Farag v The State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Farag v The State of New South Wales (NSW Police Force) [2022] NSWPIC 233
APPLICANT:	Eyman Farag
RESPONDENT:	The State of New South Wales (NSW Police Force)
MEMBER:	Paul Sweeney
DATE OF DECISION:	23 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation by civilian employee with accepted psychological injury; employer disputes entitlement to compensation on the basis that injury was caused by action with respect to “transfer” within section 11A of the Workers Compensation Act 1987; applicant transferred on several occasions within short period allegedly for operational reasons and efficiency; Held- that respondent had not proven that transfer of the worker and the reduction in her pay level within five days of commencing in a new position after her forced return to the State Crime Command from a secondment was reasonable; award for the applicant.
DETERMINATIONS MADE:	1. The applicant suffered psychological injury arising out of and in the course of her employment which is deemed to have occurred on 17 December 2020, the first day of incapacity. 2. The respondent has not established that the injury was wholly or predominantly caused by reasonable action taken by it with respect to transfer in accordance with section 11A. 3. As a result of that injury the applicant was totally incapacitated for work between 17 December 2020 and 10 June 2021 and partially incapacitated thereafter. 4. The applicant was paid wages or compensation from 17 December 2022 to 11 March 2021. 5. The applicant performed suitable work for the respondent two days per week from 11 June 2021 and three days per week up from 27 August 2021 to date. 6. It is agreed that the applicant’s pre-injury average weekly earnings at 17 December 2021 were $2,428.50. 7. Respondent pay the applicant weekly payments of compensation from 12 March 2021 pursuant to sections 36 and 37 in accordance with these reasons until they are suspended or terminated in accordance with the provisions of the WorkersCompensationAct 1987. 8. Liberty to apply in respect of the calculation of weekly compensation if necessary.

STATEMENT OF REASONS

BACKGROUND

Eyman Farag (the applicant) is a longstanding civilian employee of the NSW Police Force (the respondent). From 2004, her substantive position was that of a policy officer (a level 9/10 position) in the Drug and Alcohol Coordination unit (DAC) within the State Crime Command (SCC) at Parramatta.
Between April 2019 and September 2020, the applicant was seconded to the State Intelligence Command (SIC) (at a grade 11/12 pay level) where her work involved researching biometric and facial recognition software. During September 2019, the DAC was “devolved” or disbanded and the members of the unit transferred to other areas of the respondent’s operations. The applicant was recalled from her secondment at the SIC, demoted, and, ultimately, assigned to Central Metropolitan Region Command (CMR).
On 17 December 2020, the applicant met with Ronald Bootes and Acting Inspector Charles Boustani to discuss a further transfer to the Capability Performance and Youth Command (CPYC). During this meeting, the applicant alleges she overheard a telephone conversation between Mr Bootes and the commander of the SCC, Deputy Commissioner Smith, during which he described her as that “fucking thing”. Following this meeting she ceased work.
It is common ground that she suffered a psychiatric injury as a result of stressors in her employment. It is generally described by medical practitioners as an adjustment order with depressed mood.
While the respondent accepts that the applicant suffered a psychological injury, it maintains that it was wholly or predominantly caused by reasonable action taken by it with respect to “transfer” as that word is used in s 11A of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

By these proceedings, the applicant claims weekly payments of compensation from 12 March 2021 to date and continuing pursuant to ss 36 and 37 of the 1987 Act. As the applicant returned to work working eight hours a day, two days per week, on 14 June 2021, and increased her hours to 18 hours per week on 26 August 2021, the claim is for periods of total and partial incapacity to work.
When the matter came on for conciliation and arbitration in the Commission on 23 February 2022, Mr Parker of counsel represented the applicant and Mr Grimes of counsel represented the respondent. The conciliation conference and arbitration hearing were conducted over the telephone.
I was informed by counsel that they were unable to reach a mutually satisfactory resolution of the dispute. The respondent maintained that its defence pursuant to s 11A extinguished the applicant’s rights to compensation. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to reach a settlement of the dispute.
During the arbitration hearing, I was informed by Mr Parker that there were errors in the applicant’s wages schedule which necessitated a recalculation of her earnings and the alleged entitlement to weekly compensation. Accordingly, I directed that the applicant lodge a wages schedule and any brief written submission she wished to make in respect of the schedule by 4 May 2022 and that the respondent reply by 10 May 2022. The amended wages schedule and brief submissions by each party have now been received.

EVIDENCE

The documents before the Commission are as follows:
(a)    the Application to Resolve a Dispute and the documents attached;
(b)    the Reply and the documents attached;
(c)    an Application to Admit Late Documents forwarded by the applicant during the conciliation conference and containing a supplementary statement of the applicant dated 20 April 2022 and a certificate of Dr Hany Assad, and
(d)    the applicant’s wages schedule.
There was no objection to the material referred to above at the arbitration hearing and there was no application to adduce further written or oral evidence. In those circumstances, I propose to order that the applicant lodge the Application to Admit Late Documents forwarded during the hearing to the Commission within 7seven days.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to reiterate each of the arguments of counsel in these short reasons. The submissions related exclusively to the liability issue. Mr Grimes submitted that the evidence of Mr Ron Bootes, Assistant Commissioner Stuart Smith and Acting Inspector Charbel Boustani conclusively demonstrated that the applicant’s psychological injury resulted from acts of the employer “with respect to transfer”. Their evidence also established that these acts were “reasonable”. There was a basis for the transfer of the applicant on several occasions in the need to restructure the respondent’s operations to make it more efficient.
Mr Parker concentrated his attack on the reliability of the evidence of Assistant Commissioner Smith and Mr Bootes who denied that the former had used the phrase “the fucking thing” during a conversation between them on 13 December 2020 by mobile phone while Mr Bootes was in the presence of the applicant. He submitted that the evidence of the respondent’s witnesses could not be accepted. The applicant’s psychological injury was caused by bullying acts and language by her employer and not by acts which related to transfer.
Even if Commissioner Smith’s evidence of the mobile phone call was accepted, there was still “a real event” to which the applicant had reacted during the course of her employment. In the alternative, he submitted that the respondent had not proven that its actions were reasonable.
Mr Grimes responded by reiterating that Commissioner Smith’s evidence was corroborated by Mr Bootes. He stated that at the time of their telephone conversation, he motioned the applicant to leave the office. At the time she was conducting a conversation with Mr Boustani. That combination of circumstances led inexorably to a conclusion that the applicant had misheard or misunderstood the telephone conversation.
Further, the case presented by the applicant was not that injury was caused by a misperception of what transpired during the telephone call. The applicant’s case was postulated on the basis that the language used by Commissioner Smith was directed towards her. Not that vulgar language was used in the conversation.
Mr Grimes further submitted that it was reasonable for the respondent to require the applicant to return from her secondment with the SIC before the expiration of the secondment and to preclude her from obtaining that position on a permanent basis for “operational reasons”.
It will be necessary to return to these submissions in due course. First, it is necessary to set out the lay evidence of the respondent’s witnesses and that of the applicant. What follows is not a comprehensive survey of all of the evidence. Rather, I set out the salient points so the parties might understand the way in which the Commission has resolved the dispute.

Ron Bootes

Mr Bootes is the office manager at the SCC. He states that on 25 August 2020 he was instructed to “commence consultation to devolve DAC”. It was proposed that of the six civilian administrative positions within the DAC, two would be transferred to the CPYC and the remaining four positions would be “repurposed to support three other corporate sponsorships (held by the Commander SCC), and also to attend to the command’s correspondence.”
Mr Bootes said that he spoke to the applicant informally prior to the commencement of the devolvement and asked whether she wished to be transferred to the CPYC. The applicant responded that she was not interested in CPYC. She said that she wanted a voluntary redundancy at the grade at which she was currently working.
Mr Bootes said that “issues had arisen” with the performance of the temporary officer who was performing the applicant’s job at the SCC. He implies that she was not performing satisfactorily. Accordingly, on 2 September 2020, he contacted “Corporate HR” and enquired whether SCC were “able to negotiate the return of the applicant to her substantive role”. He states:
“This was due to workload issues and the impending restructure of DAC. I was advised in the affirmative.”
On 7 September 2020, Mr Bootes held a meeting with the applicant and informed her of the reasons for her recall to the SCC. On the same day, he informed the temporary officer filling the applicant’s role that her services were no longer required.
Mr Bootes says that he was not privy to the negotiations between the Commanders of SCC and SIC in relation to the applicant’s return date. He says that:
“The reason given (verbally and in an email attachment A) was due to the devolvement of DAC and the need to build capability in the new SCC Strategy and Policy Unit, (SPU). Eyman was required to return to her substantive role.”
Following the applicant’s recall from the position at SIC, that job was advertised and she applied. On 30 November 2020, Mr Bootes was advised that the applicant had been successful in her application for the role in SIC from which she had just been recalled. He spoke with the Industrial Relations and Policy department whose manager advised him that:
“SCC is under no obligation to release her again, even if it is at a higher grade. Eyman could relinquish her substantial role and take up the role at SIC as a temporary employee as this will allow SCC to advise the position permanently”.
Mr Bootes states that a decision was made not to release the applicant unless she relinquished her substantive position as the SCC would have “diminished capability and could not sustain bringing in another temporary officer”.
Then, on 17 December 2020, Mr Bootes became aware that the applicant would be transferred to CMR to provide “better support to the corporate sponsor for alcohol as they were heading into a busy period”. When he communicated that to the applicant she allegedly said “I am going off sick”. She said that she did not want to go into town as they did not have any work for her. She also stated that she wished to stay in Parramatta as she had paid “a lease for parking”. He continues:
“I said ‘what if you worked out of the CPYC and performed the role from there?’ I said I would talk to the Boss about moving the position. She said ‘that would work out better as I can’t work in State Crime anymore’.”
Mr Bootes stated that he would speak to the Commander and would “write the paper when I got back from leave”. It was agreed that the applicant would start at CPYC on Monday, 21 December 2020.
Mr Bootes said that when he conveyed this to the applicant she responded:
“No, she would not go until the position was moved.”
Mr Bootes said that at this stage he had “had enough” and returned to his office. Subsequently, the applicant went to his office and:
“We had a chat and she explained why she shouldn’t go to CPYC until the position went.”
That apparently reflected the applicant’s desire not to work under Mr Smith. When Mr Bootes said that that could not happen until he returned from recreation leave she stated that she would take recreation leave until the “position was moved”. She said that she planned to take time off in any event. He apparently accepted this proposal.
The senior staff officer, Inspector Boustani (SO), was then asked to come to Mr Bootes’ office to approve the new arrangement. During this meeting, Mr Smith called Mr Bootes.
Mr Bootes gives the following account of the events which occurred at 3.39pm on the afternoon of 17 December 2020:
“The commander called my mobile phone, as we had finished our discussion I motioned for the SO and Eyman to leave the office. I answered the phone. The commander said he spoke to the commander CPYC and he was happy to take her starting Monday. He said he hoped she knew about the money because the fucktards can’t manage the money (this is the DAC grant funding of $1.1m). He said she would be working for Paul Simpkins team and it’s like a circus. Eyman and the SO were talking as they were leaving and I was unable to tell him that Eyman decided to take leave as the call ended. The call lasted 49 seconds.”
Mr Bootes recounts that the applicant came back into his room a few minutes later and stated that Commander Smith had called her a “fucktard”. Mr Bootes responded that she did not hear properly and he had stated that the fucktards at CPYC could not manage money. Mr Bootes said that he told the applicant that she had “got what you wanted”. She replied that she hated “this fucking place”. She said “I don’t know how you can sleep at night”.

Stuart Smith

Mr Smith is the Assistant Commissioner of Police responsible for the SCC. He commenced in that role in December 2019.
Mr Smith recounts that in May 2020, a decision was made to restructure DAC “to make the portfolios more proactive”. As a result of this restructure, alcohol-related crime was separated from the other functions of the SCC and reassigned to the Commander of CMR. He states that as the applicant’s substantive position was in alcohol-related crime, she would be reassigned to CMR.
Following a consultation process and the approval of the restructure he “became aware of significant issues with staff” at DAC. He continues that these included:
“a person who had been working overseas, Ms Farag working on a temporary position at State Intelligence Command for around 18 months, another person working from home without any supervision. The review of the rostering and supervision arrangements were less than expected from a policy team required to be available to provide the organisation with accurate reflection of drugs and alcohol.”
Accordingly, a direction was given to unsworn staff to return to the SCC following which a process of consultation and reallocation of these staff would begin.
Mr Smith says that he received several phone calls from different people including Deputy Commissioner Hudson and Assistant Commissioner Crandall “attempting to persuade me to leaving Ms Eyman Farag relieving as grade 11/12” at SIC.
After being informed by Financial Business Services that the project at SIC on which the applicant was working did not have “a business case and a proper project plan”, he arranged for support to be withdrawn for a continuation of her temporary position. The business manager, Mr Bootes assigned Ms Farag to the vacant 11/12 position at DAC “to manage the structural changes”.
Mr Smith says that at a meeting in his office the applicant “stood over the meeting desk where I was seated” and tossed paperwork on to the table “in front of me”. She stated that the proposed restructure was poorly done and that her position needed to be rewritten as it was a manager’s position. Commissioner Smith says that he was amazed by the applicant’s “behaviour and aggressive attitude”. He told her:
“to leave my office and do the job I had assigned her and return with a better attitude.”
Mr Smith says that following this meeting he learned that although the applicant was only relieving in the 11/12 position, she had demanded an office “separate from the DAC team”. He also learned that she had requested approval for working from home, and that she had been spoken to for “not wearing shoes in the workplace”. He states:
“This lasted about a week before she was removed from the relieving position.”
In September 2020, Commissioner Smith reassigned the applicant to the alcohol-related crime portfolio. He says that she was directed to attend CMR a couple of days a week and the balance of the time to be spent at SCC. He says:
“This would allow the corporate sponsor Mr Willing to provide direction to the policy officer, Ms Farag on tasks in this portfolio.”
Less than a week after this direction, Ms Moloney, the operations manager for CMR, contacted Commissioner Smith to inform him that the applicant was:
“less than enthusiastic in her assignment, spent the week looking up jobs to apply for and was counselled about her manner in the office. In that she conducted research on who Ms Moloney was other than the Operations Manager for Central Metropolitan Region rather than on her duties.”
As the applicant was not interested in her role and “of no value to the Alcohol portfolio”, she was recalled to the SCC, Mr Smith “continually heard of problems encountered with “the applicant’s work performance”. She treated her colleagues poorly. She would disappear in the workplace for extended periods and could be “overheard speaking in a derogatory way about Commissioner Smith”. He also referred to a number of errors or inadequacies in her work performance. He states:
“I was actually surprised how Ms Farag had lasted in the employ of the NSWPF in a policy/project position with such poor skills in her chosen area of expertise.”
Mr Smith continues that he has not seen the applicant “complete work pertaining to her position other than some executive correspondence”.
In early December 2020, Commissioner Smith was informed that the applicant had applied for a position with SIC (her old job at the biometrics project) without “giving me the courtesy of requesting that I release her”. After a discussion with Assistant Commission Crandall at SIC, it was arranged that the applicant “would be bypassed due to the position at State Crime Command”.
Subsequently, Deputy Commissioner Smith was contacted by Deputy Commissioner Hudson who told him that Michael Kennedy from Western Sydney University had urged that the applicant could be released for the biometric position. He said that he:
“explained the problem we had with Ms Farag and indicated that she should be managed for the first time by her employer.”
Mr Hudson, however, asked him to reconsider his position.
At this time Mr Smith recounts that the applicant was off sick and refused to “disclose the source of her illness” or to provide a “proper medical certificate”. He alleges that she was attempting to obtain information about his telephone conversations with Mr Boustani which would give her “something to use in a complaint against me”.

Mr Smith says on her return to work from leave the applicant’s employment continued to be unsatisfactory. It included using profane language about him in an open office and stating that he was “nervous” about not allowing her to take up the position at SIC. Mr Smith continued:
“I made the decision that Ms Farag was a very negative influence in the workplace in her current environment and that her position was policy support for alcohol-related crime and would benefit from a direct connection to the alcohol sponsor, who she worked for.”
It appears that Deputy Commissioner Smith then took the step of redeploying her, so that she could be “made available on loan to State Crime Command”. However, after mentoring by Inspector Boustani and Mr Bootes, an alternative proposal was implemented whereby the applicant would be deployed to CPYC:
“as indicated by DCOP Corporate Services and she be made available to the corporate sponsor for alcohol-related crime from Parramatta.”
Then, on the afternoon of 17 December 2020, at a time when he was angry, he telephoned Mr Bootes. He states:
“I can also recall being very vocal and indicating the [sic] at the thought of a 3^rd meeting with CPYC. I said, ‘Why are those fucktards asking to have a meeting about DAC again. I am sick of talking to those people.’”
He denies ever referring to Ms Farag as “that fucking thing”.
On Friday 18 December 2020, Deputy Commissioner Smith was advised by DCOP Hudson that the applicant had made a complaint that she had overheard him and the business manager “talking about her”. He was also told that she had claimed that he was “picking on her because I am a racist who hates middle-eastern people”. Deputy Commissioner Smith says that he laughed and said to the DCOP “that must be true because I picked a Lebanese staff officer”.
Deputy Commissioner Smith says that he believes that the applicant must have a mental health condition as it is the only “plausible explanation for her behaviour towards her superiors and anyone who has the misfortunate to be subordinate to her”.

Charbel Boustani

Acting Inspector Boustani is the staff officer for Deputy Commissioner Smith. By his written evidence, he states that the applicant’s attitude towards work being allocated to her on her return to SCC was poor and that she was “finding it hard to make the adjustment from project work to her new substantial position.”
On 17 November 2020, he says that he spoke to Ms Farag about her performance including signing and authoring reports on behalf of heads of discipline, using the wrong coloured paper and lack of research on tasks.
After return from annual leave, he found the applicant “crying”. She said that she was not coping, that she was taking medication for mental health and that Deputy Commissioner Smith could not call her “stupid and incompetent”.
At 8.15am on 9 December 2020, Mr Boustani contacted the applicant, who allegedly said words to the effect:
“Crandall won’t beg for me. I have to resign, Stuart hasn’t given me a reason, Charlie you need to give me something, no one wins against him.”
Mr Boustani says that he told the applicant that he had spoken to Deputy Commissioner Smith and “it was negative”. He told her that Deputy Commissioner Smith didn’t explain why it was negative. I assume that Mr Boustani is a referring to the applicant’s application to re-join the biometrics project at SIC
Mr Boustani also records that he was informed that the applicant used profane language about Deputy Commissioner Smith in an open office.
On 17 December 2020, Mr Smith advised him that he had CPYC had “spoken to the Alcohol-related sponsor and they have asked for Ms Farag to work at the” CMR. Later, on the same day Mr Bootes advised him that he had found an alternative deployment for Ms Farag at the CPYC at Parramatta. It was while he was discussing this with the applicant that he received a phone call from Deputy Commissioner Smith which he did not answer. Shortly afterwards, Mr Bootes received a phone call and he answered the phone. He walked out of the office and did not hear the conversation on the phone. He was later informed that the applicant had gone off sick.

The applicant

By a signed statement of 6 January 2021 the applicant says that she worked in her substantive position in the SCC at Parramatta in the DAC since 2012. She states that she worked for Assistant Commissioner Jenkins for a number of years and no concern was raised about her performance. In April 2019, she accepted a position in SIC, a two-year secondment, where she remained until 7 September 2020. On that date, she was informed by Mr Bootes that she was to return to the SCC “because it had been ordered by Assistant Commissioner Smith”. She states:
“I was not pleased at this decision because the biometrics position was acting at a higher level and I was enjoying the secondment”.
The applicant states that she “accepted the decision and moved back to SCC”. It was a condition of her return that she remained at an L11/12 pay level. She continues:
“When I returned there was little work for me to complete but I felt I was being ostracised by Assistant Commissioner Smith and I had no idea why. One week after my return, I was told that I was to be moved to the Central Metropolitan Command in the city. I was again not given a reason and my pay level was returned to the 9/10 level.
When he announced the transfer to Central Metropolitan Command, Assistant Commissioner Smith sent an email to over 20 people stating my position was downgraded to a 9/10 and I was to be moved to Central Metropolitan Command. Elements of this email I understood to imply that work allocated to me had not been completed.
When I questioned the decision with him, he was dismissive and failed to provide any explanation for why he was making these decisions.
When I arrived at Central Metropolitan Command there was no work for me to complete and I could see no reason for me being sent there.
I remained there for about 3 weeks and Assist Commissioner Smith wanted me to share my work time between Parramatta and Central Metropolitan Command. Again, I could not understand this as neither had any meaningful work for me.”
The applicant then found that the secondment that she had previously occupied was being advertised and “immediately applied”. She “won the position”. She was told by Michelle Bosworth, a HR manager, that Assistant Commissioner Smith would not release her and that he sent an email to Assistant Commissioner Crandall which was “derogatory of my performance”.
The applicant then recounts the circumstances in which she overheard the telephone conversation between Deputy Commissioner Smith and Mr Bootes on the afternoon of 17 December 2020. She states that:
“As the office was small and Assistant Commissioner Smith was very animated I could hear what he was saying and the response from Ron.”
She says that she overheard the following:
“Pasanos had said is that the fucking thing you spoke to me about and he (Smith) had said yes it’s her.”
She says that she was deeply offended at being characterised in this way. She continues that she:
“cannot understand why Assistant Commissioner Smith will not let me to leave to the biometric section when he clearly does not want me in his command and cannot provide any meaningful work for me.”
By a lengthy supplementary statement, the applicant addresses the respondent’s witness statements adumbrated above. Relevantly, she refers to the following in respect of the statement of Mr Bootes:
·        He was incorrect to assert that her substantive position was related to CMR. She had never worked at CMR and had never held a responsibility for the “alcohol related crime portfolio”.
·        The applicant states and attaches email evidence to establish that on her return to the SCC, on 7 September 2020, she was appointed to the role of clerk 11/12 “looking after the alcohol portfolio”.
·        The applicant says that she was extremely distressed at the abrupt removal from the clerk 11/12 management position on 28 September 2020 “without discussion or consultation”.
·        She says that during the telephone call between Mr Smith and Mr Bootes on 17 December she was “sitting opposite Mr Bootes”. He terminated the call.
·        She says she did not ask “what did the boss say”, because she “heard the entire conversation and understood its entire content”.
·        She says that she told Mr Bootes that as the senior public servant at SCC he was obliged to protect staff from this type of behaviour.
In respect of the statement of acting Inspector Boustani, she states
·        In respect of the work she was allocated after her return from secondment, she states that there was no element of policy, strategy, research or analysis.
·        Her request to work from home on a Friday was for one Friday only and not an “ongoing request” as she had not had time to make “alternative arrangements” to the ones that she had in place over the last several years.
·        She denies that she did not complete tasks. She says that “I have records of these”.
·        She states that Ms Axougas was only instructed to remove “completed/finalised” tasks and that she is “confident that Ms Axougas would verify this.”
·        She states that on 19 November 2020, Mr Boustani told her that her name would be removed from any documentation she produced.
·        Ms Axougas told her that it was only her name that was to be removed and the same did not apply to the “rest of the team”. (my italics)
·        She denies that she was counselled about wrong coloured paper. She says that she was worked for the respondent for 22 years and has written thousands of briefings. She stated the quality of her work has never been raised throughout this time.
· She says that the discussion over a briefing in respect of GIPA took many days during which she was “criticised and belittled”.
·        She states that she has written briefings on behalf of many senior positions and has never “been asked not to sign” her own documents.
·        She states that Mr Boustani told her that he had heard Mr Smith call her stupid and incompetent on many occasions.
·        The applicant states that she never insisted on working from Parramatta. The CMR offices were closer to home and it was a “preferable location”. CMR also have arrangements with the City of Sydney Council for free parking for public servants … parking was never an issue. She does not understand why it was brought up by the respondent’s witnesses.
·        In respect of the telephone call of 17 December Mr Boustani’s statement “aligns with” her version of events. Mr Boustani removed himself and left her in Mr Bootes’ office.
In respect of the statement of Mr Smith, she states that;
·        Mr Smith misdescribes her previous position and she doesn’t believe there was ever a direction for unsworn staff to return to SCC. She believes that she was “the only staff member recalled”.
·        That Mr Smith’s assertion that the biometrics program at SIC had no business case was not based on reliable information. The employee who filled her position has been appointed for a further two years.
·        The applicant denies Mr Smith’s assertion that she walked into his office and threw paper aggressively in his face. If this was true there would have been “serious consequences”.
·        She denies not wearing shoes at work. She would have been “spoken to” if she was not wearing shoes.
·        She states in the week that she worked as a policy officer, managing SPU, Mr Smith never criticised her professional conduct. He gave her no direction to the newly formed team or her role in it “even though I asked”.
·        She states that at the end of each meeting with him she felt “disrespected and affronted”. She was outraged when at the end of her first week back at SCC she and all of her staff received an email that her performance was “unsatisfactory”. She had no knowledge of why this decision had been made and felt “humiliated”.
·        She states that the allegations are made by Mr Smith concerning Ms Maloney are completely untrue. She attaches emails from Ms Maloney which offer some support for her assertion.
·        She states that Mr Smith is fabricated evidence “for the purposes of countering” her complaint about the removal of her name from work she had authored. She says that after being told not to sign briefs she submitted them with a blank space for another’s signature.
·        She identifies documents relating to work that she has completed during her week at SPU.
·        She states that do this to Mr Smith has provided an alternative conversation to “whitewash” his conversation with Mr Bootes. She says that she clearly heard the telephone conversation of 17 December 2020.
·        She says that the “contrived allegations” in Mr Smith’s statement are unfounded and am put forward to work “whitewash the serious nature of my complaints.”

Discussion on finding

The exposition of the law relating to s 11A (1) in Northern NSW Local Health Network v Heggie [2013] NSW CA 255 (Heggie) provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this 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.”
The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan [2003] NSWCA (24 September 2003) the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) (Irwin) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The judgment in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd [2001] NSWCC 167 (10 September 2001). I see no reason why this is not such a case as the applicant was employed by the respondent in a reasonably senior position for over two decades.
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.
Finally, it is necessary to bear in mind that the words “with respect to” appear before the seven nominated actions of the employer in the section. In Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465, the majority emphasised the importance of these words. The worker’s response to employment conditions encountered after a transfer may fall within the phrase “an action with respect to transfer”.
Dr Samuel Lim, a psychiatrist, saw the applicant to act at the request of her solicitors on 3 December 2021. Having diagnosed an adjustment disorder, he addressed the issue of whether that condition was caused by transfer as follows:
“I am not of the opinion that her condition is wholly or predominantly caused by actions taken or proposed with respect to her transfer. I note that Ms Farag reported experiencing increasing distress in association with Mr Smith's behaviour towards her which she perceived as antagonistic. She also reported an increase in her symptoms to the extent that she sought treatment from her general practitioner in October or November 2020 and at this point, had already returned to work based in Parramatta. Furthermore, a major concern that she expresses, which sustains the current symptoms, relates to what appears to be her fear of Mr Smith potentially subjecting her to further antagonistic behaviour or what she perceives to be acts of reprisal. In this regard, I am of the opinion that Ms Farag's interactions with Mr Smith as she perceived them, are more responsible for the development of her psychiatric condition than the employer’s actions related to “transfer”.
Conversely, although he did not specifically address the word “transfer”, Dr Anoop Sankaranarayanan, a psychiatrist, in a report addressed to the solicitors for the respondent stated:
“Considering there were no other causes, I believe that Ms Eyman Farag’s psychological condition is wholly caused by actions taken by the employer.”
While these competing views provided a basis for argument as to whether the applicant’s psychological injury was wholly or predominantly caused by actions with respect to transfer it was not systematically pursued at the arbitration hearing. It is a plausible that this was an assumption underlying Mr Parker’s argument that the evidence of Mr Smith and Mr Bootes should be rejected. However, that is not entirely clear.
Rather, the applicant concentrated on attempting to establish that the evidence of Mr Bootes and Mr Smith in respect of the telephone call of 17 December 2020 was entirely false. Mr Smith and Mr Bootes had connived to state that the former used the phrase “fucktards” to describe the leaders of the CPYC rather than referring to the applicant term as the “parking thing”.
It is true that there are inconsistencies between the evidence of Mr Bootes of and Mr Boustani and that the evidence of the both the Mr Smith and Mr Bootes does seem an extraordinarily convenient explanation of what was said during the telephone call. However, it is a difficult to reject as unreliable their evidence in respect of the telephone call. It is inappropriate to make a finding that a witness has lied in the absence of clear evidence that they did. The evidence of the telephone call is not so clear-cut.

Both the participants give a consistent account of what happened. Certainly, they were in a better position to hear the call than the applicant. There was no application to cross-examine either of these witnesses. While there is evidence that cast some doubt on the reliability of aspects of the statements, it does not inevitably lead to the conclusion that they have given a false account of the telephone call. It remains plausible that that the applicant may have misheard the words used by Mr Smith.
The issue in respect of the telephone call is in many respects indicative of a wider problem in the case. It is very difficult to reach conclusions on some issues because of the conflicting evidence of Mr Smith, on the one hand and the applicant on the other. However, there are certain aspects of the case relating to reasonableness where findings can be made without finally resolving the issue of the credibility of the witnesses.
While the issue of reasonableness was barely touched on by the applicant at the arbitration hearing, the evidence that I have recited above creates grave doubt as to whether the respondent’s process in respect of transfer was reasonable. Certainly, there was a basis to recall the applicant from her secondment and the evidence proves that while the recall may have been objectionable in many respects from the applicant’s point of view, her employer was entitled to recall her.
However, within five working days of commencing in the position, which she was to occupy on her return to SCC, she was effectively demoted and transferred again to the CMR working in the city. Within a short time, she was brought back to Parramatta to work for the SCC. While it seems perfectly clear that Mr Smith thought that she was incompetent and insubordinate, he precluded the applicant from taking a position where she was well thought of in the SIC after her successful application for that role.
In my opinion, the respondent has not established that the withdrawal of the applicant’s level 11/12 payment and her transfer from the position of manager of the team looking after the alcohol portfolio at SCC, one week after her commencement, was reasonable. The email from Mr Bootes of 7 September 2020, stated:
“so you will be 11/12 min 12 from the first day till either I am told to eoi or it gets advertised as principal policy officer, read the role description”.
Contrary to the language used in the email, having commenced employment on 21 September 2020, the applicant was sent packing five working days after she commenced the role. Both the decision to transfer her again and the manner in which it was implemented disregarded the basic tenets of reasonableness owed to the applicant. She states that she was never told that she was not fulfilling her role adequately, she was not provided with any feedback on her performance from Mr Smith, and she was given no warning that she was to be dismissed from the role five days after she started, at a time when she was plainly coming to grips with the duties involved in a new position. There is a complete absence of fairness in this process.
Then, the unexpected email dismissing her for incompetence was forwarded to the employees who were in the team that she was managing. In my opinion, the approach of Mr Smith to both the dismissal/transfer from the position and the downgrading of pay was an entirely inappropriate way to treat an employee with over two decades of service and a previously unblemished record in respect of discipline and performance. That is so irrespective of whether his assertions as to her manner and competence are correct.
Having removed the applicant from the SIC and appointed her to a position at the SCC, reasonableness requires that the applicant be given an opportunity to prove herself in the new position or, alternatively, cogent reasons why she should be removed and have her pay downgraded. Other than the fact that he disliked her manner, no cogent reasons are provided in the evidence. Further, the applicant’s account of the circumstances leading up to her removal from the role appear quite compelling.
If it was necessary to choose between the evidence of Mr Smith and Mr Boustani and the applicant on this issue, I would prefer the evidence of the applicant. It is difficult to believe that signing submissions in her own name or using the wrong coloured paper were the reasons for the applicant’s extraordinarily speedy removal from the position. Surely both these matters could have been readily corrected. While the evidence is not sufficient to make a finding, one has the distinct impression that Mr Smith formed an intense dislike of the applicant and it was this that resulted in her being catapulted between different jobs between 21 September 2020 and 17 December 2020.
There is no doubt that that these actions on the part of the respondent contributed significantly to the applicant’s psychological state. In my view work they taint the respondent’s actions to such an extent that it is unable to prove that its actions with respect to transfer overall were reasonable. In those circumstances, the respondent’s defence under s 11A fails.
Accordingly I propose to find that:
(a)    the applicant suffered psychological injury arising out of and in the course of her employment which is deemed to have occurred on 17 December 2020, the first day of incapacity;
(b) the respondent has not established that the injury was wholly or predominantly caused by reasonable action taken by it with respect to transfer in accordance with s 11A;
(c)    as a result of that injury the applicant was totally incapacitated for work between 17 December 2020 and 10 June 2021 and partially incapacitated thereafter;
(d)    the applicant was paid wages or compensation from 17 December 2022 to 11 March 2021;
(e)    the applicant performed suitable work for the respondent two days per week from 11 June 2021 and three days per week up from 27 August 2021 to date;
(f)    it is agreed that the applicant’s preinjury average weekly earnings at 17 December 2021 were $2,428.50;
(g) respondent to pay the applicant weekly payments of compensation from 12 March 2021 pursuant to ss 36 and 37 in accordance with these reasons until they are suspended or terminated in accordance with the provisions of the 1987 Act, and
(h)    liberty to apply in respect of the calculation of weekly compensation if necessary.

[2022] NSWPIC 233

23 May 2022