Enright v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Enright v Secretary, Department of Education [2024] NSWPIC 311
APPLICANT:	Donna Enright
RESPONDENT:	Secretary, Department of Education
MEMBER:	John Wynyard
DATE OF DECISION:	14 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and section 60 expenses by Department Administration Officer for psychological injury; whether section 11A defence established; Held – onus on respondent to establish that injury wholly or predominantly caused by reasonable actions of employer not met, expert opinion did not support employer; Hamad v Q Catering considered and applied; actions not reasonable as worker had been bullied and harassed by her superior; Department of Education and Training v Sinclair and Northern NSW Local Health Network v Heggie considered; award for applicant.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant’s psychological injury was not wholly or predominantly caused by the reasonable action taken or proposed to be taken by her employer with respect to performance appraisal and/or discipline, and the s 11A defence fails. 2. Further, the actions taken by the employer with respect to performance appraisal and/or discipline were not reasonable, and the s 11A defence fails. The Commission orders: 1. The respondent will pay the applicant the sum of $1,440 per week pursuant to s 37 of the Workers Compensation Act 1987 from 20 June 2021 to date and continuing as indexed and adjusted. 2. The respondent will pay the applicant’s s 60 expenses on production of accounts and/or receipts and/or HIC Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Donna Enright, the applicant, brings an action against Secretary, Department of Education, the respondent, for weekly benefits and s 60 expenses in respect of a psychological injury alleged to have occurred on a deemed date of 29 November 2021 (see below regarding the amendment from the pleaded date of 30 January 2023 deemed).
Dispute notices were duly issued and the proceedings were commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Do the provisions of s 11A exclude the respondent from liability?
(b) In particular, were its actions in respect of performance appraisal reasonable?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard on 13 March 2024 in person and completed by way of written submissions. Ms Nicole Compton of counsel appeared for the applicant briefed by Ms Natalie Pawlikowski and Ms Carly Norton. Mr Ross Hanrahan of counsel appeared for the respondent briefed by Mr Dylan Roskov. Mr Jessie Phillipe notionally appeared for the respondent, although he was in fact absent due to illness. Mr Anthony Enright attended as a support person.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Application to Admit Late Documents dated 7 March 2024 from the applicant, and
(c)    Reply and attached documents from the respondent.

Oral evidence

No application was made in regard to oral evidence.

FINDINGS AND REASONS

Preliminary

Ms Compton objected to a document entitled “Performance Development Plan Feedback”[1] on the basis that it was unsigned, undated and had not been referred to in the dispute notices.
[1] Reply page 49.
The transcript will show that I dismissed the objection on the basis that matters of admissibility in the Commission were usually matters that went to weight.
The ARD was also amended after some discussion to delete the date pleaded in the ARD of 30 January 2023 and substitute therefore the deemed date of 29 November 2021.
It was also agreed that the start date for the weekly payments of compensation was
20 June 2022 and that the applicable rate pursuant to s 37 was then $1,765 pre-injury average weekly earnings (PIAWE), 80% of which was $1,440. I was invited to make a continuing award as indexed or adjusted.

Evidence

Ms Enright made a statement dated 27 October 2023. She was born in 1961 in Italy and left at the age of 11 to emigrate to Australia in 1973.
She is separated and has three grown children in their 30s.
She obtained a number of tertiary qualifications, and she commenced employment with the Department in or around 2002. She stated that she had not suffered from any other psychological conditions, that her personal and family life was “unproblematic”, and that she enjoyed great social relationships, good health and overall wellbeing. She considered that she had a happy and calm disposition with a strong mental fortitude.
She said at [12] “…I did not let every day and personal stressors get in the way of my active participation in work duties”. She began as a casual employee with the Department in 2002. Her duties were as a receptionist/clerical officer at Chester Hill Education Office. She was required to provide administrative/receptionist and clerical support to various directors.
In 2008 she was appointed full-time with the title of Office Assistant Clerk Grade 1/2. Her responsibilities were to assist the Office Manager with the management of the Chester Hill Education Office full-time.
In 2011 she was appointed to a full-time role of Office Manager, Grade 5/6 at the Strathfield Education Office.
She said:[2]
“In this role I was responsible for all aspects of managing an office site with heritage listings as well as managing a pool of 28 vehicles, providing administrative support to two site Directors, each responsible for 28 schools, including providing assistance and support to all schools [within the] Director’s area of responsibility with various applications, specifically with detailed overseas student excursions. I was responsible for financial reporting, including with procedures around acquittal of Directors and my own purchase cards.”
[2] ARD page 2.
Ms Enright stated that she thus demonstrated that she had more than six years of experience “in successfully managing an office site which housed various educational services and also assisting Directors with their responsibilities to more schools than
Mr Elletson has current management of”.
She stated that this experience was acknowledged and recognised in her successful appointment to the newly established position of Admin Officer Clerk 5 – 6 at the Glenfield Office in 2018.
She said that in about 2018 her new job made her responsible to the Director of the Glenfield Principals Network. She said that consisted of 20 schools and she was employed on a full-time basis working 35 hours pw and earning $4,400.98 gross per fortnight.
She described her duties as follows[3]:
[3] ARD page 3.
“19. In my role, I was responsible for:
a. Providing administrative/clerical support to the Director;
b. Supporting Principles and School Administration Managers within my network of schools;
c. Following up and actioning requests
d. Managing and reporting on attendance records from schools;
e. Managing and recording on appropriate systems all incoming calls and complaints for the Glenfield Principals Network;
f. Arranging meetings as requested by Director; booking meeting rooms; room set up; catering Office; and
g. Various other tasks as directed, including other tasks not directly related to the supporting requirements to the Director.”
Ms Enright then discussed the subject injury. She said she had been diagnosed with major depressive disorder with anxiety distress. She said:[4]
“21. Throughout the course of my employment, I was constantly overworked and exposed to bullying and harassment perpetrated by Mr Dace Elletson. The workload was unreasonable and unachievable, and I was constantly expected to complete tasks outside of my regular workload. When I communicated to Mr Elletson that my workload was unreasonable, it was only increased further.
22. Though workloads from my former Director was also constant, it was manageable unlike my experience with Mr Elletson’s workload and demands. For example, Mr Elletson introduced a weekly newsletter for distribution to network principles. Preparing this newsletter added approximately 4-5 hours to my workload. Additionally, Mr Elletson also requested that I use calendar appointments in conjunction with google maps and use “creativity” with populating entries for entries for his travel log sheets with the use of a Departmental vehicle, post travel. The policy for these legal documents states that entry requirements of travel log sheets fall within the responsibility of the driver at real time of travel, and that failure to do so may carry significant implications with other agencies, specifically with potential Insurance claims with accidents/repairs and issue of infringement notices. Mr Elletson, although fully aware that this was not my responsibility included a comment in my PDP towards his vehicle running sheets not being completed.
23. Furthermore, Mr Elletson would often change the goal post on assignments timelines, increasing my workload with constant reschedules. Mr Elletson often changed his delivery goal post, bring delivery dates forward. This lack of consideration to workload on hand would often create a stressful work environment. Despite my scheduling tasks around Mr Elletson’s communicated delivery timelines, every day, ahead of due date/time he would ensure to speak with me requesting a status update on tasks for completion. With my usual response being that they were scheduled for completion according to his timeline request, Mr Elletson included in my PDP that I needed daily reminders due to lack of time management skills.”
[4] ARD pages 3-4.
Ms Enright then gave further examples. She stated that Mr Elletson refused to sign documents or correspondence electronically and that all such documentation was to be printed and placed on his desk for his personal signature. That required a follow-up of re-scanning the emails to complete the response. She said:[5]
“This practice caused significant delays, particularly due to restricted access of printing equipment during Covid-19 distancing restrictions and attending the office only two days a week as per established roster.”
[5] ARD page 5.
Ms Enright gave an example of what occurred on 31 May 2021 when she received a text message which she reported said:
“We can speak tomorrow. Everything you sent today for signing needs to be printed tomorrow and I will sign in person.”
Ms Enright said:[6]
“Despite my assistance with provision of step by step instructions on how to sign documents electronically, using his surface-pro pen, including walking him through the steps at his computer, showing how easy this could be done, and communicating with him that this was the ED's preferred method, Mr Elletson continued to refuse use of this efficient practice…”
[6] ARD page 5.
Ms Enright then described what she described as “events” that occurred thereafter during her employment. Her statement was 135 paragraphs long, covering 25 pages. It was extremely detailed, and it is not possible, given that these reasons are described as “brief” to recount every particular. I have read the entire statement, and the following accordingly is a précis of its contents.
Ms Enright referred to three “events”. The first was dated 16 March 2021, and related that she contacted Mr Elletson to say that she was unable to drive to work because she was unwell. She alleged that Mr Elletson’s response, in an “enraged” voice was:
“Donna! There must be something really wrong with you. I need you to go visit your doctor today and provide me with a medical certificate. You can't keep doing this without any intervention from me! You seem to have problems with working a full week, and when next in the office, you need to schedule a meeting for us to discuss your leave situation and performance.”
Ms Enright recounted that she returned to work the following day and scheduled the above meeting for “14 May 2021”. She said that she was told that a support person would not be necessary for an “information meeting”. (Subsequent evidence suggests that Ms Enright was probably referring to a meeting on 23 March 2021, as will be seen.)
The second “event” consisted of the meeting on 14 May 2021 and its sequelae.[7] At the meeting Ms Enright stated that Mr Elletson was sarcastic and displayed some distrust of the contents of the medical certificate that she had apparently supplied when she had been off work for a week. This caused her to become emotional and start to cry. Mr Elletson then stated that he required Ms Enright to be present at work for five days a week and that she would no longer be allowed to work remotely. He told her:[8]
“It just doesn’t suit me you working from home.”
[7] ARD page 5.
[8] ARD page 6 at [33].
Ms Enright said to Mr Elletson that all the other Admin Officers were working from home three days per week and she asked why she was the only one bring treated differently. She was overwhelmed by this conversation, she said, and asked for the meeting to cease. However, although agreeing to that request, Mr Elletson then accused her of attempting a transfer without his knowledge. She refuted that claim, saying that she had clarified her understanding of transfer protocols, and raised concerns about Ms Swadling’s handling of information. She “made it clear” that she had never initiated a transfer request. At this
Mr Elletson’s tone grew hostile and he said to her: [9]
“You are a liar! You will not be getting a transfer to the Strathfield office! I’m going to see this through!”
[9] ARD page 7 at [34].
Ms Enright then stood up from her seat and left his office, distressed that he had not verified the situation with Ms Swadling and simply accused her of falsehood. She returned to her workspace and her distress was noticed by Ms Denise Daher, a colleague, who then made a cup of tea for her. Whilst Ms Daher was doing so Ms Swadling approached Ms Enright and “engaged in a seemingly distant conversation”. Ms Enright was unable to respond and “encountered a dismissive attitude” from Ms Swadling.
When Ms Daher arrived with the tea, Ms Enright recounted to Ms Daher what had happened, still in tears. Ms Enright noticed Ms Swadling exit Mr Elletson’s office to be followed by
Mr Elletson who approached Ms Enright had said in an aggressive tone:[10]
“Donna, you don’t have the right to choose who you speak with. If you’re unwell, just go home!”
[10] ARD page 7 at [37].
Ms Enright said that these events left her deeply traumatised and feeling extremely mistreated.
Ms Enright described at [40] that her trust in Mr Elletson and Ms Swadling had “waned” but she could not afford to lose her job. She discussed the incident with a PSA representative, Ms Katie Ambler. When she returned to the office she sought a three month leave period from Mr Elletson, telling him that it was primarily for personal reasons, as she had separated from her husband and there was a property settlement to manage.
During that conversation the request was approved, but Mr Elletson wanted a “prompt submission”. Ms Enright said that she wanted future meetings held with a support person present. She said that during “the implementation of this plan” Mr Elletson exhibited “rude and aggressive behaviour when scheduling meetings”. Ms Enright said that when Ms Ambler was present Mr Elletson was courteous but otherwise during meetings or phone calls he would “be hostile, belittle, accuse, and yell at me for unfounded reasons”.
In any event Ms Enright said that “during a subsequent meeting” when Ms Ambler was present, she confronted Mr Elletson about his behaviour on 14 May 2021. She said:[11]
“… Despite his denial, the session revolved around a proposed informal performance improvement plan. We agreed to revisit this after my October return….”
[11] ARD page 8 at [41].
Ms Enright then discussed “email management training” as she “heeded Mr Elletson’s advice”. She contacted “an Executive Assistant” for guidance but was referred on to a
Ms Hughes. Ms Hughes proposed a training time by email into which she copied “my Director”, whom I assume was Mr Elletson. Ms Enright’s schedule caused her to decline the suggested training time and proposed a future meeting. Ms Hughes responded, saying that she had limited availability. Ms Enright accordingly declined the training and received an email from “my Director” implying that she had been unappreciative and that her time management was poor.
During the week before taking leave, Ms Enright said that a Ms Julie Metters assumed her role in circumstances that embarrassed Ms Enright. She said she remained professional and was available to Ms Metters on her leave, but was unable to understand why Mr Elletson did not communicate to her that Ms Metters had been instructed to discuss pending matters alone and not receive training. As a result Ms Enright said that Ms Metters had struggled in the role without training, had communicated with her when she was on leave, and had left matters in a folder that Ms Metters was consequently unable to complete.
Ms Enright said that she “aimed to adapt” to Mr Elletson’s “working style” and requested reasonable timeframes to complete her work. She said that after 14 May 2021 her anxiety grew every time she went into Mr Elletson’s office and she ensured the door remained open. She conveyed to Mr Elletson that she would not meet him alone without a support person being present.
At [48]. Ms Enright said that Mr Elletson’s directions/requests often conflicted with Government directives and those communicated by the Executive Director’s office. As an example she referred to an expectation by Mr Elletson that she would use his password to access systems that were outside her delegated level of access, which she said caused her extreme stress and anxiety.
The third “event” Ms Enright dated on 26 November 2021. It concerned Merit Selection panel meetings for two positions available for the appointment of a Principal. Ms Enright stated that Mr Elletson had requested that all panel meetings were to be conducted face-to-face, which resulted in her arranging four panels, two of which would choose the best candidates (“culling”) and two of which were for interviews, presumably with the remaining candidates. On the Friday of the particular week, a panel member called on the understanding that the culling meeting would be by teams, and the interviews in person, and a change was requested due to the panel member’s school commitments.
Accordingly, Ms Enright emailed Mr Elletson to suggest that the culling meeting be moved to TEAMS, which Mr Elletson confirmed. Ms Enright then rescheduled both culling meetings to TEAMS, cancelled the room bookings and updated calendar invitations accordingly.
Mr Elletson then called, questioning the altered culling meetings and when Ms Enright explained that she had emailed him she said that his “angry response” was to say “What email? Where is it?”
Ms Enright said she would forward the email whilst on the call and Mr Elletson asked why she assumed that he wanted both meetings changed. She said that she thought both panels might need the same arrangements and Mr Elletson agreed saying “Yes, and make sure to include a comment.” Ms Enright did so. Mr Elletson then directed her to change these arrangements. He said to her in an aggressive tone:[12]
“I don’t have time to read your emails!..... This is what I mean about you! You make me look unprofessional!”
[12] ARD page 10.

Ms Enright stated that what upset her was the tone of his communication with her when he had failed to read her email correctly. She said:[13]
“…. It was his oversight for not reading my email correctly and… He did not own this or feel the need to apologise, instead he felt at liberty to [lash] out angrily at me…”
[13] ARD page 10.
After the phone call Ms Enright said she “was extremely upset, crying uncontrollably, trembling and even attempting to vomit in the bathroom”. She returned to her desk experiencing chest pain and difficulty breathing. (Other evidence indicated that Ms Enright ceased work after this incident).
Ms Enright recounted a number of other occasions in which she was distressed by
Mr Elletson’s conduct, such as on 21 June 2021, a Saturday, when she and her husband were in a café and Mr Elletson rang her. Ms Enright had to leave the café because
[14] ARD page 11.
Mr Elletson’s loud and aggressive tone over the phone was audible to people in the café, who were looking at her.[14]
Ms Enright said that Mr Elletson adopted a calm and professional attitude when in the presence of others, or when sending her texts, whereas when they were in private, behind closed doors or on the telephone Mr Elletson would speak aggressively and angrily - even with matters that Ms Enright was not responsible for. She said she often felt anxious and trembled when answering these calls.
Ms Enright then addressed the treatment she had undergone since 26 October 2021 when she consulted with her psychologist, Ms Alison Bausse. These matters are covered in the medical evidence and need not be traversed at this point.
Ms Enright then addressed the effect that her psychological disorder had caused within the six categories of the psychiatric impairment rating scale, by which whole person impairment caused by a psychiatric injury is assessed. However the matters addressed therein are more appropriate to the task of a Medical Assessor.
Ms Enright then addressed the contents of the Dispute Notice dated 20 May 2022, with which she disagreed and for which she set out her reasons.
Finally, Ms Enright discussed the statement made by Mr Elletson. It is appropriate to consider this part of her statement after engaging with that of Mr Elletson.

Statement Ms Denise Daher

Ms Daher’s statement was dated 11 December 2023.
Ms Daher was about 60 years old and had been a teacher until she commenced with the respondent in late 2019. She first met Ms Enright when she was working two days per week at the Glenfield branch in 2021. Ms Daher secured a part-time administrative role where
Ms Enright was an Administrative Officer, whom Ms Daher found always to be very friendly.
Ms Daher said, from paragraph [6]:[15]
“… Donna went out of her way to introduce herself to me when I joined the admin team, which I found to be nice. I would liaise with Donna on occasion. From what I could see Donna did not have a bad word to say about anyone….
I also found Donna to be very helpful. I often had questions about the role and tasks and would call upon Donna to help. Donna was always willing to assist me when I needed help…”
[15] ARD page 29
At [10] she said:
“Prior to [Mr Elletson] becoming the Director, Darryl Currie was the previous director. I cannot recall exactly when [Mr Elletson] became the Director. I do know that Donna worked for Darryl for a very long time, and that to my knowledge there were never any issues raised by Darryl about Donna.”
Ms Daher related that at a time when the environment in the Glenfield office was “toxic” with negative conversation amongst staff members, Ms Enright never spoke negatively about anyone, in Ms Daher’s experience.
Ms Daher then referred to the incident described by Ms Enright. At [13] she said:
“I can recall an incident around May 2021 between Donna and Dace Elletson. I remember Donna walking into Dace’s office. I am not sure why she needed to speak with Dace, she was in the office for a while, I cannot recall exactly how long. However, it was more than 30 minutes from memory. When Donna left Dace’s office she was visibly upset, and she was shaking. From what I could ascertain she did not appear to be in a good state and seemed to be hyperventilating. Seeing Donna like this was quite concerning.
I recall getting up from my desk and asking Donna if she was all right stop where Donna then told me that she did not feel good at all and needed to leave the office. I told her I did not want her driving in her current state and asked what happened. Donna told me that she had a meeting with Dace and that Dace had called her a “liar’. I asked her why Dace would be accusing her of being a liar. Donna told me that Dace accused her of applying for a transfer with Lisa Swaddling [sic], Admin Manager without his knowledge and Dace said to Donna words to the effect of, she would not be going to the Strathfield office and that he is going to see this through.”
Ms Daher said that Ms Enright sat at her desk, “quite silent”, and Ms Daher went to get her a cup of tea. When she returned, she saw Ms Swadling approached Ms Enright’s desk and talk to her, and at that point Ms Enright was visibly upset. Ms Daher said, from [17]:
“17. I asked Donna what Lisa had said and Donna said Lisa wanted her to see her and she told Lisa she couldn’t speak at the moment and then Lisa said ‘fine, I’ll go talk to your Director then.
18. Shortly after, in my opinion, Dace came out of his office in a very abrupt and authoritarian way. In my fifteen years of experience in administration I had never seen someone act in this manner and I found his behaviour to be very assertive. His tone of voice and body stance was very harsh and aggressive. I recall Dace walking over to Donna and raising his voice, saying ‘ YOU DON’T GET TO CHOOSE WHO YOU SPEAK TO’.
19. Dace then looked at me and nodded which appeared to be, what I believe, an action from him signalling that he has said what he needed to in order to have the last word and authority. I was quite upset with his behaviour and found it extremely unprofessional and belittling of Donna….”
(As written).
Ms Daher said that over the next few days she observed Mr Elletson and Ms Enright speaking “here and there”. She noticed that Mr Elletson’s tone was “very direct and what I would call unfriendly”. She heard him giving orders to Ms Enright.
Ms Daher said that there were tasks allocated to Ms Enright that were outside her responsibilities. She gave as an example Ms Enright’s recording the mileage. At 24 she said:
“… I worked for 3 – 4 Directors in six months and those directors would fill out their own milage, and I would just upload it to system, whereas Dace told Donna to figure the whole thing out from his calendar.”
Ms Daher made some negative remarks about the “hierarchy in the Department of Education”. She also recounted some further history about the function performed by Administrative Offices and the relationships between Ms Langer, Ms Swadling and
Ms Enright.

Statement Lorena Baker

Ms Baker gave a statement dated 11 December 2023.[16] She met Ms Enright whilst working at the Strathfield Education Office in 2013. She and Ms Enright were both successful in gaining an ongoing clerk 5/6 role. She worked with Ms Enright from 2018 to 2020. In that time no performance related issue was raised against Ms Enright, as far as Ms Baker knew. At the Strathfield office Ms Baker said that Ms Enright had a very high workload supporting three directors, fleet vehicles and the office staff. This when Ms Enright was only working a seven day per fortnight role. Ms Baker said at [10]:
“… Whilst at Strathfield, Donna managed the office and I worked under her at the time. I always found her to be a hard worker, polite and knowledgeable and very capable of running the Strathfield Office.”
[16] ARD page 34.
Ms Baker described a deterioration within the Strathfield office and ‘Lisa Swaddling, Olivia Dean and Narelle’ developed a negative attitude to other officers, including Ms Enright. They would laugh at her when she walked past and make comments about her to the other Administration Officers “so as to exclude and influence a dislike for Donna”. Ms Baker heard that Lisa asked other administrative officers to put in reports against Ms Enright. She said at [13]:
“… If Donna asked for assistance with any work it was to be reported to the Executive team and this was then used against Donna as her asking others to do her work, which was not the truth.”
At [16] Ms Baker said:
“I can recall that the Department had a “Bullying Policy“ however the policy was not adhered to with Donna.…”

Respondent evidence

Dace Elletson

Response document

The respondent lodged two documents from Mr Elletson. The first was dated
[17] Reply page 2.
21 December 2021 and appeared to be in response to an internal requirement from the respondent.[17] It was addressed to “Raquel,” who was not otherwise identified, and took the form of answers produced by Mr Elletson to questions posed by “Raquel”.
Mr Elletson did not know how long Ms Enright had been working for the Department. He was also unsure as to how long she had been working as an Administration Officer Clark 5/6. He understood she had been in that position since 2018. Mr Elletson said that he and Ms Enright had worked together during 2021.
In answer to a question as to whether there were any performance concerns that have been bought to Ms Enright’s attention, Mr Elletson confirmed that there were and they had been raised during 2021. He said there were informal conversations as well as formal meetings in March, May and July where he indicated that Ms Enright was not meeting the “focus capabilities of an Administrative Officer”. He said:
“I am able to provide evidence to support all meetings.”
Mr Elletson said that he agreed for Ms Enright to have extended leave because of family issues, and after she returned in September he met with her “to discuss how I could support her to reach the required standard of the focus capabilities. A performance monitoring and support plan was negotiated whilst in the presence of “a Union Delegate from the Public Service Association.” After that, Mr Elletson said that “we” continued to negotiate the specifics of the plan due to Donna feeling overwhelmed at the beginning. This plan was to run from 5 October 2021 two 12 November 2021, Mr Elletson said. He had remained “flexible and responsive to feedback” over the six week period of the performance monitoring plan and there were “eight different versions of the plan developed.”
Mr Elletson noted that the plan was to be finalised on 29 November, but that Ms Enright did not return to work. Mr Elletson did not advise when Ms Enright went off work.
He was then asked about the incident where Ms Enright was spoken to as to why she had changed certain meeting arrangements from face-to-face to online when she had in fact been instructed to do so. She alleged that she had been spoken to rudely and Mr Elletson was asked to provide information. He said that it occurred on 26 November at about 2 PM. He admitted that he asked Ms Enright to rearrange the meeting to be online rather than face-to-face and that Ms Enright had done so. Mr Elletson said:[18]
“During our discussion I did say words to the effect of ‘why would you do that’ or ‘why would you assume that’ - meaning changing both panels when we had spoken of one only. I don’t believe I was rude and certainly that was not my intent. I have always been polite and courteous to Donna.”
[18] Reply page 23.
Mr Elletson was then advised that Ms Enright said that she was required by him to use his electronic signature, but knew she was not allowed to do. Mr Elletson admitted that this was correct, but said that it was “ordinary practice in most Directors offices.” He said that early in the year he and Ms Enright established a protocol regarding this practice, but said:
“As time has gone on, I agree that this protocol has mostly fallen away…”
Mr Elletson said that Ms Enright had always used his electronic signature and he thought this was because they had built “sufficient trust” for her to act on his verbal instructions. Mr Elletson advised that this was normal practice in the five different Principal networks he had “worked across.”
When asked whether he could confirm that Ms Enright had requested one day of leave each week and whether it had been approved, Mr Elletson said that he had refused such a request earlier in the year, as he indicated that he had “concerns regarding her performance.”
Mr Elletson was then asked as to whether he had informed Ms Enright that she would need to work in the office full-time, when she had been previously told that she could work from home three days per week. Mr Elletson said:[19]
“This is untrue.”
[19] Reply page 24 .
Mr Elletson said that when in lockdown he had concerns regarding productivity. He said:
“.. I would telephone and Donna would not be close to the telephone and she would have to log in to her computer when I did call. there were occasions when I would call and she would be babysitting her grandson while working.”
Mr Elletson said that when Ms Enright was in the office, “productivity was improved”, and he said that he asked her to come into the office “at that stage”. He said that Ms Enright, at the time he made his statement, was mostly working from home five days a week, that there were “very few days” where he had requested her to be in the office. He said that Ms Enright was “now more productive at home”. He said further that he had a conversation with
Ms Enright about a new hybrid way of working. He said:
“…I did say to Donna that we should be aiming to come in to work 2 – 3 days a week as there are work streams (e.g. photocopying) that can only be done when at the office…. “
Mr Elletson was asked to respond to Ms Enright’s complaint that she had “been rudely called a liar by the Director after being questioned about a position she was looking at in a different location.” Mr Elletson said:[20]
“This is untrue.”
[20] Ibid.
Mr Elletson said that there was a conversation in “approximately June or July” where
Ms Enright indicated that she was looking at another administrative officer opportunity, as she was hoping to buy a new apartment to be nearer her son. Mr Elletson said that he would not be able to support her application because of his concerns about her performance. He said that he was unsure how the word “liar” would have come up in that conversation, as he was “not in the habit” of using it.
Mr Elletson was further asked to respond to Ms Enright’s complaint that when she asked for a support person at a meeting called to discuss her performance, she was told that a support person was not required. Mr Elletson said:[21]
“This is untrue.”
[21] Ibid.
Mr Elletson said that he was able to produce correspondence from all meetings where he had provided the opportunity for a support person, and he said that Ms Enright had a Public Service Australia Union Delegate present on two occasions “and I am totally fine with that”.
Mr Elletson concluded by saying that Ms Enright did not “meet the focus capabilities of the standard required of an Administrative Officer (Clerk 5/6)” and was aware she would be moving to a formal improvement plan.

Statement 15 March 2022

In this document Mr Elletson advised that Ms Enright had been appointed as a permanent employee with the respondent from 28 January 2014, based at the Parramatta Office. She had previously been employed as a temporary clerk 5/6 from 11 November 2011, working in administration. She moved to the Glenfield Office on 29 April 2018 and he “started working” with her “in 2021”.
He said that Ms Enright’s position,[22] attached to “the Director, Educational Leadership” applied;
“specialised knowledge, skills and professional judgement to achieve outcomes that support the Director, Educational Leadership personally , and school operations on a daily basis. The role is crucial to support the Director to respond to emerging and urgent matters in an agile manner while often working remotely. Principals, Senior officers and parents regularly contacted Ms Enright in the first instance and customer service needs to be high-level, accurate , responsive and confidently delivered, often in an environment of pressure and accountability.”
[22] Mr Elletson described her position as "the Administration Officer."
On 12 February 2021 “performance concerns” were first raised with “the Professional and Ethics Standards directorate”, Mr Elletson said, “It was reported that Ms Enright was experiencing difficulties as an Administration Officer”. These difficulties were alleged to have been:[23]
“• lack of attention to detail in correspondence, time management and level of proofreading of her work
• completing tasks in a timely manner
• difficulty managing the DEL's calendar and
• communicating and negotiating with the schools.”
[23] Reply page 38.
Mr Elletson said that on 23 March 2021 he met with Ms Enright “to outline concerns with her performance in the focus capabilities of her role and [I] discussed her Professional Development Plan (PDP)”. Mr Elletson said further:
“I provided explicit verbal and written feedback on each of the key accountabilities including her personal goal in March, April and May 2021. I kept a record of ongoing incidences/concerns and summary of informal discussions, coaching and support provided by me from 12 February 2021 until 1 July 2021. These extensive records and evidence have already been provided in documentation forwarded to Allianz on
1 February, 2022.”
On 1 July 2021 Mr Elletson said that he provided Ms Enright with “written feedback on her performance at the annual PDP review”. Mr Elletson made some comments about how the year had been challenging, and Ms Enright had tried to improve but, Mr Elletson said, was unable to do so for more than a few weeks. “I was unable to sign off her PDP as satisfactory,” Mr Elletson explained. “In the letter”, he said, he encouraged Ms Enright to seek support and indicated that he would be “supporting her on her improvement journey.”
Mr Elletson said that Ms Enright’s application for long service leave “was supported” for Term 3, 2021. He said that Ms Enright was advised that the conversation would continue when she returned “about underperformance”. He said that there were “discussions and personalised support and coaching” to complete her 2021 PDP, “and following her return from leave in Term 3, 2021. Mr Elletson said that he had not received “the PDP document”.
Mr Elletson said that a performance monitoring and support plan (PMSP) was developed and negotiated with Ms Enright and Ms Ambler. He said he was “very flexible and responsive” to feedback, “as Ms Enright was feeling overwhelmed at the beginning”. Mr Elletson had to move end of week meetings/wrap up meeting to a Monday, and said that the PMSP was adjusted on eight occasions. Mr Elletson identified the following areas as requiring improvement:[24]
“• prove high level clerical and administrative support, including the word processing and production of multi-faceted reports and audio-visual presentations to ensure enhanced quality service delivery
• build excellent customer relationships and work collaboratively with team
members and other teams across School Operations and Performance division to increase efficiencies and implement systemic procedures in the delivery of educational service to schools
• provided data entry, word processing, spreadsheet and other technological services to facilitate accurate, timely and effective records and correspondence”
[24] Reply page 69 (the paragraphs were not numbered).
Mr Elletson then set out what appeared to be weekly requirements for Ms Enright’s “support”:
“• Professional Leaming- Time Management Fundamentals (3 hours), Being an Effective Team Member (3 hours), Effective listening (1 hour)
• Coaching and planning meetings
• 2-3 hours, professional learning over four weeks, with time allocated for the officer
• Weekly reviews/wrap up meeting
• Mentor support.”

Mr Elletson said that a final meeting of the PMSP was scheduled for 29 November 2021, but that Ms Enright did not attend the meeting. “… She has not returned back to work since.”
Mr Elletson said that since these concerns had been identified Ms Enright had been provided with opportunities to engage in “professional learning, mentoring and coaching support and opportunities to reflect on her practices.” He said that Ms Enright’s performance “remains a concern” and that she was going to move to an Improvement Program following the meeting on 29 November 2021.
Mr Elletson concluded by saying that “[an] Administration Officer position requires specific high-level skills specifically to support the confidential and extensive role of the Director, Educational”. He then spoke about how a transfer for somebody in the role would be highly unlikely “due to the extent to which the specialised role engages with, and responds to daily imports and outputs within a time sensitive, emotionally charged and highly confidential environment”.

Ms Enright’s response

Ms Enright commented on the contents of Mr Elletson’s response to the respondent’s enquiries dated 21 December 2021, and his statement dated 15 March 2022.
Mr Elletson’s statement of 15 March 2022, Ms Enright said, contained many false statements and allegations which were defamatory to her reputation. She pointed out that, contrary to
Mr Elletson’s assertions, she had never been based the Parramatta Office.
Ms Enright agreed that she met with Mr Elletson on 23 March 2021 to discuss performance concerns, but her work was up-to-date and the meeting was no longer necessary.
Mr Elletson gave her a list of concerns over two pages long which covered “all areas of my focus capabilities as per my job description, pointing out that these were his concerns but that they were no longer relevant so there was no point in discussing them”. She said that as she was leaving his office, Mr Elletson invited her to “just pick a few” and include them in her PDP. Ms Enright said she was not comfortable doing so when he had indicated that he had no further concerns. Mr Elletson, she said, laughed without further comment.
Ms Enright then referred to Mr Elletson’s response of 21 December 2021. She referred to paragraph [3] and Mr Elletson’s averment that there were “8 different versions of the plan developed in response to feedback from Donna”.
Ms Enright recapitulated the evidence given earlier in her statement. Mr Elletson had not given her a copy of the proposed plan before the meeting (presumably that of
6 October 2021). Ms Enright said that Ms Ambler, as her support person, would verify that she showed no resistance to undertaking the plan, subject to a number of requests.
[25] ARD page 21 [113].
Ms Enright said that the recommended training times would considerably increase her workload between 2-5 hours weekly and accordingly she would need support.[25] Mr Elletson had responded that there would not be any support and that Ms Enright should find the time to manage. Ms Enright said that it was Ms Ambler’s suggestion that these hours would set Ms Enright up to fail. The two half hour weekly meetings were excessive and Ms Ambler also suggested that Mr Elletson should consider reducing that requirement to one weekly half-hour meeting.
Ms Enright also said that after returning from a three month leave she had a significant additional workload because of the problem with Ms Metters, which Ms Enright reiterated. Accordingly a request was made for consideration regarding the “time requirements for the actioning/completion of these various matters, with support or potentially extending commencement of plan for approximately two weeks”.
Ms Enright stated that Ms Ambler (and Ms Enright herself) thought that request to be reasonable “with an occasional change to calendar meeting schedule, due to both, mine, and Mr Elletson’s communicated time restraints around work delivery commitments and emerging urgent work matters”.[26] Ms Enright said she could not see how eight different versions of the plan were required, nor that they resulted solely out of her determinations. She said the process had not been reasonable.
[26] ARD page 22 [115].
She stated that while at paragraph [4] Mr Elletson said he was unaware of any conduct issues, at paragraph [8] he said that during lockdown when he called her, she was not close to a telephone and that she needed to log onto systems. Ms Enright stated that there were many reasons for needing to log onto systems not necessarily indicating that she was not close to her telephone or workstation. She gave an example of speaking with the distressed parent with a complaint matter. She denied that she was ever babysitting her grandson when Mr Elletson called. She said that her grandson was born with a heart condition in April 2021 during lockdowns and travel restrictions. She also said that his parents were very protective and always by his side. She said that Mr Elletson’s statement was a fabrication and very hurtful.
Ms Enright said that the emails demonstrated that Mr Elletson did give his permission to make the changes mentioned in paragraph [5] of his statement.
Regarding paragraph [6] Ms Enright repeated her evidence that she was not comfortable using Mr Elletson’s password on the electronic signature when such use conflicted with directives from the Executive Director’s office. Although other people may have done that, Ms Enright did not feel comfortable doing so, as such behaviour constituted a conduct issue.
Ms Enright commented that Mr Elletson’s alleged concerns about her performance at paragraph [7] were contradicted by his actually granting one day a week leave as she had requested. Ms Enright also queried how he could have established these concerns in such close proximity to his appointment.
As to Mr Elletson’s denial (at paragraph [8]) of her assertion that he ordered her to return to work five days per week, Ms Enright referred to attendance records following the
14 May 2021 meeting that showed that she thereafter returned to work full-time.
As to whether a support person was needed or not at a recent meeting, Ms Enright said that Mr Elletson’s response at paragraph [10] was false. She stated that the minutes of the meeting of 14 May 2021 would show that there was no support person present, because
Mr Elletson had told her that it was not necessary.
Ms Enright repeated that there was no meeting scheduled for 29 November 2021 with
Mr Elletson, contrary to his assertion at paragraph [11]. She said that calendar appointments would show a notation that he had been unable to make that meeting, and that there was no meeting scheduled.

Wendy Langer

Mr Hanrahan, as noted below, did not rely on this statement.

Documentary evidence

The respondent and the applicant lodged a number of emails. The emails lodged by
Ms Enright concerned firstly the day-to-day communication with Mr Elletson, and secondly involvement by Ms Ambler in the continuing effort to construct a management plan. There is little purpose in analysing the content of the day-to-day communications in view of the accusations and counter-accusations between Ms Enright and Mr Elletson.
The involvement of Ms Ambler in the emails commenced on 7 October 2021.[27] She emailed Mr Elletson and recorded her attendance at a meeting between Mr Elletson and Ms Enright on 6 October 2020. Mr Elletson responded by making comments in a red font as to the discussions at that meeting. Further emails between Mr Elletson and Ms Ambler covered the period through to 11 October 2021 and evidenced a willingness by Ms Enright to engage in a performance development plan, and Ms Ambler’s analysis and criticism of some of the proposals put forward by Mr Elletson. This criticism related mainly to the onerous conditions regarding timeframes that Ms Ambler considered Mr Elletson was proposing. Ms Ambler’s last email was dated 29 November 2021, and followed the incident described of
26 November 2021 in Ms Enright’s evidence. Ms Ambler said:[28]
“Donna,
I don’t believe this can go on the way it is.
Two things for your consideration:
1. First and foremost is your health and well-being – My observation is that you are being injured at work….
2. ….”
[27] ARD page 91.
[28] ARD page 94.
The Reply also contained a number of emails.
The first exchange was between Ms Vicki Stokes, “R/Director Educational Leadership, Glenfield Principals Network” and Ms Enright.
At 10:44am on 22 December 2020 Ms Stokes emailed Ms Enright advising that she had contacted “the Regional South office to ask about PDP’s”. Ms Stokes said she would forward an email to Ms Enright from “Olivia” about Ms Enright’s PDP, which apparently had been sent to Ms Enright at some earlier time. Ms Stokes observed that the PDP should have been finalised by July of that year, and invited Ms Enright to take advantage of a quiet week to write her PDP by 24 December 2020.[29]
[29] Reply page 29.
At 2:22pm Ms Enright emailed back saying that she had actioned the email she had received from Olivia by forwarding it to Daryl and requesting a time to meet to finalise the 2019 PDP. There had also been follow-up telephone calls. Ms Enright further advised Ms Stokes that she had spoken with Olivia when she received the email seeking some advice concerning the commencement of Ms Enright’s 2020 PDP when the 2019 PDP had not been finalised. Ms Enright reported that the advice she received from Olivia was not to worry about it at the moment as COVID-19 had people working home and nothing much would have changed.
Ms Enright said that she had called Olivia that morning to verify the conversation, but Olivia could not recall it as she had various conversations with many Administrative Offices regarding their PDP around that time.
Ms Enright again emailed Ms Stokes at 11:55am on 23 December 2020 advising that she was not too sure how to reflect the correct period, enclosing her PDP.
This email chain was sent by Ms Stokes at 2:39pm on 18 January 2021 to Mr Elletson, without comment.[30]
[30] Reply page 28.
The next document lodged in the Reply appeared to be the draft PDP that was the subject of the above email chain.[31] It mentioned Ms Enright’s name and said that the period covered was from July 2020 to July 2021.
[31] Reply page 31.
The email chain continued with two emails that have been sent from Ms Stokes to Ms Enright in December 2020. The first was dated 11 December 2020 at 8:34am. It said:[32]
“I am in an online meeting. Could you please check my calendar before you ring.”
[32] Reply page 44.
The second email was dated 15 December 2020 at 9:26am. It said:[33]
“You just rang my phone. Please check my calendar I am in a meeting.”
[33] Reply page 45
At 2:42pm on 18 January 2021, Ms Stokes forwarded without comment, both emails to
Mr Elletson.
On 12 February 2021 at 5:23pm, Mr Elletson received an email from Dr Liwayway Johnson, Senior Employee Performance Officer, which obviously followed an earlier conversation. The content of the email advised Mr Elletson about the implementation of a Performance Monitoring and Support Process. Ms Enright was not named, but Mr Johnson referred to the officer as “her”, and I infer that Ms Enright was the subject of the enquiry.
On 6 March 2021 at 2:20pm Mr Elletson emailed Mr Johnson about the preparation for a meeting with Ms Enright. The topic mentioned by Mr Elletson for discussion was “her recent absences”. Mr Elletson discussed making a “revised Performance Agreement” which would contain “the areas of feedback and seeking solutions” which would be added following the meeting.
The next document was that objected to by Ms Compton at the outset of the hearing.[34] It was entitled “Performance Development Plan Feedback: Donna Enright, Administration Assistant, Glenfield Principals Network”. It was in a form similar to the draft PDP mentioned above. It was undated and unsigned, and it contained under the topic “Feedback,” a number of criticisms. There is no need to enumerate them all, but they included:
[34] Reply page 49
·        clerical and administrative support not up to standard;
·        many items are outstanding and regular reminders are required to produce items at work;
·        organisation and prioritisation skills not up to standard;
·        Ms Enright (assuming the letters ‘DEL’ refer to her) required to provide prioritised list “almost daily.” Ms Enright asked daily, ‘what still needs to be done?’;
·        difficulty in keeping up with the demands of the role and production of tasks in a timely manner;
·        issues juggling calendar, incorrect dates and moving meetings can cause difficulties;
·        difficulty booking meeting rooms without issues/complications;
·        daily attendance monitoring takes most of the morning, there being no system in place “so that it is in a ‘monitoring’ phase;
·        Ms Enright was regularly late and required deadlines, and
·        Ms Enright’s personal target regarding Outlook and Scout not at level of Clerk Grade 5/6.
On 27 September 2021 and 10:54am Mr Elletson emailed Ms Enright:
“Can I ask please that you go through my calendar for the next couple of weeks each day in the coming weeks so that you can resolve clashes that arise – particularly this week there will be a lot of meetings dropped in I believe that will interfere with the meetings I’ve already arranged.”
On 27 September 2021 at 11:00am Ms Enright emailed Mr Elletson a question as which of the conflicting appointments on his calendar would take priority.[35]
[35] Reply page 56.
Further emails were lodged by the respondent between Mr Elletson and Ms Enright which demonstrated communication between them in the day-to-day course of their business.

Ms Enright’s response

The PDP plan that was produced by Mr Elletson, Ms Enright said had been falsified and included various issues around her performance that had never been raised or discussed with her.
Ms Enright further stated that she was “quite unfamiliar” with the Performance Management process and understood that it was a confidential document that “would be used solely for the purpose of personal and professional development”.
Ms Enright took issue with Mr Elletson’s statement in her PDP document that she spent most of the mornings with Ministerial requests of daily attendance data, and that she had not established for internal practices to enable efficient time delivery of that request. She said;[36]
“This statement is not true.”
[36] Ibid [118].
Ms Enright stated that her emails would show her established protocols and follow-up practices which she had established and which also provided regular assistance to her network of schools. This implemented an improved and simplified process of using a spreadsheet that auto-populated calculation requirements, which significantly reduced the time involved. Ms Enright said she received appreciation from schools as well as the ED Office for her initiative. Nonetheless, Ms Enright stated some schools still found it challenging to meet their timelines which was a common challenge amongst all Admin Officers.
Ms Enright said:[37]
“…. Why was I singled out? Especially when over a period of almost 2 years of this daily requirement, my practices served in ensuring timely delivery with 15 – 30 minutes prior to required timeline, and that my network was only late twice, wherein each case I had exhausted every possible measure ensuring regular updates of my actions to Mr Elletson.” [Sic].
[37] ARD page 23.
Ms Enright stated that further delays resulted from Mr Elletson’s directive to cease follow-up and to advise ED Office that he would deem particular schools exempt from submission of their daily data. This was a ministerial request, Ms Enright said, the importance of which
Mr Elletson himself underestimated. She said that “stern communications from ED Office were that he ensures that the particular school respond immediately.”
Ms Enright said that Mr Elletson, embarrassed by his situation, felt it appropriate to deflect blame onto “my incompetence, including adding this as an item of concern in my PDP documentation for further recriminations”.
Ms Enright referred to a text message she had received from Mr Elletson on 16 May 2021 in answer to Mr Elletson’s statement that he did not contact her or expect her to work, on weekends. She said the text message read:
“Good evening, Donna, I hope you had a terrific weekend and I’m sorry to bother you on a Sunday. I’ll not be in the office tomorrow in person, but I’ve sent a few things through to be done please over the weekend and there will be more tomorrow in terms of photocopying et cetera. Thanks a lot – I thought I’d just give you a heads up. D.”

MEDICAL EVIDENCE

Ms Alison Bausse

Ms Bausse, Ms Enright’s psychologist, reported on 30 November 2022.[38] She said that she first treated Ms Enright on 26 October 2021, and that Ms Enright had attended 28 appointments since. The referral, Ms Bausse said, was to treat “workplace stressors that she experienced whilst working under her current director. Ms Enright described his behaviour as targeted and of a bullying nature that began not long after they started working together”.
[38] ARD page 131.
Ms Bausse discussed Ms Enright’s symptoms and treatment. She advised that Ms Enright had capacity to for work, but that since she had left work “she has experienced a lack of confidence as well as de-skilling which would be a natural consequence of an extended time away from employment”. She advised that Ms Enright would not be able to engage in some form of employment within the next three to six months.
During submissions, Mr Hanrahan referred to an entry in Ms Bausse’s clinical notes, which were contained in the applicant’s late documents of 7 March 2024. From page 8 Ms Bausse appeared to have annotated a draft version of Ms Enright’s statement.

Medico-legal opinion

Both qualified experts took consistent histories and reached a diagnosis of major depression as did Ms Bausse.[39] As to capacity Dr Assad Saboor for the applicant said on 14 November 2022:[40]
“She sustained an injury since the accident and she has incapacity to work as a consequence of her injury. She currently has capacity of five hours, one day a week as per Certificate of Capacity. Her future capacity has been affected. She has been fearful of encountering similar circumstances. She has lost her confidence and she developed fear about how they will treat her in the work environment if she works. Her work capacity is greatly affected and she has very limited capacity at the present time.” (The reference to “an injury since the accident” I put down to looseness of language. There is no suggestion within Dr Saboor’s report that Ms Enright has suffered any injury since the accident).
[39] Dr Saboor at ARD page 122; Dr Young at Reply page 20; Ms Bausse at ARD page 130.
[40] ARD pages 124/5.
For the respondent, Dr Peter Young, psychiatrist, said on 9 May 2023:[41]
“Currently, [Ms Enright] reports symptoms that would preclude her from undertaking pre-injury employment. She would, however, benefit from a graded return to work process commencing within the next 1 to 3 months with limited hours and duties, most likely starting at around eight hours per week.”
[41] Reply page
As to the cause of Ms Enright’s injury, Dr Saboor was asked whether Ms Enright’s injury had been caused by reasonable action taken by the respondent with respect to performance appraisal and/or discipline. Dr Saboor said:[42]
“…. It is not the action taken by the employer which caused her psychological injury. It was how the director treated her and subjected her to bullying and harassment, leading to the development of a psychological injury. He has reacted angrily towards her and constantly given her excessive work. He overly criticised her which led to the development of the psychological injury. She has been anxious from May and was fearful of how the new director would react to her. She saw a psychologist in September because of many incidents that happened at work causing her anxiety.”
[42] ARD page 123.

In Dr Young’s report of 25 March 2022, the following appeared:[43]
“Please list and detail all the factors/incidents which have led to the injury (both work related and non-work related).
Ms Enright describes multiple interactions with Mr Ellerson (sic) in which she feels she was unfairly criticised regarding her performance informally and formally.
Of the work related causes of Ms Enright's condition, what do you deem to be the predominant cause?
The predominant cause of her condition is perceived unfair criticisms of performance.”
[43] Reply page 8.
The respondent asked Dr Young to revisit that opinion in his report of 15 March 2022, where the following appeared:[44]
“5. In your report dated 25 March 2022 you detail the factors and incidents that led to the injury to be the multiple interactions with Mr Elletson in which the worker felt unfairly criticised regarding her performance informally and formally. You went on to express the opinion that the predominant cause of the worker’s condition was her perception of unfair criticisms of performance. Can you indicate whether you adhere to that opinion?
Ms Enright has further elaborated on the issues that have caused her to experience stress at work. She indicates that these were predominantly related to perceptions of unfair criticisms of her performance. In addition, she reports that there were factors related to adverse interactions with Mr Elletson and workload factors.”

SUBMISSIONS
The respondent
[44] Reply page 18.

Mr Hanrahan submitted that cases of this nature depended upon the evaluation of “subtle nuances of behaviour” in the circumstances.
He said the dispute notices showed that the issue was performance appraisal and discipline. He submitted that a broad view approach had to be taken, and that the issue focussed into the topic of performance appraisal as there was no question of discipline in this case. There was in fact, Mr Hanrahan said, no performance management plan entered into as Ms Enright had become incapacitated prior to that point.
He submitted that in looking at the circumstances of the performance review and whether
Mr Elletson’s conduct could be described as reasonable, a broad view was required which encompassed all the circumstances from when Mr Elletson began work with Ms Enright in 2021.
I was referred to Department of Education and Training v Sinclair[45] and Northern NSW Local Health Network v Heggie.[46]
[45] [2005] NSWCA 465.
[46] [2013] NSWCA 255.
Mr Hanrahan submitted that I would be satisfied by the opinion of Dr Young that the psychiatric injury suffered by Ms Enright had been wholly or predominantly caused by the actions of the respondent with regard to performance appraisal. Dr Saboor had only seen Ms Enright on the one occasion and should not be preferred, I understood him to submit.
Mr Hanrahan referred to Dr Saboor’s opinion that Ms Enright was overly criticised by
Mr Elletson, when Mr Elletson’s intention throughout the year had been to assist Ms Enright. Mr Hanrahan referred to the three months leave that was granted to Ms Enright during the year as an example. Mr Hanrahan said that Dr Young was looking at those circumstances from a different perspective. The claim that she had been given extra work came from her perception, and it was necessary to look at the evidence and see if it was in fact excessive. The respondent said that it was not, and was something she was otherwise capable of, except for Ms Enright’s failure to go ahead with the performance improvement plan. The use of the word “overly” was no more than a perception on Ms Enright’s part, Mr Hanrahan said. The respondent was not cavilling with the fact that it criticised Ms Enright’s work performance, but Mr Hanrahan said that the criticism was justified, and the respondent only wanted to find ways of “putting it right.” All the objective material tended to support that view and the respondent was reasonably entitled to expect some cooperation from the applicant.
Mr Hanrahan said the respondent took a reasonable approach in this case. He said “I mean, you can’t be perfect and you can’t always know exactly how to handle things the best way,” in reference to Mr Elletson’s conduct. Mr Hanrahan said that the principle in Sinclair illustrated that if sometimes you didn’t hit the right target, if sometimes you were off the mark, that should not mean that the whole of the response to the situation could be regarded as unreasonable.
Mr Hanrahan referred to Dr Young’s report of 25 March 2022 and Dr Young’s description of the cause of the injury as “multiple interactions with Mr Elletson”.
Mr Hanrahan referred to the statements made by the applicant, saying that from their structure and content some assistance from her solicitors and perhaps her psychologist had been given. Mr Hanrahan suggested that the evidence from her psychologist lodged by the applicant in her late documents should be examined, as it gave rise to an inference that the solicitors and the psychologist were telling Ms Enright what to say and what not to say in her statement. He submitted that Ms Enright’s statements were full of judgements and conclusions about her subjective feelings. Just as the respondent was required to point to objective facts, so should the applicant, Mr Hanrahan said.
Mr Hanrahan conceded that the work Ms Enright was required to perform was innately stressful. He submitted, however, that her subjective view of Mr Elletson’s conduct was evaluative, and she was complaining about what he was getting her to do. She described it as improper, inappropriate and somehow illegal. Mr Hanrahan said there was no policy in the ARD that said his conduct was illegal – it was just her conclusion about it.
Mr Hanrahan then referred to the various factual conflicts that were the subject of the dispute, and submitted that in context, Mr Elletson’s requests had been reasonable, and
Ms Enright had been too subjective in her complaints. Mr Hanrahan referred to Heggie as authority for the proposition that in direct factual disputes, actions taken regarding performance appraisal could include emails and conversations during the extent of the dispute. He addressed the “emails that went back and forth” and said they demonstrated that the performance plan was amended at the request of the worker.
Mr Hanrahan referred to the statements of Ms Daher and Ms Baker, saying that Ms Daher did not see anything, but took hearsay complaints from the worker and Ms Baker attested to one incident where Mr Elletson was rude. Mr Hanrahan said that even if that were true, and that on one occasion Mr Elletson did raise his voice, it did not mean that the actions of the respondent were thereby rendered unreasonable.
Mr Hanrahan addressed the areas of conflict between Ms Enright and Mr Elletson. His submissions were recorded and are available, and no purpose will be served by repeating them, as they are considered below.
Mr Hanrahan noted that the proposal was amended on eight occasions to incorporate personal features in order to seek the approval and participation of the applicant, but that the respondent was in fact trying to fit a square peg into a round hole as the applicant would not co-operate.
I was referred to Ms Ambler’s email of 7 October 2021, on which Mr Elletson had written his responses to the issues therein raised. Mr Hanrahan submitted that those responses showed that the respondent was being reasonable in its attempts to manage her performance.
Mr Hanrahan spoke of the ethos of a highly charged working environment and a need for a collaborative response to the situation, and for the personalities to engage and not disengage, as the applicant had.

Ms Compton

In the remaining time available, Ms Compton made some preliminary submissions, and completed her submissions in writing.
In her oral submissions Ms Compton noted that the issue raised was the reasonableness of the respondent’s actions as to the performance appraisals. She asked rhetorically when did it start? She referred to a statement from Wendy Langer dated 18 March 2021 but not signed, but Mr Hanrahan interjected that he was not relying upon that statement.
Ms Compton submitted that the respondent had lodged “peripheral documentation” with a statement from Mr Elletson of 15 March 2022. She criticised the statement’s construction and the use by Mr Elletson with phrases such as “it was reported”.
There is no need to recount the remainder of Ms Compton’s oral submissions, or indeed her extensive and detailed written submissions, in view of the conclusion I have reached. Her submissions are on record and it will be seen that I have accepted many of them.

DISCUSSION

Section 11A of the 1987 Act provides relevantly:
“11A NO COMPENSATION FOR PSYCHOLOGICAL INJURY CAUSED BY REASONABLE ACTIONS OF EMPLOYER
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.
…”
In Northern NSW Local Health Network v Heggie[47] Sackville AJA stated at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression "action with respect to discipline". It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
[47] [2013] NSWCA 255.
In Hamad v Q Catering[48] DP Michael Snell said at [45]:
“The causal test in s 11A(1) is “different, and more difficult”, in that the test does not involve proof of “personal injury arising out of or in the course of employment” (the s 4(a) test), or that employment was a “substantial contributing factor” to the injury (the s 9A test), but rather whether the injury was “wholly or predominantly caused” by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.”
[48] [2017] NSWWCCPD 6.
At [88] DP Snell said:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”

Wholly or predominantly

The first issue relates to the statutory requirement of an employer to establish that the admitted psychological injury was “wholly or predominantly” caused by the relevant actions pertaining to performance appraisal. I note Mr Hanrahan’s concession that discipline, although raised in the dispute notices, did not appear to be irrelevant action, a proposition with which I agree.
In this case, as in Hamad, there were a number of potentially causative factors raised in the evidence. Dr Saboor was asked to advise whether Ms Enright’s injury had been wholly or predominantly caused by the respondent’s actions regarding performance appraisal (relevantly) and, as indicated above, Dr Saboor answered in the negative. It was not the action taken by the employer caused the injury, but rather it was how Mr Elletson had treated Ms Enright and subjected her to bullying and harassment that was the cause of the development of her injury. Dr Saboor said:
“[Mr Elletson] has reacted angrily towards her and constantly gave her excess work. He overly criticised her which led to the development of the psychological injury. She has been anxious from May and was fearful of how the new director would react to her…”
In his first report of 25 March 2022, Dr Young for the respondent was not asked in terms of the section. As indicated above, he was first asked to detail the “factors/incidents“ which had led to the injury, and then asked which of the work-related causes Dr Young deemed to be the predominant cause. Although Dr Young said that the predominant cause was Ms Enright’s “perceived unfair criticisms of performance”, that answer cannot be separated from his answer to the first question – that there were “multiple interactions with Mr Elletson where Ms Enright felt to be unfairly criticised regarding her performance informally and formally”.
In his second report of 9 May 2023, he was referred to those answers and asked whether he adhered to his opinion. Dr Young’s answer was that the issues that caused her to experience stress “were predominantly related to perceptions of unfair criticisms of her performance….there were factors related to adverse interactions with Mr Elletson and workload factors”.
The employer bears the burden of proof. In his report of 25 March 2022 Dr Young was careful to describe the cause of injury to unfair criticism of Ms Enright’s work performance and to adverse interactions with Mr Elletson. As indicated, Dr Young took a history that was consistent with Ms Enright’s statement and with the histories given to Dr Saboor and
[49] Reply page 7.
Ms Bausse. In his mental state examination of Ms Enright Dr Young found that “she showed good insight and judgement”.[49] At this stage, the documentation available to Dr Young consisted of his letter of instructions from the insurer, certificates of capacity of various dates, case conference notes of various dates and an initial assessment report from the rehabilitation provider, Altius.
However, in his second report of 9 May 2023 Dr Young had access to the medicolegal report of Dr Saboor, clinical records from the Chester Hill Family Medical practice, and “statements” from Dace Elletson dated 21 December 2021 and 15 March 2022.[50] The documents from
Mr Elletson were presumably those that have been considered above. In his mental state examination on this occasion he found that Ms Enright showed “adequate insight and judgement”. Whilst in his first report, Dr Young took a general history of Ms Enright’s interactions with Mr Elletson,[51] in his second report he took a much more precise history, mentioning such things as Mr Elletson’s requirement that electronic documents be printed, signed manually, and then scanned before being sent. Dr Young noted that Ms Enright found that inefficient and it created a marked increase in her workload. In his first report Dr Young did not take a history that Mr Elletson had called Ms Enright a liar, neither did he take the history that when Ms Enright returned to work in Term 4, there was a large volume of work had accumulated in her absence. Dr Young’s second report contained many precise details about Ms Enright’s interactions with Mr Elletson that were lacking in his first report.[52] He concluded that history was consistent with that provided on previous occasions and in
Dr Saboor’s report. He said:[53]
“She describes the onset of symptoms of stress, anxiety, and depression in the context of perceived bullying by her manager Mr Elletson in the workplace. She describes the contributing issues as being:
• excessive workload,
• requirement to adhere to inefficient work practices and practices inconsistent
with departmental policies,
• hostile and aggressive behaviour towards her by her manager,
• performance management procedures.”
[50] Reply page 12.
[51] Reply page 3.
[52] Reply pages 15-16.
[53] Reply page 17.
Each case turns on its own facts and the question of whether Dr Young’s opinion established that Ms Enright’s injury was wholly or predominantly caused by the respondent’s actions must be evaluated in terms of the history that he took. Whilst Mr Hanrahan submitted that, in terms of the dicta in Heggie, a broad view of the circumstances should be adopted, nonetheless simply because the word “performance” is mentioned in an expert report, the qualifying and conditional terms in which that term was employed should not be overlooked. Two matters of significance arise from Dr Young’s second report. Firstly, he adhered to his earlier opinion that Ms Enright’s injury had been caused by issues that related to perceptions of unfair criticism of her performance and adverse interactions with Mr Elletson and workload factors. Secondly, he had available the two documents from Mr Elletson, neither of which he referred to.
Dr Young was retained by the respondent. His reference to Ms Enright’s performance was not only qualified by his description of it as being her perception, but also that Mr Elletson’s criticism of her performance was unfair, that he had bullied her, and that he had given her a workload which was excessive. In the four bullet points copied above, performance management procedures were the last mentioned. What Dr Young described was in fact a multifaceted causation in which Ms Enright’s injury and developed because of her excessive workload, having to adhere to inefficient work practices (some of which were inconsistent with departmental policies), hostile and aggressive behaviour towards her by Mr Elletson, and the above-mentioned performance management procedures. Accordingly, I am not persuaded that the respondent has established that Ms Enright’s injury was caused solely or wholly by the action taken by the employer as to “performance appraisal”, whether it was reasonable or not. For this reason alone the respondent’s defence fails.

Were the respondent’s actions reasonable

However, as the parties have argued the issue of whether the action taken by the employer was reasonable, it is appropriate to determine this aspect of the respondent’s defence as well.

The opposing positions were clearly drawn. Ms Enright accused Mr Elletson of lying,
Mr Elletson accused Ms Enright of lying. The resolution of this aspect of the case requires a determination as to the credit or otherwise of either person.
In Fox v Percy[54] Gleeson CJ, Gummo and Kirby JJ stated at [31]:
“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

(Authorities omitted).
[54] [2003] HCA 22.

Mr Hanrahan made some comments about the involvement of Ms Enright’s solicitors, and indeed her psychologist, Ms Bausse, in assisting Ms Enright with her statement. He submitted that an inference could be drawn that Ms Enright was being told “what to say and what not to say”. I reject that submission as being mischievous, and one that ought not to have been made. It is commonplace that statements by litigants are constructed with the assistance of legal advice, an occurrence which can greatly assist the task of the decision-maker, as such advice can keep statements relevant and free of extraneous material. As to Mr Hanrahan’s comment about Ms Bausse, I have read her comments, which were highlighted, and see no instruction as to the content of the draft statement, but rather suggestions as to grammar and emphasis. Hanrahan did not refer to any part of this document in support of his allegation.
In any event, it is somewhat doubtful whether Ms Enright was assisted to any extent by her solicitors or Ms Bausse, as her statement, as mentioned above, was 135 paragraphs and 25 pages long. After a consideration all the evidence it also became clear that her statement did not record in any logical fashion the chronology of what occurred when Mr Elletson became her Director. By utilising all the evidence it has been possible to construct such a chronology:
·        11 December 2020 – email from Ms Stokes to Ms Enright;
·        15 December 2020 - email from Ms Stokes to Ms Enright;
·        22 December 2020 - email chain between Ms Stokes and Ms Enright;
·        23 December 2020 – email from Ms Enright to Ms Stokes enclosing draft PDP;
·        18 January 2021 - the above emails were forwarded to Mr Elletson without comment;
·        12 February 2021 - performance concerns’ were first raised with the Professional and Ethics Standards directorate; Mr Elletson statement;
·        12 February 2021 - email from Dr Liwayway Johnson to Mr Elletson;
·        6 March 2021 - email from Mr Elletson to Dr Johnson ;
·        16 March 2021- first ‘event’ of phone call Mr Elletson to Ms Enright re medical certificate;
·        23 March 2021 - meeting between Mr Elletson and Ms Enright re PDP content;
·        14 May 2021 - second ‘event’ meeting Mr Elletson and Ms Enright;
·        16 May 2021 - text re Sunday work from Mr Elletson to Ms Enright;
·        13 May 2021 - text from Mr Elletson re electronic signatures;
·        1 July 2021 - written feedback provided by Mr Elletson to Ms Enright;
·        27 September 2021 - email exchange between Mr Elletson and Ms Enright;
·        6 October 2021 - first PDP meeting with Ms Ambler as support person on
Ms Enright’s return from three months leave;
·        26 October 2021 - First visit by Ms Enright to Ms Bausse, and
·        26 November 2021 -Merit selection panel meeting issue.
Ms Enright had been performing her duties at Glenfield Education Office since 2018. Her duties were, as acknowledged by Mr Hanrahan, innately stressful. Her responsibilities were more widespread that simply being a personal assistant to her Director, but of also supporting Principals and School Administration Managers within her network of schools, dealing with requests from the Executive Director’s office, managing school attendance records, managing and recording on appropriate systems all incoming calls and complaints for the Glenfield Principals Network, doing some tasks for her Director such as booking meeting rooms, room set up, catering and clean up, but also performing tasks for the Executive Director’s Office.
It is relevant that Ms Enright stated that she also carried out other tasks as directed including other tasks not directly related to the supporting requirements of the Director.
Ms Enright had been working for a Director called Darryl Currie up to the beginning of 2021 when Mr Elletson commenced as her Director. There is no suggestion in the evidence that any performance issues arose in her time working for Mr Currie. She appears to have completed her duties efficiently and without coming under notice, and indeed both her witnesses, Ms Denise Daher and Ms Lorena Baker noted her friendliness, good manners and willingness to assist when needed. This background gave some justification to
Ms Enright’s question, “why was I singled out?”
Mr Elletson did not say when he commenced his duties at the Glenfield Office, saying no more than he started working there “in 2021”. There was no suggestion that he and
Ms Enright had previously met – indeed he said he was unsure of either how long she had worked for the Department, nor how long she had been an Administrative Officer Clerk 5/6, when he responded to “Raquel’s” questions on 21 December 2021. He had taken the trouble to enquire by the time he wrote his statement of 15 March 2022, but even then he got the details wrong. She had never worked at the Parramatta Office, and did not become a permanent employee from January 2014, but had been made permanent Office Assistant Clerk Grade 1/2 in 2008.
This indifference to Ms Enright’s background informed his actions when he took up his post at Glenfield. Ms Enright did not say when she commenced work in 2021 but the contemporaneous evidence demonstrates that Mr Elletson had taken up his position by
18 January 2021, and I infer that if there had been any contact between the two at that time of the year, it would have been minimal and certainly not enough time for Mr Elletson to gain any impression about Ms Enright’s competency. Indeed Ms Enright herself stated that she did not understand how Mr Elletson could have established performance concerns in such close proximity to his appointment.
The contemporaneous documentary evidence would suggest an answer. On
18 January 2021 Ms Stokes forwarded the email correspondence she had with Ms Enright in December 2020. As noted, there was no comment made by Ms Stokes when she did so. The email chain of 22/23 December 2020 was forwarded on a subject line of “Fw: PDP” and indicated that the draft PDP for 2020/2021 was attached. That was forwarded at 2:39pm. The emails of 11 December and 15 December 2020 were forwarded by Ms Stokes at 2:42pm. The subject line stated “Fw: phone calls.”
It follows that Mr Elletson must have communicated with Ms Stokes in order for her to know that she had to forward those emails. The first point to note is that Mr Elletson has not mentioned this. Whether the communication was by email or by other means of communication is immaterial. He stands accused of contravening the Department’s own bullying protocol and indeed of behaving in a manner that was entirely inappropriate for a person of his station. It accordingly behoved him to be as frank and transparent as possible in explaining his actions, which of course are the basis of the Department’s defence.
The second point to note involves the question of whether he communicated with other Departmental staff with similar enquiries, whether he received any replies, and if so why they are not before the Commission. If he did not make other enquiries the question remains as to why he only communicated with Ms Stokes. Ms Stokes’ title was R/Director Educational Leadership. She did not appear to be involved in Human Resources which was where perhaps complaints about performance might more readily be found.
The third point to note concerns Mr Elletson’s motives in making these enquiries in the first place. I accept Ms Enright’s account of her previous experience, going back to Strathfield in 2011 where, as indicated, she had a multifaceted and responsible position managing all aspects of that Office. I accept also the description of her responsibilities in the Glenfield Office since she had been appointed there in 2018. I accept also that she acquitted herself well in that job, carrying out the roles she described in her statement. There are a number of reasons for accepting Ms Enright’s evidence, but amongst those reasons is that in this respect, it has not been contradicted.
The fourth point to note concerns the contents of the emails themselves. It may be appreciated that an R/Director Educational Leadership is an important role, no doubt a time poor role and one beset by a busy diary. The two emails -“I am in an online meeting. Could you please check my calendar before you ring,” and “You just rang my phone. Please check my calendar I am in a meeting” begs the question as to why, if Ms Stokes was tied up, she did not simply not answer the phone and, as is not uncommon in the workforce, return
Ms Enright’s call when she was free. As I have indicated, Ms Enright’s role was also important and busy.
More importantly, the respondent has simply lodged these emails without any explanation as to their relevance. If, as I suspect, these emails were forwarded to Mr Elletson as evidence regarding Ms Enright’s poor performance, I do not take that inference. To the contrary, the fact that something so trivial would be used to attack Ms Enright’s reputation and efficiency suggests that indeed this is part of a pattern of bullying and harassment designed to belittle and humiliate Ms Enright.
This inference is also raised by the emails surrounding the PDPs. Ms Stokes said that she contacted the Regional South office “to ask about PDP’s.”[55] Just why she did that was not explained, but in her email of 22 December 2020 Ms Stokes explained that an email which had been sent to Ms Enright had been sent by “Olivia” to her. Ms Stokes asked Ms Enright to “ensure you have looked at your processes that I have asked you to check such as recordkeeping in relation to naming of files, especially exemptions and meeting mins, time management in checking my calendar before you ring me. Thanks.”
[55] Reply page 29.
Ms Enright’s response that day was that she had received the email from Olivia and actioned it by forwarding it to Daryl, whom I assume was her director, Daryl Currie. She had asked for a meeting with him to finalise not the 2020 PDP, but the 2019 PDP. When she got Olivia’s email, Ms Enright rang her and asked for her advice regarding the commencement of her 2020 PDP when the 2019 form had not been finalised. Ms Enright advised Ms Stokes that Olivia had told her not to worry about it. Due to COVID-19 everyone was working from home and nothing much that changed. I infer that this conversation with Olivia was prior to July 2020 as when Ms Enright spoke with Olivia after receiving Ms Stokes’ email on
22 December 2020, Olivia did not recall the conversation because she had had many conversations with AO’s regarding their PDP “around that time”.
Whilst the failure to prepare a PDP for the year before was an issue that might have gone to performance management, Ms Enright’s conduct regarding the receipt of the email from Olivia and her prompt response to it simply confirms her efficiency and her attention to detail. It also confirms that the completion of the PDP was not a high priority at that particular time, given the disruption caused by COVID-19. I accept Ms Enright’s explanation as contained in that email, and I also accept that a number of Administrative Officers contacted Olivia with the same difficulties. Under the circumstances Ms Enright had done what she could, which was to bring to the attention of her director and continue to remind him.
In any event, as Ms Enright’s second email of 23 December 2020 demonstrated, she had done her best to complete the PDP, saying that she was not sure how to reflect the current period given that the previous period had not been completed. She attached the PDP, such as it was, and asked Ms Stokes for feedback, as I interpret her saying “your feedback is appreciated.”[56] I note that Ms Stokes in her email again referred to being telephoned after her calendar had been checked.
[56] Reply page 28.
Thus Mr Elletson was presented on 18 January 2021 with trivial and unremarkable material, and no explanation was given by him as to why he called for it.
The next contemporaneous document was an email dated 12 February 2021 addressed to Mr Elletson from Dr Liway Johnson, whose position was Senior Employee Performance Officer / Employee Performance Professional and Ethical Standards. As Mr Elletson indicated, there had been a conversation between Mr Elletson and Dr Johnson regarding, as I inferred, Ms Enright. Mr Elletson gave a version of what he had told Dr Johnson in his statement of 15 March 2022. However when compared to the contemporaneous documentary evidence, some questions about Mr Elletson’s version arise.
This is because Mr Elletson explained to Dr Johnson in an email of Saturday 6 March 2021 how he planned to approach an upcoming meeting which he said was set for the following Wednesday afternoon.[57] He asked Dr Johnson to “cast your eyes” over the conversation points that Mr Elletson had drafted. He said he planned to:
“-Invite Donna to the meeting with a support person if she would like. I will have the 7/8 from the Eds office with me to take notes and also to problem solve ways of providing support/professional learning/mentoring into the future.
- Outline the positives of Donna's work and the pleasant and collegial way in which we work.
-Discuss her recent absences and ask if I can support these in any way - offering EAPS etc.
-Run through the areas of feedback and seeking solutions that can be added into a revised Performance Agreement.
- Set a timeframe for changes to the Performance Agreement (2 weeks).
-Set a time (in 2 weeks) for meeting lo discuss how I can support improvement and the achievement of the Performance Agreement changes - professional learning, coaching etc.
- Meet after that 2 weeks and develop a 5 week schedule of support (including the school holiday period where there will be more opportunity for coaching from other Administration Officers/Executive Support Officers).”
[57] Reply page 46.
That list only named “recent absences” as a performance issue. In the introduction to this email Mr Elletson said that he had discussed Ms Enright’s “underperformance” and yet his list did not name any other problem. What he did say was that he planned to address the “areas of feedback and seek solutions that could be added into a revised Performance Agreement.” This statement presupposed that there was in existence a Performance Agreement and it may be inferred that Mr Elletson was referring to the draft PDP forwarded to him on 18 January 2021 by Ms Stokes. However, on its face Mr Elletson may have been looking to find performance issues as a result of the feedback he received from Ms Enright at the meeting, there being no others apart from the absences.
In any event, this led to the first of the major divergences between the parties. Ms Enright said that on 16 March 2021 she was unwell when she awoke, and when she advised
Mr Elletson that she could not drive to work, he spoke to her in an “enraged“ voice, ordering her to visit her doctor to get a medical certificate and saying “you can’t keep doing this without any intervention from me. You seem to have problems with working a full week, and when next in the office, you need to schedule a meeting for us to discuss your leave situation and performance.”
That evidence tends to confirm Mr Elletson’s naming of “recent absences” in his email to
[58] Reply page 65.
Dr Johnson. The evidence does not show whether Ms Enright was having absences from work that were remarkable. Mr Elletson did not give any such evidence, and the wage records showing the pre-injury average weekly earnings report did not shed any light on this topic.[58]
Mr Hanrahan submitted that in effect allowances should be made for the ordinary tendencies of people to be unreasonable in the moment, and that such an instant should not render the whole of the employer’s response to be unreasonable. That principle is enshrined in Sinclair and, in isolated incidents, is clearly correct. Mr Elletson did not address this allegation in either of his documents and accordingly, it being unchallenged, I accept that Mr Elletson did speak harshly to Ms Enright as she alleged.
In any event, a meeting was arranged which, as I indicated above, did not take place on
14 May 2021 as originally stated by Ms Enright, but on 23 March 2021, which she subsequently confirmed when addressing Mr Elletson’s statement. Ms Enright said, as indicated above, that by then she had worked very hard and was up-to-date. Her version of the meeting was that Mr Elletson had a two-page long list of all her focus capabilities as described in her job description, with a list of concerns about all areas. There was a conversation in which Mr Elletson indicated that there was no need for a meeting because Ms Enright was up-to-date and there was accordingly no need to discuss the concerns he had written out. However, as she was leaving he invited her to “just pick a few” for inclusion in her PDP, to which she demurred. She alleged that Mr Elletson then laughed without further comment.
Mr Elletson on the other hand alleged in his statement of 15 March 2022 that he met with her to outline his concerns about her performance, and that he did so. He indicated that he gave “explicit verbal and written feedback on each of the key accountabilities…” and that “I kept a record of ongoing incidences/ concerns and a summary of informal discussions , coaching and support provided by me from 12 February 2021 until 1 July 2021. these extensive records and evidence have already been provided in documentation forwarded to Allianz on 1 February 2022.”
As was pointed out by Ms Compton, no such record has been produced. Mr Elletson certainly provided explicit written feedback in the PDP that subsequently came into existence. However, it is Ms Enright’s case that she had no knowledge of that feedback or indeed the content of that PDP, and that she had in fact been duped by Mr Elletson, which is why I assume she mentioned his laughing as she declined to pick any of his comments at the meeting 23 March 2021.
There is a difference between Mr Elletson’s description of his concerns in his email to
Dr Johnson on 6 March 2021, and those that eventually appeared in the PDP. However it does not necessarily follow that that difference constitutes an inconsistency, as he did speak of “underperformance” and may well have been summarising his concerns to Dr Johnson. However, the difference is there and the accuracy of his evidence could easily have been established by the production of the evidence that he said he forwarded to the insurer on
1 February 2022. It would be unlikely that the insurer or the respondent’s solicitors would fail to lodge such an important document, and I accordingly reject his account of the conversation. Moreover, a conversation that related to Ms Enright’s alleged shortcomings in the performance of her job is unlikely to have occurred without her having a support person there. She did ask when the meeting was organised whether she needed a support person and Mr Elletson replied in the negative. I am therefore by no means persuaded that
Mr Elletson’s evidence in this regard may be accepted.

A further direct contradiction between the two versions of events related to the 14 May 2021 meeting. Ms Enright said that she became emotional and began to cry when Mr Elletson doubted the genuineness of a medical certificate she gave him. He then said that she was now required to work five days a week in the office (she had been working remotely). I have recorded his comment as alleged by Ms Enright, that her working from home did not suit him. This was one of the allegations that “Raquel” put to him and his response on
21 December 2021 was that Ms Enright’s accusation was untrue.
After saying that Ms Enright’s accusations were “untrue” Mr Elletson added that he had telephoned her when she was in lockdown, and said there were difficulties with access to her computer, and she was babysitting her grandson while working. These accusations were in turn denied by Ms Enright who said that her attendance records would demonstrate that after that meeting she did in fact work five days per week in the office. She also said that the only time that she could not be contacted on the phone was when she was doing other business which included dealing with parents. She denied that she babysat her grandson who had a heart condition and was looked after by his parents.
As to Ms Enright’s accusation that he called her a liar regarding the transfer issue,
Mr Elletson also said that was untrue. Then he remembered that there was a conversation in June or July about her “looking at another administration office has she was considering moving to be closer to her son and to buy a new apartment”. He said he was unsure how the word liar would have come up in that conversation, as he was not in the habit of using the word.
Mr Elletson’s responses were therefore somewhat inconsistent. He said Ms Enright was untrue when she accused him of lying, and then volunteered that he did indeed have a conversation about a transfer which he had not supported.
Similarly, he said that Ms Enright’s allegation was untrue that he directed her to work full-time, but then admitted that he did ask her to come into the office “at that stage,” which he did not identify.
Even without Ms Daher’s evidence, those answers would have left me in some doubt as to their veracity, but she was an eyewitness to the events that unfolded when Ms Enright had left Mr Elletson’s office and gone back to her workplace, visibly upset and shaking.
I have no reason to disbelieve the statement of Ms Daher as it was detailed and recounted in great particularity what she saw and heard, which I have recounted above. Ms Daher confirmed that this incident occurred around May 2021, and Mr Elletson’s evidence about something happening in June or July regarding a transfer is yet another assertion that is difficult to accept, and I reject it. Ms Daher confirmed that Ms Enright told her that the cause of her being so upset was that Mr Elletson had called her a liar, and related why he had done so.
There is no purpose in considering the further problems that the respondent’s case faced because of the credit problem with Mr Elletson. Suffice it to say that he made no direct response to many of the accusations made by Ms Enright in a very detailed account of his conduct. There was no attempt to engage with the evidence of Ms Daher. He did not respond to Ms Enright’s observations as to his inefficient work practices such as requiring emails to be printed out for his signature. He did not respond to her allegation that he required her to fill travel documents in contravention of Departmental policy. He did concede that he had asked Ms Enright to use his password in contravention of Departmental policy but his excuse that it was common practice, I found unconvincing. Mr Elletson did not respond to allegations that he was hostile to Ms Enright in private, belittling her, accusing her and yelling at her for unfounded reasons, but was courteous when other people were present.
The respondent has not met its onus. The actions taken by Mr Elletson for the respondent in respect to performance appraisal were unreasonable.

Capacity

As to Ms Enright’s capacity to earn, I endorse Dr Young’s view that Ms Enright, if she commenced a return to work program, might find suitable work, but I accept his opinion of
9 May 2023 that her current symptoms would preclude her from undertaking pre-injury employment. Dr Saboor thought that Ms Enright’s work capacity was “greatly affected” and thought Ms Enright could work in accordance with the medical certificate, which I assume was issued by her GP, that certified capacity of one day per week for five hours. I think the better view is that of Ms Bausse, who had the psychological care of Ms Enright since
26 October 2021, and has had the advantage of seeing her on at least 28 occasions. Her view was that Ms Enright would not be able to engage in any form of employment within the next three to six months as of the date of her report, 30 November 2022. Ms Enright’s symptoms have remained constant, and she has not obtained any employment since. I agree that she would benefit from a graded return to work process as advised by Dr Young. At the moment however I am not satisfied that she has any current work capacity. She certainly possesses the education, skills and work experience to be able to return to the workforce eventually, although I have to take account also her age, noting that she was born in 1961, which may of itself prove to be an impediment to her finding such employment.
Accordingly, I make the orders set out in the findings and orders at the commencement of these reasons.

[2024] NSWPIC 311

14 June 2024