Fell v Willoughby City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fell v Willoughby City Council [2024] NSWPIC 224
APPLICANT:	David Fell
RESPONDENT:	Willoughby City Council
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	1 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury; respondent disputed that employment was the main contributing factor to alleged injury; respondent maintained it had a defence pursuant to section 11A, relying on its actions with respect to discipline, performance appraisal and/or provision of employment benefits; consideration of Department of Education and Training v Sinclair, Pirie v Franklins Ltd, Irwin v Director-General of Education, AV v AW, Ponnan v George Weston Foods Ltd, Kooragang Cement Pty Ltd v Bates, Fisher v Nonconformist Pty Ltd, Northern NSW Local Health Network v Heggie, and Hamad v Q Catering Limited; Held – applicant sustained psychological injury, being the aggravation, acceleration, exacerbation or deterioration of a disease, to which employment was the main contributing factor; injury was wholly or predominantly caused by respondent’s action with respect to discipline; respondent’s action was reasonable; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, David Fell (Mr Fell) is employed by the respondent, Willoughby City Council (the Council) as a ranger – compliance.
The applicant claims to have sustained a psychological injury as a result of various events arising out of or in the course of his employment with the Council, with a deemed date of injury of 26 April 2023.
The applicant apparently notified the respondent of the alleged injury on 9 May 2023.
On 16 May 2023, the respondent’s insurer, StateCover Mutual Limited (StateCover), advised Mr Fell that it had decided not to commence provisional payments of weekly compensation to him “for the psychological system in general injury you sustained in the period leading up to 27/04/2023”.
StateCover’s reason for not commencing provisional payments was that there was insufficient medical information to establish that there was an injury. The applicant would be provisionally entitled to the cost of medical, treatment, and rehabilitation expenses of up to $6,000.
On 13 June 2023, StateCover issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
StateCover relied on “factual disputes”. It maintained that, to the extent that the applicant relied on factually disputed events as having contributed to, or been the main contributing factor to, his alleged injury, or the aggravation of his pre-existing disorder, the events either did not occur, or did not occur in the manner alleged. They were therefore not the main contributing factor to the onset or aggravation of the applicant’s alleged psychological injury or disorder.
StateCover maintained that the applicant’s alleged psychological injury had been wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline; performance appraisal; and/or the provision of employment benefits to workers.
In the alternative, StateCover disputed that the applicant suffered from any incapacity as a result of a compensable psychological injury; and that medical or related treatment was reasonably necessary as a result of a compensable psychological injury.
Finally, StateCover asserted that the applicant’s credit and reliability as a witness were in issue.
By letter dated 12 September 2023, the applicant’s solicitors requested on his behalf that StateCover review its decision to dispute liability.
On 29 September 2023, StateCover advised the applicant’s solicitors that it maintained its decision to dispute liability.
The applicant lodged an Application to Resolve a Dispute (the Application) on
25 October 2023.
The applicant claimed that in 2018, he engaged in enterprise bargaining agreements (EBA) at work. Since his involvement in same, from 2018 onwards, he was subjected, but not limited [sic], to the following:
(a)     bullying and harassment;
(b)     belittlement;
(c)     unfair treatment and being singled out;
(d)     lack of support, and
(e)     struggling in a toxic workplace.
The applicant further claimed that in around December 2022, he was assaulted in the course of his employment by a member of the public. He alleged that after reporting this to his employers, he was provided with inadequate support, felt targeted by his employers “and singled him out” [sic].
The applicant further claimed that in April 2023 he was sent a show cause letter.
The applicant alleged that, as a result of the above incidents, he sustained a psychological disease injury. In the alternative, he suffered an aggravation, acceleration, exacerbation, or deterioration of a pre-existing condition as a result of the above incidents at work, including the April 2023 show cause event.
The deemed date of injury was pleaded as 26 April 2023.
The applicant claimed weekly benefits compensation from 27 April 2023 to date and continuing; medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) of $166; and a general order pursuant to s 60 of the Act.
The respondent lodged its Reply on 23 November 2023.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a)     whether the applicant had sustained injury arising out of or in the course of employment;
(b)     whether employment was the main contributing factor to injury;
(c)     whether the respondent had a defence to the claim pursuant to s 11A of the 1987 Act, as the alleged injury was due to its reasonable action with respect to discipline, performance appraisal and/or the provision of employment benefits;
(d)     whether the applicant was incapacitated for work as a result of injury, and
(e)     whether medical treatment was reasonably necessary as a result of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 4 December 2023. Mr Malai appeared for the applicant; and Mr Van der Hout appeared for the respondent. The applicant’s wife,
Ms Celine Varghese-Fell, attended as support person. Mr Underwood of StateCover also attended.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,359.22 per week.
The matter was listed for conciliation/arbitration hearing on 20 February 2024, in person.
Mr Young of counsel, instructed by Mr Malai, appeared for the applicant, who was present. Mr Baran of counsel, instructed by Mr Van der Hout, appeared for the respondent. Ms Varghese-Fell and Mr Underwood also attended.
The Application was amended, by consent, to claim weekly benefits from 12 June 2023 to
14 August 2023.
The respondent sought to rely on further statements from Ms Lexxie Fox, dated
21 December 2023 and Mr Mark Taylor, dated 8 January 2024, which it conceded had not previously been served on the applicant.
The applicant objected to the admission of the further statements. The evidence was rejected, for reasons that were provided at the hearing, and recorded.
The respondent did not seek to cross-examine Mr Fell. It was agreed that the applicant would not take any “Browne v Dunn”[1] point as a result of this decision.
[1] (1893) 6 R 67.
Due to the time taken in conciliation and preliminary matters, it was not possible to proceed with the hearing on 20 February 2024. Directions were made for the provision of written submissions, and the timetable was later slightly adjusted. The parties were advised that, at the conclusion of the time allowed for provision of submissions, the matter would be determined “on the papers”.
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 and attached documents;
(b)    Reply and attached documents, and
(c)    respondent’s Application to Admit Late Documents dated 9 February 2024 and attached documents.

Oral evidence

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

FINDINGS AND REASONS

Much of the lay evidence in this matter refers to the attachment of emails and documents. I have had regard to that evidence but have not reproduced it.

Evidence of the applicant, David Fell

The applicant’s first statement is dated 19 June 2023, and was provided to an investigator retained by the respondent.
He had been employed by the respondent since 2007, as a ranger – compliance. His manager was Safe City Manager, Mark Taylor.
On 23 December 2022, he received an email from Team Leader Richard Goulston, notifying him of a complaint made by a member of the public regarding an incident on
18 December 2022. He was on annual leave but was checking periodically for messages.
On 18 December 2022, he performed a spot check of a vehicle displaying a Mobility Parking Scheme (MPS) permit. He ran a check and found the permit was valid “as it stood”. It was displayed on the driver’s side, rather than the passenger’s side, as required.
He moved away from the vehicle and was approximately 20 to 25 feet away when a man and lady passed him, looking at him. The male approached the driver’s side of the vehicle and the female the passenger’s side. They both looked back at him.
He decided to speak to the couple with a view to checking the permit “for identification purposes”.
He introduced himself to the male driver, and confirmed he was a ranger with the Council. He asked in a polite tone if he could check the permit that had been displayed. He would describe the driver as “pushing back”, with words to the effect of “You can see the permit in the vehicle”.
He explained that the permit must be handed to him as an authorised officer, on request, so he could confirm the identity of its holder. The man said something to the effect of “I’m not giving it to you. Who are you?”
He again identified himself, showing his name badge, by moving his uniform jacket to one side so the male could clearly see it. He was in full uniform and believed it would have been evident that he was an official performing work duties. He also offered to provide his business card, but the male responded aggressively, saying something to the effect of “I’m not interested.”
He continued to speak politely to the male, reminding him that it was a condition of use of the permit that it be surrendered on request. The female said something to the effect of “You’re harassing disabled people”. She then opened the passenger side door and leaned over with what appeared to be some difficulty to retrieve the permit.
After doing this, [the woman] became emotional and referred to having cancer, as well as surgery on her leg. She started lifting her skirt to show him where she had had surgery, but he averted his eyes. He sympathised with her but explained it was “not my place” to assess or enquire as to her medical condition. He had not properly inspected or taken the permit out of its holder, which he needed to do to view the photograph and establish identification.
The woman handed the permit to him. He was about to inspect it, but the male became aggressive. He made comments to the effect of “You’ve looked at it. Now hand it back.” He told [the man] what he was doing was not personal, mentioning that he had inspected other vehicles that day. The response was a comment to the effect of “I don’t give a fuck about them. Just give the fucking permit back.”
At this point [the man] took a photograph of him. He had viewed the photograph and confirmed there was nothing aggressive in his expression. It looked as though he was trying to weather the situation. He was wearing his glasses and holding his notebook, PDA (personal digital assistant) device, and the permit.
He waited for the man to finish before he removed the card from its holder. He was able to confirm that the photograph depicted the female at the scene. The permit was valid.
He handed the permit back to the female, apologised for the inconvenience, and thanked her. He then walked away. This concluded the exchange, as far as he was concerned.
This was not the most aggressive customer exchange he had been involved in. However, he found it somewhat intimidating. What stood out was that he had not encountered this type of reaction from anyone who was displaying a permit validly.
He had received a very limited number of complaints, which were generally minor. He estimated he had received on average approximately one complaint every one to two years. He noticed that this complaint was received from the female passenger, rather than the male driver, who had been the more aggressive party.
The female provided what he considered to be a highly emotional account, referring to “obscene” behaviour and actions on his part. She made no mention of the presence of the male, which he found very strange.
In response to the complaint, he had his wife assist him in typing up a statement, which he had attached. They emailed it to Richard Goulston on 24 January 2023. He heard nothing further.
On 16 February 2023, he was provided with a letter by Mark Taylor. It advised that there was a need for an investigation of the formal complaint, and this directive had come from Governance. The letter confirmed he was required to respond to the complaint at a meeting on 23 February 2023.
He had not previously heard the term “Governance” and was unclear what this meant. He noticed that the complaint had been broken down into seven separate points, indicating the matter was more serious and elaborate than had previously been the case. He was unaware why it was being approached in this way, considering that most complaints of this nature would normally be finalised within approximately one to two weeks.
He was not able to attend the meeting on 21 February 2023, as his union representative, Thomas (Tom) Gao, was not available. He believed the meeting was re-scheduled to 2 March 2023.
In response to the letter dated 16 February 2023, he prepared a further document relating to the incident, being a transcript based on his memory of it. He combined the contents of his statement prepared on 24 January 2023 and the contents of his contemporaneous notebook to prepare his transcript.
On 2 March 2023, he attended the meeting with Mark Taylor, Lexxie Reyes (now Fox) of HR (Human Resources), and Thomas Gao. He referred to and relied on his statement and transcript in giving his account of the incident on 18 December 2022.
Mark Taylor indicated he would need to take the matter further and would be speaking to the female complainant. There was no indication of a determination having been made, based on his response. He felt this was significant and indicative of the matter being stretched out more than would normally be the case.
Following this meeting, he was not aware of anything else happening regarding the investigation.
In approximately early March 2023, Mark Taylor invited him to his office for a discussion. Mark told him he had not finalised the investigation and was about to go on two weeks leave. He thought it was odd that the matter had not been finalised. It again appeared that it was being drawn out.
He recalled making a comment to the effect of “surely it could have been resolved by now” and referring to the process as “lengthy”. Mark berated him, raising his voice and making comments to the effect of “I have a lot of staff to manage. Do you get that?” He also said something to the effect of “It was your responsibility to activate the body worn camera (camera). Do you get that?” He went on to say something to the effect that he had spoken in a “disrespectful way” to the female complainant and also spoke to other people in a disrespectful way.
As he made these comments, Mark was raising his voice, but was also smiling. He appeared to be enjoying the process.
He felt it was evident that the entire process was being deliberately protracted, and Mark was doing this in order to make him anxious. It appeared that he was deliberately taking his time.
He pointed out that Mark had not been there at the time of the incident. However, he felt the less said the better, as it would not be productive to engage further. He remembered commenting to the effect of, “I’m finding this conversation not to be a very friendly one” and indicating that he understood Mark needed to do what he had to do.
He left Mark’s office feeling anxious, perplexed, and bewildered. He believed the approach being taken was deliberate to worsen the situation and the anxiety he was experiencing.
There was an omission on his part to activate the camera during the incident. He attempted to activate it but was not sure it was recording. He activated a circular button but omitted to press it twice, which would have activated the recording function.
The cameras were issued for the first time in approximately mid-2022. He estimated he may have activated his approximately only eight times. He was never formally trained in their operation. Prior to 18 December 2022, he had never been clear on whether he had successfully recorded any footage. None of the activations of the camera had resulted in any files being stored or used as evidence.
When the cameras were issued, the only instruction he received was from Deputy Team Leader Kate Drysdale. She indicated they needed to press the button once, which primed the device, then wait approximately 30 seconds before pushing it again, activating the recording function.
At approximately the mid-part of the investigation, the cameras were set up to display a luminous red light, indicating they were recording. This adjustment was attended to by a colleague, “Isabella”.
On 26 April 2023, he was in Chatswood patrolling the streets. He had seen Richard Goulston performing his duties in the same area.
At 4:59pm, Mark Taylor telephoned him. He invited him to come to his office, advising that there was a letter to give him regarding the investigation. He confirmed he would attend, and he was only about five minutes away.
He arrived at Mark’s office at approximately 5:05pm. Mark handed him an envelope, indicating it was in relation to the investigation. He immediately felt it would not involve good news. He speculated that it may be a warning letter but was not sure. He read the letter, which was from People and Culture, and dated 26 April 2023.
He initially saw that the letter related to a Request to Show Cause Meeting he was required to attend. As he read the letter, Mark was sitting opposite him and smiling.
The letter indicated that Mark had concluded his investigation, which he noted had taken approximately five months. It indicated that his conduct on 18 December 2022 had been “unacceptable” and in breach of relevant Council policies, specifically its Code of Conduct, W H & S (Work Health and Safety) Policy, and Ranger Section Procedural Manual, including provisions relating to video and sound equipment.
There was no mention in the letter of the actual complaint or the response he had provided. It went on to indicate that the Council was providing him with an opportunity to show cause why disciplinary action, up to and including termination of his employment, should not be taken.

As he was reading the letter, he heard someone knocking. He saw Amelia Cimone, a fellow ranger, knocking on Richard Goulston’s door. Richard’s door was shut, and his office lights were off. Richard had been in the same area as him just minutes prior to him attending Mark’s office.
He could not identify any reason for Amelia being in the area. He immediately felt she was there as a witness for Mark, and this had been deliberately planned.
He was shocked by the letter and struggled to “assimilate with it.” He recalled saying, “Isn’t this a bit draconian?” Mark did not respond but just smiled.
He noticed that the time and date for the meeting was 10:30am on 27 April 2023. This was approximately 17 hours from the time he was being handed the letter. He realised this was unlikely to leave him enough time to organise a support person.
He started to feel disorientated and highly anxious.
He commented that he would not be able to organise a support person in time. Mark commented to the effect of “Your union representative’s in Chatswood on Thursday. You can organise for him to attend. That’s what you pay your dues for.” He kept smiling as he was saying this. He recalled commenting that he doubted whether he would be able to do this, but by that time he just wanted to get out of his office. He was in something of a panic or flight mode by this time.
He left Mark’s office. He did not see Amelia in the area. He did not know where she had gone.
Following this meeting, he telephoned his USU (United Services Union) representative, Tom Gao, explaining the contents of the letter and the requirement for him to attend the meeting the following day. Tom described this as “unacceptable”, advising the Council needed to give seven days’ notice for such meetings. He advised he would liaise further with the Council.
On 27 April 2023, he took the bus to work, arriving at about 8:45am. After arriving, he felt disorientated and anxious, and walked around outside the building aimlessly. He telephoned his doctor’s surgery and organised an appointment for the same day.
He telephoned Mark at 9:15am and advised that he had just got off the bus and was wandering around aimlessly. He did not feel he could function as an officer that day.
Mark asked what the issue was. He explained that he was stressed, anxiety-ridden and disorientated. The letter he had been handed had put him in this frame of mind. Mark thanked him and commented to the effect of “I just want you to know we have supported you.” He found this confusing and contradictory. He also noticed that Mark sounded somewhat concerned. This indicated to him that he may have been starting to understand the consequences of his actions and the way he had handled the matter.
He attended an appointment that morning at the Balgowlah Family Practice and consulted GP (general practitioner) Dr Jack Blomeley. He was provided with a general sickness certificate certifying him unfit for work.
On 5 May 2023, he returned to his GP practice and was issued with his initial certificate of capacity (COC) by his main GP, Dr Ashley Collard. He had remained unfit for work since this time. His GP had referred him to a psychologist, Emily Jallat, who he would see for the third time on 30 May 2023.
He had a history of anxiety and depression dating from approximately his mid-twenties. He had received counselling and medications as required. This had been on an intermittent or sporadic basis when the conditions had flared up. He estimated that the last time he received medication prior to the work issues was in approximately 2015.
He was prescribed anti-depressant medication and took this over approximately four to five months. He also had approximately six EAP (Employee Assistance Provider) sessions. This related to things “getting on top of him” in a general sense, some of which was work-related. He estimated there may have been three periods during which he received treatment for his underlying condition, starting in about 1989 to 1990.
In relation to matters outside work, his father passed away in November 2022. He had gone through a normal grieving process.
On 9 November 2022, he attended a one-on-one meeting with Kate Drysdale, at which she discussed performance matters with him. He was acknowledging and understanding some of the matters she raised, although he felt some lacked clarity and context. He felt that administration-based matters were being impacted by the fact that he felt uncomfortable in the office, due to what he felt was a hostile working environment.
EBA matters and negotiations regarding working conditions took place during approximately 2022. They involved the USU. At the conclusion of the process, his team was required to move to an area directly outside Mark Taylor’s office. He felt this was indicative of being watched and micromanaged by Mark. His desk required him to sit with his back to Mark’s office.
His discussion with Kate on 9 November 2022 concluded at approximately 10:45am, and he left to attend to his normal duties. He received a telephone call to advise that his father’s passing was imminent. At approximately 11am he returned to the office and informed Richard Goulston of the need for him to attend the care facility. He was authorised to leave.
He found it concerning that Kate’s email dated 9 November 2022 regarding the performance issues had been sent at 4:10pm, well after he had departed to attend his father. He felt it could have been sent at a more appropriate time and it was insensitive for Kate to send it when she did, noting that she acknowledged he had left work for family reasons.
He took leave, including annual leave and bereavement leave, between 9 November 2022 and 28 November 2022. When he returned to work, he was in a semi-functional state in association with his father’s passing and the normal associated grief.
His family gathered on 4 December 2022 to scatter his father’s ashes. This was very upsetting.
On 5 December 2022, he went back to work but was in a bad state of mind and felt he was deteriorating and going downhill in association with the grief. He felt the grieving process was impacting him and he was becoming less functional. This continued to be the case up to and including 18 December 2022.
From 19 December 2022, he took scheduled annual leave. He was due to return to work on 9 January 2023, but due to his emotional state, took sick leave. He returned to work on
25 January 2023.
On 5 December 2022, he was a recipient of a generic email from Richard Goulston to their section. Richard indicated the need to cover two weekend shifts, being 7 and 8 January 2023 and 11 and 12 February 2023.
Without discussion or consultation, Richard changed the roster, requiring him to work on 7 and 8 January 2023. This was at the end of his scheduled leave, and he would normally have expected to be allowed that weekend prior to returning to work on the Monday. Richard allowed him the Monday and Tuesday of that week off, but he felt some consultation would be appropriate.
On 13 December 2022, he called Kate Drysdale at 7:45am. He explained his disappointment with the roster changes, including that he and his wife had planned to spend time with his mother. He indicated he would be available for the 11 and 12 February 2023 shifts.
Kate “push[ed] back” and did not appear to take his comments on board. She then “morphed” the conversation into matters of his performance, without being specific. She indicated in a general sense that his performance was “poor”. She also commented to the effect that he was perhaps not suited to the job and should consider doing something else.
He was surprised by these comments and did not feel this was an appropriate time or setting for the discussion. He did not pursue it further.
He emailed Kate on the same day. He felt she had “effectively reshaped the narrative” of their discussion by asserting that it related only to the performance issues. He pointed out that he had initiated the conversation based on his concerns about the roster.
He swapped the January shifts with the February shifts by agreement with a colleague.
He was hoping to be re-deployed within the Council. He did not wish to return to the work environment he was in prior to his claim being lodged.

Annexure A

Annexure “A” is a copy of an email from the applicant’s wife to Mr Goulston, copied to
Ms Drysdale and the applicant, dated 24 January 2023.
The applicant was referring to his contemporaneous notebook regarding the events on
23 December 2022.
He had noticed an MPS permit displayed on the driver’s side of a white Mercedes. It “should” “(not ‘must’)” be displayed on the passenger side. “We” viewed permits displayed in this manner as possibly suspicious. He ran a check, and the permit number came back as negative.
He moved away from the vehicle. As he walked away, he noticed a couple return to it. He observed that they noticed him.
He approached the couple, said his name was David and he was a ranger with Willoughby City Council. He was checking all the permits, and asked if he could check the permit displayed in the vehicle.
The male stated, “You can see the permit in the vehicle.” He stated that the permit must be handed to him so he could confirm the identity of the holder. The male driver stated, “I am not giving it to you, who are you?”
He indicated to the male that it was a condition of use that the permit be surrendered upon request by an authorised officer. The female removed the permit, handed it to him, and indicated that it was hers. She stated she had had operations on her leg.
He expressed sympathy and indicated he was not to know a person’s health condition.
The male driver kept harassing him verbally, repeating, “You’ve looked at the permit, hand it back.” He attempted to explain why they patrolled the disabled parking bays and inspected permits.
He indicated that he had checked other permits and issued penalty notices. The male stated, “I don’t give a fuck about them, just give the fucking permit back.” The driver then photographed him. He patiently waited for him to finish.
He inspected the permit, determined that it belonged to the female, and handed it back. He apologised for the inconvenience and thanked her. He then walked away.
He had never insinuated that the woman did not appear disabled, nor would ever comment on a person’s disability. His behaviour was never obscene, nor did he make accusations. He conducted himself in a professional manner.
The male driver was not mentioned in the complaint. He was the main antagonist. His manner was belligerent and argumentative. He used abusive language. The male driver refused to hand him the permit and took the photograph of him.
He made every effort to identify himself. He stated his name, showed them his name badge (inside his jacket on his shirt), and attempted to provide his personal card and identity card. The male driver stated he was not interested.
He asked why, if they did not think he was a parking or authorised officer, they handed the permit to him? Given that it was valid, why did they elect to behave as they did?
He got the impression things were not right between the two when they returned to the vehicle. He sensed the male was already angry, as if they had had an argument. At no stage did he feel that either represented a physical threat.

Annexure C

Annexure “C” is a transcript that largely repeated the contents of the email.
The transcript added that the female said she had cancer and had had surgery on her leg. She lifted her skirt to show him her leg. He averted his eyes and raised his right hand to indicate this was not necessary.
The applicant made a second statement, dated 3 August 2023. This statement “aim[ed] to address how my symptoms are related to the workplace harassment I endured, rather than the recent passing of my father”, and the “declinature notice” issued on 16 May 2023.
His workplace issues were the main cause of his symptoms. He had been experiencing issues at work for a prolonged period, prior to his father’s passing. In 2018, the Rangers’ Unit negotiated an EBA. He was a member of the negotiating team. The negotiation proceeded with a great deal of conflict with management.
After that, management “pushed back” against the employees who had “vocalised their opinion” during the EBA process. He felt he was targeted.
In February 2019, he had lodged a formal complaint against Richard Goulston and Kate Drysdale, over an incident in the workplace. The workplace was becoming increasingly toxic after the EBA was finalised. The USU was constantly involved.
He felt that management took the death of his father as an opportunity to attack him while he was low. He felt they were aware he would not be able to fight back as he had in the past and saw this as an opportunity to attack him with falsified claims.
On 27 April 2023, he felt like he could not function, his mind completely shut down, and he was not able to think. This occurred as he was not given enough time to respond to the letter from Mark Taylor. He felt that he had dealt with so much at work “and this tipped me over the edge.”
HR had acknowledged that the timing of the letter was not procedurally acceptable and had advised his manager not to give it to him. Mark Taylor ignored them, as he knew the timing would be inappropriate and cause him to react. The development of these symptoms was more in line with experiences that he faced at work.
He found that he was constantly consumed by work issues and not able to think about anything else. He could not deny the grief and sadness over his father’s death. However, that was a personal tragedy he could face with his wife’s help. It was the workplace incidences that remained in his thoughts. He believed the experiences at work really affected his mental health more than any other cause.

Evidence of Celine Varghese-Fell

Ms Varghese-Fell is the applicant’s wife. Her statement is dated 19 June 2023.
Over several years (in particular from 2017 onwards), she had observed the applicant feeling anxious and depressed about his workplace culture and the issues surrounding the EBA, issues involving unfair practices by managers.
The applicant kept talking about issues all the time. This caused tension between them, and they ended up arguing most of the time.
The applicant did not enjoy weekends or holiday trips. He seemed very upset that he had to face his workplace on the last day of any leave. This had been ongoing.
The applicant showed disinterest in any of his hobbies. She observed that he got distracted and could not focus on things. He was indecisive.
The applicant was in a low mood most of the time. He did not present as happy at social occasions, and social gatherings at home had stopped since January 2023. He turned down invitations.
The applicant felt that he had been misunderstood and not treated fairly. She had to get things organised and prepared, as it was challenging for him.
Their relationship had been strained because of the workplace culture, bullying and harassment incidences, and “this recent psychological injury”.
She had a role as a manager and understood how employer/employee relations could go wrong and negative [sic]. However, she had recognised the signs of workplace bullying and harassment, and “we have a lot of documented evidence on that.”

Evidence of Richard Goulston

Mr Goulston’s statement is dated 6 June 2023.
On 22 December 2022, he received a customer complaint regarding the applicant via the Customer Service Request system. It came to him via their Governance section, which is responsible for selecting complaint matters, as opposed to disputes about infringement notices.
His role at that stage was to conduct an initial investigation to ascertain the veracity of the complaint, the intent of the complainant, and whether the complaint had been made on a bona fide basis and with good will.
A defining feature of the complaint, which he noted from the outset, was that the applicant had not ultimately taken any legal action or issued any infringement. This made the complaint somewhat unusual.
The customer alleged that the applicant had spoken to them inappropriately and was not wearing his name badge or any other identification that would have confirmed he was working as a Council ranger.
On 23 December 2023 [sic], he sent an email to the applicant, notifying him of the complaint. This was a standard step. The applicant was on annual leave, so he sent the email to his work email. He was not expecting him to be checking his work emails. His intention was that the applicant would read it on his return to work and to address it with him then.
His initial investigation included brief discussions with the complainant and the applicant, to seek his responses. The applicant indicated that he had handled the matter appropriately and spoken in an appropriate manner to the customer. He alleged that it was she and her partner who had become aggressive. He did not give any particular feedback regarding the uniform-based issues.
He determined there was potentially a case for the applicant to answer. In what he estimated may have been approximately January 2023, he referred the case to Mark Taylor.
He did not have any further direct involvement in the management of the complaint. He was aware that it was being handled by Mark Taylor and People and Culture.
In the period of approximately four weeks prior to November 2022, he had two or three discussions with the applicant, in which Mr Fell mentioned that his father was unwell and expected to pass away.
He offered sympathy and support, reminding the applicant about EAP. The applicant said he was all right at that stage and would not need this.
The applicant’s father passed away in approximately mid-November 2022, after which he took leave, which was subsequently extended to what he estimated may have been two to three weeks. He granted the additional leave in view of the circumstances. As the applicant had only limited leave available, he took a combination of annual and bereavement leave.
When the applicant returned to work, he made a point of checking how he was. He seemed all right and said something to this effect. He was able to continue with his work.
The email about rostering was not “generic”. It was sent to a specific, small, number of impacted rangers. The applicant was at work at the time of the email on 5 December 2022, and to the best of his knowledge did not reply or approach him to discuss it. The need to confirm a change of roster was urgent and further complicated with the Christmas break and Council shutdown. He confirmed in the email that he was giving as much notice as possible.
His subsequent email dated 9 December 2022 advised of his rostering decision, which was made in accordance with his previous advice. This was that he would seek to fill the shifts with staff who had worked less weekends than other members of the team.
As he had received no response from the applicant, he presumed he had no issues with the proposal. The requirement to amend the roster was consistent with the Rangers’ Agreement. He understood that Kate Drysdale had a discussion with the applicant on approximately
12 December 2022 regarding a number of issues, and the applicant advised that he would be unable to work on 7 and 8 January 2023.
The applicant sent him an email at 10:01pm on 12 December 2022, indicating that he was not able to work on 7 and 8 January 2023, as he had made other plans. He accepted this and arranged for another officer to work that weekend.
The applicant commenced work with the Council in 2007. Until approximately 2015 or 2016, he was a reliable and solid performer. Since that time, he had noticed a marked deterioration in the applicant’s performance. In approximately the last two to three years, his performance and negativity issues had continued and worsened. The applicant entered a PIP (performance improvement plan) in approximately March 2023.

During the above timeframe, there were incidents that caused him concern for the applicant’s mental health.
During 2018, Council and the rangers’ team were involved in EBA discussions. The applicant adopted the role of something as the rangers’ chief representative. He demonstrated a very inflexible and rigid attitude. This resulted in delay and significant unnecessary stress to those involved. The revised EBA that came into place in 2019 was virtually no different to the old agreement.
During the same timeframe, he spoke to the applicant on two or three occasions about what he regarded as inappropriate comments on Customer Service Request entries.
On another occasion, the applicant became involved in an unnecessary and inappropriate argument with a customer who had requested the removal of an abandoned vehicle. This led to the customer making a complaint.
On at least two other occasions during the same time, there were complaints in relation to the applicant not having returned customers’ calls.
On 12 February 2019, it was evident to him that the applicant was struggling with aspects of his performance and mental health. There was an opportunity for Council employees to attend a resilience course. He and Kate Drysdale agreed that she should let the applicant know about the course and his option to attend.
The applicant had a verbal altercation with Kate, who was trying to calm him down. The applicant turned to him and made a comment to the effect of, “Why do you think I need to do that?” The applicant was emotional and aggressive. He tried to move the discussion to a more private setting, as it was taking place in front of other staff.
The applicant continued to raise his voice, alleging he could not trust anyone at Council, and it was a “hopeless organisation.” He responded that the applicant did not have to stay. The altercation dissipated.
On the same afternoon, he sent an email to the applicant. He pointed out that he felt the applicant’s behaviour had been out of line and embarrassed him. He also confirmed that the course was not compulsory, encouraged the applicant to reconsider, and advise further once he had done this.
The applicant’s response was to lodge a formal complaint against him. This was investigated by People and Culture and the allegations were unsubstantiated.
The applicant tried to embarrass him at a meeting of the entire Safe City section on
3 April 2019, by raising an issue of the start time for rangers. He addressed this at the meeting, but also sent the applicant an email on the same day, confirming the matters discussed and his concerns with them being raised at the meeting, rather than individually as recommended in his original email.
In 2020, the applicant took significant time off in association with the COVID-19 pandemic. He had provided a letter from his GP indicating that he was at high risk of contracting COVID-19. He took 35 days’ leave in connection with this.
During 2021, the applicant took a further 87 days’ sick leave for the same reason, on the basis of the same advice from his GP.
Throughout the last two to three years, he had ongoing issues regarding extended lunch breaks being taken by the applicant and others. There were also downtime gaps of approximately 2.5 to 3 hours being unaccounted for, with associated productivity issues.
The above issues led to the applicant entering a PIP in what he understood was March 2023.
He attempted to address the above matters by sending periodic emails to the team, reminding them of the 30 minute lunch break. The issues in the case of the applicant and another ranger continued regardless.
A factor influencing his team-based approach was the applicant’s complaint against him in 2019, and that he felt targeted by the applicant and other employees. He felt they were undermining him and would take any opportunity to criticise his actions.
In December 2020, he lodged a complaint regarding what he felt was bullying and harassment, with the applicant as the main contributor. A protracted internal investigation concluded in approximately June 2022. His complaints of upward bullying were substantiated, and warning letters were issued to staff members, including the applicant.
His view was that the Council had been very supportive towards the applicant in relation to the matters addressed in this statement. This had included informal discussions and correspondence when they identified performance or behavioural issues. The PIP could be seen as a measure to support and improve the applicant’s performance.
The applicant’s leave applications had always been supported by management, with a high level of flexibility afforded to him in both this and his rostering arrangements. Since 2012, at his request, he had been allowed to take one day off prior to working any weekend. This applied only to him.
During COVID-19, the applicant’s roster was changed to allow him to start later, as he was travelling by car to avoid public transport. He was also granted a request to work only in the Chatswood area, to avoid taking a pool car to other areas.

Evidence of Mark Taylor

Mr Taylor’s statement is dated 7 June 2023.
The Rangers’ Section of the Safe City Unit is headed by Richard Goulston. There are 14 staff members, including the applicant.
On 23 December 2022, he had an informal discussion with Richard Goulston, who mentioned a customer complaint against the applicant. As he recalled, the applicant was already on annual leave. He understood that Richard intended to check with the applicant on his return, to obtain his account of the incident.
Consistent with the complaint processes, Richard was also to conduct his own enquiries to establish whether the complaint was bona fide. His observation and experience of Richard was that he did a very good and effective job in establishing which complaints were bona fide.
As Richard was on annual leave over Christmas/New Year, his recollection was that Kate Drysdale (who was also the direct report for the applicant and Acting Team Leader in Richard’s absence) became involved in the preliminary enquiries.
His understanding was that both Richard and Kate conducted preliminary enquiries, which included them speaking to the applicant on his return to work in January 2023, to obtain his account of the incident.
On 14 February 2023, Richard advised that he had concluded his preliminary enquiries. Richard recommended that he conduct a formal investigation on the basis that it appeared there was a prima facie case to answer.
He prepared a letter to the applicant, dated 16 February 2023. It outlined the substance of the complaint, the concerns associated with it, and the investigation process to follow. The letter also attached the original email complaint. It had been mis-directed to Westfield on
19 December 2022, as the complainant had assumed the ranger was employed by them. Westfield lodged the complaint with the Council on 22 December 2022.
His letter to the applicant reminded him of the availability of the EAP.
At 3:50pm on 16 February 2023, he phoned the applicant to inform him of the need for a formal investigation. He emailed the letter to the applicant at 4:04pm the same day, copying Lexxie Fox.
At just after 5pm, the applicant appeared at his office, and he provided him with the letter and a card for EAP. The applicant read the letter and appeared to absorb its contents.
The applicant spoke for about 15 minutes and made extensive comments about the behaviour of the complainant, her partner, his name badge, camera, and contemporaneous notes. They agreed to have their meeting on 21 February 2023, as proposed in the letter.
He explained to the applicant that he had the option of bringing a support person to the meeting. The applicant said something to the effect of, “You’re my support person.” He explained that was not his role, and that he was to investigate the matter. He confirmed that the applicant was entitled, and encouraged, to have a support person. He believed the applicant then returned to his normal duties.
He did not recall the applicant raising any concerns about the term “governance”. The Governance, Risk and Compliance Unit managed the Complaints Handling Policy, and assisted in coordinating and allocating those matters.
On 17 February 2023, the applicant emailed to advise that his USU representative was not available on 21 February 2023. On 20 February 2023, he emailed the applicant and re-scheduled the meeting to 2 March 2023. The arrangements were consistent with USU representatives generally attending Council for such matters on Thursdays.
On 2 March 2023, he attended the meeting with the applicant, Thomas Gao, and Lexxie Fox. He outlined the nature of the complaint and procedural matters associated with the investigation.
He asked the applicant a series of questions. The applicant was given sufficient time to respond and provided his account based largely on a statement and transcript he had prepared. The applicant was asked for and provided his notebook, and he photocopied the entry.
At the outset of the meeting, he reminded the applicant of the availability of EAP. The meeting was conducted in a professional manner. Nothing stood out to him, in terms of the applicant’s emotional state or presentation. His responses were generally lengthy, and he went off onto tangents at various times. He made efforts to keep the applicant on track.
He confirmed at the conclusion of the discussion that he would make further enquiries before reverting to the applicant. This was explained as part of the normal process, which the applicant acknowledged.
At approximately 8:35am on 3 March 2023, he called the applicant into his office and informed him that he was about to go on four weeks annual leave. He would not be able to complete his investigation before leaving that day.
He mentioned that the applicant had needed to re-schedule their initial meeting from
21 February 2023 to 2 March 2023, which had contributed to the matter not being concluded as quickly as might initially have been anticipated.
In providing this information, his intention was that the applicant did not worry about any perceived delays and to explain the situation so it was clear and transparent. He confirmed that he intended to complete the investigation as soon as possible on his return to work in early April 2023.
He would describe the applicant as going into a monologue, repeating everything he had said about the incident at their meeting the previous day. He advised the applicant this was not necessary, as the matters had already been covered. He was also pressed for time and confirmed this.
The applicant continued to outline the same matters, in particular regarding the camera. He had to repeat approximately five times that it was not necessary. He commented to the effect of, “It’s your responsibility” to use the camera, and if the applicant had difficulties doing so, he needed to bring it to the attention of either Kate or Richard and obtain further training. He emphasised that the camera was an important WH & S and evidence-gathering tool.
He sent Lexxie Fox an email that day, summarising his discussion with the applicant, pointing out that if the applicant had activated his camera during the incident, it was likely to have facilitated the expeditious conclusion of the matter when Richard Goulston initially looked into it.
After he had repeated his advice to the applicant that he did not need to go over the matters they had discussed at their meeting, it appeared that the “penny dropped” and the applicant commented to the effect that he “understood”, acknowledging and accepting the feedback.
He had no recollection of the applicant indicating he thought the investigation should have been resolved by that time, or that it had been “lengthy”. He was confident those comments were not made.
He strongly denied that he “berated” the applicant or raised his voice. He became irritated that he had to repeat himself approximately five times. The applicant “just kept going on and on” and did not initially appear to hear, absorb, or accept the advice. He would describe his tone as becoming increasingly firm but remaining professional. There was nothing aggressive in his manner or tone.
He had no recollection of making comments to the effect of, “I have a lot of staff to manage. Do you get that?”, or “It was your responsibility [to activate the camera]. Do you get that?” The points were made. If he was seeking confirmation of the applicant’s understanding, he was confident he said, “Do you understand?” This was his normal way of speaking to staff. He was not in the habit of saying, “Do you get that?” He did not believe he used this phrase.
He did not say to the applicant that he had spoken to the complainant in a “disrespectful way”, or that he spoke in this way to other people. He had made no determination as to the applicant’s conduct on 18 December 2022. The matter was still under investigation.
He was not smiling at any stage during the discussion. This allegation made no sense to him.
He refuted that the investigation was deliberately protracted to negatively impact the applicant.
At no stage during his discussion with the applicant on 3 March 2023 did the applicant say that he (Mr Taylor) had not been present at the time of the incident, or that he was finding the discussion not to be friendly. The applicant appeared calm and at least momentarily reflective towards the end of the discussion, seeming to accept that he would not be able to conclude the investigation at that time.
On either the same day, or at another time, the applicant told him he had spoken with either Richard or Kate (or both) and had worked out how to properly use his camera.
The cameras were issued in November 2021. The applicant signed a document indicating he had accepted a camera. He was aware that Kate Drysdale and Richard Goulston provided instructions to the team about their use. The Guidelines for their use were updated and all ranger staff had access to them.
At no stage had the applicant or anyone else raised issues about the operation of the cameras, or any additional training. The cameras had been discussed at toolbox meetings.
On his return to work on 3 April 2023, he completed the investigations. A copy of his findings was sent to the Director, Community Culture and Leisure, Linda Perrine. As per the normal process, a copy was also provided to the Manager, People and Culture, Monica Lonergan.
He had discussions with both Linda and Monica, who confirmed they were happy for the matter to proceed to People and Culture Business Partner, Divya Narayan, for formal correspondence to be drafted. This was to involve the show cause letter dated 26 April 2023.
At approximately 5pm on 26 April 2023, he telephoned the applicant and invited him to his office. The applicant was working a late shift, so was due to complete his shift at either 6pm or 7pm. He indicated he was very close to the Council building and would come straight across.
He handed the applicant the letter in an envelope at approximately 5:07pm. The applicant read the letter. He again appeared fixated on trying to repeat his version of the events on
18 December 2022.
He advised the applicant he would have the opportunity to respond more formally during the next meeting, which was scheduled for 27 April 2023, and he could have a support person. He emphasised that no decision had been made in relation to the matter, and none would be made until his response had been considered.
He indicated to the applicant that the findings indicated he had not followed protocol regarding wearing his badge and operating his camera, but confirmed those matters were subject to his responses. The applicant indicated that he accepted those points and was now wearing his badge on his shirt and jacket and knew how to operate the camera.
The show cause letter was prepared by People and Culture. It referred to his correspondence to the applicant dated 16 February 2023, which had referred to the complaint.
Regarding the scheduling of the show cause meeting, the applicant expressed surprise and indicated he would speak to Tom Gao. He confirmed with the applicant that the USU was normally there on Thursdays, but said something to the effect of, “Look, if it doesn’t work for you tomorrow, we can kick that can down the road until the following week.” He was open to any need to reschedule the meeting.
He would describe the applicant as appearing surprised that he had been issued with a show cause letter, although nothing stood out in terms of his emotional state. If the applicant had appeared stressed or anxious, he would have reiterated the availability of EAP. This service was also referenced in the letter.
He had no recollection of whether Amelia Cimone came into the vicinity during his discussion with the applicant. There was nothing planned in terms of having her present as a witness. He had no recollection of the applicant commenting to the effect of, “Isn’t this a bit draconian?”
At no stage during the meeting was he smiling at the applicant. He spoke to him in a professional manner, with an appropriate level of seriousness.
At approximately 9:15am on 27 April 2023, he received a telephone call from the applicant. He advised he would not be attending work and was not fit for work. He had spoken to Tom Gao the previous day about the show cause letter. Tom had described this as “unacceptable”, advising that the Council needed to give seven days’ notice for such meetings. Tom had said he would liaise with People and Culture.
The applicant explained he was suffering from stress, anxiety, and depression, and would meet with his doctor that day. The applicant commented to the effect of, “…I have an underlying condition I deal with every day.”
He said something to the effect of, “Yes. Since you’ve made us aware, you’ve been very well supported by Council.” He reminded the applicant of EAP. The applicant said he was seeing people more locally, including his doctor and a psychologist.
He recalled a conversation with Richard Goulston approximately 10 years ago, when the applicant had disclosed to Richard an episode of depression and that he had taken time off. When the applicant returned to work, they had a supportive conversation about his condition.
Since this time, he was aware that Council had supported the applicant by, for example, granting him a variety of leave. He had been very well supported by Richard, Kate, and himself. They had made significant efforts to cater for his needs.
They had also made efforts to adjust the applicant’s rostered shifts and patrols, according to his needs, at various times. A recent example was relieving him of the need to drive a vehicle while he was on medication for depression.
It was not accurate that the applicant’s team was placed outside his office in response to EBA matters. The Customer Service facility and the Rangers’ Section were transferred in early 2021 to better utilise available space. This was in no way connected with or in response to matters involving the EBA and associated negotiations, dating from approximately 2018.
As regards the passing of the applicant’s father in November 2022, he was provided with immediate access to bereavement leave. This was extended with annual leave over Christmas/New Year. There was also concessional leave before he returned to work in late January 2023.
On 25 January 2023, he contacted the applicant to check in on him. The applicant advised that he was on anti-depressant medication. He had returned to work and indicated that he was fit for work. He explained that if the applicant was not fit, they were prepared to continue to manage his situation and support him.

Evidence of Kate Drysdale

Ms Drysdale’s statement is dated 8 June 2023.
During approximately the week of January 2023, when she returned from leave, she was made aware by Richard Goulston of a complaint he had been handling in relation to the applicant.

Richard was preparing to take leave. He briefed her as to the nature of the matter and confirmed he was seeking responses to the complaint from the applicant. He prepared a handover with her, and she was to continue to address the matter.
On 25 January 2023, by arrangement with the applicant, she had a discussion with him and sought his account of the matter. He advised that he was aggrieved by the allegations. He said he wanted to make a formal complaint against the customer, which she found unusual.
It emerged that the applicant appeared not to have had his name badge displayed or his camera operating at the time of the incident. She tried to discuss these aspects of the matter and seek the applicant’s responses, but she found there was no acceptance on his part. He continued to go off on tangents and did not address these matters directly. It was difficult to gather relevant information.
She asked the applicant about his health and how he was adjusting to medication for his depression, in respect of which he had just taken time off. He advised that the medication did not provide a “quick fix”. He described certain symptoms, including fogginess, a blunted emotional range, and despondency.
She asked whether the applicant felt able to fulfil his role. He indicated that he was able to issue parking tickets but was unsure as to how he would be able to deal with the public. She advised him to consult his GP, with a view to the GP liaising with the Council about his situation and any needs.
In the same conversation, she informally discussed certain performance issues, including the need for the applicant to focus on re-engaging with their programs and certain aspects of his role, including productivity. This was explained in the context of a performance review process due to take place in early February 2023. She indicated that the process would be an opportunity for them to discuss these matters in further detail.
Following Richard Goulston’s return from leave in approximately early February 2023, she referred the complaint back to him. She was aware that he referred it to Mark Taylor. She was not involved with the matter after this time.
The cameras were issued in November 2021 by Axon. An Axon representative trained her in their use, after which she instructed individual staff, or small groups of approximately three, in how to use them. She could not recall whether she instructed the applicant individually or as part of a group, but he definitely received the same instruction as other staff.
To activate the camera, it was necessary to slide a button to one side and wait for a beep, after which a green light specified it was ready to record. Another button was pushed twice to start recording. If the camera was set to its factory settings, as at the time they were issued in November 2022 [sic], a luminous red light flashed to signify it was recording. That light could be turned off by adjusting the settings. To shut down the recording function, a button in the middle was pressed down and held for approximately three to four seconds.
She had encouraged staff to use the cameras as much as possible, to become familiar with their operation. She recommended they record everyday conversations to ensure that if stressful or confrontational situations arose, they would activate them effectively by muscle memory.
From a review of her records, she confirmed there was an information session for the team on 10 November 2021, provided by her and Richard. It related to how to use the camera and was refresher training for gathering video evidence. The applicant attended.
On 11 November 2021, she sent the team a follow-up email attaching the Procedures Manual and inviting them to approach her if they had any questions. The applicant did not raise any issues or concerns regarding the operation of the camera at any stage prior to the 18 December 2022 incident.
She had noticed that on approximately three or four occasions prior to 18 December 2022, the applicant omitted to take his camera when he went on patrols. She saw it on his desk. She intended to speak to him about this but was aware that Richard Goulston had reminded him in informal discussions of the need to take his camera. She spoke to the applicant regarding this issue on 29 November 2022 and recorded it in an email to Richard Goulston. At no time during this conversation did the applicant mention he did not know how to operate the camera.
There had been no changes to the set-up or operations of the camera, before or after
18 December 2022. Their settings could be adjusted. She understood the applicant discussed the settings with Isabella Paunovski in approximately February 2023, and she assisted him to customise his settings. She recalled witnessing this. The basic operation of the cameras, including their recording function, is at a more basic level than their settings adjustments.
On 9 November 2022, she had a discussion with the applicant regarding certain performance matters. A formal review process was due to commence from approximately early February 2023. She spoke with each team member regarding their performance approximately four months into a six-month review cycle. This was done to discuss any areas of focus or improvement, with a view to maximising their results at the formal review.
The issues she addressed with the applicant included excessive downtime, deficiencies in his enforcement activities, and lack of engagement in some programs. The discussion became tense at times, as the applicant demonstrated his unwillingness to accept any lack of performance or engagement.
The applicant referred to historical matters, including the EBA negotiations, suggesting he had been made a “scapegoat” for failures in the negotiations. She was not aware of any evidence of this, nor was it her view. She was not aware of any tension between management and the applicant or other rangers in association with the EBA.
The applicant indicated the duties he was performing were not consistent with the role he had signed up for. She explained that the role had changed. She accepted that the applicant had certain challenges but confirmed that relevant training had been provided. She had remained available to help him or anyone else.
Following this discussion, Richard informed her that the applicant needed to attend a care facility, as his father was unwell.
At 4:10pm that day, she emailed the applicant a summary of their discussion, as part of her normal practice. She confirmed she was aware that he had to leave work for family reasons and was thinking of him and his family. She reminded him of the EAP.
She was conscious of capturing the substance of the conversation while it was fresh in her mind. She was also attempting to balance the needs of the organisation with the applicant’s personal situation. She was not aware of the extent of his father’s health problems.
The applicant did not raise any issue about her sending this email. She first remembered him referring to it shortly after he returned to work on what she understood was
28 November 2022 following leave, during which his father had passed away. She had been under the impression he had only read her email approximately a day prior to returning to work.
On the morning of 13 December 2022, she received a call from the applicant and agreed to meet him in the Victoria Avenue Mall. He was annoyed regarding a roster issue, and what he felt was a lack of consultation.
She suggested to the applicant that he ask a colleague whether they could swap shifts. He said he could do this, and the issue appeared to her to be potentially resolved. She denied that she dismissed or “pushed back” on any concerns by the applicant, or that she simply referred him back to Richard.
The applicant had then referred to her email dated 9 November 2022. He objected to its timing and suggested it had been insensitive. She explained her reasons for sending it. She said something to the effect that she would take his comments on board, and this was something she would consider. It was evident he was still significantly affected by the passing of his father.
They then discussed the performance issues. She suggested that acknowledgment of the issues and a commitment to improving would assist his situation. She reminded him of the Council’s tips for proactively engaging with supervisors regarding the upcoming reviews.
She strongly denied saying anything to the effect that the applicant was not suited to the job and should consider doing something else. That was absolutely false.
She sent the applicant an email on 13 December 2022, following their discussion. He responded on 14 December 2022. He purported to “remind” her that he had initially approached her regarding the roster issues. He repeated his concerns regarding her email dated 9 November 2022.
She was somewhat concerned by what she regarded as the forceful nature of the applicant’s email. She had also come to expect this type of response, based on his behaviour and communication with her in the past.
In her reply dated 14 December 2022, she explained that she felt the applicant had misinterpreted her acknowledgement and empathy regarding the recent period, involving the passing of his father. She indicated that Council had been very supportive, and she had also reminded him of the EAP.
She confirmed that the applicant’s low engagement and productivity, and the need to improve his time management, had been discussed on numerous occasions, including prior to 9 November 2022.
The email confirmed that the applicant was to meet with her on 18 January 2023 for a six month review check-in, prior to the formal review process commencing in February 2023.
She confirmed that various aspects of the applicant’s performance had been of concern in recent years. With the issues continuing, she explained on 1 February 2023 that it would be necessary to progress to a formal PIP. He appeared fine with this and not outwardly upset.
In the following days, she liaised with Lexxie Fox to formalise these arrangements. She prepared the PIP, which was approved. It was formally issued on 20 March 2023 and was to run for eight weeks.
She conducted review meetings with the applicant on 5 April 2023 and 18 April 2023. He responded well and appeared to be fully compliant. Whilst there were still some areas to improve, she noted some improvement.
She found it highly surprising that the applicant was alleging any lack of support from Council. This was not consistent with her experience of his case.

Evidence of Lexxie Fox

Ms Fox’s statement is dated 8 June 2023.
On 14 February 2023, she received an email dated 10 February 2023 (the previous Friday), from Mark Taylor. He referred to a complaint made against the applicant following an incident on 18 December 2022. He was intending to conduct a formal interview with the applicant and had prepared a draft letter.
Mark Taylor sought her input and advice in relation to the matter and the content of his letter. Generally, if a complaint could be dealt with at a local level, that was attended to by the manager of the staff member concerned. In certain cases, matters could also be referred to People and Culture, as in this case.
She organised to speak to Mark at her office. She gave him advice that as part of the investigation, he should arrange to meet with the applicant and ask him a series of questions to obtain his account of what had occurred. This was necessary on the basis of procedural fairness. She confirmed the need for the applicant to be provided with appropriate notification of the meeting and the option of having a support person.
She understood that Mark informed the applicant of the above matters, with the formal meeting being scheduled for 2 March 2023. This was a rescheduled date, as the USU representative was not available for the proposed date of the meeting one week prior.
On 2 March 2023, she attended the formal meeting. The applicant’s support person was USU delegate Thomas Gao. She was present to support Mark, who was running the meeting and the investigation.
Mark outlined to the applicant the substance of the complaint and sought his responses. The applicant relied primarily on a statement or summary he had prepared, providing his version of events.
Mark asked a series of follow up questions to clarify certain aspects and the applicant’s account. The questions appeared to be relevant and procedurally fair. She asked certain questions to better understand.
Towards the end of the meeting, Mark asked a series of reflective questions of the applicant, including whether he would have acted differently in retrospect, and seeking his feedback on the general procedural and process-based matters relevant to the incident. These questions appeared to her to be relevant and appropriate.
There was nothing heated or argumentative in relation to the meeting. From her point of view, it was conducted professionally and appropriately. Mark indicated he would look further into the matters discussed before reverting to the applicant.
Following this meeting, Mark went on one months’ leave. On 3 March 2023, he sent her an email explaining he had had a conversation with the applicant, in which he advised that while the investigation was ongoing, it would not be able to be concluded until he returned from leave.
From her point of view, it was appropriate for Mark to have informed the applicant of this, to minimise any uncertainty he may have been experiencing.
On 5 April 2023, she was copied into an email from Mark to Monica Lonergan, in which he advised that he had concluded his investigation. It appeared to her that it had been conducted in a very thorough and fair matter [sic: manner]. While it recommended that a show cause process proceed, Mark had taken into account feedback from the applicant, for example in relation to aspects of the rangers’ uniforms and recommended further training for the applicant regarding the camera. She took no issue with the findings or recommendations.
Mark’s findings memo was signed off by Monica Lonergan and Linda Perrine on 19 April 2023 and the signed document was scanned back to Mark.
In the days prior to 26 April 2023, she assisted Mark to draft a show cause letter. This was consistent with their normal approach and procedures. It was intended to provide the applicant with the letter at a formal meeting and explain the findings of the investigation.
The applicant’s responses to the findings and the show cause aspects were to be sought at a further formal meeting to follow and considered prior to any further decision or determination. There was no pre-determination or conclusion as to how the matter was to progress.
Depending on the nature of the applicant’s responses, options included the matter being closed down or progressing to further disciplinary action. Mark’s findings had only suggested the possibility of a cautionary reminder being issued, should disciplinary action be deemed appropriate.
The actions taken in relation to the complaint were undertaken pursuant to the Managing Unsatisfactory Performance and Conduct and Complaints Handling policies. She consistently followed the provisions in advising Mark and they were reflected in their formal correspondence to the applicant and the investigation findings memo dated 5 April 2023.
On 26 April 2023, she was copied into an email Mark had sent to Divya Narayan, in which he advised he had just issued the show cause letter to the applicant.
She noticed that the email indicated Mark had provided the show cause letter to the applicant with less than 24 hours’ notice of the proposed meeting at 10:30am on 27 April 2023. She explained to Mark that day that this was not procedurally acceptable, but it would be appropriate to wait for the applicant’s response.
They were certainly open to rescheduling the meeting if it was required by the applicant or his union representative. They had done this in the past for cases involving the applicant and other workers.
It was clearly in the interests of all parties to finalise the matter expeditiously, and for the applicant to attend the meeting on 27 April 2023 if possible. This was particularly the case, given the delay associated with Mark having been on leave.
On 27 April 2023, she was copied into an email from Mark to Divya Narayan. He advised that the applicant asserted he was unfit for work and would not be attending that day.
She had been copied into emails attaching medical certificates provided by the applicant and a COC received on 8 May 2023.
She was aware that for approximately the last three or four years, the applicant’s managers had addressed work performance issues. She understood they had been ongoing to an extent.
She was made aware by Mark of performance-based discussions taking place with the applicant again from what she understood to be 9 November 2022.
On 16 March 2023, she attended a formal meeting with the applicant and Kate Drysdale, at which concerns regarding his performance were discussed and a proposed PIP explained to him. She observed that Kate conducted the meeting in a very clear and effective manner. The applicant responded appropriately without there being issues or dispute about the process.
After the applicant had asked certain questions and been provided with clarification on the PIP and process, he signed the PIP. She understood that it was implemented and commenced. At that stage, it was anticipated that regular meetings would take place between Kate and the applicant each fortnight.

Evidence of Monica Lonergan

Ms Lonergan’s statement is dated 13 June 2023.
The day-to-day conduct of the matter from a People and Culture perspective was overseen by Lexxie Fox, as the relevant Business Partner Lead. Based primarily on her contact with Lexxie, she was aware of the matter progressing through an investigation before coming to the point of a show cause letter being issued to the applicant on 26 April 2023, with his departure from work the day following. She was also aware that he lodged his claim in the days after.
She had no reservations regarding the way in which the investigation was handled. It appeared to have been handled pursuant to the relevant provisions of Council’s Managing Unsatisfactory Performance and Conduct and Complaints Handling policies. It also appeared to have been handled in accordance with standard investigation practices and procedures.
She had been aware of the applicant as a staff member since she commenced her employment. He and various other staff were involved in the EBA negotiations regarding a new EBA which was registered on 17 April 2019 and was still in place.
Since this time, the applicant and others had at times referred to the negotiations as a source of tension with management. She was aware of suggestions that staff involvement in the EBA process had resulted in or been linked with performance and behavioural-based discussions or disciplinary action. It was not her view or that of management that the EBA negotiations were linked to these matters, whether in the applicant’s case or that of any other staff. She was not aware of any evidence of this.
She had been made aware of instances of performance and behavioural matters arising in the case of the applicant and other staff, involving them allegedly speaking to or treating managers, including Richard Goulston, Mark Taylor, and Kate Drysdale, in an inappropriate or disrespectful way.
In approximately April 2019, the Council commissioned Pinnacle Integrity to carry out an investigation into conflict between the applicant and Richard Goulston, in particular, with Kate Drysdale also contributing to the investigation.
In approximately November 2019, the Council commissioned Zandy Fell to carry out in substance a health and cultural check of the rangers’ section.
These enquiries established, among other matters, that certain disrespectful behaviour had been engaged in by rangers, including but not limited to the applicant, towards their managers at times, with recommendations made regarding addressing and resolving these issues.

The respondent submitted that the compensation as claimed should be refused. It had provided significant evidence demonstrating a continuous chain of two critical events that led to a temporary psychological condition. The performance appraisals were conducted in accordance with a reasonable policy. The process was ongoing, thoroughly documented, and involved face to face meetings, feedback, reports, and summaries. The applicant was placed on a PIP to assist him. If this was the predominant cause of injury, s 11A of the 1987 Act, on its proper construction and application, should lead to an award for the respondent.
As regards discipline, the respondent submitted that it had set out a continuous fair and reasonable process, where serious allegations were made. Although the Commission does not have to determine the merits of the dispute, it could not reasonably be said that the respondent should have ignored the complaint and refrained from conducting a disciplinary investigation.
The respondent submitted that, irrespective of the version that was accepted, the way in which the applicant dealt with the woman was insensitive and unreasonable.
The respondent submitted that the applicant fell short in a number of areas, was required to explain his actions, and was afforded full procedural fairness. At all times, he had the benefit of a support person, and was reminded of the availability of EAP at all key points. The process was only slightly delayed due to Mr Taylor taking four weeks leave.
The respondent submitted that the “whole process” with respect to discipline was reasonable, even if one or two steps were possibly or arguably not (which is denied).
Dr Jacobson concluded that the predominant cause [of the injury] was the disciplinary action. This proposition was also accepted by Dr Anand. This comfortably satisfied the respondent’s onus of proving with medical evidence that the injury was wholly or predominantly caused by “its s 11A actions.”
The respondent submitted that if injury were found and the applicant was entitled to weekly compensation, his capacity [sic: incapacity] was de minimis and there was no evidence of a psychological disorder until he committed to seeing a medical practitioner for the purposes of workers compensation. Even then, there was significant doubt as to whether or not he was suffering from a recognisable psychological illness or just stress.
The respondent submitted that employment was not the main contributing factor, having regard to the significant family issues to which the applicant had referred, and the significant number of alleged events which should be found not to be real events, such that the applicant has failed to discharge his onus under s 4 of the 1987 Act. “Either way”, he was performing suitable duties in an alternative area by August 2023.
In the alternative, the respondent submitted that, in relation to the period claimed,
Dr Jacobson said in his report dated 13 July 2023 that the applicant could work, but he recommended a further four weeks off with a warning prior to this being expected. It would be more appropriate for the applicant to work part-time for at least four to six weeks.
The applicant should be found to have been capable of working at least 24 to 30 hours a week from 21 July 2023 to 14 August 2023; and capable of earning at least 24/38 or up to 30/38 of his PIAWE during this period.
The respondent however submitted that there should be an award in its favour.

Applicant

The applicant submitted that he sustained or aggravated a psychological disease, with a deemed date of injury of 26 April 2023, due to the following events:
(a)     in or about 2018, he was subjected to bullying, harassment, belittlement, unfair treatment, lack of support, and difficulty dealing with a toxic workplace when he was engaged in EBA;
(b)     in or about December 2022, he was assaulted by a member of the public but received inadequate support and was targeted by the respondent in response, and
(c)     in or about April 2023, he received a show cause letter, but was not afforded procedural fairness, namely insufficient notice, and no opportunity to have a support person.
The applicant submitted that there appeared to be little dispute that he aggravated a psychological disease in the course of his employment. He referred to the evidence of
Dr Anand, Ms Jallat, Dr Collard, and Dr Jacobson.
The applicant submitted that the respondent’s dispute as to s 4(b)(ii) of the 1987 Act – “main contributing factor” – must fail.
As regards the application of s 11A – reasonable action in the context of discipline, performance appraisal and/or provision of employment benefits, the applicant submitted that the respondent’s submissions focused on alleged factual disputes.
The applicant submitted that whether it was reasonable for the respondent to investigate the complaint against him is irrelevant to the s 11A defence. The complaint itself did not cause the aggravation of the applicant’s pre-existing psychological illness. (Emphasis in original).
The applicant submitted that the show cause letter was handed to him on only 17 hours’ notice. No union support could be arranged in time for the scheduled meeting.
The applicant submitted that this was “the final straw” for him, as noted by Dr Collard.
Dr Anand and even Dr Jacobson accept that the “disciplinary action” was the main contributing factor to the aggravation of the pre-existing psychological illness.
The applicant submitted that the lack of procedural fairness afforded to him was not “reasonable” to discharge the respondent’s onus to prove the s 11A of the 1987 Act defence. (Emphasis in original).
The applicant proposed an order making an award in his favour as follows:
(a) under s 36 of the 1987 Act from 12 June 2023 to 14 August 2023 at the rate of 95% x $1,359.22 = $1,291.25 per week, and
(b) general order under s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare charge.

SUMMARY

Injury

Section 4 of the 1987 Act provides as follows:

“4 Definition of ‘injury’

(cf former s 6 (1))
In this Act--

‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

I am satisfied that the applicant sustained a psychological injury arising out of or in the course of his employment with the respondent, the deemed date of which is 26 April 2023. The injury was the aggravation, acceleration, exacerbation or deterioration of a disease.
In the matter of AV v AW,[15] Deputy President Snell discussed the test of “main contributing factor”.
[15] [2020] NSWWCCPD 9.
Snell DP said, at [78]:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
While Snell DP found that the absence of supportive medical evidence was not necessarily fatal, in this matter there is ample medical evidence that addresses whether the test of “main contributing factor” is satisfied. The evidence of Dr Collard, Dr Anand, and Dr Jacobson is consistent.
The applicant was undoubtedly affected by the illness and death of his father, but the GP’s records establish that he made numerous complaints about his workplace, both before and after his father’s death. The applicant himself described his reaction to his father’s death as a “normal grieving process”.

Application of s 11A of the 1987 Act

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

Was the injury wholly or predominantly caused by action taken by or on behalf of the respondent?

“Wholly or predominantly” has been held to mean “mainly or principally caused”: Ponnan v George Weston Foods Ltd.[16]
[16] [2007] NSWWCCPD 92 (Ponnan).
Roche DP applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd.[17] In the same case, he dealt with the issue of causation, on the basis that Kooragang Cement Pty Ltd v Bates[18] applied. Roche DP said, “causation is a question of fact to be determined by the evidence in each case.”
[17] [2008] NSWWCCPD 96.
[18] (1994) 35 NSWLR 452; 10 NSWCCR 796.
The Court of Appeal recently considered the application of a “common sense” test of causation in Fisher v Nonconformist Pty Ltd.[19]
[19] [2024] NSWCA 32 (Fisher).
The appellants in Fisher argued that invocations of “common sense” were inconsistent with the statutory requirement in s 9A of the 1987 Act, relying on what French CJ, Bell, Gageler, Keane and Nettle JJ said in Comcare v Martin.[20]
[20] [2016] HCA 43; (2016) 258 CLR 467 (Martin).
Kirk JA (Meagher JA and Simpson JA agreeing) said [at 106]:
“To begin with, the High Court here did not suggest that any invocation of common sense in relation to issues of causation involved legal error. Indeed, in Hunt & Hunt[21], three members of the High Court – including French CJ, who was in Martin – said the following: ‘Causation is largely a question of fact, to be approached by applying common sense to the facts of the particular case’ (at [43]). Whilst that judgment was three years prior to Martin, it was well after the authority cited in Martin in the passage just quoted...”
[21] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613.
In my view, the evidence, which I have discussed in detail above, establishes that the applicant’s injury was wholly or predominantly caused by the respondent’s action with respect to discipline, that is, the investigation and action that followed the complaint made by AB.
The applicant himself submitted that the disciplinary action was the main contributing factor to the aggravation of his pre-existing psychological illness. I agree.
“Action with respect to discipline” is capable of extending to the entire process, including the course of an investigation.[22]
[22] Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie).
It is generally the case that medical evidence as to causation with respect to a psychological injury is required.
In Hamad v Q Catering Limited[23] Deputy President Snell said (at [88]):
“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.”
[23] [2017] NSWWCCPD 6.
In this matter, Dr Jacobson opined that the appraisals and disciplinary proceedings, along with the applicant’s father’s death, were the primary cause of Mr Fell’s condition. He noted that the applicant stopped work the day after he was given a letter advising that he had been found in breach of Council policies. In his second report, he expressed his agreement with Dr Anand.
Dr Anand opined that the disciplinary action was the predominant cause of the aggravation. He recorded that the action taken in April 2023 significantly contributed to the development of the applicant’s symptoms. The applicant described being extremely distressed when given the show cause letter on 26 April 2023.

Were the respondent’s actions reasonable?

In Irwin Geraghty J said:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of the employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
In Heggie, Sackville AJA said (at [59]):
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A(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.” (Emphasis in original).
I have set out in some detail above the process by which the complaint against the applicant was investigated, the determination of the complaint, and the manner in which the result was communicated to Mr Fell.
In my view, the respondent was obliged to investigate a complaint by a member of the public who stated that she had been extremely upset and felt humiliated by the applicant’s behaviour. She was so concerned that she changed the number of her MPS permit.
The applicant was advised of the complaint and given the opportunity to respond, with the assistance of a support person. He had the support of his union representative, the meeting having been rescheduled to allow Mr Gao to attend. Ms Fox has given evidence about the conduct of the meeting.
The completion of the investigation was delayed by Mr Taylor taking annual leave. The applicant was advised of this by Mr Taylor, in person. I accept Mr Taylor’s evidence about that meeting. His description of the applicant’s response in going over the same issues several times is consistent with the evidence of Ms Drysdale, Dr Collard, Dr Jacobson, and the applicant’s wife.

As the respondent submitted, it would be unusual for the applicant to initially nominate
Mr Taylor as his support person, if he believed that Mr Taylor was not supportive of him.
The investigation was completed expeditiously after Mr Taylor’s return from leave.
Mr Taylor found there was insufficient evidence to make a finding about some of the allegations against the applicant, which does not suggest that the investigation was “weaponised.” He concluded that the applicant had not clearly identified himself or activated his camera. He accepted the applicant’s suggestions about ways in which rangers could better identify themselves to members of the public; and recommended the applicant be provided with further training in the operation of the camera.
Neither Ms Fox nor Ms Lonergan expressed any concern about the conduct of the investigation, noting that Ms Fox had attended the initial meeting on 2 March 2023.
Ms Fox properly advised Mr Taylor that it was not procedurally acceptable to provide the applicant with less than 24 hours’ notice of the meeting on 27 April 2023, but she advised awaiting the applicant’s response.
Ms Fox stated that they would have rescheduled the meeting if requested (and Mr Taylor had rescheduled the initial meeting at the applicant’s request). Ms Fox was mindful that there had been a delay because Mr Taylor went on leave; and Mr Taylor was aware that the USU representative usually attended on Thursdays. The applicant was able to obtain Mr Gao’s advice regarding the scheduling of the meeting.
In Sinclair, Spigelman CJ said, at [96] – [97]:
“Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s 9A. His Honour appeared to approach the s 11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance appraisal, discipline, retrenchment or dismissal.’ Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context, the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.
His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.”
The applicant’s injury was wholly or predominantly caused by the respondent’s action with respect to discipline. The action was, notwithstanding the “blemish” regarding the scheduling of the meeting on 27 April 2023, in my view reasonable.
The respondent therefore has a complete defence to the claim, pursuant to s 11A of the 1987 Act.
The order is as set out in the Certificate of Determination.

[2024] NSWPIC 224

1 May 2024