Dixon v Sutherland Shire Council
[2021] NSWPIC 132
•21 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Dixon v Sutherland Shire Council [2021] NSWPIC 132 |
| APPLICANT: | Suanne Rae Dixon |
| RESPONDENT: | Sutherland Shire Council |
| MEMBER: | Ms Jane Peacock |
| DATE OF DECISION: | 21 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological Injury; dispute under section 11A of the 1987 Act; whether the applicant’s undisputed psychological injury was wholly or predominantly caused by the reasonable action of the employer in relation to performance appraisal, dismissal or discipline; employer bears onus of proof; evidence weighed in balance; Held- not satisfied on the balance of probabilities that the psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in relation to performance appraisal, discipline or dismissal; worker not precluded from the recovery of compensation by reason of section 11A; it was undisputed that the worker had no current capacity for employment; award for the worker. |
| DETERMINATIONS MADE: | 1. Award for the applicant for weekly compensation as follows: (a) from 25 February 2020 to 28 May 2020 at the rate of $1,202.46 per week, and (b) from 29 May 2020 to date and continuing at the rate of $1,012.60 per week. 2. The respondent pay the applicant’s section 60 expenses on production of accounts and/or receipts. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (Application) Ms Suanne Rae Dixon (the applicant) seeks weekly compensation and compensation for medical expenses as a result of psychological injury alleged deemed to have to occurred on 28 November 2019 in the course of or arising out of her employment as senior receptionist.
The respondent is the Sutherland Shire Council (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual Limited (the insurer)
The respondent denied liability for the claim.
ISSUES FOR DETERMINATION
There is no dispute that the applicant suffers from a psychological injury.
The respondent relies on section 11A of the Workers Compensation Act 1987 (the 1987 Act) and says that the applicant is precluded from the recovery of compensation because her psychological injury was wholly or predominantly caused by the reasonable action of the employer in respect of performance appraisal, discipline, or dismissal.
The parties agree that the pre-injury average weekly earnings PAIWE is $1,265.75 per week.
In the event the applicant is successful on the liability question, there is no dispute on the evidence that the applicant has no current work capacity. The applicant seeks an award of weekly compensation in her favour as follows:
(a) from 25 February 2020 to 28 May 2020 at the rate of $1,202.46 per week; and
(b) from 29 May 2020 to date and continuing at the rate of $1,012.60 per week.
In the event the applicant is successful on the liability question, the applicant seeks a general order in respect of section 60 expenses.
PROCEDURE BEFORE THE COMMISSION
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 matter was listed for conciliation/arbitration. There was late material filed by both the respondent and the applicant. The parties reached their own agreement about the admission of evidence including evidence in response and the making of submissions. This consensual approach was directed as follows:
“A conciliation/arbitration hearing was held on 20 January 202. Both parties were legally represented by counsel. The parties, at their own election and by agreement, agreed to the matter proceeding in the following way:
1. The Applicant to file (already served) within 7 days (that is by 4pm 27 January 2021) a copy of the clinical records of Dr Jacobs and if so filed, they are to be admitted.
2. Admit the late documents of the Applicant filed 15 January 2021.
3. Admit the late documents of the Respondent filed 15 January 2021 being late report of Dr Vickery dated 14 January 2021 on the basis that within 28 days (that is, by 4pm 17 February 2021) the Applicant to file and serve evidence in response from Dr Takyar and statement evidence in response and if so filed it is to be admitted.
4. In the event PIAWE is not agreed within 7 days (that is, by 4pm 27 January 2021), then the Respondent is to file and serve a competing wages schedule within a further 7 days (that is, by 4pm 3 February 2021).
5. The applicant to file and serve written submissions within a further 21 days of the conclusion of the evidentiary timetable (that is by 4pm 10 March 2021).
6. The Respondent to file and serve written submissions within a further 21 days (that is, by 4pm 31 March 2021).
7. The Applicant to file and serve within written submissions in reply within a further 7 days (that is, by 4pm 7 April 2021).”
The respondent subsequently sought an extension of time for submissions which was granted.
The applicant did not seek to file any submissions in reply.
In accordance with the consensual approach of the parties, the following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For the applicant:
(a) Application and attached documents;
(b) late report of Dr Takyar dated 10 February 202, and
(c) clinical records of Dr Jacobs.
For the respondent:
(d) Reply and attached documents;
(e) late report of Dr Vickery dated 14 January 2021, and
(f) late documents filed by the respondent 14 January 2021.
Oral evidence
The applicant did not seek leave to adduce oral evidence and the respondent did not seek leave to cross-examine the applicant.
FINDINGS AND REASONS
The applicant alleges that on a deemed date of 28 November 2019 she suffered a psychological injury arising out of or in the course of her employment with the respondent as a senior receptionist. The description of injury “pleaded” in the Application is as follows:
“The applicant was the subject of actions on the part of managers from 2016 until 2019 which were aggressive and overbearing and including repeated and unnecessary and unjustified criticism of her work in the nature of micromanagement in which she was treated differently to co-workers and isolated in the workplace.”
There is no dispute that the applicant suffered a psychological injury although the allegation of injury is disputed. The respondent says the applicant’s psychological injury was wholly or predominantly caused by the reasonable actions of the employer taken in relation to discipline, performance appraisal or dismissal.
The dispute concerns section 11A of the 1987 Act which provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent relies on the heads of discipline and/or performance appraisal and/.or dismissal.
The respondent bears the onus of proof.
There is no dispute that the applicant confronted her manager Mr Richardson on 28 November 2019. He alleges that’s she threatened him. Subsequently the applicant was stood down with pay while an investigation took place. She resigned on 25 February 2020 as part of a settlement reached with her employment in respect of the industrial dispute between the parties.
The dispute essentially lies in whether the employer’s action in relation to performance appraisal and/or discipline and/or dismissal were the whole or predominant cause of the applicant’s psychological injury.
There seems to be no dispute between the parties that the employer’s action taken after the incident on 28 November 2019 in relation to discipline and/or and/or performance appraisal and/or dismissal were reasonable. The applicant’s counsel did not address on reasonableness but on whether the applicant’s psychological injury resulted wholly or predominantly caused by the reasonable action taken by the employer after the incident on 28 November 2019 in which the employer had found the applicant threatened her manager Mr Ben Richardson. The applicant’s counsel approached the matters in dispute by arguing that the applicant’s psychological injury resulted from what she perceived as her treatment by her managers Ms Kennedy and Mr Richardson between 2016 and 2019.
The respondent relies on the opinion of the independent medical expert (IME) Dr Vickery, consultant psychiatrist, who was qualified on behalf of the respondent. In Dr Vickery’s opinion, the applicant’s psychological injury resulted from the action taken by the employer after the incident on 28 November 2019 in respect of performance appraisal, discipline or dismissal.
The applicant submits that her injury is not wholly or predominantly caused by the employer’s actions taken in response to her threats made to the manager but result from her perception of bullying and harassment during her employment from 2016 to 2019. The applicant’s counsel submitted:
“In broad terms, the applicant observes, absent any indication of the argument to be put by the respondent relative to its defence that all treating medical material assembled both from the general practitioner, psychologist and psychiatrist point to continuing issues associated with long term conflict and interactions in the workplace as contributory to the psychological injury suffered and of the injury having a much broader genesis than the specific incident identified by Dr Vickery as being causative of injury.”
The applicant submitted as follows:
“On a background of the volume of factual and medical material evidencing wide ranging and long standing issues of workplace dysfunction, the employer cannot discharge its onus of proving the applicant’s decompensation was caused not only by reasonable actions associated with the termination of employment or discipline but it falls at the first hurdle that is proving such actions were the whole or predominant reason for that decompensation.”
There is no dispute on the medical evidence that the applicant has no current capacity for employment and the respondent’s counsel did not make any submissions to the contrary. However, if the defence under section 11A is made out this will preclude the applicant from recovery of compensation.
I must make a determination in this case on the evidence and in accordance with the law.
Turning now to an examination of the evidence in this case.
The applicant gives evidence in her statement detailing bullying and harassment from a previous manager in 2016, Ms Kennedy and bullying and harassment from her new manager in Mr Richardson who started as her manager in September 2017.
To the extent that the applicant alleges she was bullied by her manager, Ms Susan Kennedy, in 2016, the respondent concedes that they received a number of complaints about Ms Kennedy and her employment was terminated. The respondent says the evidence shows that the applicant recovered from the psychological effects of any adverse behaviours of Ms Kenney. The respondent submitted:
“The Applicant alleges that she was repetitively victimised, harassed and bullied by her Team Leader in 2016. The Team Leader referred to by the Applicant is Suzanne Kennedy.
The Respondent in fact received a number of complaints regarding the conduct of Suzanne Kennedy and following an investigation3 Suzanne Kennedy left the employ of the Respondent.
Although the Applicant did see Dr. Charan Jeet on 26 April 2016 complaining of being stressed at work, there were no further attendances on the Miranda Medical Practice relating to the Applicant being stressed at work until an attendance on 16 January 2019.
The Respondent submits that the Applicant had recovered from any anxiety or stress related to her employment in 2016.”
Mr Ben Richardson became the applicant’s manager in about September 2017.
The applicant has given evidence in a detailed statement about how she perceived she was being treated by Mr Richardson. She felt he didn’t like her and that he was constantly pulling her up on minor matters. She gave evidence that amounted to her perception that she was dealt with differently by Mr Richardson from how he treated other staff members, in particular younger female staff members. Others were provided chips, lollies and coffee by Mr Richardson. She was not. She felt isolated and excluded by his behaviour. He tried to change her hours but not the hours of her co-receptionist. She was able to get this decision overturned but felt victimised. These events happened over time. Her evidence is supported by three co-workers who have given statements that do not amount to their observation of adverse behaviour by Mr Richardson but support that the applicant was complaining to them over time and before the incident on 28 November 2019 that she felt victimised by his behaviour towards her.
On 28 November 2019 the applicant gave evidence that she had four major events happening at reception because of what was happening at the council in terms of events. She hadn’t had time to eat lunch or even go to the toilet because she was so busy, She asked Mr Richardson if she could move back from reception to her morning desk to eat lunch from there and watch the desk.
She started her sandwich but with the frustration of running back and forth to the reception desk she gave up eating her sandwich and moved back to reception placing her sandwich under the counter top so customers couldn’t see it. She did not eat at the reception desk.
The applicant has a son who has autism and who had previously attempted suicide in July 2019 and she had previously missed calls from her son when he had an accident at work. She gave evidence that:
“previous to returning to reception my phone that was inside my handbag rang. I immediately snatched it out of my bag to answer it thinking it may be my son. It was my partner calling to ask if my son was okay as my usual midday routine was to call to check on my son and then call my partner to let him know how he was. As I didn’t have a lunchbreak I hadn’t called my son.”.
She then went to the toilet texted her son and returned to reception “which was getting even busier”. She then received an email from Mr Richardson telling her to refrain from using her phone at work and also to refrain from eating at the reception. She says she was not provided with a lunch break.
She perceived his allegations were unfounded and unfair and out of step with how he treated other employees. The applicant gives evidence in her statement about other employees being able to have children sit in the table at customer service while their mum finished work. On 28 November 2019 they were doing an assignment apparently on planets and yelling back and forth “Uranus (your anus)”.
The applicant perceived her treatment from Mr Richardson to be unduly strict and in great contrast to the apparent laxity he showed towards for other workers:
“I couldn’t believe that Ben who I knew was sitting at his desk would allow this to continue yet not allow me to have my phone which only rang in an emergency turned on in my handbag and out of sight of customers.”
Ms Dixon gave evidence:
”That afternoon after all my efforts at reception that day I was feeling dejected about being singled out yet again after receiving Ben’s email, when I had not done what I was accused of. Then I heard Rachel and her kids yelling out in that manner, so I stood up at reception, looked around the column and saw Ben still sitting at his desk”
39. The applicant then confronted Mr Richardson. The applicant says he said she would hold him responsible if anything happened to her son. Mr Richardson said she threatened to come back with a machine gun.
The applicant went on to give evidence that when she arrived at work on 9 December 2019 she was met by the Personnel manager Ms Edwards who informed her she was being stood down with pay while the council investigated the incident on 28 November 2019. She was escorted from the premises.
The applicant did not return to work and ultimately the applicant resigned on 25 February 2020.
On 29 February 2020 she consulted her GP, was issued with a workcover certificate and lodged a workers compensation claim on 6 March 2020.
The applicant gave evidence that after “her breakdown” on 28 November 2019 she couldn’t sleep, cried constantly and felt numb and dazed like she was in shock. She gave evidence that she:
“could not stop thinking how Ben was devoid of compassion, sensitivity respect or courtesy towards me. Pretty much from the get-go. Nothing I did was good enough for him and he always found reason to criticise me or call a meeting for the most trivial of reasons. I believe being subjected to this treatment along with Ben’s relentless bullying caused the slow decline of my mental health which resulted in my eventual breakdown.”
Mr Richardson has given evidence in response. Mr Richardson denies that he had bullied and harassed the applicant and denies that he has discriminated, victimised her, excluded her or treated her differently or intimidated the applicant.
Of Mr Richardon’s evidence, Counsel for the applicant submitted that:
“From a factual point of view the Applicant’s statement goes largely unanswered with broad rebuttals from Mr Richardson only and at best the issues of contention are matters of perception of real events such that the approach adopted in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286 becomes relevant.”
Certainly the evidence of Mr Richardson supports a threat being made by the applicant towards him. When read as a whole it cannot really traverse the perception the applicant has of how she was being treated by him.
The applicant’s evidence that she perceived she was being belittled and excluded by Mr Richardson and treated differently to other employees and that this caused psychological symptoms is supported by the fact of the referral from her GP Dr Worth under a mental health plan to psychologist Ms Cassell whose clinical notes of 18 June 2018 record the following:
“Suanne was referred by her GP under a mhcp related to workplace bullying. She described a history of bullying from her previous manager and her current manager. She was finding it difficult to concentrate at work and was visibly anxious throughout the session, She described experiencing low confidence and self esteem ad was second guessing herself. She was also quite anxious. She describes herself as generally a confident person. She has been working for the Sutherland Shire council for many years a front receptionist. She advised that the old manager had left and an investigation had occurred where it was found that she had been bullying her staff. The new manager. Suzanne advised had never tried to get to know her. She felt excluded by him and belittled. He had tried to get her role changed as well with no consultation which she believes is another example of his negative treatment towards her.
Dass- high anxiety, mild depression, high stress. Mindfulness breathing exercises.”Ms Cassell clinical records of the consultation on 6 January 2020 notes that the applicant had been a client two years prior. She records:
“she advised that her situation at work had not improved and had in fact worsened to the point that she couldn’t cope with it anymore and exploded one day after reaching breaking point. As a result she advised that she had been placed on stress leave. Whilst she was coherent throughout she did struggle at times to articulate the events leading up to the day, there were a large number of incidents for Suanne to explain such events included changes to job tasks, removal of within the building which was need in her role and treatment differences between older and younger employees.”
The applicant was referred by her GP Dr Jacob to psychiatrist Dr Farrar. Dr Farrar notes that the applicant was referred for psychiatric treatment by her GP Dr Jacob due to alleged workplace bullying and harassment since 2016 and that she conducted an initial assessment of the applicant on 21 April 2020 with appointments thereafter on a monthly basis.
Dr Farrar took a history of the presenting illness noting differential treatment by Mr Richardson compared to other staff member. She took a history of what occurred on 28 November 2019. Dr Farrar recorded that,
“she reported anxiety symptoms since 2017 due to her work stressors which increased in late 2019 including anxiety, sleep disturbance and problems with her memory and not being able to think clearly. She reported that she was commended on antidepressant venlafaxine in late 2018 which she tolerated well and had helped.”
Dr Farrar opined that the applicant’s employment was the primary substantial contributing factor to her generalised anxiety disorder, panic disorder and depressive disorder.
Dr Takyar, consultant psychiatrist is the IME qualified on behalf of the applicant. He saw the applicant by tele-health assessment on 6 august 2020 at the request of her lawyers and provided a report back to them on 10 August 2020.
The applicant gave a history of being treated differently, being excluded, being humiliated, being targeted by Mr Richardson. She gave a history that she felt the younger females would be drawn to him in conversations from which she would be excluded. She told Dr Takyar that “they would gather in a certain area near her desk and she found herself not being included. She would not be included in coffee runs.”
She told Dr takyar that she had a “breakdown at work on 28 November. A series of incidents led to me just going over and confronting my boss about what he had been doing to me over a period of time.”. She did not appear to tell Dr Takyar that she is regarded as having threatened Mr Richardson.
Dr Takyar diagnosed a work-related psychiatric injury opining as follows:
“Ms Suanne Dixon is a 55 year old female with no prior, active psychiatric history, who developed a psychiatric condition which appeared to be mainly in the form of anxiety in around 2016 in the context of difficulties with a team leader who had threatened her, verbally abused her as well as other staff, but eventually was fired and left. She stated that things improved, but a new team leader commenced in September 2017 and subsequently she began to have difficulties with being isolated, excluded, castigated and reprimanded for smaller matters, treated differently to others who were shown favouritism, and humiliated. She also noted that she performed security functions for the council, and her manager removed her security access on her swipe card. She reported that over the course of her employment her mental state degraded, and she eventually ceased work in November 2019 and eventually resigned in February 2020. Ms Dixon presents with symptoms consistent with a DSM-5 generalised anxiety disorder, a panic disorder with agoraphobia and a major depressive disorder and does not have realistic capacity for employment on the open and competitive labour market at the current time. She requires ongoing support from her treating psychiatrist on a monthly to fortnightly basis, psychological therapy fortnightly and medication on an ongoing basis.”
On 10 February 2021 Dr Takyar provided a supplementary report at the request of the applicant’s lawyers and he has the benefit of the reports of Dr Vickery.
Dr Takyar placed great weight on “the more detailed history in the letters of treating psychiatrist Dr Farrar “who quite clearly described the workplace injury occurring in the context of bullying and harassment at work. I maintain my view that the perceived workplace bullying and harassment has lead to the work injury commencing around 2017. She also made reference to there being active stressors throughout employment related to:
“bullying and harassment with a workplace supervisor Ben since 2017; she made references to stressors continuing over time, including In July 2018 and a final breakdown at work in late November 2019 when she had pneumonia and was transiently worried about her son, Dr Farrar’s letter of 1 April 2020 noted Ms Dixon did not think the investigation was fair and that Ben and others lied which cannot be excluded.”
The respondent relies on the opinion of Dr Vickery contained in two reports dated 16 June 2020 and 14 January 2021 respectively.
Dr Vickery saw the applicant on 1 June 2020 for a tele-health assessment at the request and he provided a report dated 16 June 2020.
Dr Vickery took a history. He notes the applicant’s allegations that she says she was bullied and harassed by Mr Richardson but he says the events to which she refers appeared to be of little significance to her and had little impact on her. Dr Vickery places greater weight on the threats made by the applicant to Mr Richardson and her subsequent termination.
In fact the applicant says she resigned. There seems little doubt that she was the subject of an investigation into the threats made which could be characterised as a disciplinary process and she later resigned which could be viewed as a constructive dismissal.
The question in this case is whether her psychological injury was wholly or predominantly a result of the reasonable action taken by the respondent with respect to performance appraisal, and/or dismissal or and/or discipline. The real issue being the whole or predominant cause of her injury.
In his report dated 14 January 2021 Dr Vickery opines:
“it is my opinion that Dr Ashe Takyar has not accurately documented Ms Dixon’s progress of her psychopathology and most notably that she was relatively asymptomatic in late 2019 and 2020 and that her current relapse was entirely related to litigation ‘legal proceeding against her employer’ and was not related to incidents to do with her employment”.
Here Dr Vickery seems to expressing a view about the causation of the applicant’s current presentation as at January 2021.
Counsel for the respondent submitted:
“It is submitted therefore that a review of all the medical evidence is consistent with the Applicant having had a number of previous episodes of anxiety and depression, which would appear to recover, until the incident of 28 November 2019.
It is submitted that the Commission would prefer the opinion of Dr. Vickery who has taken a very full history and has opined that the Applicant’s psychiatric injury was caused wholly or predominantly by actions taken by the employer as a result of the incident of 28 November 2019 and the eventual termination of her employment.
It is further submitted that the employer’s actions in respect of the disciplinary process were reasonable in all the circumstances.
There ought therefore to be an award for the Respondent.”
The respondent bears the onus to prove its defence. I have to weigh all of the evidence in the balance. When I do that I am not satisfied on the balance of probabilities that the applicant’s injury was wholly or predominantly caused by the reasonable action taken by the employer with respect to performance appraisal, discipline or dismissal. In my view, when the whole of the evidence is weighed in the balance, the events of 28 November 2019 cannot
be divorced from the context of the applicant’s perception of various behaviours of Mr Richardson towards her that she perceived as belittling her, humiliating her and excluding her. She did not just seek medical help for psychological symptoms that arose as a result of his perceived behaviour toward her for the first time after 28 November 2019. In fact she sought assistance with psychological symptoms in 2017 and again in 2018 and she was placed on antidepressant medication which helped to control her symptoms. Her reports to those medical professionals from whom she sought assistance of her perception as to how she was being treated by Mr Richardson are entirely consistent with her evidence. I prefer the opinion of Dr Farrar and Dr Takyar to that of Dr Vickery. While the events of 28 November 2019, her threats and the response of the employer contributed to her psychological injury, I am not satisfied on the evidence that her psychological injury was wholly or predominantly caused by the reasonable action of the employer taken in relation to dismissal, discipline or performance appraisal as a result of the incident on 28 November 2019 and her eventual termination.
This means that the applicant is not precluded from the recovery of compensation for her injury by reason of the provisions of section 11A.
As there is no dispute on the evidence that the applicant has no current work capacity and PIAWE is agreed, I will make an award of weekly compensation in favour of the applicant as sought by the applicant as follows:
(a) from 5 February 2020 to 28 May 2020 at the rate of $1202.46 per week; and
(b) from 29 May 2020 to date and continuing at the rate of $1012.60 per week.
I will also make a general order for medical expenses as sought in favour of the applicant.
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