Dryden v Kristy Sollars t/as Inland Café

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dryden v Kristy Sollars t/as Inland Café [2021] NSWPIC 233
APPLICANT:	Jeremy Dean Dryden
RESPONDENT:	Kristy Sollars t/as Inland Café
MEMBER:	Kerry Haddock
DATE OF DECISION:	7 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly benefits, medical expenses and permanent impairment compensation as a result of conceded psychological injury; respondent relied on section 11A of the 1987 Act, being action with respect to discipline; applicant disputed that injury was wholly or predominantly caused by meeting at which he was directed to undertake drug testing, that the meeting amounted to discipline, and that the respondent’s action was reasonable; dispute as to extent of incapacity for work due to physical injuries not relied on in Application; Ponnan v George Weston Foods Ltd applied; Held- the applicant’s injury was not wholly or predominantly caused by the respondent’s action; in any event action was not one with respect to discipline and was not reasonable; applicant has no capacity for work; award for the applicant for weekly benefits and medical expenses; claim for permanent impairment remitted to Medical Assessor.
DETERMINATIONS MADE:	1. That there is an award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $837.32 per week from 2 July 2020 to date and continuing. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. 3. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of psychiatric/psychological injury deemed to have occurred on 6 September 2019. 4. That the Medical Assessor is to be provided with the following: (a) The Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 3 May 2021 and attached document.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jeremy Dean Dryden (Mr Dryden) was employed by the respondent, Kristy Sollars t/as Inland Café (the café) as a chef.

Mr Dryden claims to have sustained a psychological injury with physiological symptoms, deemed to have occurred on 6 September 2019.

On 9 June 2020, the respondent’s workers’ compensation insurer, Insurance & Care NSW (icare) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Icare disputed liability for the applicant’s claim. It disputed that he was entitled to compensation because his psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline. The respondent therefore relied on the provisions of section 11A of the Workers Compensation Act 1987 (the 1987 Act) to dispute liability for payment of either weekly benefits or medical expenses. Icare conceded that the applicant suffered from an adjustment disorder with mixed anxious and depressed mood, which was an aggravation of a pre-existing condition, to which his employment was a [sic] main contributing factor.
By letter dated 18 December 2020, the applicant’s solicitors made a claim on his behalf for permanent impairment compensation, pursuant to section 66 of the 1987 Act, for $58,750 in respect of 22% whole person impairment (WPI) as a result of psychological injury on 6 September 2019.

On 23 March 2021, icare issued the applicant with a further notice pursuant to section 78 of the 1998 Act. Icare disputed liability for his claim for permanent impairment compensation. It once again relied on a defence to the claim pursuant to section 11A of the 1987 Act, specifically in respect of “discipline”. Liability for weekly benefits and medical expenses was also disputed. Icare also relied on medical evidence that the applicant had not yet reached maximum medical improvement.

The applicant lodged an Application to Resolve a Dispute (the Application) on 30 March 2021. He claimed to have sustained a psychological injury with physiological symptoms, as a result of excessive demand and unrealistic expectations, the deemed date of injury being 6 September 2019.

The Application claimed weekly benefits from 2 July 2020 ongoing, pursuant to section 37 of the 1987 Act; and permanent impairment compensation of $58,750 in respect of 22% WPI as a result of psychiatric and psychological disorders.

The respondent lodged its Reply on 21 April 2021. In addition to the matters previously notified to the applicant, it sought leave to dispute that he was entitled to permanent impairment compensation, in accordance with section 66(1) of the 1987 Act; and that his pre-injury average weekly earnings (PIAWE) were as particularised in the Application. It submitted that the applicant’s tax return supported gross earnings of $990 per week, based on an annual tax return of $51,480 per annum.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Whether the respondent has a defence to the applicant’s claim, pursuant to section 11A of the 1987 Act, relying on its action with respect to discipline; and
(b) The applicant’s capacity for work.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 19 May 2021.
Mr Stephen Hickey of counsel, instructed by Mr Grady, appeared for the applicant; and
Mr Grimes of counsel, instructed by Ms Dooley, appeared for the respondent. Mr Dryden was present. Ms Lawrence and Ms Fitzgibbon were present on behalf of the insurer.

The applicant sought a general order for medical expenses pursuant to section 60 of the 1987 Act, should he be successful in his claim. The Application was amended accordingly.
The parties have agreed on the applicant’s PIAWE at $1,046.65.

At the completion of the applicant’s submissions, there was insufficient time in which to hear the respondent’s submissions. The respondent was directed to file and serve on or before 26 May 2021 written submissions on the issues of the application of section 11A of the 1987 Act, with respect to discipline, and the applicant’s incapacity for work. The respondent has complied with that direction.

The applicant was directed to file and serve any written submissions in reply on or before 4 June 2021. No further submissions have been received.

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)    The Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 3 May 2021 filed by the applicant and admitted by consent.

Oral Evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Jeremy Dean Dryden

The applicant’s first statement is dated 23 September 2019.
The applicant gave evidence about his employment with the respondent, stating that he averaged about 44 hours per week. His days off were Wednesday and Thursday. He had not had any breaks during his shifts and had his meals “on the run”. He worked with another chef, Tim, from Friday to Sunday and usually worked alone on Monday and Tuesday, with occasional assistance from wait staff or Kristy (Ms Sollars), when she was present.
The applicant was diagnosed by Dr Daniel Rankmore with mild depression in January 2019, “because of personal life events”. He had been unwell with ongoing MSSA infection, which had not been fully explained. The doctor was not concerned, and he sought no further treatment. He had not been the subject of any prior performance issues or given any warnings about his performance.
The applicant considered there had been ongoing workplace bullying by Kristy since 5 June 2019. It escalated when Dr Rankmore responded to a request she had made about his medical condition, to make a determination about his future employment.
The applicant had attended work on 4 September 2019, on his day off, for a handover with Tim. He was there for approximately 15 minutes and was very tired. He has referred to this in his second statement. At no time did any staff member comment on his appearance or seem to fear for their safety. He believes he gave them no reason to believe he was a risk to anyone.
On the same day, the applicant’s wife told him that Tim had told her father, Martin, that
Mr Dryden was taking drugs and “popping pills”. This was said in close proximity to Kristy. Martin responded that this was incorrect, and the applicant was tired and under a great deal of stress. Both the applicant’s wife and father-in-law were aware of his ongoing issues with his employer.
The applicant became highly stressed, angry and annoyed that these comments were made to his family members. He texted Tim at 8:01pm to say that he was at a loss and was tired, as “crazy things happened that last night and I was unwell”. He stated it was nothing to with any pills, “it is called exhaustion and stress and bullying”.
The applicant received a text from Kristy on 5 September 2019 at 6:04pm, asking him to start at 7am the next day “as we will be having a meeting regarding your performance”. It was signed by Kristy and Kimble (her husband).
The applicant was not offered the opportunity to have a support person or given adequate notice. He had gone to bed early the night before and had not received (read) the text until the next morning at 5am.

On entering the meeting, the applicant asked that it be postponed. He was not offered a support person and his request was questioned by Kristy. She said it could be postponed until 11am, but he replied this was not enough time. The applicant offered to continue the meeting if he could record it, to which they both agreed.
Kristy stated that on 4 September 2019, the applicant’s actions left staff concerned for their safety. He was “falling all over the shop, eyes rolling in the back of [his] head and tongue hanging out”. He denied this and had evidence to question its validity. During this meeting he put to Kristy that she had been pushing and making things hard for him since she received the letter from his general practitioner in June. She said “I’m sorry you feel that way”.

The applicant was given a written directive to have a drug test. He requested a copy of the drug and alcohol testing policy, which was provided just before the test. He believed it was unlawful and would have refused it, but the letter stated that if he did not comply, it may lead to disciplinary action, up to and including termination.
Once he was given the written directive, the applicant said he was happy to undergo the test. After the test, he requested that all staff undergo it. Kristy replied with words to the effect that she would be happy to do one tomorrow and “This is about you Jeremy, not anyone else”. She told him it would be a blood test, which was outside the policy and in his opinion was targeting him and supporting his claim of bullying and harassment. He ended up having a breath test and a urine sample was taken.
The applicant stated this had nothing to do with his fitness for work on 6 September 2019. He had the test that day, and was told the result was negative, bar codeine, about which he had informed the tester. Kristy was also aware that he was taking medication for ongoing pain in his leg. He requested a copy of the results but was told it could not be provided because Kristy was paying. He sent her a text at 7:45pm on 6 September 2019 to say he had not heard anything about the results but received no reply.

The applicant sent Kristy and Kimble an email on 8 September 2019, requesting confirmation of the test. He received no response. He had still not been given the results.
On 6 September 2019 the applicant consulted Dr Rankmore. He had had a previous discussion with him about being pushed to leave and his employer treating him differently.
Dr Rankmore issued a WorkCover Certificate of Capacity (COC) for time off until 20 September 2019, referred him to psychologist Rebecca Jones and prescribed medication. He had been mainly staying at home and had been issued a further certificate until 20 October 2019.
The applicant had had some health problems, with a disability related to a relapsing MSSA infection, but it never impacted his ability to do his job. He had also had a number of life events, including commencing bankruptcy and his grandmother passing in early August 2019. Her death was expected and sad but was not connected to his condition or claim.
The applicant made a further statement dated 17 December 2020.
The applicant commenced work for the respondent in April 2018, ceasing work on 6 September 2019. He worked at the Riviera Bar and Grill from November 2019 to December 2019.
In March 2018 Mr Dryden had been in hospital for about a week for knee surgery. He was hospitalised again in late May 2019, due to a staph infection. When he returned to work in late May 2019, after taking sick leave, he began to have problems with Kristy and other staff. Kristy showed favouritism to others and he was told numerous times by them that he should find a job elsewhere.

On 31 May 2019, Kristy gave the applicant a letter requesting advice from his doctor about his infection and the effects of the medication he was taking. He found this very unusual and it seemed she was trying to find a reason to terminate his employment. She knew he had been taking medication for the past 12 months but had never previously indicated it had caused any problems.

Dr Rankmore replied to Kristy in a letter dated 5 June 2019. He outlined that the infection was being treated and the applicant did not pose any risk to other staff or customers, provided his wounds were appropriately covered. He always made sure they were.

The applicant went to the Emergency Department at Tamworth Base Hospital with severe eye pain at 3am on 11 June 2019. He left without being treated and went to work. After working until 11am, he became unwell and asked Kristy if he could see his doctor and then come back, which she said was OK.
The applicant saw Dr Chan, who wanted him to urgently attend hospital. He contacted Kristy to advise that he would not be back immediately. She said words to the effect that “I can’t do this any more, I have a business to run”. The applicant said it was fine and he was on his way back. She said not to worry, and he could go to his appointment.

After that, Kristy’s attitude to the applicant clearly changed. She would avoid him and leave him out of conversations. She would hand Tim a coffee but no longer offer one to him. On another occasion, someone wrote “H8U Jeremy” on his cup. At about the same time, he started to receive hateful comments from other staff on his Facebook page. Teliah Wise left a comment saying he was only her co-worker and “I am not repeat not your friend”.

The applicant started to become anxious and stressed about having to return to work the next day. On the night of 27 June 2019, he was walking around the house having conversations with himself. His wife said he was changing his voice. He got up multiple times and she guided him back to bed. He has little memory of this.

On 28 June 2019, the applicant broke down in tears at work. It was a particularly busy day and there was a lot of pressure on him. He left work for the rest of the day. He reported these incidents to Dr Rankmore at his next appointment on 1 July 2019. Dr Rankmore commenced him on quetiapine and duloxetine.

On 2 July 2019, the applicant worked alone and stayed back to do some preparation for the next day. When he left, he took a bread stick that had been offered by Hannah Ford, and some beef fat and offcuts for his dog. He passed Kristy’s brother-in-law, Will Sollars, as he left.

The next day, the applicant received a text message from Kristy on his day off. It said he was not to be at the café before 5:30am or after 3:00pm. He responded with “OK??”, but Kristy did not reply. The applicant was very anxious and wanted to know what was going on, so he sent Teliah a text. She replied that Will had seen him leaving the café with food. This suggested to him that he was being accused of theft.

On 9 July 2019, the applicant cut his thumb at work. He bandaged it and put on gloves, which he changed regularly. Other staff tried to contact Tim to fill in for him but could not reach him. He later left after Kristy’s sister, Emma, agreed to come in. He attended his doctor to have the cut dressed.

Later that month, Kristy told the applicant a customer had complained about finding blood in their meal. He thought this could not be right as there had been no complaint on the day, and no staff had mentioned a complaint. He told Kristy he couldn’t leave, and if it happened, he hadn’t meant it to. He covered the cut and was wearing gloves. Nothing else was said about it.

On 31 August 2019, the applicant worked alone for an hour, and was then contacted by Tim, who said he wouldn’t be coming in. It was a busy day, as the next day was Father’s Day. The applicant and Dillon were the only ones in the kitchen. At 2pm, all the staff went home. Dillon remained for a while and then left, leaving the applicant to clean up the kitchen alone. This was very unusual, as there had always been at least two people to clean on Saturday afternoons.

The applicant texted Kristy to ask if he should start work the next day at 5:45am, given that he had previously been told he wasn’t to be in the café early. She replied that it was OK. Tim had advised him he would start at 5:00am.

On 1 September 2019, Mr Dryden arrived at work at 5:30am. Tim had not arrived, so he sat in his car and waited for Kristy. He received a text from Tim to say he had a flat tyre. By 5:50am neither Tim nor Kristy had arrived, so he went in and started work.

Tim and Kristy arrived at 6:05am and 6:20am respectively. They were falling behind in preparation and the next day would also be very busy. The applicant asked Kristy if she would be in the next day. She said she would and suggested he start doing prep. He had started but there was still a lot to do.

On 2 September 2019, the applicant arrived at work at 5:30am. He was told by Hannah Booby that Kristy would be in at 8:00am. When she arrived, she only helped Hannah make sandwiches, which was a one-person job.
The applicant began to get very stressed and anxious as he could not see how he was going to get through all the work on his own. Kristy did not provide any help despite him having asked her the previous day about assistance. She only spoke to him to ask why he was doing things a certain way, which just added to his stress. She could see he was already at capacity but would not provide him with assistance. She left at about 11:00am.

The applicant continued working but got more and more stressed. He told Teliah he was not coping and was about to have a breakdown. At lunch time they began to run out of supplies, and he had to keep running back and forth to the cool room. He had never felt so unwell mentally. Teliah tried to help in the kitchen. Kristy returned at about 1:15pm and helped in the kitchen.

On 3 September 2019, the applicant was very anxious about going back to work and still feeling the stress of the previous day. There was still a lot of preparation to do. When Kristy arrived, she did little to help. All the staff left at 2:50pm and he finished up at 3:30pm. That night, a vehicle crashed into his car, which was parked outside, at about 1:00am. The police attended and this took a number of hours to be dealt with. He was very tired going to work the next day.

The applicant then repeated his evidence about attending work on 4 September 2019, and the advice to his father in law that he was on drugs. This added to his stress and he became very angry, agitated and despondent.

The applicant also repeated his evidence about receiving a message about the meeting on 6 September 2019. This made him very worried and anxious. He thought it odd that Kimble would be there as he was only at the café when he was needed for some odd job. He thought it may be serious.

The applicant repeated his evidence about the drug test.

The applicant stated that his general practitioner was treating him for stress and anxiety from July 2019, well before the meeting on 6 September 2019. He felt he had too much to do at work and was being singled out by his employer and excluded from conversations and discussions. By 6 September 2019, he was able to go to work but “only just”, as his anxiety levels and stress were extremely high.

The applicant had a total of 12 sessions with Ms Jones. He was referred to Dr Geoffrey Robinson, psychiatrist. His initial consultation was in February 2020, when Dr Robinson recommended he be monitored and treated in hospital while his medication was adjusted. He was admitted to Maitland Private Hospital for 28 Days in April 2020. He also attended some mental health workshops. Since July 2020, he had travelled to Newcastle once a month to see Dr Robinson.
The applicant had also been treated by Dr Negrine, orthopaedic surgeon, for his right foot. He had started to scrunch up his toes, which Dr Robinson suggested could be stress related. He was still taking a range of medications.
The applicant stated that he had become isolated. He had been studying for his Master’s in Training and Development but stopped studying in June 2019, when he was having a lot of difficulties at work. His lack of motivation has impacted his self-care. He was easily annoyed and agitated, and sometimes threw things. His personality had changed. He had difficulty sleeping. He didn’t like to leave the house for fear he would see someone he used to work with. He had panic attacks in public.

Evidence of Nigel Peter Goodman

Mr Goodman stated on 22 September 2019 that the applicant told him on 4 September 2019 that a car had driven into the back of his car, which was parked on the street, and had shown him photos of the accident.

The applicant told Mr Goodman that the police had been called, searched the area, and brought the driver back to the accident site.

Mr Goodman stated the applicant appeared shaken by the accident but at no time did his behaviour, appearance or actions give him any concern for Mr Dryden’s welfare. Nothing appeared out of the ordinary and he often saw the applicant daily.

Evidence of Nicholas Balding

Mr Balding stated on 22 September 2019 that he was employed by the respondent as a chef for about nine months from 2017 to 2018.

Mr Balding stated that he was not given or offered any paid or unpaid breaks during his shifts. While he was working with the applicant, Mr Dryden never had, or was told to take, any paid or unpaid breaks.
I have given little weight to Mr Balding’s evidence.

Evidence of Martin John Baker

Mr Baker is the applicant’s father-in-law.

Mr Baker stated that he went into the café four or five times a week for coffee. He would say hello to the applicant in the kitchen if he was working. He assumed the staff knew of his relationship with the applicant.

On or about 4 September 2019, Mr Baker went to the café. While he was waiting for his coffee, he was approached by Kristy Sollars, who told him Tim wanted a word with him. She remained a couple of metres away while he talked to Tim.

Tim said words to the effect that “I think Jeremy has been coming to work drunk or affected by drugs. It looks like he’s burnt out and he’s stumbling around the place.” Mr Baker told him he did not believe the applicant would come to work affected by drugs and he had not seen any of the behaviours Tim was describing. Tim insisted he knew what people looked like when taking drugs and he was certain the applicant was taking drugs that affected him at work.

Kristy then entered the conversation and said words to the effect that “We feel Jeremy is affected by drugs or alcohol. We think he needs help as we are worried about him and the safety of other staff here.” Mr Baker continued to tell her and Tim that he did not believe Jeremy was taking drugs or turning up to work drunk.

Mr Baker had noted a significant change in the applicant’s behaviour and personality over the course of his employment with the respondent. When he started, he was very happy and excited. He took pride in his work. He used to be very confident as he had a lot of experience running a kitchen, which can be a high-pressure environment.

When the applicant started to have problems at work, he seemed to lose a lot of confidence. He would roll his eyes when asked about work, and say he was concerned about how he was being treated. He felt he was being judged and monitored and was worried about negative comments from Kristy and other staff. He said he was accused of stealing bread, which upset him as he denied stealing anything.

The applicant appeared quite despondent and anxious. He remained at home a lot. On one occasion Leah (the applicant’s wife) arrived without him and said he was so tired and was sleeping. He seemed very quiet and introverted. He rarely said anything, but if the conversation turned to work, he got fixated and went on about his experiences while working at the café.

Mr Baker had also noticed the applicant was unable to sit still and appeared very agitated. He constantly walked around the house, in and out of different rooms, outside and back in. He seemed to dislike sitting in a group.

Evidence of Kristy Sollars

Ms Sollars’ evidence consists of a transcription of a videoconference that took place on 4 October 2019. Much of it is repetitive, out of chronical order and difficult to follow. I have summarised what I believe is the relevant evidence.

Ms Sollars stated that the applicant’s hours were the same every week, but he would often change shifts to suit his doctors’ appointments. They tried to help him so he would not lose hours, “because by the end of it, he wasn’t there much at all.”

Staff is allowed a designated meal break. Some use it to smoke, some choose to have it, and some don’t, but Ms Sollars “feed(s) and waters them at no cost”. Chefs don’t get a meal break at lunch time. Usually they take turns. The applicant would go to the chemist or an appointment, or pick up his daughter, “so there was always something”. He often wouldn’t have a break. Ms Sollars didn’t think he smoked.

The applicant was “amazing” for probably six weeks, and then he had a problem with his knee and got staph and had some time off work, and from there he got very unwell. He used up all his holiday and sick days.

The applicant went “downhill” from there, which was understandable. He had staph from his knee down into his calf, his foot and on his face. He had so much going on at home, as his wife got very ill and was in intensive care. Ms Sollars believed he was quite stressed about that. Just weeks before, his grandmother passed away. Before that, he and his father were being investigated because she was not being cared for. There were issues with his teenage daughter, which it is unnecessary to repeat in these reasons.

Ms Sollars had tried her hardest with the applicant. She believed that he was “not all there” and was abusing pain medication, because there were days when he “absolutely couldn’t function”. She believed he was in a lot of pain. He was “scattered” or rushing around. This was noticed and pointed out by customers.

Ms Sollars had often asked the applicant what was going on, as people had noticed a change and “I know you’re under a lot of home stress”. He would often cry and “pour his heart out” and at the end give her a “cuddle”. He was not offered any counselling. She knew the applicant had gone bankrupt, as he told her in late June and said “It’s all just too much”.

Ms Sollars contacted Employsure “all the time” for advice about the applicant’s performance and her concerns. It was over 12 months before that she started taking notes and ringing Employsure.

The applicant’s illnesses and personal problems impacted his work performance and Ms Sollars spoke to Employsure about his behaviour and staph infection. Her employees were very concerned they would get it. One was pregnant and was “absolutely terrified”. She told the applicant he had to get forms from his doctor as she needed to know “the girls are safe and it’s not contagious”. This was done on advice from Employsure.

Ms Sollars referred to the applicant’s attendance at work on his day off, when two younger girls and the chef were in the kitchen. They couldn’t understand what he was saying and “his tongue was hanging out the side of his head”. The girls were scared, and she had to do something to look after them.

Ms Sollars went to the police, as the applicant had more than once told more than one staff member that he would hang himself in the storeroom. The police made notes in a “little blue book”. She had asked the applicant about that and about him having said to staff that he was going to take her down and shut her business down. He said he was just joking.

After contacting the police, Ms Sollars called Employsure. She was advised to get statements from her staff and then they decided there was enough information to send the applicant for a drug test. They drafted a letter.

Ms Sollars let the applicant know about the meeting the night before. He attended as if he didn’t get the text, was extraordinarily agitated, and asked if he could cancel it. She asked if he wanted to cancel and “he didn’t have an answer”. He asked if he could have a support person and she said he most certainly could, and to come back at 12 o’clock and bring somebody with him. She gave him a few options, and she thinks she said to bring Leah or his dad, but he did not want any of them, and then said “Look, let’s just do it”. She responded “As long as you’re sure”. She noted he had recorded the conversation.

Ms Sollars and her husband talked to the applicant, gave him the piece of paper and said they believed he was inadequate to get his jobs done and nothing had changed. She didn’t know why he was finding it so hard, but felt that she did know, “just from pressures at home”. He wasn’t focused. She believed the last six weeks were quite brutal for him.
When the applicant was asked to take the drug test, he was told he could go home on full pay. He was clearly unwell. He went home and sent through the claim that afternoon. To
Ms Sollars’ knowledge he had not asked for a copy of the drug test. He had emailed and asked for the Employee Handbook (the Handbook), as he had lost his copy. She emailed it again. She had handed him one when he first started. He would often point out things in it to other staff.
Ms Sollars was “pretty confused” as to why the applicant thought she was bullying him because she felt she had done nothing but support him through his own illness and those of his wife, children and grandmother. She had never denied him a day off. She had let him know it had been extraordinarily difficult for her, because it is a small business and he had had quite a lot of time off.
Ms Sollars referred to the request to Dr Rankmore for a letter to prove the applicant was not going to harm any staff, as he had open wounds. They were covered most of the time, but he opened and touched them. She believed she had “supported him tremendously along his journey of being unwell”. She does not believe she bullied him, but she asked him to respect her other staff. They were all going to leave because of his erratic behaviour. She had asked the staff to take notes of what was going on.

The applicant had cut himself and there was blood in somebody’s pancakes. Ms Sollars was concerned that somebody would sue her because he had a staph infection. She had photos of that.

As regards the drug test, Ms Sollars had done what Employsure directed her to do, as “they’re a legal firm”. She just followed their policies and procedures. The applicant never came back after the drug test, as he put in the claim. The meeting was at 7am and the test was at 11am. The applicant did not work in the intervening period. She does not believe it is correct that he was given the option to work, as she would not let him work if she believed he was under the influence of drugs. He had said he didn’t get the text until 6am.
Ms Sollars does not know what the applicant means by “pushing him”. If anything, the shop is quieter because of the drought. They don’t have to do prep for the other shop, which has closed, so they do less. If he felt unwell and couldn’t meet the standards, then maybe he shouldn’t have been at work. She denied bullying and harassing him and referred to the friendship she had with him, evidenced in text messages. She had supported and comforted him. There is no way that she pushed him, bullied him or asked anything that he didn’t do before. She vaguely recalled his comment that she had been pushing him and making things hard for him.

Ms Sollars stated that Tim would be the best person to whom to speak, as he worked with the applicant the most. He had said he was not going to work for her if the applicant came back.

Ms Sollars referred to the applicant’s father coming to the café and obtaining additional food with his orders, for which he had not paid. She also believed the applicant was “taking stuff from the shop”. His behaviour had been erratic, and he was throwing things. She had been advised of this by text from “one of the girls”, while she was on holiday in Africa. She asked if he needed to go home and he said he didn’t.

Ms Sollars had directed the applicant not to be in the business before 6:30am and to leave at 3pm. She was in Africa and he sent her a question mark quite a few hours later. She thought she would talk to him on her return, but did not get to do so, because he went off work for quite a long time and was quite sick. She doesn’t know if it was when his grandmother passed away or if Leah was sick.
The letter requiring the applicant to attend a drug test is in evidence. It is dated 5 September 2019 and referred to “our meeting today”.

Evidence of Chelsea Booby

There are handwritten notes of Ms Booby, covering the period from 2 September 2019 to 4 September 2019.

Ms Booby recorded that the applicant could hardly talk on 2 September 2019 and when he did, she didn’t know what he was saying. He was “really off and kept licking his mouth. His tongue was basically out of his head”.

On 3 September 2019 the applicant was the same.

On 4 September 2019, the applicant could hardly walk, smelt bad and his eyes were rolling into the back of his head. He started talking about someone crashing into his car. She and Hannah were very uncomfortable. He left and drove but was in no state to drive. She and Hannah told Kristy what had happened. She was not comfortable working with the applicant.

Evidence of Hannah-Rose Ford

Ms Ford has made an undated handwritten statement.

Ms Ford had been aware that the applicant had been very unwell, but for the past few months his behaviour and ability to complete his work had dramatically worsened. He mentioned before Easter that he wanted to kill himself. She thought he was joking, but he said he would hang himself in the storeroom. She laughed it off because she was not sure what to say.

Ms Ford also referred to the incident where there was blood on the pancakes. She took a photo and sent it to Kristy.

The applicant had acted as if he was flat out, but work had been quiet and the days he was by himself were always the quietest. He could never keep on top of the washing up, but Tim was more than capable and didn’t need help all day.

Ms Ford caught the applicant in the storeroom one day “acting suspect”. He was in the corner with a straw in his hand. She walked out and said “don’t do drugs”. She went in later but couldn’t find anything.

The applicant’s behaviour was always changing. Sometimes he was really quiet and would seem angry. He would disappear and come back a different person. He would then talk non-stop and ask her many questions. He was so erratic.

Towards the end of her work, before going on maternity leave, Ms Ford hated being there because she had to do so much and was heavily pregnant.

Evidence of Teliah Wise

Ms Wise has also made an undated handwritten statement.
Ms Wise stated that in the last few months the applicant had not been himself, was not coping and was not capable of doing his job. He had been hard to understand, had slurred speech, was chewing his mouth and was very fidgety. She had a strong feeling he was using drugs while at work.
Ms Wise was not comfortable working with the applicant. He had told her his mother and sister had accused him of using drugs. He seemed to have a lot of time off.
The applicant had had “a lot of stuff going on with his health” and in particular he was getting sores all over his legs. He didn’t have them covered and would touch them “and show us”. When he was told to keep them covered, he would still unwrap them. He said the doctor said he was fine to work with, but she found him very unhygienic. He also had “half his bottom hanging out”, which had also been noticed by the customers.
The applicant never had a positive attitude at work, which affected them all. He had been applying for other jobs and said he was only there until he got one. He had threatened to hang himself in the storeroom due to his illness.

Evidence of Hannah Booby

Ms Booby’s evidence consists of a handwritten statement, apparently dated 5 September 2019, and an email to Ms Sollars, dated 16 September 2019. The evidence is similar, although the statement referred to the applicant having mentioned on 4 September 2019 the incident with his car.

Ms Booby had worked with the applicant during his entire period of employment. She had noticed drastic changes in his mood and work ethic. He seemed erratic and it looked to her as if he was on drugs.

During the week of 1 September 2019, the applicant’s behaviour was at an all-time low. Ms Booby could hardly understand him when he was speaking. He was incomprehensible on 2 September and 3 September.

On 3 September 2019, which was the applicant’s day off, he arrived at 6:15am and could hardly walk or stand, his eyes were rolling into the back of his head and he was hard to understand. This was the worst Ms Booby had ever seen him. After about 10 minutes he walked through the shop in an intoxicated manner.

Ms Booby stated that the applicant always arrived late, reeking of body odour and “with his pants halfway down his bum”. He did not treat the workplace with respect. She had noticed some regular customers would leave or just order coffee if he was cooking.

Evidence of Timothy Sayner

Mr Sayner has provided undated handwritten statements and a statement dated 15 September 2019.
Mr Sayner stated that Father’s Day was quite busy. The kitchen staff all started early. He felt the prep was adequate for Monday’s service.

Mr Sayner has also stated that on 1 September 2019 the applicant was or may have been under the influence of a drug. He was unable to talk for long, but noticed erratic behaviour, slurring words and licking of the mouth. The front of house staff members told him they were frightened. He felt the situation needed to be addressed.

On 15 September 2019, Mr Sayner stated that he had worked with the applicant for over 14 months. At no time did he notice any bullying and the applicant did not complain of it to him.

The applicant was frequently unavailable due to various sicknesses and Mr Sayner had to pick up his duties. He made doctors’ appointments during work hours, although he finished at 3pm.

Mr Sayner found the applicant extremely moody and unfocused and he had trouble following basic instructions. His concentration was interrupted by constant attention to his phone, even during busy times.
At times the applicant looked very unwell, said he was sick, and frequently vomited during his shift. Mr Sayner told him many times to go home, but he said he needed the money. He frequently came to work very tired and said he had been at the hospital all night and was having trouble sleeping. He did not say he was sick due to workplace stress.
The investigator has recorded that Mr “Solway”, assumed to be Mr Sayner, declined to take part in an interview or provide a signed statement, as he had been offered a position elsewhere at a higher salary, and was intending to resign.

Evidence of Mr Steve Dye

Mr Dye’s statement is dated 15 September 2019.
Mr Dye stated that his family has patronised the café at least once a week for five years. He has never heard Ms Sollars raise her voice, berate or discipline her staff. Her managing style is generous and empowering. He cannot believe she has engaged in workplace bullying, based on his observations.
I have given Mr Dye’s statement little weight.

Further Factual Evidence

It is impossible to ascertain from whom some of the evidence in the factual investigation report was obtained, due to the inadequacy of the index.

There is an unsigned and undated handwritten statement that says the writer had witnessed the applicant attend work when he was “high”. On 2 September 2019 and 3 September 2019, he looked to be in no state to be working. The writer was not at work on 4 September 2019 and his/her only knowledge of events came from Chelsea and Hannah Booby.

There are text messages, dated 1 July 2019, 2 July 2019 and 3 July 2019.
The message dated 1 July 2019 appears to be from Ms Ford, because it referred to her having told Mr Dryden “don’t do drugs”.
The message dated 2 July 2019 referred to the applicant saying he was behind in prep. His “eyes were out of his head”. The person who sent the text had to help with the orders and did the washing up and kept the kitchen clean.

The applicant kept insisting that the writer go home. Because he was “being suss”, s/he stayed until 3pm and “we” put all the money in the safe.

The message dated 3 July 2019 referred to Ms Sollars’ brother-in-law having seen the applicant walking out carrying food. The writer hadn’t “found out what he took”, but Tim thought it may have been beer. S/he had given him an old loaf of bread (which suggests that it was Ms Ford), but that was all. On Wednesday, it was noted that a six pack and a bottle of beer were gone.
There are screenshots of text messages, assumed to be between Ms Sollars and the applicant. Some messages refer to the applicant’s inability to attend work due to illness. The responses were understanding and included that Ms Sollars wanted the applicant to get better, “whatever it takes” and “please look after yourself”. Most of the messages are signed “x”.
On one occasion the applicant was asked if there was a problem that day, as Ms Sollars had heard he was throwing things at work. He responded that he didn’t throw anything. He burnt himself twice and was annoyed with himself. He was also annoyed that an order had been dumped right in the door of the cool room and he had fallen over it.
On what appears to be 11 June 2019, the applicant sent a medical certificate and asked if “you guys” could manage without him as he had a cluster headache. Ms Sollars told him not to come in and added “but it is making it very hard for me to run a business. I don’t know what more I can do for u”.
The applicant responded that he was nearly there, but it appears that Ms Sollars told him not to worry as she had cancelled her appointments. She said she understood and was being patient. She understood the applicant was not well and it was a very hard situation. This was “obviously showing” as the pumpkin had been left in the oven for the second time. The text concluded with “X”.
On 12 June 2021, the applicant texted that he was out of hospital that morning. Ms Sollars replied that she needed to know whether he was coming back to work or was it too much? It was just very hard and she needed to work things out “is all”.
There are messages about the applicant’s grandmother’s illness and death, his wife’s illness and referring to his daughter being sick; and Ms Sollars’ responses were sympathetic. She told the applicant not to come in if he was sick.
On 31 August 2019, there is a long message from the applicant, to what seems to be a group of friends and family. It referred to a very traumatic, stressful, upsetting, deflating 12 months for his family. It had been the hardest year of his life.
The applicant referred to his chronic infection after weight loss surgery, numerous hospitalisations, sleepless nights, effect on his wife and children and financial cost. He had lost his business and entered bankruptcy. His children were struggling and had lost their “nan”. He was heading back to work in an hour. His wife was out of hospital but was not well and worrying him. He asked people to check on her and his daughter.
MJM Corporate Risk Services reported on 5 April 2020 that both Ms Chelsea Booby and
Ms Hannah Booby declined to provide a signed statement. Neither Ms Ford nor Ms Wise returned her draft statement.

Drug Test

The result of the drug test is dated 6 September 2019.

The applicant had disclosed the drugs he had taken in the last month. The results were recorded as negative, apart from “MOP”, assumed to mean morphine.

Advice from Employsure

There are numerous notes from Employsure, regarding its advice to Ms Sollars. It is not necessary to reproduce them in detail.
Ms Sollars contacted Employsure on 5 September 2019 to discuss the events that occurred on 4 September 2019. It is recorded that the applicant’s performance was “not up to scratch” and “we know he is taking something”. He had a clearance from the doctor. Ms Sollars was interested in doing a randomised drug test “in the first place”. The objective was “Term/discipline”. Employsure recorded “…issue is that do we have enough for an SMC?” I assume from the context that SMC is an abbreviation of serious misconduct.

On 5 September 2019, Employsure advised Ms Sollars to “pull [the applicant] into an informal welfare chat when he comes to work” and that based on the incident on 4 September 2019, advise him there was reasonable belief that he was under the influence; and based on health and safety consideration for other colleagues and the applicant she could direct him to participate in a drug test.
Also on 5 September 2019, it was noted that Ms Sollars wanted to know if she needed to pay for the drug test; whether she could stand the applicant down if she thought he could not work; and asked if Employsure could draft a letter to list the drugs for which he should be tested.
Employsure provided a letter stipulating that the applicant was being directed to take a drug test. It requested that Ms Sollars send the information required to draft the disciplinary letter, including the incidents that occurred while she was in Africa.
Ms Sollars requested a copy of the Handbook on 6 September 2019. Employsure advised her to consult it before issuing formal communications about an employee’s performance.
Employsure provided Ms Sollars with a draft invitation to a disciplinary meeting on 6 September 2019. It noted that the letter should be issued at least 24 to 48 hours before the meeting to allow the applicant to prepare. Among other advice, Employsure stated that it was important that a decision not be made at the meeting. The applicant was to be advised that the respondent would take into account what he had raised and what it would consider a reasonable outcome to the matter.
There is a note dated 6 September 2019, stating that the applicant’s drug test was “non-negative for morphine”. He had disclosed that he was taking codeine, Endone and anti-psychotic drugs. The respondent “wishes to terminate”. It said he had disclosed the codeine but was not sure about the other drugs. The applicant had “major health issues”.
Employsure gave Ms Sollars options to check with her husband whether the applicant disclosed other drugs. If not, “change letter” to allege breach of disclosing medication policy; and dishonesty about saying he had a clear drug test when he returned a non-negative result. Ms Sollars was advised to check with a pharmacist about what the other drugs meant and call back for advice on next steps.
Ms Sollars also sought advice about alleged underpayment of wages and workers’ compensation after the applicant ceased work.

Medical evidence

Barton Lane Practice

The clinical records of the practice commence on 3 June 2019.

On 3 June 2019, Dr Douglas Rutherford recorded that the applicant had auditory hallucinations. He was hearing alarms, not voices. This was not listed as a common side effect of duloxetine.

On 5 June 2019, Dr Rankmore responded to a request from Ms Sollars dated 31 May 2019, for his opinion “for the purposes of considering Jeremy’s future employment options” and his fitness to perform his role. The applicant was certified as unfit for work until 30 May 2019.

Dr Rankmore reported that the applicant had been unwell since May 2018 with relapsing non-drug resistant staphylococcus bacteria. It remained unclear why he had persistent relapsing infections. Without a good understanding of the underlying cause, it was difficult to prognosticate the future. It would be “fair to say it will be an ongoing problem”.

The applicant’s treatment involved frequent antibiotics, pain management and dressings.
Dr Rankmore expected he would require intermittent but not ongoing antibiotics, psychology as an adjunct to pain management and weaning off strong pain killers.

Dr Rankmore opined that, assuming the applicant’s dressings remained intact and the wounds were covered, he would not be at high risk of spreading the infection through contact or cooking. It was likely he was experiencing pain at work. It was unknown how quickly he would improve. His wounds should be covered but there were no other restrictions. He would be able to work in an office/administration/educational setting.

As regards side effects, Dr Rankmore and Dr Chan were working towards a better pain medication plan. Due to the relapsing and acute on chronic nature of the applicant’s conditions, at various points he had had to escalate his pain relief. They were weaning his pain relief, which should reduce side effects. Side effects they should worry about included sedation, respiratory depression and potential misuse. The applicant told him he avoided those medications at work and had not reported any side effects. Dr Rankmore did not expect he posed a risk to others, including pregnant people, if he was sensible with dressings and pain relief.
On 1 July 2019, Dr Rankmore recorded that the applicant was “mentally not great”. He had been absent, talking to himself in the mirror and walking around aimlessly. At one point he was carrying a knife to prep a lunch that was already made. He cried at work with the boss. Dr Rankmore recorded “?sleep?stress?opioid related”.
On 12 July 2019, Dr Matthew Chan recorded that the applicant had attempted to wean down his Endone use. He was sharing medications with his wife and was to set clear boundaries, “own medications for only themselves”.
On 6 August 2019, Dr Rankmore recorded that the applicant had had the most stressful week of his life. His grandmother had passed away. There was stress with his father and his father’s brother. His mother and sister were aware he was on strong pain killers.
On 12 August 2019, Dr Chan recorded that the applicant had had a terrible week, as recorded above. He had not spoken to his mother or sister; Leah was in hospital; and his daughter was living with her grandparents. Despite this, he was coping relatively OK and “might have a new job tomorrow”.
On 3 September 2019, Dr Daniel Rankmore recorded “significant work stress”. The applicant claimed his boss was not treating him well and favouring the other chef. He thought his stress exacerbated his symptoms, “which is likely”.

On 6 September 2019, Dr Rankmore recorded “workplace bullying/severe stress - - > WorkCover/Fair Work”. The applicant was issued with a WorkCover Certificate of Capacity (COC).

On 10 September 2019, Dr Rankmore recorded “ongoing work stress. Issue raised previously”. He noted complaints of favouritism; accusation of looking like he was on drugs; and being asked for a urine test when no others were asked. He was accused of theft and someone wrote “I hate you Jeremy” on his cup. The stress escalated in June when the boss asked for the letter from Dr Rankmore.

Dr Rankmore recorded that the applicant’s mother had said he abused Leah and took her medication. His father had abused his mother in the past for 25 years. The applicant denied anything with Leah. He was going through bankruptcy.
Dr Rankmore prepared a “referral” dated 12 September 2019. It is addressed “To Whom it May Concern”. It appears in fact to be a medico-legal report.
Dr Rankmore noted that there was an increased report of stress since June 2019, following a request to provide medical information to the applicant’s employer. Mr Dryden had physical and emotional symptoms. He had expressed marked distress at multiple appointments and there were escalating symptoms.
Dr Rankmore reported that the applicant had since May 2018 suffered disability related to recurrent staph infections and painful skin wounds. He had extensive investigations and specialist reviews. During that time there was increasing tension in the workplace. The applicant required time off work. Duloxetine was introduced in February 2019 as part of management of chronic pain.
In June 2019, the applicant’s employer requested medical information, which Dr Rankmore provided. The applicant suffered increased anxiety, insomnia and worry around this period. He started using quetiapine in July to help with sleep and anxiety. He would talk about work stress in their consultations, which focused on pain management and infections.
The applicant presented on 3 September 2019 and 9 September 2019 with a clear escalation in his symptoms, related to a work meeting and being asked to take a drug test. He reported issues of pay disputes, the employer favouring the other chef, accusations of theft and drug use, and feeling pressured to resign. There were health and financial issues, as the applicant declared bankruptcy.
Dr Rankmore noted that in 2012, a diagnosis of PTSD, related to an assault in a different workplace, was explored. The issue appeared to resolve without ongoing treatment. The applicant had non work-related stresses. However, he appeared to be managing them. He deteriorated in June and again in September, which correlated with deteriorating work conditions. It would be reasonable to state that his employment was the main contributing factor in the exacerbation of “this disease”.
The applicant had just started seeking treatment. His psychological injury prevented him from performing any duties for his current employer. He would likely be able to work in a supportive position at an alternative provider. Dr Rankmore expected him to improve in the next 6 to 12 weeks and to fully recover.

On 3 November 2020, Dr Chan reported to the applicant’s solicitors. He listed the dates on which the applicant had consulted the practice, commencing on 6 May 2019 and on numerous occasions to 28 October 2019.

Dr Chan reported that on 13 May 2019, the applicant thought there was a chance he would be let go from his job, which was the reason he was applying for new work. He had some other stressors and his wife had just been made redundant.
The applicant was admitted to Tamworth Base Hospital between 17 May 2019 and 24 May 2019 to manage his chronic wounds.
On 31 May 2019, the applicant advised that he had received a request from his employer regarding his analgesic and opioid use. Dr Rankmore completed a questionnaire dated 5 June 2019.
The applicant developed auditory hallucinations on 3 June 2019, believed to be a side effect of the increase in analgesics. He woke on 11 June 2019 with severe pain in his right eye, which was of significant concern. It improved and resolved quickly.
The applicant continued to attend in June 2019 to manage his chronic wounds. There was no other concern at that stage.
On 1 July 2019, the applicant presented with significant deterioration in his mental health. There was no record of its cause. He continued to attend for opiate weaning and infection management.
Dr Chan then referred to the “most stressful week”, which was documented in the records. The applicant presented on 23 August 2019 with pleurisy.
The applicant reported on 3 September 2019 that he was experiencing significant work stress. This was the first time this had been brought up with any significant detail. He put in a claim on 6 September 2019.
On 9 September 2019 (this may have been 10 September 2019) the applicant “delved more into his issues”. He stated that in hindsight, a lot of his stressors had escalated in June, after his employer asked for clarification of his opioid use. Dr Chan regarded this as a reasonable reaction.
The applicant’s psychologist called on 18 September 2019 and reported that the applicant had developed low grade psychotic symptoms, including overvalued ideas of persecution and paranoia. There were other non work-related stressors, but the worst episodes related to spikes in work-related stress.
This continued to the applicant’s consultation on 30 September 2019, when he reported he was also experiencing anxiety related tremors and seeing shadows out of the corner of his eyes. He was about to be evicted, which added to his stress.
The applicant’s workers’ compensation was slow to be approved, which further exacerbated his financial stress. On 28 October 2019, he reported it had been approved. He was looking at new work and had some interviews and work trials lined up.
Dr Chan opined that the applicant had partial restrictions on his capacity to work between October and December 2019; a short period of full capacity in January 2020; and no capacity to work since. The anxiety caused by having his claim declined suggested he would have very limited to no capacity currently.
Dr Chan noted that the applicant had had “a few issues” that contributed to his anxiety, but he opined that the issues relating to his workplace were, at minimum, a substantial contributing factor.
The applicant was clearly showing symptoms just prior to 6 September 2019 that were likely to be directly contributable [sic] to his work-related bullying and stress. This included pain from clenching his toes and tremors. “In hindsight”, there is a reasonable possibility that other symptoms, including his ongoing infections and severe headache/right eye pain may have been associated. His symptoms had definitely progressed since the end of 2019, while he continued to work through his work-related anxiety. Dr Chan opined that this reinforced that his workplace issues were at least a substantial contributing factor.
Dr Chan concluded that Dr Robinson had suggested the applicant would benefit from seeing a more local psychiatrist, so on 26 October 2020 he had been referred to Dr Eoin Wilson. They had suggested he continue seeing Ms Jones. The applicant was awaiting cholecystectomy in December 2020. He was also being treated for orthopaedic issues.
On 11 November 2020, Dr Chan reported, apparently in response to the applicant’s solicitors, that the escalation of his stressors would have been a reasonable reaction, as a result of the bullying and “opioid use letter from his employer”.

Dr Yajuvendra Bisht - Psychiatrist

Dr Bisht was qualified by icare and reported first on 31 December 2019.

Dr Bisht recorded a history that the applicant developed a staphylococcus infection after weight loss surgery two years before. He had had several hospitalisations and had been on opioid medication and antibiotics off and on. He was currently taking about two Panadeine forte a day.
The applicant felt that the request for a report from Dr Rankmore in May 2019 was to find a reason to terminate his employment. His employer had known for about nine months about his infection but had raised no previous concerns.
Dr Bisht recorded a history that is consistent with the applicant’s evidence. He felt that Kristy showed favouritism to the other chef, who had been working two jobs and was allowed to start later, while the applicant was not. Other staff had received a birthday present, but the applicant had not.
Dr Bisht confirmed that he had noted the results of the factual investigation. The applicant said that in the context of the events on 6 September 2019 onwards, he became persistently preoccupied with worries about his future. They were accompanied by marked anxiety.
The applicant became decreasingly interested in previously pleasurable activities and lacked motivation to work. He had sleep disturbances and his concentration was affected. He became irritable on minor provocation. He had felt decreased motivation to socialise and increased irritability from early 2019.
Dr Bisht recorded that the applicant ceased work on 6 September 2019 and there was a partial improvement in his condition over the next few weeks. He had started in a new workplace about two months before, working 38 hours per week as a chef, but had been off work for about a week.
The applicant was still hypervigilant and fearful about being treated in a manner that was similar to his last workplace. The fact that other workers frequently spoke a language other than English made him more fearful. He still felt constantly edgy.
The applicant told Dr Bisht that he felt panicky if he saw a vehicle that looked like that of his boss or the other workers at his previous workplace. He continued to have periods where he felt more irritable/teary/anxious for several days, along with not sleeping and poor concentration. Since last week, he was getting frustrated about not having appropriate communication with his case manager. He had been certified as having no capacity.
Dr Bisht recorded that the applicant had not been attending social gatherings as often, making excuses. He had pulled out of the staff Christmas party. He was able to self-care without prompting, but not to the same level. He did not look after his grooming or diet as he used to. He was unable to travel to unfamiliar places, or to familiar places alone. His relationship with his family had been affected.
The applicant had had eight sessions with a psychologist. He was taking duloxetine, which was started in early 2019 by the pain management team, and quetiapine, which had started about two months before. He had not yet seen a psychiatrist.
Dr Bisht recorded no relevant past psychiatric history, family history, or substance abuse problems. The applicant denied any substantial non work-related stress in the last few months. His grandmother passed away in August but her death was expected. He had had intermittent stress related to his staph infection but had become used to it. He had been told he had been cured of the infection. He had mentioned to his GP in early 2019 that he was struggling with the recurrent infection and pain and his GP started him on duloxetine.
Dr Bisht diagnosed the applicant with adjustment disorder with mixed anxious and depressed mood. He had suffered from an aggravation of a pre-existing condition, to which employment was the main contributing factor. The worsening of his condition coincided with the stressful work experience on 6 September 2019. “These workplace stress” [sic] would be considered severe enough to cause a psychological condition.
Dr Bisht opined that the applicant’s work was the main contributing factor to the aggravation of the pre-existing condition, as there had not been any non-work related psychological stressors since 6 September 2019 that would account for being the main contributing factor; and there was no significant contribution from any medical conditions, medications or substances of abuse. The non-work factors contributing to the pre-existing condition included the recurrent infections, the death of his grandmother and high doses of opioids.
Dr Bisht further opined that the applicant’s psychological injury was wholly or predominantly the result of performance management [sic] and disciplinary actions undertaken by the employer on 6 September 2019.
As regards the applicant’s capacity for work, Dr Bisht opined that he had a moderate deficit in his ability to concentrate, focus on multiple tasks, absorb information, and issues with short-term memory. He also had a moderate deficit in his ability to liaise with the public, communicate and deal with conflict. Finally, he had moderate deficit in his ability to cope when confronted with deadlines, stress or change.
The applicant required treatment by a psychiatrist and psychologist for about six to nine months. Dr Bisht anticipated that he would recover in another three months.
Dr Bisht again reported on 16 March 2021. He repeated the previous recorded history.
The applicant had been hospitalised in April 2020 at Dr Robinson’s request. At that time, he was having extreme anxiety, not sleeping, and not going anywhere, except to the doctors or to pick up his daughter. His claim was declined the week after he got out of hospital. He continued to see Dr Robinson for about three months, but the treatment stopped due to financial problems. His psychological treatment stopped in about August 2020. The applicant was taking medication. He said he would like to get more treatment, but it was not financially viable.
The applicant reported limited improvement in his symptoms. His sleep was very erratic. When he was preoccupied with events at his workplace, he started to feel very anxious. He was still hypervigilant and fearful of similar experiences in the future. He still felt constantly edgy and his concentration was still poor. His mood was mostly flat, he lacked motivation and did not derive as much pleasure as he used to from activities.
The applicant “pretty much” stayed at home and watched TV. His wife ran the house and his children were pretty self-sufficient. He was able to travel to familiar places on his own. He travelled to doctors, the chemist, the shopping centre and to see his mother “or someone”. It was probably months since he had spoken to a friend. People he thought were his friends at work had turned on him. He had deleted all social media.
Dr Bisht recorded that the applicant lacked the concentration to read. He would watch a movie for five minutes and then do something else and come back. He used to enjoy studying, but had put his Master’s on hold. He was either lying on the bed or watching TV. He did as much as he could with the kids, such as playing Uno. He had put on 30 kilograms, and his wife regularly reminded him to shower, as he got lost with the days. He did not do any housework.
The applicant’s relationship with his wife, who has bipolar disorder, had suffered. He used to work two or three jobs and had his business – “it has taken its toll”. He entered bankruptcy in April, and they had been getting phone calls from “everyone”. Their car had been repossessed. He used to be able to manage his wife’s illness, but they had arguments all the time. He had tried to return to work but was unable to continue due to his psychological symptoms. He had been on Centrelink since probably about August 2020.
The applicant had not undergone surgery for his toes but had had right carpal tunnel surgery and was to have surgery on the left side later this year.
Dr Bisht diagnosed the applicant with major depressive disorder. The non-work factors that contributed to his presentation included carpal tunnel syndrome and his foot injury.
Based on the timeline of the initial development of the applicant’s symptoms, Dr Bisht remained of the opinion that his psychological injury was predominantly the result of performance management and disciplinary action undertaken on 6 September 2019. The applicant had experienced some psychological symptoms before the meeting, but he was able to continue functioning to a reasonable degree at his workplace before the meeting. After the meeting, his symptoms worsened significantly, and he was unable to continue working there. His condition had resulted in impairment, but it would not yet be considered permanent.

Ms Rebecca Jones – Psychologist

Ms Jones has provided an undated report to Dr Rankmore. Its contents suggest that it was provided before the applicant consulted Dr Robinson and before liability was disputed.
Ms Jones reported that the applicant had attended 12 of 16 appointments that were available to him under his claim.
The applicant’s progress had been slow, which Ms Jones opined was due to a variety of factors. He appeared so heavily medicated that he struggled to engage meaningfully in sessions. By his own report, he struggled to concentrate and had significant short-term memory loss.
Whilst he reported he was willing to “do whatever it takes” to improve his mental health, the applicant seemed reluctant to discuss strategies or skills that would assist in managing his symptoms. He struggled to commit himself to “getting better”, due to persistent pain and the stress associated with his ongoing specialist appointments and liaison with his case manager.
Given the cause of the applicant’s anxiety and stress symptoms, Ms Jones was reluctant to report that he may not be doing his utmost to improve his symptoms in order to return to work. However, she was yet to see any genuine effort on his part in taking responsibility for improving his mental health. They had agreed to postpone further treatment until he felt capable of engaging fully in the therapeutic process. Ms Jones intended to phone the applicant fortnightly to assess his readiness for continued treatment.
Ms Jones was hopeful that the applicant’s psychiatrist appointment would assist with his medication management, so he was able to function more effectively in day to day life and treatment. Should his orthopaedic investigations provide conclusive information about the injury to his foot, she believed his stress would be reduced, which may enable him to commit to therapy to improve his symptoms and eventually re-enter the workforce.

Dr John Negrine – Orthopaedic Specialist

Dr Negrine reported to Dr Chan on 14 February 2020.
Dr Negrine recorded a history that for approximately six months the applicant had suffered with severe anxiety and mental health issues, secondary to workplace bullying. He had been crushing and curling his toes. He had trouble walking and getting into shoes. He denied any history of injury. He had had blood tests and seen a rheumatologist.
Dr Negrine opined that, with swollen lesser MTP (metatarsophalangeal) joints and early hammering of the toes, the applicant’s symptoms would fit with an arthropathy. He required an MRI scan of his right forefoot.
The MRI scan was reported by Dr Lena Forsberg on 4 March 2020 as showing mild osteoarthritis at the first MTP joint, and early osteoarthritis at the IP (interphalangeal) joint of the great toe. The applicant’s small toes were held in fixed flexion deformity/hammer toe appearance. Dr Forsberg suspected the applicant’s distal flexor tendons were chronically shortened, due to this positioning.

Dr G.S. Robinson – Psychiatrist

Dr Robinson’s clinical records are in evidence, although they have not reproduced well and are difficult to read, as they are handwritten.
There is reference to Facebook bullying that started after Ms Sollars returned from holiday in July 2019, from staff members close to her. They were making comments that the applicant should “drink bleach”, and similar comments, and pictures of him hanging from a noose.
There is also reference to the allegation of theft, “which turned out to be a loaf of bread that the manager offered me!” The applicant stated that Ms Sollars became negative towards him in June 2019 and it escalated. His GP was asked if he was a danger to pregnant staff.
Dr Robinson reported to Dr Rankmore on 4 March 2020.
Dr Robinson noted that the applicant attributed his psychological problems to workplace issues in 2019. They included “Facebook bullying”.
The applicant told Dr Robinson of the psychological episode around 30 June 2019. He saw Dr Rankmore shortly after and a psychiatrist was suggested, but there was a “massively long wait”. The applicant was anxious and had difficulty leaving his home. He was taking diazepam to help with this. He had been started on duloxetine by the pain team in May 2019, and the dosage had been increased. He was also taking quetiapine.
Dr Robinson recorded that the applicant had been crushing his toes “because of the stress” and had had to see an orthopaedic surgeon. He had been seeing Ms Jones since 2019 and continued to see her regularly.
Dr Robinson diagnosed the applicant with depressive disorder, which had evolved from the adjustment disorder, with high levels of anxiety, including a component of agoraphobia.
Given the distance from his surgery, and the seriousness of the applicant’s condition,
Dr Robinson recommended that he be hospitalised. He suggested initially a three week stay in a private hospital with purpose built psychiatric units.
Dr Robinson reported to the applicant’s solicitors on 9 November 2020. He had last seen
Mr Dryden on 3 August 2020.
Dr Robinson reported having been provided with a history that was consistent with the applicant’s solicitors’ letter dated 24 October 2020. As it is not in evidence, the history is unknown.
Dr Robinson’s report repeats the contents of his first report.

When Dr Robinson last saw the applicant in August 2020, it was his opinion that Mr Dryden was unfit for any work. He had just been diagnosed with gallstones, which was excruciatingly painful. He was back on Panadeine forte, having been off it for a while. He was still having problems with his toes, which he had been scrunching up to cope with stress.

Dr Robinson was not prepared to provide an opinion on causation. He was also not able to provide an opinion as to the severity of the applicant’s symptoms as of 6 September 2019, as he had first seen Mr Dryden on 26 February 2020.

When Dr Robinson last saw the applicant in August 2020, his claim had been denied, so he was not having effective treatment. At the time of his treatment in Maitland Private Hospital, a treatment plan was in progress. If he was not having ongoing treatment by a psychiatrist, his prognosis was less favourable than it would be otherwise. He should be having such treatment, and regular sessions with a clinical psychologist. He should also have surgery to his feet.

Maitland Private Hospital

The Discharge Summary dated 27 April 2020 records a final diagnosis of major depressive disorder.

The applicant had been admitted with worsening anxiety/sleep/mood in the context of workplace bullying/harassment and physical illness (pain related to self-harming by “crunching toe” requiring surgery).

The applicant’s medications were reviewed and modified. The focus in individual therapy was psychoeducation about anxiety. The applicant was reviewed by Dr Prickett, pain physician. Slow weaning of Panadeine forte was suggested, alongside improved sleep hygiene.

Dr Martin Allan - Psychiatrist

Dr Allan was qualified by the applicant and reported on 11 December 2020.

Dr Allan recorded a history that is consistent with the applicant’s evidence. He noted
Ms Sollars’ request for information about the applicant’s staph infection from Dr Rankmore in May 2019.

The applicant told Dr Allan that his mental health began to deteriorate in mid-2019. He was anxious and stressed about having to return to work the next day. On 28 June 2019 he broke down at work and reported these incidents to his GP at his next appointment. He was anxious about going back to work on 3 September 2019, after the incidents regarding preparation for Father’s Day. He was still distressed.

Dr Allan recorded the history of the meeting on 6 September 2019 and the applicant having taken a drug test. He had requested a copy of the results, but it had not been provided. From July 2019, he had been treated by his GP for stress and anxiety, pre-dating the events of September 2019.

The applicant had tried to work in November 2019 but lasted for only three weeks. His anxiety was marked, he was paranoid about others’ intentions and he felt distressed and generally unable to cope.

The applicant had been experiencing recurrent gallstones for four to five months and was to have a cholecystectomy. Due to the effects of stress, he would crush his toes and had been told he would require surgery. He had also developed carpal tunnel syndrome, seemingly secondary to clenching his hands severely overnight, also attributable to tension and stress. His staph infection had entirely resolved after he stopped working in September 2019.

Dr Allan recorded that the applicant had been seeing Dr Robinson, but the treatment had somewhat dropped off due to COVID-19 and the fact that the applicant was seeing him remotely. He had been referred to Dr Wilson, but there was a waiting list of over six months. He had had 15 visits with Ms Jones before liability was declined.

There was no family history of psychological problems, but the applicant described his father as “borderline alcoholic”. The applicant had been studying for a Master’s degree but had discontinued this in July 2019 as stress began to develop.

Dr Allan noted that the applicant first discussed his difficulties with his GP in about June/July 2019. His stress had accelerated in mid-2019. He felt targeted and strongly believed his employer had not “got what they wanted” when his doctor confirmed he could continue working quite safely. He recalled the message from his boss saying “I can’t keep doing this.”

The applicant described even at that time developing anhedonia, difficulty concentrating, marked frustration and sleep disturbance. Matters had culminated when he went off work in September and his mental health had continued to deteriorate. He described suffering significant depression. His concentration and energy had diminished, and he had no motivation. He had gained about 30 kilograms and his sleep was erratic.

Dr Allan recorded that the applicant had marked tension affecting the muscles in his feet and was dealing with carpal tunnel syndrome. He gave an impression of life being overwhelming but did not describe any clear self-harm or suicidal intent.

Dr Allan diagnosed the applicant with a major depressive disorder “due to the vexatious treatment” he received in the course of his employment. The issues regarding the cause of his condition clearly predated September 2019, as he first had treatment in mid-year.
Dr Allan found no evidence of other factors that had significantly contributed to the applicant’s mental state. His wife has bipolar disorder and had had some difficulty coping with her own employment, as well as his health, but Dr Allan did not find this a significant contributing factor to his condition. His employment had been the substantial contributing factor to his major depressive disorder.

Dr Allan found no evidence that the applicant’s treatment had been particularly effective in improving his mental state. He showed no capacity for work due to the severity of his major depressive disorder.

Dr Allan opined that the applicant’s prognosis was guarded. He remained acutely unwell and had interruptions to his care through the pandemic. His psychological treatment had discontinued, largely due to financial constraints. Without adequate treatment to complement his medications, he would remain unwell.

Dr Allan assessed the applicant’s WPI as 22%.

SUBMISSIONS

The applicant’s submissions have been recorded and the respondent has provided written submissions. I will therefore provide only a summary of the submissions.

Applicant

The applicant referred to his own statements. He perceived that Ms Sollars showed favouritism to others. She required a letter of comfort that his infection was not some sort of threat. It may be inferred that the respondent either did or did not obtain the answer it wanted. The applicant’s relationship with the respondent went downhill after the letter from Dr Rankmore and his significant time off work.

The applicant submitted that he became anxious and stressed about returning to work. He had some sort of dissociative episode, which was recorded by Dr Rankmore on 1 July 2019. His evidence is that he reported earlier events at work to Dr Rankmore. The first time that his work stress was significantly detailed was on 3 September 2019. In “hindsight”, a lot of his stress escalated from June 2019 after he was asked to clarify his opioid use.

The applicant referred to the accident with his vehicle and his attendance at work on his day off to perform a handover. This was a particular focus of the observations of him by the other workers. He was very upset by Tim’s accusation that he was taking drugs, and this added to his stress. It is significant that the doctors have taken into account his other health problems and life stressors. His worst episodes related to spikes in work-related stress. He referred to the evidence of Dr Rankmore, including the clinical records.

The applicant took the drug test and the results are in evidence. It shows only opioid based traces. He submitted that Ms Sollars knew he took medication because Dr Rankmore had reported this. He was never given a copy of the test. He submitted that he was “only just” able to work before the meeting on 6 September 2019.

The applicant conceded that Dr Negrine’s evidence is a little inconclusive regarding him scrunching his toes. He does not rely on the injury to his foot in respect of incapacity for work. Since he left work, and apart from three weeks work in November 2019, he has been certified as having no capacity as a result of the psychological injury. His condition has evolved from an adjustment disorder into a major depressive disorder.

The applicant referred to the evidence of Nigel Goodman but conceded that it would be given the weight it deserves. The import is that the applicant did not have much time for breaks. He also referred to the evidence of Martin Baker about the change in his personality.

The applicant referred to Dr Allan’s evidence and submitted he had a history of the whole gamut of events. Leading up to the requirement to take the drug test, there is the issue of whether there was an effort to make life difficult for the applicant so he would leave and work elsewhere. He submitted there is some support for this in the correspondence from Employsure on 5 September 2019 and 6 September 2019.

On the issue of discipline, the applicant submitted that, at the point of the requirement for the drug test and the meeting itself, this did not amount to discipline. The Handbook provided that non-compliance with the drug and alcohol requirements may result in disciplinary action. It seems that discipline depended on the finding of the test. The respondent had not yet got to discipline.

The applicant submitted that Employsure’s advice was for the respondent to perform an informal welfare check and advise the applicant it had a reasonable belief he was under the influence on 4 September 2019. This seemed to be proper advice. The applicant submitted this was not discipline. The respondent had not yet found out whether he had drugs or alcohol in his system. He was not given adequate notice of the meeting and was denied a support person, but he agreed to take the test anyway.
The applicant decompensated further on 6 September 2019, but his psychological condition was not wholly or predominantly caused by reasonable action with respect to discipline.

As regards the “disciplinary letter” regarding events while Ms Sollars was in Africa, the applicant submitted that it is clear the respondent sought advice about drafting it. It was not drafted by 5 September 2019. He submitted there was a concerted effort to target him with events, details of which the respondent was yet to provide to Employsure.

The applicant submitted that I would accept Dr Allan’s evidence that his employment was the substantial contributing factor to the injury, which equates to the main contributing factor.

Respondent

The respondent submitted that the problems with work in late May 2019 are not supported by the history recorded in Dr Rankmore’s report dated 5 June 2019. To the contrary, any psychological symptoms at that time were due to the non work-related physical injuries.
The respondent submitted that the clinical records do not support psychological problems due to work in May 2019 or the letter to the GP about the staph infection. They also do not support psychological problems due to alleged messages on the applicant’s cup or on Facebook. No extracts from Facebook have been served and the respondent submitted that this should lead to a Jones v Dunkel (1959) 101 CLR 298 inference.
The applicant has also referred to notes of events that occurred in the week leading up to 6 September 2019. As no notes have been served, the respondent submits that a Jones v Dunkel inference should be drawn.
The respondent submitted that the clinical records do not support the applicant having reported work stress on 1 July 2019, 6 August 2019, 12 August 2019 and 3 September 2019. It referred to the applicant’s own evidence indicating significant psychological symptoms relating to his staph infection, rather than alleged work stress. The records do not support psychological problems due to the applicant being confined to certain hours at the café or being informed of a customer complaint. There is evidence that the applicant’s blood had contaminated a customer’s food.

The respondent submitted that Ms Sollars disputes that she ever bullied the applicant and alleges she “did nothing but support him”. The text messages between them indicate a supportive employer. Her evidence refutes that he was not offered a support person for the “performance meeting”.

The respondent further submitted that the applicant was prescribed duloxetine for chronic pain and prescribed by the pain management team. He was started on quetiapine two months before being examined by Dr Bisht, that is in late October 2019.

The respondent submitted that the employees’ statements do not support that the applicant was overworked. It relied on statements from them to refute the evidence of Nigel Goodman. As regards Nicholas Balding’s statement, the respondent submitted that it is irrelevant. It objected to paragraph nine of his statement as hearsay, having raised and then withdrawn an objection during the hearing of the matter. The respondent relied on the evidence of its employees to dispute Martin Baker’s statement.

The respondent submitted that the Commission would not accept the history recorded in
Dr Rankmore’s report dated 12 September 2019 as the reporting of work related symptoms is not supported by the clinical notes before 3 September 2019; it is not supported in
Dr Chan’s report dated 3 November 2020; and the applicant was not notified of his drug test until late on 5 September 2019.

The respondent submitted that the applicant’s evidence should be compared with the contemporaneous medical evidence and that of its employees and he could not be accepted as a witness of truth. The treating medical evidence indicates he was significantly affected by drugs that affected his memory. The respondent therefore submitted that his history should be considered unreliable.

As regards section 11A of the 1987 Act, the respondent submitted it relies on performance management [sic] and discipline. The process does not have to be perfect: Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair).

The respondent submitted that its actions in requesting a drug test were reasonable as it had reasonable suspicion of the applicant’s drug taking, referring to Dr Rankmore’s report dated 5 June 2019. An objective view of the clinical notes indicates the applicant was on significant medication, to the point that his doctors were trying to wean him off it and his family was accusing him of addiction; and his staph infection was an added risk.

The respondent submitted that the evidence that indicated it had a reasonable suspicion the applicant was using drugs included his appearance when he attended work on 4 September 2019; Ms Sollars’ evidence of his erratic behaviour; her concern for his welfare due to his having said he would hang himself; and the evidence of Ms Ford, Ms Wise and Ms Hannah Booby regarding his behaviour.

The respondent submitted that the letter dated 5 September 2019 directing the applicant to take a drug test was in accordance with its policy, contained in the Handbook. The applicant was given a copy by email; and the letter of offer to him dated 20 May 2018 contained the contract of employment and the Handbook. The contract put him on notice of various matters, including that his employment may be terminated without notice for abuse of alcohol or drugs; and the respondent may require him to be screened for both.

The above evidence, in the respondent’s submission, supported Dr Bisht’s opinion that the applicant’s psychological injury was predominantly as a result of performance management and disciplinary action taken by the respondent on 6 September 2019.

As regards incapacity for work, the respondent submitted that there is evidence that the applicant has an incapacity due to conditions that are not pleaded, such as ulna nerve compression; issues with his right foot; and carpal tunnel syndrome. It submitted there should be at least a 50% deduction in the periods of weekly compensation claimed, due to the non-pleaded conditions.

SUMMARY

The respondent concedes that the applicant has sustained a psychological injury arising out of or in the course of employment, within the meaning of section 4 of the 1987 Act. It maintains that it has a defence to the claim, pursuant to section 11A of the Act. The respondent bears the onus of establishing the defence: Sinclair.

Section 11A

Section 11A of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A
“psychological injury” is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(6) This section does not extend the definition of
“injury” in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as "stress" or "stress condition".
(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”

Despite the respondent’s reference in its submissions and Dr Bisht’s reference to “performance management”, the dispute notice issued to the applicant referred only to discipline, and it was agreed at the hearing that the respondent relied on its actions with respect to discipline.

I will deal first with the issue of “wholly or predominantly caused”, which has been held to mean “mainly or principally caused” – Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan).
Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSSWCCPD 96. In the same case, Roche DP dealt with the causation issue, on the basis that Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, as “the leading authority on causation in workers’ compensation claims”, applied. He said, “causation is a question of fact to be determined on the evidence in each case”.
The applicant claims that he had already developed psychological symptoms before he was informed of the meeting on 6 September 2019, at which time he was requested to undergo a drug test. He has referred to his treatment by both Ms Sollars and his colleagues.
The applicant stated that he was subjected to workplace bullying that escalated after
Dr Rankmore responded to a request from Ms Sollars about his future employment. It is in my view reasonable to accept that a request by his employer regarding his fitness for employment may have caused him anxiety. He broke down at work on 28 June 2019.

The applicant has given evidence about being handed a cup with “H8U Jeremy” written on it. His evidence about a Facebook post by Ms Wise has not been refuted by her. I draw no inference from the absence of the post from his evidence. He told Dr Bisht he had deleted all social media, and there is no reason to expect that he would keep a hostile message from a person with whom he had to continue working.
I also draw no inference from the lack of the notes to which the applicant referred. The rule in Jones v Dunkel does not operate to require a party to give merely cumulative evidence: Manly Council v Byrne and Anor [2004] NSWCA 123; Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1. The applicant has given evidence in two statements and adduced medical and lay evidence in support of his claim.
Ms Ford “caught” the applicant in the storeroom “acting suspect”. She told him not to do drugs, despite finding no evidence that he was doing so. Ms Ford stated that for the past few months the applicant’s behaviour and ability to complete his work had dramatically worsened.
Ms Wise gave evidence that in the last few months the applicant had not been himself, was not coping and was not capable of doing his job.
Ms Hannah Booby gave evidence that during the week of 1 September 2019, that is, before the meeting on 6 September 2019, the applicant’s behaviour was at an all time low.
Ms Ford and Ms Wise did not return their draft statements and Ms Hannah Booby and Ms Chelsea Booby declined to provide a signed statement. Mr Sayner declined to take part in an interview or provide a signed statement.
The evidence of these witnesses suggests that the applicant’s psychological condition may have developed and been worsening at the time they made their observations, but of course that is not a conclusion they would have been qualified to draw.
The applicant’s evidence about his father-in-law being told he was under the influence of drugs at work is confirmed by Mr Baker. Mr Baker has also given evidence about the change in the applicant’s demeanour. Mr Sayner told Mr Baker the applicant looked like he was burnt out, and he was certain he was taking drugs. However, appearing burnt out may be consistent with a psychological condition. There is no evidence that Mr Sayner has any expertise in diagnosing a drug problem.

Ms Sollars’ behaviour may not be characterised as “bullying”, which is an often misused term. However, the applicant’s evidence that she instructed him not to attend the café before or after working hours (apparently because he had been accused of theft), and that she had said words to the effect that “I can’t do this any more” is confirmed by her own evidence.
Ms Sollars sent the applicant a text saying he was making it very hard for her to run a business and she did not know what more she could do for him. She sent another saying it was just very hard and she needed to work things out. She has stated that she let him know it had been “extraordinarily difficult” for her. She had asked the other staff to take notes about him.
The lay evidence is of course to be afforded less weight than the medical evidence. The respondent submitted that Dr Rankmore’s report dated 12 September 2019 should not be accepted because it is not supported by the clinical notes. I do not accept that submission.
Cases such as Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; Daniel Fitzgibbon v The Water Ways Authority & Ors [2003] NSWCA 294; and Mason v Demasi [2009] NSWCA 227 caution against the use of medical records and the histories contained in medical reports to undermine the credibility of a witness. I do not accept that the applicant is other than a witness of truth; and I see no reason not to accept Dr Rankmore’s evidence.
The clinical records of Barton Lane Practice, in any event, record that the applicant was having hallucinations on 3 June 2019; on 1 July 2019 he was “mentally not great”, with one of the possible causes recorded as “?stress”; and on 3 September 2019 “significant work stress”. On that occasion, Dr Rankmore recorded that the applicant’s boss was not treating him well and favouring the other chef.

Dr Rankmore has referred in his report to increased stress since June 2019, after the request for a report, with escalating symptoms. The applicant had started using quetiapine in July 2019 to help with sleep and anxiety. He would talk about work stress in their consultations, which focused on pain management and infections. The fact that “work stress” may not be recorded does not mean that it was not mentioned. Dr Rankmore’s attention was on the applicant’s other medical issues.

The applicant presented with a clear escalation of his symptoms on 3 September 2019. This escalation occurred before the applicant was given notice of the meeting that took place on 6 September 2019.
Dr Chan reported on 3 November 2020 that the first time work stress had been brought up with significant detail was on 3 September 2019. “In hindsight”, the applicant thought a lot of his stressors escalated in June 2019, when his employer asked for clarification of his opioid use.
Dr Chan concluded that the applicant was clearly showing symptoms just prior to 6 September 2019 that were likely to be directly attributable to his work-related bullying and stress. There was a reasonable possibility that other, physical, symptoms may have been associated. The escalation of his stressors would have been a reasonable reaction, as a result of the bullying and the “opioid use” letter.

Dr Bisht concluded that the worsening of the applicant’s condition coincided with the workplace meeting on 6 September 2019. He accepted that the applicant had some psychological symptoms before the meeting but reported that he had been functioning to a reasonable degree in the workplace before it took place. That appears to be at odds with the respondent’s evidence and the conclusion it had reached that Mr Dryden needed to undergo a drug test.

Dr Robinson declined to provide an opinion on causation.

Dr Allan noted that the applicant had been treated for stress and anxiety since July 2019, which pre-dated the events of September 2019. Matters had culminated when he went off work in September 2019.

I have determined that the applicant’s psychological injury was not wholly or predominantly caused by the respondent’s action with respect to discipline. His evidence, that of the respondent and the evidence of Drs Rankmore, Chan and Allan supports the proposition that he had sustained a psychological injury before he received notice of the meeting with
Ms Sollars and her husband that took place on 6 September 2019. It is at least possible that his behaviour on 4 September 2019 was due to his psychological condition.

The applicant’s established psychological condition had worsened on 3 September 2019, as recorded in the clinical records and confirmed by Dr Rankmore. This was not only before the meeting took place, but before the applicant was given notice of the meeting. I prefer the evidence of Drs Rankmore, Chan and Allan to that of Dr Bisht.

Having determined that the applicant’s injury was not wholly or predominantly caused by the respondent’s action, it is not necessary for me to determine either whether it was with respect to discipline or whether it was reasonable.
However, had it been necessary, I would have determined that the respondent’s action was not one with respect to discipline. The request for the applicant to take a drug test was merely a step that, had he refused to comply, or tested positive, may have led to the commencement of disciplinary action. It equally may not. As the applicant submitted, this had been characterised by Employsure, the respondent’s expert adviser, as an “informal welfare check”. It would have been open to the respondent to provide the applicant with professional assistance and support if he had a drug problem, rather than subject him to discipline.

Finally, I do not regard the respondent’s actions as reasonable in any event. The applicant was advised by text message that was sent at 6:04pm of a meeting “regarding your performance” to take place at 7am the next day. Ms Sollars and her husband were to be present. The applicant was surprised, as Kimble rarely attended the café.
The applicant was not advised that he could request a support person to attend, and given the short notice, it may not have been possible to arrange for this. His evidence is that he had gone to bed early and did not in fact read the text until the next morning.

The applicant’s evidence is that he asked for the meeting to be postponed and was told it could be postponed to 11am. Ms Sollars’ evidence is that he was “extraordinarily agitated” and asked if he could cancel the meeting. He then asked if he could come back at 12pm with a support person, to which she responded that he could. She gave him “a few options”, but he said he would go ahead and recorded the meeting.

Given that the applicant was visibly agitated and had suggested that he wanted a support person, albeit that he then changed his mind, I do not believe it was reasonable to proceed with the meeting. The letter he was given stated that if he did not take the test, he may be subject to disciplinary action, up to and including termination of his employment. The potential consequences for him were very serious.

The evidence of Employsure is also relevant to the issue of reasonableness. Its notes record on 5 September 2019 that the objective of requiring the applicant to take a drug test was termination or discipline. The issue was whether the respondent had enough to claim that he had engaged in serious misconduct. The Handbook provides that the outcome of a serious misconduct finding, on the first occasion, may be termination. This suggests that the respondent’s desired outcome of the process was the end of the applicant’s employment.

Ms Sollars asked if she had to pay for the drug test. It would be an unusual situation where an employee was required to take a test he may not want to take, at his employer’s instigation, and that may result in the termination of his employment, and also have to pay for it.

At this stage, before the results of the drug test were known, Ms Sollars was asked to send Employsure the information it required to draft a disciplinary letter. The information was to include the incidents that occurred while she was in Africa, none of which had been discussed at the meeting on 6 September 2019, and to which the applicant had not been given the opportunity to respond.

Employsure advised Ms Sollars to issue the invitation to a disciplinary meeting at least 24 to 48 hours beforehand, to allow the applicant to prepare. The preparation of the letter suggests that the respondent had pre-judged the outcome of the test. Employsure provided other options when the drug test did not disclose that the applicant was taking illegal drugs, because the respondent “wishes to terminate”. None of this evidence suggests that the respondent’s action was reasonable.

Incapacity

The applicant has been issued with COCs that certify him as having no work capacity for the entire period from 3 January 2020 to 14 May 2021, which is the last COC in evidence.
The applicant has been diagnosed with major depressive disorder. Dr Bisht recorded a deterioration in his condition between his first and second examination. Dr Allan assessed him in December 2020 as being totally impaired and unable to work.

There is no medical evidence that suggests the applicant has had any work capacity during the period from 2 July 2020, when his claim for weekly benefits commences.

I do not accept the respondent’s submission that the applicant’s co-morbidities mean that there should be a 50% reduction in any award of compensation. While they may be noted in the COCs, he has consistently been certified as having no work capacity as a result of his psychological condition.

I therefore determine that the applicant has had no work capacity since 2 July 2020, and he is entitled to payment of weekly benefits on that basis.

The applicant is entitled to payment of his reasonably necessary medical expenses, and I will make a general order in his favour, pursuant to section 60 of the 1987 Act.

The applicant’s claim for permanent impairment will be referred to a Medical Assessor for assessment of the medical dispute.
The orders are as set out in the Certificate of Determination.

[2021] NSWPIC 233

7 July 2021