Fichera v State of New South Wales Police Force
[2024] NSWPIC 255
•16 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Fichera v State of New South Wales Police Force [2024] NSWPIC 255 |
| APPLICANT: | Fabrizio Fichera |
| RESPONDENT: | State of New South Wales Police Force |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 16 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits of compensation and medical expenses due to psychological injury; worker claims injury caused by bullying, intimidation and harassment; respondent relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal; Northern NSW Local Health District v Heggie, Hamad v Q Catering Ltd and Attorney General’s Department v K considered; Held – action taken by respondent was reasonable with respect to performance appraisal and section 11A applies; award for the respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Mr Fichera (the applicant) claims psychological injury arising from the nature and conditions of his employment including bullying and harassment with the NSW Police Force (the respondent). Following assessment and internal review the respondent/insurer disputed liability relying on s 11A of the Workers Compensation Act (1987) (the 1987 Act), maintaining whilst the applicant suffers psychological injury, it was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to promotion/performance appraisal. Proceedings were then commenced in the Personal Injury Commission (Commission).
The usual case management pathway within the Commission was exhausted and as the epicentre of the dispute was causation and/or reasonableness of any action by the respondent, the parties requested determination following conciliation impasse. The issues I must determine are;
(a) whether the applicant’s employment with the respondent was the main contributing factor to his injury, and
(b) if so, whether the injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to promotion/performance appraisal.
At conciliation/arbitration, the applicant was represented by Mr Brown of counsel instructed by Ms Hagipantelis. The respondent was represented by Ms Stockley of counsel instructed by Ms Lawrence.
In determining the matter, I considered oral submissions from counsel, the documents attached to the Application to Resolve the Dispute (ARD), the Reply, Applications to Admit Late Documents (AALD) filed by the applicant on 26 March and 9 April 2024 and by the respondent on 18 March and 12 April 2024 and the law found in the 1987 Act. No oral evidence was adduced.
Applicant’s evidence
The applicant states he commenced work as a probationary constable on 14 October 2022 and began to experience difficulties when he directly reported to Sergeant Wes Taylor during part/stage 4 of his training. The statement records his mental health decline was attributable to Sergeant Taylor frequently:
(1) targeting, bullying and harassing him and make racially inappropriate comments;
(2) making frequent derogatory statements such as “You’re an idiot, you can’t speak English”, “You can’t spell“ “you can’t write” and “you can’t do this job”, and
(3) convening extensive meetings where he would be “berated for up to 50 minutes at a time” which made him feel “completely humiliated and embarrassed”.
The applicant stated he strategically planned sick days from late January 2023 when he knew that Sergeant Taylor was at work.
As regards performance appraisal, the applicant understood he had failed his training having been informed by senior management several weeks before. He understood that he had to attend a formal meeting to discuss his failure and its impact on employment and was reassured by senior management that Sergeant Taylor would not be present at the meeting, given that the tension between the applicant and Sergeant Taylor was an issue made known to management. Whilst not attending the formal performance meeting, Sergeant Taylor did speak to the applicant later that day.
The statement continues by recounting that following a period of four weeks leave, the applicant was transferred to a new station and accepted the outcome with some relief as he no longer had to be exposed to Sergeant Taylor but was confronted with a meeting where he was “given a list of 23 dot points with allegations of all the mistakes I had made at my previous station”.
The statement confirms the applicant ceased working on 6 June 2023.
On account of the bullying and harassment whilst supervised by Sergeant Taylor the applicant states he was diagnosed with adjustment disorder with anxiety and depressed mood which has impacted on his activities of daily living, family relationships, avoidance of social situations and travel along with the development of various skin sensitivities coupled with a total incapacity for work.
Dr Abdul Khan, consultant psychiatrist[1]
[1] Assessment and report dated 31 October 2023 – Folios 10-17 of the ARD.
Dr Khan took a history that the applicant felt unfairly targeted, bullied and harassed by Sergeant Taylor from early January 2023 and had taken time off work to avoid interactions with Sergeant Taylor well prior to the performance review meeting on 6 June 2023. He recounts matters raised by the applicant in the statement above. He recorded the applicant was prepared to return to work at a different station but only stopped working when he became further scrutinised about his previous work performance under Sergeant Taylor which triggered his memories about the bullying and harassment he endured.
Dr Khan considered the applicant would unlikely return to work with the respondent due to the impacts of the subject injury on “mood regulation, motivation, energy, sleep patterns, self confidence, self esteem and trust in interpersonal relationships” and recorded the applicant was exploring alternative employment options outside of the NSW Police Force and whilst prognosis was optimistic with treatment, he currently remained incapacitated for work.
Dr Shahriar Amjadi, general practitioner
Clinical notes provided by Dr Amjadi[2] confirm the applicant presented to his practice from 20 June 2023. The initial presentation on 20 June 2023 was recorded as “bullying at work problems”. The clinical notes record the applicant was a police officer at Maitland and subjected to a sergeant who has a “reputation for saying nasty things” and “failed Fabrizio for session 4 even though no grounds” (my emphasis). The records show the applicant felt anxious and knew that if his sergeant would be at work it would be a “difficult day”. The doctor recorded that inspectors have advised that sergeant would no longer be his mentor and the applicant would be transferred from Maitland to Raymond Terrace where he would not run into the sergeant.
[2] Folios 71-84 of the ARD.
A WorkCover Medical Certificate undated[3] describes the cause of injury as “Known social aggressive senior (Sergeant) unjustifiably failed performance review without valid reason as confirmed by inspectors”. (my emphasis).
[3] Folio 96 of the ARD.
In a report to solicitors dated 26 September 2023[4] it was recorded (unedited)
“Fabrizio initially presented to see me on 20 June 2023 where he complained of a Sergeant he who was supervising him was failing him in his assessments, apparently on no grounds, and as a result this was causing him to have significant distress. This was affecting his mood negatively and anxiety. Apparently this particular Sergeant had a reputation for such difficult behaviour….
Based on my consultations with Fabrizio, he seems to be quite distressed by Sergeant Taylor’s behaviour toward him and ongoing distress and reputational damage. I would agree that the bulling and harassment caused by Sergeant Wesley Taylor caused his psychological injury.”
[4] Folio 64 of the Reply.
Abbey Ferris, clinical psychologist
At initial assessment[5] on 16 August 2023, on referral from the treating doctor, Ms Ferris’ clinical note recorded “workplace bulling reportedly spanning six months”. She recorded that the applicant “would call in sick if he knew the sergeant would be at work and frequently would be anxious and tearful in the bathroom after feeling overwhelmed and discriminated against …reported a colleague found him unsettled in toilets and submitted a P902 on his behalf”.
[5] Folio 86 of the ARD.
She recorded an unremarkable medical and psychiatric history and considered “ongoing triggers are police related… does not like leaving the home as he may see police, even taking the bins out is difficult. Breaks out in hives if a work number calls his phone.”
In her letter to the treating doctor,[6] she reported (unedited):
“As you are aware, Fabrizio instigated this claim following reportedly 6 months of interpersonal concerns with a supervisor in his workplace…
I note significant symptomatology consistent with a provisional diagnosis of Adjustment Disorder of which I may revise to Post Traumatic Stress Disorder if symptoms persist. He reports pervasive rumination, physiological hyperarousal, avoidance of work triggers, hypersomnia and loss of appetite. Fabrizio also describes cholinergic urticaria triggered by stress. He reports the same onset following a key meeting immediately prior to taking time away from work; it now occurs numerous times daily, without notice, but with clear triggers in hindsight….
Per our discussion yesterday, I do not believe Fabrizio has any capacity for work at this time. I am pleased you were able to provide him with an updated certificate of capacity to cover the ensuing 4 weeks. Can I please ask that you consider commencing ADT, perhaps Sertraline to assist in reducing his anxious affect?”
Respondent’s evidence
[6] 16 August 2023 – Folios 89-90 of the ARD.
Sergeant Wesley Taylor
In his statement dated 7 July 2023, he recounted:[7]
[7] Folios 25-29 of the Reply.
i) he was the applicant’s supervisor and team leader at the Maitland Police Station;
ii) he raised a number of performance issues with the applicant both formally and informally and was concerned the applicant was not meeting the objectives or hallmarks of his training requirements;
iii) the issues raised with the applicant regarding performance related to specific key performance indicators in the probationary constable operational portfolio that applies to all probationary constables undertaking the Associate Degree;
iv) the applicant was apologetic when performance issues were raised;
v) he conducted the debriefings in a “direct; specific; but at the same time respectful manner”;
vi) he informed the applicant that he was being moved to a new team as the management team could “not longer objectively assess him anymore and that he needed a fresh start on another team to give him the best chance of meeting the requirements of his training for confirmation.”;
vii) he noticed a change in the applicant’s demeanour following the meeting on 6 June and “I strongly believe once the gravity of the situation started to settle in he started to push back with the news that he would not be passing the sessions and or remaining with his team”;
viii) the applicant’s tardiness and inaction saw two specific investigations being compromised resulting in him taking “an autocratic and intrusive style of leadership which may have been unpalatable” with the applicant;
ix) he records the applicant’s “tardiness to case work triggered regular robust discussions and difficult conversations. Some matters were a nuisance others had the propensity to be quite serious”, and
x) it was his professional opinion that the applicant could not “conceptualise or understand the responsibility he has as a constable of police and the real impact he has on people’s lives”.
Sergeant Shane Rolls, Education Development Officer (EDO), Raymond Terrace Police
In his statement dated 11 July 2023[8], he records:
[8] Folios 10-21 of the Reply.
i) he was the EDO for the applicant and identified some performance issues following session 3 of the training which caused him to commence session 4 with a SOAR activity, (Situation, Objective, Action and Result), which is a performance tool used to identify issues, document them, and identify action to follow;
ii) as several issues had been raised with regards performance, he arranged a welfare check as “such scrutiny can take its toll”;
iii) the applicant expressed “he was under a lot of pressure at work and felt targeted and that he was not getting a fair chance”… and:
“…was anxious about having to sit down for his final SOAR review that was scheduled for 6 June… and felt it was just going to be a bashing session for him and that he would not be able to defend himself from the accusations as he is just a Probationary Constable and that if he speaks back, it will be disrespectful”;
iv) he informed the applicant that if he failed session 4 that he would move teams to a “different station to give him a fresh start…I told him that I would do everything I could to get him through, but also that I could never drop the standards for him that are required to pass”;
v) the scheduled SOAR review took place on 6 June and he made the decision to exclude both Sergeant Wesley Taylor and Sergeant Mark Taylor from the meeting “so there was not so much pressure” on the applicant;
vi) when giving feedback to the applicant at the meeting on 6 June, “a lot of the things raised he had a different opinion on. I think this is where a lot of the emotions started to build with Fabrizio as we raised the issues with him” and he was informed “with all of the information before the commander, that he would likely fail session 4 and move to Raymond Terrace”;
vii) after the SOAR meeting, the applicant again approached him requesting a private conversation. This was convened in the presence of LC Williams at which time the applicant confided:
“…he was not coping with everything that happened this morning and was feeling overly emotional. He stated that it was a lot for him having to go through all the negative things that he had been accused of, and that he believed that he had been treated unfairly during session 4 by his supervisor Sgt Wes Taylor”;
viii) during this informal discussion:
“Sgt Wes Taylor knocked on the door and popped his head into the office and said words to the effect of none of what has happened is personal. We really did try everything to help you. It is not that we don’t like you. Everyone likes you but I just can’t help you anymore. Maybe it is our approach to training you. Maybe you will get though it working in another team, and I hope that is the case”.
Whilst these comments were seen to be genuine, the statement continues “this was not the best time for Fabrizio to hear them”.
ix) During the meeting the applicant informed him that he may not be able to complete his shift at which time it was considered appropriate to get Inspector Skelly involved as he was an “officer with a firearm, if he was not feeling in the best frame of mind that is an issue that needs to be addressed”;
x) Inspector Skelly determined that applicant needed to end his shift and see his doctor, the firearm was removed;
xi) the applicant did not return to work until 5 July at Raymond Terrace at which time he and the new field training officer met with the applicant to discuss next steps and specifically that he could not enrol in session 4 again until the next session started on 20 August;
xii) the applicant was informed that when the session did start again “he will need to be on a performance development plan which will run concurrently. It is a far more in depth sort of report with strategies on how we are going to address identified deficiencies with him”…. at which time “he would need to put on another SOAR report. We went through the SOAR report and all of the issues with him”;
xiii) at around midday the same day the applicant telephoned him and informed him that following the meeting that morning
“he had returned to the muster room at Raymond Terrace and attended to his outstanding correspondence. He stated that he became emotional and took himself to the male locker rooms and was feeling overwhelmed… during this phone call I explained to him that he may have pushed himself too quickly to return to the workplace…. He said that he was concerned that if he did not start the session in time that he may be failed. I explained to him that he cannot fail if he is not enrolled in the session and that he will not be re enrolled until 20 August...”
xiv) the applicant advised being yelled at by Sergeant Taylor for lengthy periods and it was affecting his sleep and he felt he was being mistreated. The statement continues that he formed the opinion the applicant was genuine in his feeling that he had been mistreated;
xv) Sergeant Taylor had admitted to him that he had raised his voice to the applicant in frustration and in response he informed Sergeant Taylor that perhaps the applicant required more “gentle feedback”, and
xvi) he personally did not witness inappropriate behaviour by Sergeant Wesley Taylor towards the applicant;
Chief Inspector Daniel Skelly, Maitland Police Station
In his statement dated 18 July 2023[9] it was stated;
i) he had little involvement with the applicant’s supervision and training until “he left work under his emotional circumstances on 6 June 2023”;
ii) he was part of the meeting on 6 June when the applicant was advised he had failed session 4;
iii) a colleague contacted him after the meeting to advise that the applicant had “made utterances about driving into a tree on the way home” which prompting him to contact the applicant who “convinced me it was just an off-handed comment”;
iv) he had never witnessed Sergeant Taylor bully or harass the applicant and any “interactions that I did witness… I would not determine as constituting bullying behaviour, but rather supervisory advice and correction”.
[9] Folio’s 30-33 of the Reply.
Constable Alex Parsons, Maitland
His statement dated 6 July 2023,[10] recounts:
i) there were a number of “performance issues which were addressed and identified through the supervisors, training officers and myself on an ongoing basis”, and
ii) following the meeting on 6 June, the applicant informed him that his shift was being terminated and he was going home. In response to a comment that he made about “drive safe”, the applicant replied “I will drive safe until the first tree I see and I will drive in to it” which resulted in an escalation of the comment to Chief Inspector Skelly.
[10] Folios 35-38 of the Reply.
P902 Form – Incident reporting form
This form was completed by Inspector Daniel Skelly on 6 June 2023 and records (unedited):[11]
“P/Cst. Fichera (the I/O) has recently been informed that he has failed session 4 of his probationary period and will need to re do session 4 successfully to remain a NSWPF employee. The I/O was informed that he would transfer to Raymond Terrace Police Station, and be supervised by a new FTO and supervisor. Some hours after the above-mentioned conversation, the I/O approached the education officer and stated that he was having difficulties in coping with what he had been earlier told and that he wasn't in the right mind to make any decisions. Due to a concern for his welfare he was further spoken to and he revealed that he is emotional and not coping well and feels stressed about him having to repeat session 4 and that he is under further stress from attending his current workplace, that being Maitland Police Station. The I/O terminated his shift early and on advice, stated that he will be attending his GP for further advice on his current state of mind. Whilst speaking with the I/O, it was apparent his in an emotional state, and close to crying.”
[11] Folio 40 of the Reply.
Dr Abdul Virk, psychiatrist
Following an assessment on behalf of the respondent dated 31 August 2023, Dr Virk diagnosed the applicant as suffering from an adjustment disorder with mixed anxiety and depression resulting in social and occupational impairment.
He further reports (unedited):
“It appears that Mr Fichera had also developed subthreshold anxiety and depressive symptoms during his time working with Sgt Wesley Taylor as he perceived Sgt Taylor’s provision of feedback regarding his performance as bullying and harassment. However, in my professional opinion, on the balance of probabilities, his psychological symptoms in relation to his interactions with Sgt Taylor did not constitute a diagnosable psychological condition. Rather, I believe that it was only after the meeting that occurred on the 6th of June 2023 that Mr Fichera developed symptomatology severe enough to result in him becoming impaired and therefore I consider that to be the predominant cause of his psychological injury. In reaching this conclusion, I have also considered the temporal relationship between this meeting and him receiving medical assistance from his GP and psychologist. I was also unable to elicit any predisposing factors or external non-work-related stressors that may have contributed to his psychological injury.”
As regards capacity, Dr Virk reported (unedited):
“With regards to a return to work, I do not believe that Mr Fichera is presently fit to return to pre-injury or alternate employment at this time, doing his pre-injury or suitable duties. I have reached this opinion after considering his persisting psychological symptoms, the mental state examination, the emotional, interpersonal and cognitive deficits he has as a result of his anxiety and depressive symptoms and the risk of his psychological symptoms becoming exacerbated if he returns to work currently….
I believe that the main barrier is his psychiatric symptoms. Another potential barrier would be Mr Fichera being subjected to performance management upon returning to work.”
In a supplementary report dated 3 April 2024,[12] following review of the witness statements and clinical history, Dr Virk reported (unedited):
[12] Folios 1-7 of the AALD filed by the respondent on 15 April 2024.
“In reaching my opinion regarding the subthreshold nature of his anxiety and depressive symptoms related to his work with Sgt Wesley Taylor, I relied on the witness statements and medical evidence. These documents suggested that while Mr. Fichera experienced certain levels of anxiety and depressive symptoms attributed to his interactions with Sgt Wesley Taylor and the surrounding work environment, these manifestations did not substantially impair his overall functioning prior to the critical meeting on 6 June 2023. The distinction lies in the nuanced understanding of 'subthreshold' symptoms, which, by definition, do not meet the full criteria for a clinical diagnosis and, as such, indicate that Mr. Fichera was able to maintain a level of professional and personal functioning despite the challenges encountered. The documentation reviewed, including various statements and the P902 incident reporting form, alongside the clinical interview and mental state examination, point towards a scenario where Mr. Fichera's symptoms, though present, did not culminate in a significant impairment in his social, occupational, or other important areas of functioning until the pivotal event of being informed about his failure in session 4 of his probationary period. This event is marked as a turning point that escalated the intensity of his symptoms to a level where they resulted in marked impairment in his social and occupational functioning. Prior to this, while Mr. Fichera described experiencing stress and anticipatory anxiety related to his interactions with Sgt Taylor, and despite facing criticism and negative feedback, he continued to perform his duties to the best of his abilities, which is indicative of a certain level of resilience and coping capacity. This is further supported by his engagement in various life activities, such as gardening, spending time with his partner, and even attending work, albeit with apprehension. Such activities suggest that while Mr. Fichera was under distress, he was not wholly incapacitated by his symptoms before the meeting on 6 June 2023…
In reviewing the witness statements provided by Shane Rolls, Mark Taylor, Wes Taylor, Daniel Skelly, and Alex Parsons, it is evident that these accounts offer a perspective on Mr. Fichera's functioning and experiences leading up to the meeting on 6 June 2023. These statements shed light on the dynamics within the workplace, the expectations placed upon Mr. Fichera, and his responses to those expectations. The statements suggest that while Mr. Fichera faced challenges during his probationary period, particularly under the supervision of Sgt Wesley Taylor, there were no explicit indications from these witnesses of significant impairment in Mr. Fichera's occupational functioning prior to the crucial meeting. The descriptions provided by Sgt Shane Rolls, for example, might highlight the rigorous nature of the training and evaluation processes, which, while potentially stress-inducing, did not singularly point to a decline in Mr. Fichera's ability to perform his duties. Similarly, the accounts from Mark Taylor and Wes Taylor, though they may outline areas of performance needing improvement or reflect the high standards expected of probationary constables, do not definitively correlate these challenges with a pronounced dysfunction in Mr. Fichera's role performance before the meeting. The feedback and interactions described could be viewed as part of the normal rigors associated with probationary training within a disciplined force such as the NSW Police Force, suggesting that Mr. Fichera, like many probationary constables, was navigating a learning curve. Daniel Skelly's and Alex Parsons' statements further contextualize the environment and expectations within the unit. While detailing the operational aspects and perhaps the shortcomings observed, these accounts also do not conclusively demonstrate that Mr. Fichera's psychological symptoms had led to a significant impairment in his functioning at work prior to the pivotal meeting. The stress and anxiety described by Mr. Fichera, as understood through the prism of these statements, appear to be within a context that did not yet drastically hinder his occupational role or broader functioning within his life spheres.
Thus, drawing upon these witness statements, it is apparent that Mr. Fichera was navigating the expectations and pressures inherent to his role as a probationary constable, with the anxiety and depressive symptoms present but not leading to significant impairment in his professional or personal life. It was the specific and consequential meeting, on 6 June 2023, as evidenced by the marked change in
Mr. Fichera's psychological state thereafter, that represents a clear demarcation in his psychological wellbeing and functioning. This aligns with the diagnostic impression of an adjustment disorder, where the symptoms and impairment are directly linked to identifiable stressors, underscoring a temporal and causal relationship between the meeting and the escalation of Mr. Fichera's symptoms.My opinion that Mr. Fichera's psychological symptoms prior to the 6 June 2023 meeting were subthreshold and did not lead to significant impairment in his functioning finds support in the further medical evidence provided, which comprises clinical notes, referral letters, and certificates of capacity among other documentation. This additional evidence offers insight into Mr. Fichera's psychological state and medical interactions over the relevant period, further elucidating the nature and extent of his symptoms before and after the critical meeting.
Clinical notes and referral letters, for instance, would have documented any significant psychological symptoms or functional impairments observed by healthcare providers in the lead-up to the meeting. The absence of documented evidence indicating severe distress or dysfunction supports the notion that while Mr. Fichera was experiencing stress and anxiety related to his workplace challenges, these did not culminate in a diagnosable psychological condition that significantly impaired his functioning prior to the pivotal event on 6 June 2023…
While Mr. Fichera's earlier workplace interactions may have laid a groundwork of stress and anxiety, it was the acute impact of the 6 June meeting that crystallized these experiences into a significant psychological injury. The distinction lies in the direct and immediate relationship between this meeting and the onset of symptoms that fulfil the criteria for adjustment disorder, characterized by marked distress and significant impairment in functioning. Thus, while acknowledging the role of prior interactions in creating a context of vulnerability, the evidence points to the meeting on 6 June as the predominant cause of Mr. Fichera's psychological injury, aligning with the clinical and diagnostic framework of adjustment disorder with mixed anxiety and depression.
In my view, it is crucial to distinguish between the general workplace stress that
Mr. Fichera might have experienced prior to this event and the acute psychological distress that followed. While Dr. Khan posits that Mr. Fichera's symptoms were primarily the result of cumulative interactions with Sgt Wesley Taylor, it is essential to consider the immediate and significant exacerbation of symptoms following the pivotal meeting on 6 June 2023. This timing aligns with the onset of Mr. Fichera's symptoms escalating to a degree that necessitated clinical intervention, thereby meeting the criteria for an adjustment disorder with mixed anxiety and depression. I also note that Mr. Fichera sought medical intervention shortly after the performance appraisal, a fact that I consider bolster the diagnosis of adjustment disorder being caused by the events during that meeting. The immediacy with which Mr. Fichera engaged with medical services following the meeting is indicative of the profound impact this event had on his psychological wellbeing. It is this direct temporal link between the meeting and the onset of clinical symptoms requiring professional intervention that is characteristic of adjustment disorder, where symptoms develop in response to an identifiable stressor and do so within a short and defined timeframe. Furthermore, the medical documentation following the 6 June meeting details an escalation in Mr. Fichera's symptoms, including heightened anxiety and depressive states, that were not evidenced to the same clinical significance prior to this event. This exacerbation aligns precisely with the timeline expected for adjustment disorders, reinforcing the meeting's role as the critical and primary stressor.”
Complaints records and Performance Records[13]
[13] AALD – Folios 1-328.
The applicant’s performance issues are thoroughly documented between 14 February 2023 until the time he ceased duties. The entries show a number of significant issues relating to timeliness and conduct which were contemporaneously raised with the applicant for which the applicant received feedback and were the subject of the SOAR review relevantly:[14]
[14] Folio’s 100-101 of the AALD filed by respondent on 19 March 2024.
Date
Feedback
13 and 14 February 2023
Failure to attend taser training as applicant reported to have slept in Also issue recorded on in failing to listen to the “radio” when an “urgent job” being called as he was watching movies or TV on his phone. (as recorded by Sergeant Mark Taylor)[15]
21 April 2023
Poor geographical knowledge
Poor police safety at a vehicle stop
Poor attention to VKG broadcasts – (as recorded by Cst Spence)
2 May 2023
Lack of action in relation to an event number
Event was resubmitted but “insufficient action” noted since 17 April 2023 (as recorded by Sgt French)
4 May 2023
Positive feedback given in relation to handling of irate customer at Maitland Police Station (as recorded by Sgt Mark Taylor)
13 May 2023
Not attentive enough at a domestic incident involving an agitated offender (as recorded by Sgt Wes Taylor)
13 May 2023
Failure to comply with brief preparation guidelines (14 day brief service) (as recorded by Sgt Wes Taylor)
16 May 2023
Failed to follow instructions to collect his OP book since 26/4/2023 – the OP book had remained unactioned since that time creating subsequent difficulties in having it completed by the due date (as reported by Sgt Rolls)
18 May 2023
Failure to complete requested action in providing identification details ( as reported by Sgt Rolls)
20 May 2023
Lack of action identified regarding OP book (as reported by LSC Muddle)
23 May 2023
Lack of action in relation to a traffic matter that was close to its statute of limitations (as reported by Sgt Wes Taylor)
24 May 2023
Breach of NSW Code and Conduct regarding completion of OP book ( as reported by Sgt Wes Taylor)
26 May 2023
Failed to hand in his OP book for review by Week 12 due date
29 May 2023
Reported late for work by 45 minutes
Not appropriately dressed for court duties
Late because he stated “he was feeling nervous about attending court”
Failed to notify supervisor that he was running late for work (as reported by Sgt Wes Taylor
1 June 2023
Unactioned fraud report resulting in Sgt Wes Taylor required to work overtime to complete the action to avoid the matter being statute barred the following day(as reported by Sgt Wes Taylor)
2 June 2023
Failure to hand in OP book to Sgt Rolls by the due date which when handed in identified;
Since 6 week review failed to record a single entry in daily activity log
Lack of information in recording
Failed to be deemed competent in the required 5 elective competencies
Numerous comments missing throughout the OP book
6 June 2023
SOAR final review at which time the applicant was given an opportunity to respond to the above issues but where it was provisionally concluded
-failed to put in a concerted effort into his operational portfolio as it was not submitted by the due date and completed to a very poor standard
-failed report to the supervisor, ready for duty, on time each shift -
[15] Folio 7 of the AALD filed by the respondent on 19 March 2024.
The records show that the applicant formally responded both at the time the shortcomings in performance was raised and following his SOAR interview and replied in essence that as he understood that he was going to fail the session, that he did not give these tasks due attention.[16]
[16] Folio’s 91-96 of the AALD filed by the respondent on 19 March 2024.
SUBMISSIONS
On behalf of the respondent it was submitted:
(a) injury is not in dispute. The respondent accepts that the applicant sustained an injury within the definition of s 4b of the 1987 Act but seeks to rely on the defence found in s 11A of the 1987 Act specifically with regards to promotion and performance appraisal;
(b) the respondent understands that it bears the onus of establishing that employment was the whole or predominant cause of injury and also that its conduct was reasonable and is satisfied that it can easily meet that onus;
(c) the evidence demonstrates that the whole or predominant facts that give rise to the applicant’s injury was the meeting that transpired on 6 June;
(d) the actions taken by the respondent are objective and reasonable and the way the respondent dealt with the situation was fair;
(e) it is not accepted that the applicant’s injury arose out of bullying and harassment and whilst the perception of the event may be sufficient to constitute such a view, they must be based on real events. I was referred to the matter of Attorney General v K.[17] Here the applicant alleges that he was “unfairly failed” but the performance documents verify poor performance and so his view is not based on ‘real events’;
(f) as for the performance process, it was thoroughly documented via the SOAR process. Whilst the feedback on tasks was largely given by Sergeant Wes Taylor, the process was overseen by Sergeant Rolls, the educational development officer with whom the applicant had developed trust and shared confidences. Despite Sergeant Rolls overseeing the process between February to June, and having frequent contact with the applicant, there was no contemporaneous complaint of bullying, harassment or racial discrimination made to him, although it was recorded that Sergeant Taylor could have taken a “softer” approach in his communication;
(g) the performance review documents whilst nominating key areas for improvement also highlights positive achievements, with the negative feedback being related to failures in multiple areas all of which relate to directly relate to the core competencies required of a constable;
(h) the first consultation with the treating doctor did not take place until 20 June 2023 at which time the applicant said that he was anxious but this did not translate into any psychiatric diagnosis, there was no “injury” or “incapacity from injury” reported prior to that time;
(i) the applicant continued to remain at work until the performance review meeting on 6 June 2023 and so it cannot be claimed that there was any psychological incapacity arising out of any other matters, such as bullying and harassment as there is no contemporaneous complaint or medical evidence to support such a claim;
(j) as to the claims for incapacity, the respondent’s defence is causation and it makes no submissions in relation to incapacity or treatment, and
(k) pre-injury average weekly earnings (PIAWE) is not in dispute.
[17] Attorney General's Department v K [2010] NSWWCCPD 76.
On behalf of the applicant, it was submitted;
i) I was referred to the commentary on performance appraisal in the matter of Irwin –v- Director General of School Education[18] particularly the comments relating to the process of performance appraisal;
[18] Irwin –v- Director General of School Education NSWCC 14068/97 Unreported
ii) the respondent’s case has nothing to do with promotion and relates solely to performance appraisal;
iii) the ultimate outcome will depending on findings relating to medical causation and so the evidence of third party witnesses carry no weight;
iv) the applicant’s injury did not arise out of performance appraisal or the SORE plan but rather the treatment of him by Sergeant Wes Taylor and events prior to 6 June 2023;
v) the applicant received constant criticism from Sergeant Wes Taylor that was not in the process of any performance appraisal and specifically the applicant endured belittling comments about his ethnicity, inability to spell and was subject to prolonged meetings where Sergeant Taylor would speak in a raised voice so that the discussion could be heard by other colleagues, this being the main cause of his injury;
vi) the applicant did not raise his concerns prior to 6 June 2023 to his general practitioner because of ‘police culture where it is encouraged to keep these matters to oneself and push through and bulldoze through them’;
vii) the statement of Sergeant Wes Taylor does not respond to the issues raised by the applicant particularly the manner in which he treated him but does acknowledge he adopted an ‘autocratic style which may have been unpalatable to the applicant’;
viii) there is no evidence to contradict that Sergeant Wes Taylor treated the applicant poorly by yelling at him but these are the complaints made to the treating doctor and psychologist when the applicant approached for medical assistance, such allegations being made before the claim was declined on the basis of s 11A;
ix) the case theory being pronounced by the respondent is an artificial construct on causation which primarily relies on the temporal connection between the meeting and psychiatric symptoms and ignores the complaints made by the applicant about bullying by Sergeant Taylor;
x) the report of Dr Virk refers to a statement made by Sergeant Mark Taylor, yet it is not in evidence and it should be inferred that this statement does not assist the respondent’s case;
xi) whilst Dr Virk attempts to analyse the witness statements and the performance review process he fails to acknowledge the applicant’s complaints to his general practitioners which contains ‘powerful evidence’ of what the applicant’s historical grievances were and his level of symptoms;
xii) psychological injuries are generally cumulative and it is clear that the applicant had been experiencing symptoms prior to 6 June and it was only that meeting that was the ‘straw that broke the camel’s back’;
xiii) Sergeant Wes Taylor’s attendance at the meeting on 6 June was not reasonable especially when he was not on the official attendance list, having been excluded by Sergeant Rolls, and
xiv) in summary there is insufficient evidence to find that the predominant or whole cause of injury was the SOAR meeting on 6 June. Alternatively, Sergeant Wes Taylor’s attendance at that meeting was not reasonable and so the respondent’s defence fails on that basis.
Submissions by the respondent in reply;
i) the attendance by Sergeant Taylor at the informal meeting on 6 June is of no consequence and does not corrupt the otherwise formal reasonable process, and
ii) that I cannot adopt the applicant’s evidence of what he believes is the causation of his injury but rather turn to the medical evidence relating to causation (Hamad’s case)
APPLICATION OF THE LAW, FINDINGS AND REASONS
A psychological injury must satisfy the definition of injury within the meaning of section 4 of the Act (relevantly)
"‘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…”
The parties agree that the applicant suffers from a psychological condition but causation is in dispute. The applicant alleges he sustained injury as a consequence of bullying and harassment by his supervisor and this was the main contributing factor to the ‘disease’ injury. The respondent maintains there is no medical evidence to support this argument (and in any event this behaviour is denied), and that the evidence demonstrates injury and incapacity occurred following performance appraisal meeting on 6 June 2023, relying on s11A of the Act.
Section 11A (1) of the Act provides:
“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.” (my emphasis)
At this juncture, it is prudent to unpack s 11A a task which is easier said than done.
What is a psychological injury?
Fortunately, this is defined in s 11A (3A) of the 1987 Act as;
“‘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.”
Authorities establish the following:
i) In order to prove that a psychological injury has occurred, an injured worker must prove that either the nervous system was so affected, that a physiological effect was induced or that there has been an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition. Mere emotional impulse, anxiety state, frustration and emotional upset, or a “straight litigation neurosis”[19] do not constitute psychological injury.[20] (Stewart)
ii) A finding of psychological injury requires expert evidence that such an injury is present.[21] (Calka)
iii) In considering the issue of establishing psychological injury in circumstances of the worker's perception of events at work, Roche DP in Attorney General's Department v K,[22] provides:
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the 'egg-shelled skull' principle (Spigelman CJ in Chemler at [40]);
(b)so long as the events within the workplace were real, rather than imaginary, it does not matter that they have affected the worker's psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(c)there is no requirement at law that the worker's perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(d)it is not necessary that the worker's reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered (at [52]).”
[19] New South Wales v Rattenbury [2015] NSW WCCPD46.
[20] Stewart v New South Wales Police Service (1998) 17 NSWCCR 202.
[21] HammondCare v Calka [2016] NSWWCCPD 2 at [118]-[123].
[22] Attorney General's Department v K [2010] NSWWCCPD 76.
What does “wholly or predominantly” mean?
This term is not defined by the 1987 Act. Review of authorities establish the following:
i) “wholly” and “predominantly” are separate concepts and only one of the definitions needs to be satisfied. The words are independent of each other;
ii) it is generally accepted that it means “mainly or principally caused”;[23]
iii) the question of causation must be addressed by medical evidence, and[24]
iv) causation is a question of fact to be determined on the evidence in each case.[25]
[23] Ponnan v George Weston Foods Ltd[2007] NSWWCCPD 92 (Ponnan).
[24] Hamad v Q Catering Limited [2017] NSWWCCPD 6.
[25] Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452.
What does “reasonable action” mean?
Again, not defined by the 1987 Act and difficult to succinctly define, however the following non exhaustive summary of key principles has been extracted from authorities:
i) in determining whether conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer;[26]
ii) the test is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all circumstances, by questions of fairness;[27]
iii) when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected;[28]
iv) the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken;[29]
v) reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action;[30]
vi) procedural and policy documents of the employer will be relevant evidence to consider. However, reasonableness will not be established simply because the employer complied with their own protocols if those protocols were not reasonable, and[31]
vii) the concept of reasonablenessdoes not require a counsel of perfection. It requires, that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.
[26] Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWCCPD 66 at [82].
[27] Irwin v Director General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998, unreported).
[28] Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998).
[29] Northern NSW Local Health Network v Heggie[2013] NSWCA 225.
[30] Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.
[31] Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 at [81].
What does performance appraisal mean?
Authorities establish;
(a) An extended and continuing assessment process may not be a performance appraisal. The process and the time taken to engage in it must be objectively reasonable in all of the circumstances of the case.[32] (Dunn)
(b) Performance appraisal:
“is not a vague, continuing, informal process. It is defined to be somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discreet process, with a recognised procedure to which the parties move in order to establish employee’s efficiency and performance”.[33] (Irwin)
[32] Dunn v Department of Education and Training [2000] NSWCC 11.
[33] Irwin v Director General of School Education NSWCC 14068/97 Unreported.
The applicant has claimed multiple issues which caused stress during the course of employment prior to the cessation of work on 6 June 2023. There was a perception that he was being bullied and harassed and unfairly treated. The respondent’s witnesses dispute the claims but acknowledge that the applicant was the subject of robust discussions with his supervisor. The communication style of Sergeant Wes Taylor was considered appropriate by the independent witnesses but there was a concession made by Sergeant Rolls that perhaps the approach could be “softer”. I have no reason to doubt the veracity of the applicant’s evidence of perception of these real events (Attorney General v K). However, what is concerning is that the applicant reported to his general practitioner that Sergeant Wes Taylor “was failing him in his assessments, apparently on no grounds, and as a result this was causing him to have significant distress”. I find this perception is not based on ‘real events’ as the records demonstrate performance issues “grounds” that were well documented by the SOAR performance management tool (and which the applicant acknowledged contemporaneously) resulting in the meeting on 6 June 2023 and ultimate decision deeming the applicant failed stage 4 of the mandatory training.
The applicant argued that events leading up to the 6 June 2023 meeting constituted an injury within the meaning of the Act. To succeed on this point, the applicant must demonstrate on the balance of probabilities that the conduct complained of resulted in an ‘injury’ within the meaning of the Act. Whilst briefly summarised above, in the case of psychological injury, it is necessary to emphasise the applicant must show that:
“the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse ... …Frustration and emotional upset do not constitute injury ... nor, ... a mere ‘anxiety state’ .... a ‘straight litigation neurosis’ is not compensable; ... a misperception of actual events, due to the irrational thinking of the worker leading to a psychiatric illness is not compensable ... It follows that subsequent rationalisation of earlier innocuous events, which rationalisation leads to psychiatric illness is also not compensable. Furthermore, once the applicant has established ‘injury’ ….incapacity for work resulted therefrom.”[34]
[34] Stewart v NSW Police Force [1998] NSWCC 57.
Authorities also establish that if conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment and a cognizable injury followed, it is open for the Commission to conclude that causation was established.[35]
[35] State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 Basten J.
The first presentation to the general practitioner on 20 June 2023 records “anxiety”. There is no contemporaneous evidence to establish that the applicant sustained ‘injury’ and ‘incapacity’ prior to the 6 June 2023 arising from the conduct of Sergeant Taylor or any workplace activity.
Having regard to the evidence and authorities I cannot find that there was any incapacity or injury arising from alleged bullying and harassment of the applicant prior to 6 June 2023 (Stewart). There does appear to be anxiety and tension but no diagnosable injury resulting in incapacity prior to that time, with incapacity following only after the 6 June 2023 meeting when the applicant presented to his general practitioner maintaining he had been bullied and “failed without reason” on 20 June 2023. This may be the applicant’s perception but as indicated earlier, it is not factual. He had not been failed without reason. Extensive assessment via the SOAR process reveals that key elements of his performance had not met the satisfactory standard to progress to the next level/stage. It was only following the meeting on 6 June 2023 that an expression of self harm was reported as a result of the appraisal.
Next, it is necessary to determine whether the meeting on 6 June 2023 was in fact performance appraisal with reference to s 11A of the 1987 Act.
I find that the SOAR process was a performance evaluation process and the meeting on 6 June was in fact the performance appraisal as defined by Irwin and Dunn. I further find that the applicant was given appropriate notice and support throughout the process.
As seen above, the final straw seems to have been when the applicant attended the SOAR meeting on 6 June 2020 at which time failure of stage 4 was confirmed along with the circumstances that brought on that failure. The applicant was given a proper opportunity to respond to the claims and his responses acknowledge the shortcomings in performance and attempt to explain them. Further the evidence establishes that the applicant had full knowledge of the performance issues and had been under the SOAR performance management process having been given feedback, adverse and otherwise over a period of four months. The history shows the applicant was given an opportunity to rectify the deficiencies and further that the deficiencies in performance were contemporaneously conveyed to him. Further, I find that the deficiencies identified were not personal to him but related to core competencies applied to all officers completing the associate diploma in policing and which are mandatory to ensure the smooth operation of the vital services of the Police Force.
The evidence demonstrates that applicant had trust in Sergeant Rolls who was his education officer confiding various difficulties to him. I find the evidence reveals the applicant continued with his work until 6 June 2023 without informing Sergeant Rolls that he was the victim of bullying and harassment but more importantly racial discrimination, (however these matters were raised on 6 June 2023 in response to the allegations made relating to his performance). The statement of Sergeant Rolls acknowledged the SOAR process was stressful and as a result he conducted welfare checks to ensure that the applicant was coping as “such scrutiny can take its toll”. I also find there was no complaint made to his general practitioner about such mistreatment alleged to have occurred between February and June 2023 until initial presentation on 20 June 2023 where the applicant reported he was “anxious” going to work and that he “Sergeant failed Fabrizio for session 4 even though no grounds”[36] (a claim that has been established to be factually incorrect).
[36] Folio 71 of the ARD.
The evidence also demonstrates that following the meeting on 6 June 2023 the applicant started to decompensate, terminated his shift and threatened self-harm. His firearm was removed by his Inspector in response to his conduct.
Dr Virk has acknowledged that events prior to the 6 June 2023 were a cause for anxiety but did not actually result in any psychological diagnosis, with the chronology of events demonstrating that a diagnosable injury and resultant incapacity arose following the performance appraisal meeting on 6 June 2023. I find this assessment to be consistent with the reports to the general practitioner and the chronology of events summarised above.
The applicant submits Sergeant Taylor’s attendance at the SOAR was not reasonable, but it needs to be noted that neither Sergeant Wes Taylor nor Sergeant Mark Taylor participated in the formal SOAR meeting on 6 June, being excluded from that formal meeting process by Sergeant Rolls to make the process more comfortable for the applicant. However Sergeant Wes Taylor did speak to the applicant following the formal meeting when the applicant sought further assistance/advice from Sergeant Rolls (at which time an informal meeting was convened) but by that time the formal performance appraisal meeting and a decision on the applicant’s fate had concluded. I find that this conduct did not impact on the reasonable action surrounding the convening and undertaking of the formal meeting.
I also note that the applicant has been critical of the respondent’s failure to provide statements by Sergeant Mark Taylor and I was asked to draw an inference that the statement of Sergeant Mark Taylor would not have assisted the case. This is acknowledged although the documents provided relating to the SOAR contain at least two entries of shortcomings in the applicant’s performance by this officer, (paragraph 28 of these reasons refer) and I also cannot ignore that he was excluded from the SOAR performance appraisal meeting on 6 June 2023 by Sergeant Rolls.
Having regard to the authorities discussed above, I find on careful review of the evidence that the performance appraisal process on 6 June 2023 was reasonable action as the applicant was well aware of the actions, procedures and policies and there had been regular supervision and updates and he was put on notice about possible failure. The process is a departmental one consistently applied and undertaken in cases where performance is in issue and well documented. This of itself does not make it reasonable, as the entire circumstances must be reviewed, however, given the role of the applicant, the nature of the employer, the mandatory base line competencies that must be demonstrated (and on which the community relies), I find that the process and indeed the way in which it was carried out was reasonable action. This is because; the applicant was not taken by surprise, having been placed on notice and given an opportunity to meet core competencies. At all times he was aware that failure to meet the core competencies could result in him failing stage 4 training. I further find the exclusion of both Sergeant Wes and Mark Taylor from the performance appraisal meeting to have been reasonable and appropriate given that the applicant had made his anxiety known to Sergeant Rolls.
Further, I find that the medical reports and the chronology of events sufficiently establish on the balance of probability that ‘injury’ and ‘incapacity’ arose ‘mainly and principally’ as a result of the performance appraisal on 6 June 2023 with symptoms prior to that time not resulting in incapacity but rather emotional upset, anxiety state and frustration (Stewart).
Having regard to the totality of the evidence, I am satisfied that the respondent has discharged its onus on the balance of probability that the applicant’s injury was predominantly caused by reasonable action taken with respect to performance appraisal.
SUMMARY
For the reasons above, I find that the psychological injury was predominantly caused by the reasonable action taken by the respondent with regards to performance appraisal. This means the s 11A defence succeeds and there will be an award for the respondent.
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