Gallo v Wollongong City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gallo v Wollongong City Council [2021] NSWPIC 470
APPLICANT:	Priscilla Maree Gallo
RESPONDENT:	Wollongong City Council
MEMBER:	Paul Sweeney
DATE OF DECISION:	28 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Respondent disputes liability to pay compensation to a library worker on the basis that her psychological injury predominantly resulted from its actions with respect to discipline and performance appraisal within section 11A(1) of the Workers Compensation Act 1987; See v Commissioner of Police and Kushwaha v Queanbeyan City Council considered but not followed; Held - the respondent had not proven that its actions with respect to discipline and performance appraisal were the predominant cause of worker’s psychological injury; award for the worker during first and second entitlement periods.
DETERMINATIONS MADE:	1. Respondent to pay the applicant weekly compensation at the rate of $1,514.44 from 23 November 2018 to 21 February 2019 pursuant to section 36. 2. Respondent to pay the applicant the sum of $1,275.80 per week from 22 February 2019 to 17 May 2020 and from 23 September 2020 to 21 May 2021. 3. Respondent to pay the applicant the sum of $1,275.80 per week less wages actually paid by the respondent for the period 18 May 2020 to 22 September 2020. 4. Liberty to apply in respect of the above calculations. 5. Credit to the respondent for weekly compensation paid during this period. 6. Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60. 7. Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment as a result of psychological injury which is deemed to have occurred on 23 November 2018 as a result of the applicant’s employment prior to that date. 8. Medical Assessor to have access to the documents set out in paragraph 11 of the statement of reasons.

STATEMENT OF REASONS

BACKGROUND

Priscilla Gallo (the applicant) was a very long-term employee of the Wollongong City Council (the respondent). At the time of the events described below, she was employed as a senior library officer.
During March/April 2018, the respondent’s Central Library commenced planning a children’s services program as part of its contribution to Pride Week. One aspect of the children’s program was a “Story Time” featuring a local drag queen performer known professionally as Roxee Horror. The event took place on 14 July 2018 and was attended by some 350 people “mostly families & children”.
The applicant was offended and perturbed by the promotion of the event, the community reaction to it, and the perceived lack of support from officers of the respondent for her concerns. Following the event, she forwarded an email to several of her [redacted] at the Wollongong Library which contained strident criticism of their role in the staging of the drag queen story time and their response to her concerns.
As a result of this email, the senior staff of the library convened two meetings with the applicant and her attitude towards the drag queen story time event became a concern at her annual performance review.
In November 2018, the applicant ceased work. With the exception of a period of part-time work in 2020, she has not returned to the workforce. It is accepted by the parties that she suffers from a psychological injury arising out of and in the course of her employment.
The respondent, however, disputes liability to pay the applicant compensation on the basis of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). It contends that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline and/or performance appraisal.

PROCEDURE BEFORE THE COMMISSION

When the matter came on for conciliation and arbitration in the Commission on 6 October 2021 Mr Morgan, of counsel, represented the applicant and Mr Coombe of counsel represented the respondent. The conciliation and arbitration was conducted over the telephone.
I was informed by counsel that the parties were unable to resolve the threshold question of the applicant’s entitlement to compensation. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to achieve a settlement both before and at the conciliation conference but were unable to reach a mutually satisfactory compromise.
By these proceedings the applicant claims weekly compensation from 19 January 2021 to date and continuing, an indemnity in respect of her medical and hospital expenses pursuant to s 60 of the 1987 Act, and permanent impairment compensation pursuant to s 66 of the 1987 Act.
While the various dispute notices issued by the respondent raised issues of injury and notice, Mr Coombe indicated that other than the defence under s 11A(1) relating to performance appraisal and discipline, the only other substantial issue which would be raised at the arbitration hearing was incapacity. There was also some discussion as to the date from which weekly payments should be ordered should the respondent fail in its defence pursuant to s 11A(1). I expressed the view that it was difficult to reconcile the claim for weekly compensation from 19 January 2021 with a notional date of injury for the purposes of ss 15 and 16 of the 1987 Act of 23 November 2018. In that interval the applicant was paid a short period of compensation and extensive periods of sick leave. It will be necessary to return to this issue at the conclusion of these reasons.

EVIDENCE

The documents in evidence before the Commission are as follows:
(a)    the Application to Resolve a Dispute and the documents attached;
(b)    the Reply and the documents attached, and
(c)    Applications to admit late documents dated 29 September 2021 and 1 October 2021 and the documents attached to each.
There was no objection to any of the material referred to above at the arbitration hearing. There was no application to adduce further written or oral evidence.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to record each of the arguments of counsel in these short reasons. In order to understand the respective positions of the parties, however, I record the following matters.
The respondent argued that the applicant’s interference with promotional material for the drag story time event, including the turning around of posters in toilets to conceal the promotion and the turning away from her of posters in the work areas of the library, together with the objectionable email forwarded by the applicant on 18 July 2018 constituted a breach of various policies of the respondent. The former was in conflict with the respondent’s Workforce Diversity plan in force at that time. The latter was in breach of its Positive Working Relationships policy. Conflict between the applicant and her [redacted] concerning the contents of her annual skills and performance management assessment (SPMAS) was consequential on these breaches by the applicant of the respondent’s policies.
Mr Coombe submitted:
“This matter really has to be looked at through the prism of the employer’s relationship with the broader community and its intended actions in July 2018 to participate actively in the Pride month”.
Viewed from this perspective the series of meetings between the applicant and her [redacted] commencing on 30 July 2018 readily fell under the rubric of discipline. They involved chastisement of the applicant for her breaches of the various policies. A careful analysis of the evidence of the applicant’s [redacted] would reinforce the conclusion that discipline was a significant factor in the calling of these meetings. Further, the policies of the respondent and their implementation by the senior staff of the Wollongong Library in the circumstances of this case were eminently reasonable.
Mr Morgan argued that the respondent had not identified any “incident that could properly be classified as a (disciplinary) matter or as a disciplinary process”. He argued there was never any suggestion that the applicant’s employment was in jeopardy or that disciplinary steps were to be implemented. On the contrary, the respondent’s statement evidence is “at pains to emphasise that this was not a disciplinary process”. In this case the employer was really engaging with the worker to understand her position and to try and have her understand their position rather than the commencement of a disciplinary process.
Counsel also made submissions in respect of weather the applicant’s psychological injury was wholly or predominantly caused by the respondent’s actions in respect of discipline and performance appraisal.

The Council’s policies

It is unnecessary to recite in detail the Council’s policies to which I was referred. The Diversity policy related primarily to the employment of people of different age groups, from different ethnic backgrounds, of different faiths and of different sexual orientations. Clause 4 which is headed “Employee Responsibilities” is as follows:
“4.1   Support and respect equity, workplace diversity, ethical practices, workplace safety and to help prevent unlawful discrimination and harassment or bullying in the workplace.
4.2    Participate in workforce diversity training and awareness sessions as requested.
4.2    Treat all employees, customers and members of the community in a fair and equitable manner in accordance with Council’s values and workforce diversity principles.”

The Positive Working Relationships policy and the respondent’s Code of Conduct, which employees were obliged to comply with, prohibited bullying and harassment. Clause 3.6 of the latter states that:
“The Wollongong City Council is committed to providing a safe and harassment-free workplace. You must not harass, discriminate against or support others who harass or discriminate against colleagues or members of the public. This includes, but not limited to, harassment on the grounds of homosexuality, transgender.”
It also states:
“Further provisions relating to bullying, harassment and acceptable workplace behaviour are contained with the positive working relationships policy.”
Before addressing the issues in dispute, it is necessary to briefly outline the evidence of the applicant. What follows is not a comprehensive survey of her evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.

The applicant

By her statement of 19 May 2020, the applicant records her disquiet with the “drag pre-pre-school story time” session. She states that she privately expressed the opinion to the [redacted], that it was inappropriate, “imposing adult sexuality on children”.
The applicant says that in the period following the publication of an article in the Illawarra Mercury about the promotion, complaints were received on social media and from people visiting the library. She says:
“The controversy became a huge issue and very difficult for me to deal with. This was fuelled by comments published in the Illawarra Mercury. There were hate posts being sent to the library i.e. anti-gay hate messages. Insofar as my role was concerned I was having to speak to people regularly who were complaining and/or supporting the event and it was very stressful. Often teary during my daily shifts, I was having to defend the event and event organisers although in my heart I didn’t agree with it.”
The applicant recounts that as the date drew closer there were posters in the staff area promoting the event and also promoting toleration. On 28 June 2018, she sent an email to [redacted], expressing concern in relation to the material and “requesting support for a neutral staff area”. She had a meeting with [redacted] on 2 July 2018 at which she says that [redacted] advised her that she would “request staff to remove the items on display”. The applicant also says that she turned promotional material on display in the front of the desk area where she worked away from her “as a coping mechanism”.
On 9 July 2018, [redacted] advised the applicant that the library’s [redacted], had looked into the issue of the posters and said that “there was no problem with it”.
The applicant says that she enquired of [redacted], as to whether the help offered in an email from a Wollongong City councillor was available to her. [redacted] responded that help was available to her through the respondent’s employee assistance program (EAP) . The applicant was unimpressed by this response.
The applicant states that on 18 July 2018, she sent an email to [redacted]. It was this email that precipitated the meetings between the applicant and her [redacted] and I will set out aspects of it below.
The applicant records that she attended a meeting on 30 July 2018 with [redacted] where she tried to express her concerns. She states:
“This meeting was highly emotional. I was crying uncontrollably at times, I could not speak. A break was not provided to enable me to reset, the meeting continued.”
A further meeting followed on 13 August 2018, with [redacted]. The applicant records:
“During this meeting I was subjected to comments from [redacted] regarding drag story time ‘could be seen as harassment to other staff’ if I did not support the event. I felt that no impartial support had been demonstrated or offered and at no time did any managers come to the public area whilst I was on duty for a welfare check.”
The applicant then recounts the circumstances surrounding her performance appraisal (SPMAS) which took place in August 2018 with her [redacted]. Both women signed off on the performance appraisal. There was no mention of the applicant’s complaints concerning the Pride Week promotion or her email to senior staff at the library. However, when the document was reviewed by [redacted] comments were included that the applicant had voiced “concerns involving the Wollongong Council library’s move towards the inclusive and diverse programming activities”. The applicant refused to sign the SPMAS document.
Then, by letter of 27 August 2018, [redacted] wrote to the applicant stating that:
“Broadcasting negative commentary about colleagues and managers may be considered to be a breach of the Council’s organisations values and code of conduct’ However the applicant maintains in her statement that she did not say anything adverse whatsoever about colleagues or managers. All I did was express frustration and to seek impartial support through a difficult time.”
The applicant says that she then met with her union representative on 18 September 2018 to discuss the comments made by [redacted] in her SPMAS document. She says that she believed her grievance “was centred around the lack of support not programming”.
At a further meeting with [redacted] on 19 September 2018, the applicant says that she reiterated that she did not have a problem with the LGBTQI community, however, the Drag Queen Storytime promotion had made her feel “disrespected and not valued”. She said that she felt upset every day at work. She says that she was highly emotional during the meeting.
On 10 October 2018, the applicant attended a further meeting arranged with
[redacted] at which she complained about the comments made in the SPMAS document. She states that as a consequence of the discussion [redacted] agreed to withdraw the “incorrect comments” from the document. However, [redacted] told her that she had lacked respect and failed on Council’s values and that if she had had her way “I would have been disciplined”. She continues:
“She said she was surprised no disciplinary action had been taken. She then said there are numerous paedophiles in the Catholic Church.”
And that
“I could be seen to be homophobic up the chain by my attitude”.
The applicant says that during this meeting she was crying uncontrollably. She states that she was shocked by [redacted]’s remarks as she believed the meeting agenda “was to discuss the incorrect comments made on my performance appraisal”.
The applicant then says that she received an email on 12 October 2020 from
[redacted], which referred to her attitude towards LGBTQI programs. The applicant says:
“Once more I at no stage had I expressed any attitude towards these groups. My main focus was on the community reaction and the impact on the front-line library workers. At all time I performed my duties professionally and I had defended the program to the numerous people who were either phoning or turning up to the library to complain about it. I felt deeply aggrieved that I was having to defend myself simply because
I held a personal belief.”
The applicant recounts that in the period following the Queer Arts Festival events, she was constantly thinking about the series of meetings, the accusations and:
“the way in which I had been simply trying to seek support during a difficult time to help me face what I felt was an occupational health and safety issue, instead things had been turned around to become an attack on me.”
The applicant says over the next several weeks while she continued to work she was constantly thinking of the accusations of homophobia, poor attitude, and that she was “a time waster”. She says that she felt deeply depressed and “was crying at work regularly”. She went off on sick leave on 22 November 2018.

The applicant’s email of 18 July 2018

As this email appears to have precipitated the series of meetings with the applicant convened by senior staff of the respondent, I attempt to set it out in full below:
“Hi AII I need to get this off my chest ...•• I will address the weeks leading up to the event of Drag story time. Pride July- posters in the Library I voiced my concerns 7 May 18 Sensitive displays in the staff areas, I voiced my concerns asking for displays to be neutral in all staff areas. 2 July 2018.Drag Storytime and the 78ers Mardi Gras activists part of the Queer Arts events Illawarra Mercury ~ drag queen centre stage at Storytime will not be everyone's cup of tea when walking into Wollongong Library, but the [redacted] doesn't care'
[redacted] - How disappointing to see a [redacted] who doesn't care ..•.. doesn't care about the community? Doesn't care about the staff? Me? How embarrassing to see this so public in our local paper. This is not a display of leadership nor trust and confidence.
Social Media and the public response. As a front line staff member, I wonder, when rostered, will I be abused. Adam Larkham and the public response started with himself. When you have a public facebook page displaying inappropriate photos and videos what did he expect. Did event staff vet the suitability of this 'entertainer' for the purpose of children’s story time? How appropriate 'up the bum no kids' and others etc his public persona by his own hand is questionable and the public have responded and given Adam reality check. Did you really think Adam was a good role model for this activity [redacted]?
[redacted] - Your standard response to seek assistance from EAP is upsetting. You have treated me just like a member of the public reaching out to you for assistance. As a member of the Central team I would expect a impartial view with a little more support. Only when I challenged did you offer a meeting.
[redacted] -An email sent 28/6/18 regarding 'Our staff areas are not the place to display any items, material etc on any subject that may be deemed sensitive and or offensive.' I stand by this email.
[redacted] - The council policy 'Positive working relationships' is not supporting me. This is a sensitive situation based on my religious belief and values. For this policy to respect and support me it will in turn be deemed disrespectful to others. I would like to see a non-bias neutral work environment respected and valued by all. I would never and have never, displayed my views to my colleagues in the staff areas.
[redacted] - Thanks for listening again and again and again
[redacted] - Recent meeting minutes have staff concerned with rise in incidents in the library. These incidents have an impact on staff with the last incident having a greater impact on me. Why is this, I'm not sure, maybe because it was a critical incident maybe because it’s been a few over the years. My sensitivity levels are currently high due to the lack of respect I currently feel at work.
The current environment at work is only just bearable I have received unwanted emails with links to articles re drag story time, emails from Councillors with their own political agendas to the point I have asked for it to stop. I regard the drag story time articles, publicity, environment at work and the unwanted emails having an effect on my wellbeing.”

DISCUSSION AND FINDINGS

Was the meeting of 30 July 2018 a meeting with respect to discipline?

By his statement of 6 February 2020 [redacted], the respondent’s [redacted], says that after receipt of the above email, he conferred with [redacted]. It was agreed that “distributing negative comments about staff was in breach of Council’s Code of Conduct and values”. It was also agreed that conduct separate meetings with the applicant and [redacted] and the applicant and [redacted]. The first of these meetings was initially scheduled for 18 July, but at the applicant’s request took place on 30 July 2018.
[redacted] recalls the applicant being assertive and upset during the interview but does not recall her crying. She complained that she had not been supported during the drag queen story time activity and that there were insufficient safeguards to prevent her “being impacted by members of the public offering a different opinion”. [redacted] continues:
“The purpose of the meeting was not a disciplinary matter however we ([redacted] and I) wanted to make it clear to Priscilla that distributing her email to others was inappropriate. [redacted] advised Priscilla that she ([redacted]) would confirm these discussions in a letter to Priscilla and remind her of her responsibilities under the positive working relationships policy.”
By her statement of 12 February 2020, [redacted] says that the email from the applicant was the first time that “she expressed her views about this program/event to me”. She continues:
“I recognised Priscilla’s rights to have an opposing view and respected her beliefs but I did not believe this should impact on Council continuing to deliver the program and strategies we had agreed as a library. I was disappointed that in her email Priscilla named each of the persons and listed their alleged failings. This behaviour/action by Priscilla was not in the spirit or values of Council’s Positive Working Relationships policy or the WCC Code of Conduct.”
At the meeting with [redacted], it was agreed that the applicant’s behaviour and comments in the email “show a lack of respect” and “that her personal values were in conflict with the organisation values”. She continued:
“We determined that [redacted] and I would meet with Priscilla to provide her with feedback, and to discuss a way forward. We also discussed arranging training for library staff around diversity and positive working relationships”.
On 27 August 2018, [redacted] wrote to the applicant recording the contents of the meeting of 30 July 2018. The letter responds to the applicant’s comments/concerns/ criticisms in bullet form. The last three paragraphs of that letter are as follows:
“I want to emphasise, Priscilla, that you are a valued member of the Library’s team and that I understand your perspective and acknowledge the level of distress you have experienced. However, as we discussed when we met the underlying values of the positive working relationships policy are about respect, acceptance of diversity and inclusiveness. I reiterate my understanding to you that the issues you raised will be genuinely considered, while also noting my responsibility to ensure an inclusive and accepting workplace for all staff. To achieve this, we need to work collaboratively and constructively with commitment from all members of our team to this shared vision and values.
Since our meeting I have visited the staff work area to investigate the issues that you have raised concerning the promotional displays. I have also undertaken discussions with representatives from human resources and engaged an external consultant to assist in the development of a strategy to improve workplace culture and constructive behaviours within Central Library and the Library and Community Services Division.
In future, I seek your compliance with the agreement we made when we met, that you will raise issues or concerns directly with the relevant persons, without it being communicated to other people. I also emphasise that broadcasting negative commentary about colleagues and managers may be considered to be a breach of council’s organisational values and code of conduct.
Please contact me should you require further information.”
It is, of course, erroneous to consider the meeting in isolation in determining whether the respondent’s conduct might constitute “acts with respect to discipline”. It is, however helpful in the circumstances of this case.
It seems unlikely, as Mr Morgan argued, that [redacted] or [redacted] believed the meeting had a disciplinary or investigatory purpose. [redacted] specifically states that it was not a disciplinary meeting. True it is, that there was some discussion of Council’s values in the context of the applicant’s criticisms and complaints but there is no suggestion that she was being chastised for her discordant views of the Drag Queen Storytime promotion.
On the other hand, both [redacted] and [redacted] thought that the email dated 18 July 2018 “may be considered a breach of council’s organisational values and code of conduct”. If the applicant was to criticise the senior officers of the library, she should have addressed the email to each separately, rather than sharing her criticisms with four members of the library leadership team and two trade union representatives.
While this aspect of the meeting may be an action with respect to discipline, the discussion, as evidenced by the statements of the witnesses and by [redacted]’s letter of 27 August 2019, appears to have largely been concerned with responding to the applicant’s criticisms of senior staff, offering her a way forward in her employment, if possible, and attempting to resolve any conflict between her beliefs and the respondent’s values as expressed in the code of conduct and other policy documents. It was not primarily a meeting held for the purpose of commencing an investigation of the applicant’s conduct.
It is possible to infer from the evidence that a decision had been taken not to implement disciplinary proceedings against the applicant although there may have been a difference of opinion on this issue among the senior staff of the library. The applicant recounts that
[redacted] told her that she was “surprised no disciplinary action was taken” against her.
Importantly, in [redacted]’s letter there is no suggestion that the applicant was chastised for reversing posters or turning posters away from her view in the lead-up to the drag queen story time event.

The meeting of 13 August 2018

By his statement [redacted] says that he met with the applicant, [redacted] and [redacted] on 18 July 2018 when we asked “[redacted]’s concern of the content of Priscilla’s email of 18 July 2018 about [redacted] (as shown above) and the fact that Priscilla had distributed them to others. At this meeting Priscilla was assertive and appeared upset”. He continues:
“On 13 August 2018 I met with Priscilla, [redacted] and [redacted] At the meeting Priscilla expressed in very strong terms her disapproval of the material promoting the drag story time event, stating that it was propaganda, that it was thrown in her face and that we were shoving it down her throat. In relation to gay people she said “I don’t like what they do”. I asked her what she would do if we held another such event. Priscilla replied “I don’t know what I’d do”.
Following this meeting, and after consultation with [redacted] and [redacted], I prepared a letter “concerns raised in your 18 July 18 email” dated 26 September 2018 which I addressed to Priscilla, in which I referred to the concerns she raised in her email of 18 July 2018, our discussion at the meeting of 13 August 2018, and I provided responses to her concerns and reaffirmed council’s values and code of conduct. I provided this letter to Priscilla at a meeting on 3 October 2018 which was also attended [redacted] and [redacted]. Priscilla was angry during the meeting and would not accept council’s views or position. I have provided a copy of this letter. In the next few days I received a phone call from [redacted] advising me that he met with Priscilla after our meeting of 3 October, and he now felt that Priscilla understood council’s and the union’s perspective on this issue.”
While [redacted] states that the meeting was called to discuss “the applicant’s concerns”, plainly these meetings had multiple purposes. The letter forwarded by [redacted] on 20 September 2016 to the applicant was largely concerned with responding to her criticism that he had not provided adequate support for her during the promotion of the Pride Week events. However, the letter concludes with a paragraph that is similar, if not identical, to that contained in [redacted]’s letter. Issues of concern to the applicant should be raised “directly to the relevant person, without it being communicated to other people”. It also emphasises that broadcasting negative commentary about colleagues and managers “may be considered to be a breach of council’s organisation values and code of conduct”.
Again there is only a hint of chastisement in the letter. It was not suggested that the applicant would be punished. But it was suggested that she had framed her criticism in an inappropriate manner. Nonetheless, the purposes of the meeting and the exchange between the parties as conveyed by the written evidence of the respondent’s officers and the letter of [redacted] suggests that discipline was not at the forefront of the minds of the Council officers and chastising the applicant was incidental to its primary purpose.

Subsequent events

These may be considered in the context of the statement of [redacted] dated 24 April 2020. [redacted] says that on 27 June 2018 she received an email from Megan Owen, senior library officer digital team expressing concern that Pride Month posters on the back of toilet doors were being flipped over or removed and that Pride Month flyers “going missing”. On the same day, she received an email from the applicant stating that displays in the staff area of the library were offensive and requesting that the area “remains neutral”.
On 18 July, [redacted] received the applicant’s email. [redacted] stated:
“I was shocked by Priscilla’s email and the way she “dressed down” senior staff and did it publicly by email.”
[redacted] attended the meeting arranged by [redacted] with senior staff and HR to discuss the email. She states:
“We were concerned about Priscilla’s emotional state given the tone of her email. We also discussed the contents of the email and how we would respond. We determined that [redacted] and [redacted] would meet with Priscilla to try and resolve the issues she raised in her email.”
In September 2018, [redacted] reviewed the applicant’s SPAMAS and disagreed with the assessment made by [redacted], the applicant’s direct [redacted], that she “was accepting (of) council’s values”. Accordingly, after discussing the matter with [redacted] made the following comment:
“Priscilla shows great technical capability in her role and has adapted well in the changes in her role. However Priscilla has voiced concerns involving the Wollongong City Library move towards inclusive and diverse programming and activity, and both [redacted] and I would work with her to find a way forward.”
[redacted] then records the applicant’s response to this inclusion in her SPAMAS document. On 11 October 2018, she removed the comment from the document. After consultation with [redacted] and an external HR consultant, she forwarded an email to the applicant on 12 October 2018:
“in which I outlined concerns I had referred to in my comment in her SPAMAS.
I acknowledged her concerns and I made reference to Council’s values and policies”.
The actions of [redacted] in reviewing the applicant’s SPAMAS document and discussing her inclusions with the applicant are undoubtedly actions with respect to performance appraisal.
As some of the respondent’s actions in response to the applicant’s email were actions with respect to discipline or to performance appraisal it is necessary to consider whether those actions were the whole or predominant cause of the applicant’s psychological injury.

Wholly or Predominantly

There is a long line of authority emanating from the Presidential unit of the Commission that the word “predominantly” in s 11A can be equated to “mainly”: McCarthy v Department of Corrective Services [2010] NSWWCCPD 7 at [157]. In See v The Commissioner of Police [2017] NSWDC 6 (3 February 2017), Neilson DCJ noted that the word “mainly” was used in the 1987 Act in other contexts. In those circumstances, “predominantly” should be given a different gloss. At [138], he stated:
“Having reviewed the dictionaries and these authorities, I prefer to gloss “predominantly” with the adverb “chiefly”. To me it means much more than merely 51%, which is where “mainly” usually leads. To predominate something must eclipse each other factor and all other factors.”
It will be a rare case where this distinction is of importance. However, I am bound to apply the law as it is stated by the Presidential unit.
In Kushwaha v Queanbeyan City Council [2002] NSWCC 25 (25 March 2002), Judge Neilson, in the former Compensation Court of NSW, considered the meaning of the word “discipline” in s 11A (1). After referring to the definitions in the Oxford English Dictionary and the Macquarie Dictionary, his Honour said at [152]:
“It can be seen, therefore, that the primary meaning of "discipline" is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. It is this narrow meaning which weighed on my mind in Bottles’ case. However, the word used in an Act of Parliament must be given its full meaning, unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).”
During the arbitration hearing, Mr Coombe embraced his Honour’s exegesis and submitted that I should give the word “discipline” the same meaning in this case. I stated that I had grave doubts as to whether “discipline” means “learning or instruction”. The word must be interpreted in the context of the section. Section 11A (1) identifies seven incidents, each of which occur at specific times in the contractual relationship between a worker and an employer. The narrow or popular meaning of the word discipline namely punishment or chastisement fits neatly within this legislative scheme. It also occurs at a specific time in the contractual relationship. Conversely, learning or instruction and the maintenance of “learning by training, by exercise or repetition” has the potential to occur on a continuous basis throughout the employment contract. That is incongruous with the legislative scheme.
It follows that I prefer the approach which construes “discipline” to mean chastisement or punishment. Again, however, this conclusion is unlikely to significantly influence the outcome of this case.
Both counsel submitted that there was support in the medical evidence for their respective positions on this causation issue. Mr Coombe referred to the evidence of Dr Synnott, his qualified psychiatrist, and to an entry in the notes of the applicant’s general practitioner,
Dr Knight. Dr Knight’s first consultation with the applicant which appears to be undated contains the following:
“Depression/anxiety
Longstanding issues at the workplace
Reports lack of support
Issues were past the union and reports this backfired on her
Had to take some long service leave
Currently unable to return to work due to symptoms
Had MHCP done elsewhere
Not linked to a psychologist as wanted to see one locally
Supported by husband
Often teary
Mind rumination over things to deal with work
Feels unable to relax”
The doctor diagnosed depression. She certified the applicant as unfit for work.
Mr Coombe also submitted that a passage from Dr Synnott’s evidence, where he recorded that the applicant’s condition developed in June 2018 in response to the Storytime program and the reaction of management to her complaints:
“places her psychiatric condition solely within the parameters of the employer’s response to her issue with the Pride program which as I’ve demonstrated, were reasonable conduct by the employer with respect to performance appraisal, discipline and ultimately termination when her employment was terminated for medical reasons because she had not come back to work in her pre-injury duties capacity.”
It is also relevant to consider the opinion of Dr Takyar, the applicant’s qualified psychiatrist. He says the following in relation to causation:
“Ms Priscilla Maree Gallo is a 60-year old female with no prior psychiatric history who described a degradation in her mental health and the development of anxiety and depression in the context of difficulties with her employer after she expressed concerns in relation to a council program and event. She described strong views by those for the event and those against the event and described fear in the context of having to defend it in her public facing role. She reported that she continues to feel unsupported and bullied by her employer. She stated that there were a series of different meetings, and she reported particular difficulties after her performance review occurred, noting that her [redacted]’s superior ([redacted]) had made a range of comments that she found to be discriminatory and abusive in relation to her discomfort in relation to the event (a reading program at the library involving the LGBTQI community).”
I infer that Dr Takyar is of the opinion that the events which he described in the above passage caused or contributed to the applicant’s psychiatric illness. The passage is a synopsis of the history the doctor recorded earlier in his report. Dr Takyar’s conclusion on causation is not inconsistent with the note of Dr Knight set out above or the opinion of
Dr Synott. Any apparent conflict arises from the fact that Dr Takyar has provided more detail of the circumstances which caused the applicant’s psychological injury than appear in the brief note of Dr Knight or in the report of Dr Synott.
Thus the lay and medical evidence suggests a number of factors connected with the applicant’s employment which were contributory to her psychological injury. They are her disquiet with the drag queen story time program and its promotion; fear in the context of having to defend it in her public facing role; a belief that she was unsupported by her superiors in this role; a series of meetings with her [redacted], which evidently confirmed this belief; her encounter with [redacted] at the time of her performance appraisal and subsequent discussions with her. There may be others.
It is evident that only the last two of these causative factors have any relationship to discipline or performance appraisal. The meetings convened by [redacted] with the applicant had multiple purposes. I am not persuaded that there was any significant component of “discipline” arising from these meetings. It is true that the applicant was chastised for the manner of making her complaint but the overwhelming content of the meeting was directed towards dealing with the applicant’s complaint and attempting to ensure that she was able to continue to work effectively for the respondent. I reiterate that the respondent’s employees state that the meetings were not disciplinary meetings. The evidence does not establish that the respondent embarked on a disciplinary process against the applicant in respect of breaches of the code of conduct relevant to her apparent failure to comply with the respondent’s inclusionary values.
While there may be a minor disciplinary element in the two meetings convened by [redacted] and a substantial element of performance appraisal in the applicant’s meeting and interactions with [redacted], it is not apparent that these matters predominantly caused the applicant’s psychological illness. There is no medical evidence that these matters can be isolated as the predominant cause of her injury.

I am not persuaded that the first consultation note of Dr Knight proves that discipline or performance appraisal were the predominant cause of the applicant’s psychological illness. That note refers to “longstanding issues at the workplace” and to “lack of support” in addition to the excerpt which Mr Coombe relied upon. The note contains no reference to discipline, performance appraisal or termination. Read as a whole, it is not proof that these factors were the predominant cause of the applicant’s injury.
While counter-factual analysis is often unproductive, it seems likely that if the applicant had made her complaint to each of the senior staff members of the Council, rather than amalgamating her complaint in one email, meetings would still have taken place to discuss the applicant’s express concerns with the drag queen story time promotion and event. The applicant would have remained distressed by her perceived lack of support from management. Her psychological condition would have run much the same course as if she had not been subjected to discipline and performance appraisal.
But it is unnecessary to speculate. The respondent has the onus of proof that it’s actions with respect to discipline and performance appraisal were the predominant cause of the applicant’s psychological injury and it has not discharged that onus. The evidence establishes that these factors were only slender strands in the cable which connects the applicant’s employment to her injury. Given this conclusion, I do not propose to address the issue of reasonableness.

Incapacity

It is common ground that the applicant had an incapacity for work as a result of her psychological injury. However the respondent contended that the applicant had a residual or current earning capacity at all relevant times.
On the facts that I have found. the applicant’s injury is a disease of such a nature as to be contracted by a gradual process. For the purposes of ss 15 of the 1987 Act the notional date of injury is, therefore, the first date of incapacity which is 23 November 2018.
Curiously, the applicant pleads a claim for weekly compensation from 19 January 2021. That may be the first date after she ceased to be paid sick leave by the respondent. It is clear, however, that the applicant was incapacitated for her ordinary work and entitled to compensation from 23 November 2018. In my opinion, in the circumstances of this case, the first entitlement period must commence at that time. The contrary position was not vigorously pursued by Mr Morgan.
Section 32A defines “first entitlement period” as follows:
“‘first entitlement period’, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.”
The language of the definition, and a similar definition of “second entitlement period”, was considered by Arbitrator McDonald in Alexander Vinet v Thomas & Coffey Ltd [2015] NSW WCC 34 (23 January 2015). After analysing the case law, the arbitrator concluded that there was no relevant distinction in the 1987 Act between “an entitlement to compensation and compensation being payable”. She continued:
“Compensation is payable because an injury was suffered and relevant economic incapacity for work resulted”.
I intend to apply this reasoning. It follows that the periods during which I have jurisdiction to award compensation, the first and second entitlement periods or the first 130 weeks of incapacity, runs from 23 November 2018 to 21 May 2021. Absent a work capacity decision,
I do not have jurisdiction to award compensation in the third entitlement period. Mr Morgan submitted that in terminating the applicant’s employment on the basis that she was unfit for work the respondent, which is a self- insurer, had made a work capacity decision in respect of the third entitlement period. I doubt that is correct. While I was not taken to the letter of termination, I doubt that it adequately addresses the matters which the insurer must assess in section 38 (2) and (3) as a precondition to the payment of compensation in the third entitlement period.
Following her cessation of work on 23 November 2018, the applicant resumed employment working two hours for two days each week on 18 May 2020 at a different library. She was able to increase these hours marginally, so that she worked three hours for two days each week until 22 September 2020. Thereafter, as far as I can ascertain, Dr Knight has certified the applicant as having no capacity for work.
Dr Takyar saw the applicant in the middle of this period, on 7 July 2020 and expressed the opinion that the hours that she was working were consonant with her reduced capacity caused by psychiatric injury. When he saw her for review on 11 February 2021, he thought there was some improvement, but expressed the opinion that she would “struggle to work more than around five hours a week from a purely psychiatric stance at the current time”.
Dr Synott, who saw the applicant for the respondent last on 25 May 2021 accepted the applicant’s self- assessment that she was not fit for any work.
I find it difficult to understand the reasons why the applicant’s condition has persisted without improvement since the cessation of her employment. However, accepting as I must the medical opinion evidence on the issue of incapacity, it is improbable that there was any real work that the applicant was able to perform in the first and second entitlement period. It is true that she was able to perform, with some difficulty, the very short hours offered by the respondent in 2020 in an attempt to rehabilitate back into the workforce. But it is not evident that the similar work exists for similar hours on the general labour market for a woman of the applicant’s age. On balance, it is my opinion that for all periods, other than 18 May 2020 to 22 September 2020, the applicant had no current earning capacity.
The respondent states that the applicant’s preinjury average weekly earnings (PIAWE) at the time she ceased work was $1,594.75. That appears to be consistent with the other evidence that touches on earnings. I propose to make findings as follows:
(a)    the applicant suffered psychological injury arising out of and in the course of her employment namely an adjustment disorder with anxiety and depressed mood;
(b)    the respondent has not established that the psychological injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline or performance appraisal within s 11A (1) of the 1987 Act;
(c)    the deemed date of injury for the purposes of the 1987 Act is 23 November 2018;
(d)    at all times during the first and second entitlement periods other than the period between 18 May 2020 and 22 September 2020 the applicant had no current earning capacity, and
(e)    the applicant’s pre-injury average weekly earnings at all material times were $1,594.75.
I propose to make the following orders:
(a)    respondent to pay the applicant weekly compensation at the rate of $1,514.44 from 23 November 2018 to 21 February 2019 pursuant to s 36;
(b)    respondent to pay the applicant the sum of $1,275.80 per week from 22 February 2019 to 17 May 2020 and from 23 September 2020 to 21 May 2021;
(c)    respondent to pay the applicant the sum of $1,275.80 per week less wages actually paid by the respondent for the period 18 May 2020 to 22 September 2020 pursuant to s 37;
(d)    liberty to apply in respect of the above calculations;
(e)    credit to the respondent for weekly compensation paid during this period;
(f)    respondent to pay the applicant’s medical and hospital expenses pursuant to
s 60;
(g)    remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment as a result of psychological injury which is deemed to have occurred on 23 November 2018 as a result of the applicant’s employment prior to that date, and
(h)    Medical Assessor to have access to the documents set out in paragraph 11 of the statement of reasons.

[2021] NSWPIC 470

28 October 2021