife and verbal threats”, which he said occurred on 26 November 2018.
Mr Dimopoulos also told Dr Takyar about the meeting occurring on 30 April 2019, and relevant to this meeting Dr Takyar reported:
“He stated he was asked about having days off work (personal and sick days) and he felt that he was being harassed about this. He stated that he was asked why he was having sick days and personal leave and Mr Dimopoulos reported, “I’d been genuinely sick – basically they’d told me that I’m not allowed to have any sick days. I think that’s when I walked out.”
Following interview, mental state examination and review of the documents provided to him Dr Takyar provided opinion in the following terms:
“Mr Michael Dimopoulos is a 45-year-old-male with no pre-existing psychiatric history who was employed by Jetstar Airways and described a deterioration in his mental state towards the end of 2017 or start of 2018 in the context of feeling bullied and harassed by a number of individuals in the workplace, feeling spoken down to, and feeling excluded”.
Dr Takyar diagnosed Mr Dimopoulos with adjustment disorder with mixed anxiety and depressed mood (chronic) and in response to specific questioning, accepted Mr Dimopoulos’ employment with Jetstar was a substantial contributing factor to this injury. He also assessed Mr Dimopoulos with 15% WPI.
In his supplementary report dated 18 June 2021[25] following review of the dispute notice dated 1 December 2020 and the reports of Dr George dated 15 August 2019 and
2 December 2019, Dr Takyar said in response to specific questioning as to whether actions taken by Jetstar relevant to performance appraisal and discipline were “the main contributing factor” to Mr Dimopoulos’ psychological injury:“No – the history of accumulative bullying and harassment over the course of
Mr Dimopoulos’ injury from late 2017 or early 2018 onwards has, in my view, led to the formation of his psychiatric injury and it is not my view that management action has led to his psychiatric state forming”.
Submissions
[25] ARD at page 37.
Both counsel made oral submissions and a copy of the recording of counsels’ submissions is available to the parties. I have carefully considered counsels’ submissions and I am grateful to counsel for the assistance provided to me in this matter.
Determination
Defence raised under s 11A of the 1987 Act
While it is not disputed Mr Dimopoulos sustained primary psychological injury in the course of his employment with Jetstar, Jetstar has raised defence under s 11A(1) of the 1987 Act relevant to discipline and/or performance appraisal. Jetstar has the onus of establishing such defence (see Pirie v Franklins Ltd[26] and Department of Education and Training v Sinclair[27] ) and there are two aspects to this defence raised under s 11A(1) of the 1987 Act.
[26] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[27] [2005] NWCA 465 (Sinclair).
Firstly, the injury must be “wholly or predominantly caused” by Jetstar’s actions regarding one of the categories referred to in s 11A(1) and in Mr Dimopoulos’ case Jetstar relied on “discipline” and/or “performance appraisal”. Principles regarding the “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[28] with comment medical evidence is required to determine this causation issue. It is accepted “wholly” and “predominately” are different concepts[29] and it is accepted the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation to be applied is that described in Kooragang Cement Ltd v Bates[30]; Ponnan v George Weston Foods Ltd[31]; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[32].
[28] [2017] NSWWCCPD 6.
[29] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[30] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[31] [2007] NSWWCCPD 92.
[32] [2008 NSWWCCPD 96.
Mr Dimopoulos commenced employment with Jetstar on 14 May 2012 and while it is evident from the factual material before the Commission (with specific reference to the chronology) that Mr Dimopoulos’ tardiness had been a real issue for which he had ultimately been placed on a performance issue plan, it is not until after the meeting on 30 April 2019 relevant to noncompliance with the personal/carer’s leave policy, which is mentioned in both the clinical records of Walters Road Medical Centre and New View Psychology, that Mr Dimopoulos sought medical assistance from his general practitioner.
Mr Dimopoulos was assessed by Dr George on 5 August 2019, being just over three months after the meeting on 30 April 2019, and while Mr Dimopoulos discussed with Dr George a number of issues that he said had led to him ceasing work on 30 April 2019, Dr George provided opinion the cause of Mr Dimopoulos’ psychological injury was the meeting occurring on 30 April 2019. In his subsequent supplementary report Dr George again appears to accept the cause of Mr Dimopoulos’ psychological injury was this particular meeting. Although he does not specifically provide opinion Mr Dimopoulos’ psychological injury was wholly or predominately caused by action taken by or on behalf of Jetstar with respect to discipline, he accepts its “precipitant” was the meeting occurring on 30 April 2019.
Mr Dimopoulos was assessed by Dr Takyar on 23 September 2020, being over a year after he was assessed by Dr George on 5 August 2019, and although Dr Takyar made reference to Mr Dimopoulos’ describing “a deterioration in his mental state towards the end of 2017 or start of 2018 in the context of feeling bullied and harassed by a number of individuals in the workplace” it is clear Mr Dimopoulos also told Dr Takyar about the meeting on 30 April 2019 as Dr Takyar relevantly reported “[H]e stated he was asked about having days of work (personal and sick days) and he felt that he was being harassed about this”.
Despite submission by Mr McEnaney to the contrary, I tend to agree with Mr Grant that the crux of this particular matter is the meeting that occurred on 30 April 2019, which was disciplinary in nature. Mr Dimopoulos’ failure to comply with policy relevant his taking of personal/carer’s leave from time to time is documented in the chronology and it is apparent the meeting on 30 April 2019 convened because of Mr Dimopoulos’ noncompliance relevant to the days he had taken off on 5 and 6 April 2019. I prefer the opinion provided by Dr George relevant to the cause of Mr Dimopoulos’ psychological injury to that of Dr Takyar as Dr George had the opportunity to assess Mr Dimopoulos at a closer point in time to him ceasing work with Jetstar as a consequence of his psychological injury.
As I accept Mr Dimopoulos’ psychological injury was “wholly or predominately” caused by Jetstar’s actions regarding “discipline”, Jetstar is required to establish Jetstar’s actions regarding discipline were “reasonable”.
Considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd[33]; Melder v Ausbowl Pty Ltd[34]) and in Irwin Gerahty J said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[33] [1998]NSWCC 13.
[34] [1997]NSWCCR 454.
In Northern New South Wales Local Health Network v Heggie[35] Sackville AJA usefully set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[35] [2013] NSWCA 225; 12 DDCR 95.
While it may be that certain steps taken by Jetstar relevant to the meeting that occurred on 30 April 2019 may have been “reasonable” (particularly noting Mr Dimopoulos had already been spoken to about his noncompliance with policy for the days he had taken off on 5 and 6 April 2019 on both 20 and 22 April 2019 and Mr Dimopoulos had been provided with the opportunity to have a support person accompany him to the meeting) in an explanatory email to Mr Lee a few days after the meeting, Mr Fared described the meeting on 30 April 2019 as a “casual meeting” that took place “a few hour [sic] after the notification to meet was given” and told Mr Lee that on his enquiry at the meeting of Mr Dimopolous as to why, despite request Mr Dimopoulos had not submitted his leave request, he had been told by Mr Dimopoulos that he had not had the time.
Mr Dimopoulos had recently been placed on a performance improvement plan relevant to his lateness (with accepted improvement), had recently been investigated relevant to misconduct (with only one allegation substantiated) and had in fairly recent times been issued with two written warnings relevant to his lateness and his misconduct. In circumstances where Mr Dimopoulos was invited to a meeting at relatively short notice in which he was reportedly told by Mr Ali that he “could face disciplinary action”, despite Mr Dimopolous’ noncompliance with the personal/carer’s leave policy policy for the days he had taken off on 5 and 6 April 2019 having been raised with him on both 20 and 22 April 2019, rather than Mr Ali attempting to take Mr Dimopoulos through the relevant policy (yet again) at the meeting on 30 April 2019, I am of the view it would have been reasonable for Jetstar to have provided Mr Dimopoulos with sufficient time between his invite by Mr Ali to the meeting and the actual meeting to enable him to properly prepare (and possibly comply with) the relevant policy. Although Mr Ali described the meeting as a “casual meeting” in his subsequent explanatory email to Mr Lee, I do not accept that any meeting where an employee is warned of possible disciplinary action by his manager could be a casual meeting and there can be no doubt Mr Dimopoulos should have been afforded sufficient time to properly prepare for such a meeting. It would also have been reasonable in circumstances where Mr Dimopoulos had said in the meeting that he had not had time to comply with the personal/carer’s leave policy for Jetstar to have provided Mr Dimopoulos with a little time after the meeting on 30 April 2019 to enable compliance with the policy.
In all of the circumstances known to Jetstar at the time of Mr Dimopoulos’ meeting with
Mr Ali, with particular reference to the unfortunate situation Mr Dimopoulos found himself in having been issued with two written warnings relevant to lateness and misconduct, and with particular reference also to the limited time given to Mr Dimopoulos to thoroughly prepare for the meeting convened on 30 April 2019 during which he was told he could face further disciplinary action, I do not accept the action taken by Jetstar with respect to discipline for noncompliance by Mr Dimopoulos for the days he had taken off on 5 and 6 April 2019 was “reasonable”.For the reasons discussed above I am not satisfied Jetstar has discharged the onus of proof required and as a consequence Jetstar cannot rely on defence raised under s 11A(1) of the 1987 Act.
Permanent impairment
As I have determined Jetstar cannot rely on defence raised under s 11A(1) of the 1987 Act, Mr Dimopoulos may have an entitlement to permanent impairment compensation payable under s 66 of the 1987 Act for permanent impairment resulting from primary psychological injury sustained in the course of his employment with Jetstar, with deemed date of injury of 30 April 2019. In such circumstances it is appropriate for Mr Dimopoulos’ claim for permanent impairment compensation to be remitted to the President for referral to a Medical Assessor for assessment of WPI.
SUMMARY
It is not disputed Mr Dimopoulos sustained a primary psychological injury in the course of his employment with Jetstar with a deemed date of injury of 30 April 2019, with Mr Dimopoulos’ employment with Jetstar being the main contributing factor to injury.
The primary psychological injury Mr Dimopoulos sustained in the course of his employment with Jetstar was not wholly or predominately caused by reasonable action taken by or on behalf of Jetstar with respect to discipline and/or performance appraisal.
Mr Dimopoulos’ claim for permanent impairment compensation resulting from primary psychological injury sustained in the course of his employment with Jetstar, as agreed or determined, is to remitted to the President for referral to Medical Assessor for assessment of WPI.
The documents to be referred to the Medical Assessor together with this Certificate of Determination and Statement of Reasons are:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 2 September 2021 lodged on behalf of Mr Dimopoulos and attached documents, and
(d) Application to Admit Late Documents dated 9 September 2021 lodged on behalf of Jetstar and attached documents.
[20] ARD at page 173.
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