Garai v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Garai v Secretary, Department of Education [2021] NSWPIC 107
APPLICANT:	Coleen Louse Garai
RESPONDENT:	Secretary, Department of Education
MEMBER:	Mr Paul Sweeney
DATE OF DECISION:	4 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Teacher suffers accepted psychiatric injury; respondent denies liability on basis of section 11A(1) asserting that injury caused by admonitory interview with principal following outburst by worker at school assembly; where worker had long history of disenchantment with school; where she had previously sought medical treatment for work-caused anxiety; where symptoms continued to time of interview; Attorney-General v K considered; Held- that respondent had established that the interview was reasonable action with respect to discipline but not that workers condition was predominantly caused by that action; award for worker for weekly compensation and medical expenses.
DETERMINATIONS MADE:	1. The applicant suffered psychological injury namely an adjustment disorder arising out of and in the course of her employment with the respondent. 2. The deemed date of injury for the purposes of sections 15 and 16 of the Workers Compensation Act 1987 is 13 May 2020 the first date of incapacity. 3. The respondent has not established on the balance of probabilities that the injury was wholly or predominantly caused by reasonable action taken with respect to discipline in accordance with section 11A(1). 4. The applicant had no current earning capacity from 13 May 2020 to 20 August 2020. 5. Thereafter the applicant was fit for suitable employment in the form of teaching at a school other than Leumeah Public School or clerical work two days each week. 6. The applicant’s preinjury average weekly earnings were $2019.53. From 21 August 2020 the applicant was capable of earning in some suitable employment as that phrase is used in section 32A of the Workers Compensation Act 1987 the sum of $870.81 per week. 7. Award for the applicant for weekly compensation as follows: (a) at the rate of $1918.55 per week from 13 May 2020to 12 August 2020 pursuant to section 36; (b) at the rate of $1615.62 per week from 13 August 2020 to 19 August 2020, and (c) at the rate of $807.81 per week from 20 August 2020 to date and continuing pursuant to section 37. 8. Credit to the respondent for payments made during this period. 9. Liberty to apply in respect of the calculations referred to above. 10. Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

INTRODUCTION

Coleen Louise Garai (the applicant) is a long-term employee of the NSW Department of Education (the respondent). Prior to 13 May 2020, the applicant had been employed as a teacher at the Leumeah Public School in south-west Sydney.
The applicant has not worked since 13 May 2020. It is common ground that she suffers a psychological illness which precludes her from performing the full duties of a teacher at Leumeah Public School (LPS).
The applicant alleges that her psychological injury was caused or materially aggravated by the nature of her work as a teacher between 2015 and 13 May 2020. While the respondent accepts that the applicant is not fit for her full duties as a teacher, it disputes that it is liable to pay compensation.
By a section 78 Notice dated 2 June 2020 the respondent’s insurer stated that the applicant had ceased work on 13 May immediately after a meeting with the principal of LPS at which she was told that she had breached the respondent’s Code of Conduct and behaved in an unprofessional manner at a school assembly that morning. Accordingly, the respondent asserted that the applicant’s psychological condition was wholly or predominantly caused due to “reasonable action taken, or proposed to be taken, by your employer with respect to performance/discipline”.
It followed that by operation of section11A(1) of the Workers Compensation Act 1987 (the 1987 Act) the applicant was not entitled to weekly payments of compensation.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly payments of compensation from 13 May 2020 to date and continuing. The cause of the injury is set out in the Application to Resolve a Dispute as follows:
“The applicant has been subject to bullying, harassment and intimidation at the workplace since 2015, culminating in the development of a psychological injury in 2018.
On 13 May 2020, the applicant was required to attend a meeting with the Acting Principal during which she was told that she had breached the Department Code of Conduct and behaved in an unprofessional manner. The applicant was not offered the opportunity to have a support person and was further bullied, intimidated and interrogated during this meeting.”
When the matter came on for conciliation and arbitration on 9 April 2021, Mr Stockley of counsel represented the applicant and Mr Grant of counsel represented the respondent. The arbitration hearing was conducted over the telephone.
While there were discussions between the parties, I was ultimately informed that they were unable to reach a mutually satisfactory settlement of the issues in dispute. I am satisfied that the parties, who were represented by very experienced counsel, had ample opportunity to reach an agreement.
At the commencement of the arbitration hearing, Mr Grant stated that the issues in dispute were the application of section 11A(1) and, if the respondent was unsuccessful in that defence, the quantum of weekly payments to which the applicant was entitled as a result of her psychological injury. On this latter point Mr Grant announced that the respondent would argue that the applicant had a residual earning capacity from August 2020 and an award in her favour should reflect that fact. Mr Stockley accepted that the respondent was entitled to raise these issues.

EVIDENCE

The following were in evidence before the Commission:
(a)    The Application to Resolve a Dispute and the documents attached;
(b)    Reply and the documents attached;
(c)    An Application to Admit Late Documents dated 6 April 2021 which enclosed the report of Dr Kumar, the respondent’s qualified psychiatrist.
There was no objection to any of the material referred to above. There was no application to adduce further oral or written evidence in the matter.

SUBMISSIONS

The submissions of counsel are recorded and I do not propose to reiterate each of those submissions in these short Reasons.
Mr Grant submitted that a consideration of the applicant’s evidence and the respondent’s lay evidence negated any suggestion that the applicant was bullied, harassed or intimidated in the course of her employment with the respondent. The applicant’s evidence in respect of the alleged bullying after 2015 was vague and unsatisfactory. It merely reflected the fact that the applicant was having difficulty managing her work in the context of being the mother of two young children.
Mr Grant submitted that the acts of the Deputy Principal of LPS in calling the applicant to a meeting on 13 May 2020 were eminently reasonable in view of the circumstances. He referred to the respondent’s lay evidence which provided a rather unflattering account of the applicant’s behaviour on that morning.
In respect of the issue of whether the respondent’s conduct in respect of discipline was the whole or predominant cause of the applicant’s injury, Mr Grant took the Commission to the records of the applicant’s treating doctor, Dr Lau. He noted that between April 2018 and October 2018, the applicant had sought treatment for psychological symptoms which were attributed by her doctor to her work. There was no further reference in the doctor’s clinical records to anxiety or similar psychological symptoms until the applicant ceased work on 13 May 2020.
Mr Grant submitted that the Commission should infer from that sequence of events that the applicant was not suffering from a psychological condition immediately before 13 May 2020 and the events of that day were the whole or predominant cause of the incapacity that arose following the applicant’s meeting with her Deputy Head Principal.
On the issue of incapacity, Mr Grant submitted that the applicant had a current earning capacity from August 2020. He submitted that the balance of the evidence was consistent with the applicant being able to work two days a week. Her compensation should be assessed on that basis.
Mr Stockley submitted that the events of 13 May 2020 could not be considered in isolation. The applicant’s written evidence set out a long history of difficulties which she had encountered with the school Executive. Even if that did not amount to bullying and harassment, the medical evidence established that it gave rise to a psychological condition in April 2018. The applicant’s behaviour on 13 May 2020 and her reaction to being chastised by the deputy principal could only be understood in the context of their previous relationship. The actions of both parties were “informed” by the past history of distrust and dissatisfaction.
On the issue of whether the respondent’s actions were the whole or predominant cause of the applicant’s psychological injury, Mr Stockley referred to the applicant’s written evidence. It was not plausible on the basis of her evidence that her psychological symptoms in 2018 completely abated at the end of that year. Her evidence is that they persisted. Thus, there is a sound factual basis for the opinion of Dr Canaris, the applicant’s qualified psychiatrist, that the applicant’s psychological injury was caused or materially contributed to by events other than the disciplinary action of 13 May 2020. For that reason, also, the opinion of Dr Kumar should be rejected by the Commission.
On the issue of incapacity, Mr Stockley strenuously argued that while the applicant might have some theoretical capacity in accordance with the medical evidence, she was unable to utilise it. The respondent would not employ her other than at the LPS. The medical evidence established that a return to work at that school would be inimical to the applicant’s health. As her employer would not provide her with an appropriate posting she was effectively totally incapacitated.
Mr Stockley also referred to those provisions of the Workers Compensation and Workplace Injury Management Act 1998 (the 1998 Act) which imposed obligations on insurers and employers to implement injury management plans. In particular, he argued that section 46 of the 1998 Act imposed an obligation on the respondent to establish such a plan in respect of a significant injury whether or not it was liable to pay compensation in respect of that injury. There was little doubt that the applicant suffered a significant injury.
An analysis of the employer’s obligations under Part 2 of the 1998 Act together with a consideration of the definition of suitable employment in section 32A of the 1987 Act, led to a conclusion that the applicant should be compensated on the basis of total incapacity.
Before attempting to resolve these arguments, it is necessary to briefly set out the evidence of the respondent’s lay witnesses and the evidence of the applicant. I propose to do so compendiously. What follows is not intended to be a comprehensive survey of all of the evidence in the matter. Rather, I set out the salient points so that the submissions of the parties and the way in which the Commission has resolved the dispute can be understood.

THE APPLICANT

By her statement dated 8 October 2020, the applicant says that she returned to work, working two days a week as a relief teacher after maternity leave in 2015. She encountered a new leadership team at the school, the Principal was Kerry Wood and the Deputy Principal, Christie Hill. She says that:
“Due to their actions, and the actions of other on the executive, I was placed under extreme stress at work.”
Specifically, she states that she “got the impression” that Ms Wood did not like part-time teachers although nothing directly was said in respect of that subject. The applicant states that she was “placed under a lot more scrutiny” by the executive than her full-time colleagues. Her sick leave was “intensely monitored”. She was “sometimes interrogated” by Ms Wood when she had time off sick. This made her feel “extremely uncomfortable at work”.
The applicant states that she also experienced “aggravated stress” due to the new syllabus. During her absence from employment on maternity leave, the syllabus had changed in the major areas of study. The applicant says:
“I reached out for help with the new syllabus, however, I was told that as I did not teach my own class, there was no need for me to learn the new content.”
In 2016, Ms Hill began to “intensely monitor and scrutinise the relieving teachers”. This increased the applicant’s anxiety. She states that:
“Despite intense scrutiny and supervision, no real help, advice or recommendations were provided to me and as far as I was aware no changes took place”.
In January 2017, the applicant applied for professional development sessions. She was told by Ms Wood that she would have to give up 50 minutes per week of her rostered off time to be considered for this program. The applicant formed the view that this was unfair as other staff did not have to give up rostered time off entitlement to attend sessions. Accordingly, she declined to receive any professional development support.
The applicant says that a number of her colleagues were treated “unfairly” in 2017. She gives an example of an experienced EALD teacher who was told she was not good enough to continue in the role. Similarly, a teacher with 30 years of library experience was assessed in a similar manner.
In 2017, the applicant had a meeting with Ms Wood whereby she was interrogated on her sick leave dating back to 2015, when she commenced in her part-time role. The applicant disclosed all of the information that Ms Wood sought. She states that at the end of the meeting she felt “very sick”.
In August 2017, the applicant commenced negotiations with Ms Wood in respect of her timetable for 2018. She needed some certainty as to her rostered days to facilitate booking her children into day-care. She was told by Ms Wood that she could keep “Tuesdays and Wednesdays”. Despite the Principal accommodating her wishes, she was subsequently contacted by Ms Hill, the Acting Principal, to enquire as to whether she had spoken with Ms Wood about her allocated days. The applicant states:
“I felt like I was being questioned or inspected by Christie.”
On 13 September 2019, the applicant again applied for professional mentoring but as she was again required to use her rostered time off, it was not provided. She states:
“I began to feel disheartened and disillusioned. For some reason, I was time-tabled to relieve other teachers to receive mentoring, however, I was never given access to this myself.”
In October 2017, the applicant met with Ms Hill to consider her CV for a job application to be submitted to schools closer to her home. While Ms Hill suggested that the applicant re-write her CV and consult with another deputy principal in relation to how that was to be done “she did not provide any other assistance.”
Then in November 2017, the applicant was told that there was a possibility that she may need to change her days for next year to facilitate “job-sharing”. This caused her “distress” as she had already enrolled her children in day-care and after school care. She was also pressured by Ms Wood to work three days a week.
The applicant says that she was “forced into a job-sharing role” because the executive decided that “only they would act as relieving teachers in 2018”. Ms Wood said to her:
“This is my decision. It is final. If you do not like it, take leave without pay and go work casually somewhere else.”
The applicant says that returning to a class role in 2018 was extremely difficult for her given her lack of professional learning support. Further, she was required to work “three extra Mondays” contrary to her agreement with Ms Wood, which necessitated her husband staying at home and taking care of the children on these days.
Difficulties arising from the applicant working two days a week increased once the job-sharing commenced. She states that she experienced elevated stress and anxiety “primarily because I was back in a class role and I found the transition extremely difficult”. She was unfamiliar with the PLAN software program the learning continuum that was utilised to assess the progress of students.
Despite a meeting with her coordinator to discuss use of the program she says that she felt uneasy. She also felt her stage coordinator was “not supportive or helpful”.
The applicant says that during that time she developed sleeping problems, ruminating, worrying and suffering from low self-esteem. She consulted Dr Lau and was prescribed Lexapro and referred to a psychologist. Relevantly, the applicant states:
“I still experience these symptoms.”
The applicant says that her symptoms worsened in 2018. She was pressured by the executive to complete the People Matter employee survey. She ultimately completed the survey and “disclosed the bullying that she had been subject to by the executive “despite worries that her anonymity would not be guaranteed”. She was concerned that Ms Hill carried out “unofficial observations” of her performance through the open door of her adjoining room.
Then in late 2018, Ms Wood convened an informal meeting with the applicant to discuss school reports. She was told that “job-sharing arrangements were detrimental to the students”. She was “upset and crying”. She states:
“The meeting then ended and I felt totally distraught and uncertain about my future at the school.”
The applicant’s problems continued in late 2018 when she was asked to change her rostered days to facilitate a new job-share teacher for 2019. She states that the difficulties that she experienced with the executive continued. She says:
“for the whole of 2019, I had the same issues with the executive as I have described above as happening in 2018”.
Despite her reservations, the applicant applied for full-time work in 2020. Her daughter was starting kindergarten and she was no longer guaranteed a part-time position by departmental policy. She felt that part-time work was discouraged at the school and to obtain such a position would have involved her negotiating with Christie, will who she did not think would be supportive.
As the applicant took long service leave for several weeks in early 2020, she missed the data handover meeting which created difficulties when she was required to attend a “Meet the Teacher” day for her new class. The applicant says that the executive “did not propose a solution or alternative to this”.
In early 2020, the applicant says that she was “unsettled and anxious” at the possibility that a relieving deputy principal, David Coates, could hear her class from his office. She also had an unsettling conversation with her relieving deputy principal, Joanne Fair.
The applicant says that on return to work following distance learning during the COVID-19 pandemic, on 12 May 2020, Ms Fair spoke rudely and condescendingly to her in front of everyone even though her email list of students was not in her pigeonhole as it was supposed to be.
On the morning of 13 May 2020, the applicant arrived at school and after preparing her classroom “confirmed my class list of 15 students” was in her pigeonhole. She then attended the assembled students who were transitioning back to face to face learning on that day. She states that:
“As the students assigned to other teachers were lining up, I noticed that my line was longer than other teacher’s lines some of whom only had 4 or 6 students in their allocated group. At this point, I became concerned that I had 15 students and was required to work in a smaller room than the previous day. Due to this, I made a loud comment, saying “I have the largest group, 15, in the smallest class”.

The applicant said that she did not refuse to take the class but found it “silly” that she had 15 students when other teachers only had 4 or 6. Following her comments, Ms Fair offered to take 3 students off her and arrangements were made for this to happen. She did not think that this was a problem.
At approximately 9.15am, Christie Hill came to her classroom and informed her that she should attend a meeting at lunchtime. The applicant says that she was “anxious and nervous about the meeting” but continued to teach until lunchtime. She thought the meeting may have been about her comment at assembly but she was uncertain.
On arrival at Ms Hill’s office she was told that it was “an informal chat”. Ms Hill then told her that what she said in assembly during the morning “could be perceived as a breach of the Code of Conduct” and that she had “behaved in an unprofessional manner”.
The applicant says that she commenced to cry. She had never been told that her conduct was unprofessional or unacceptable in 20 years of teaching. There followed a conversation with Ms Hill whereby Ms Hill asked her what she hoped to gain by her comment and enquired “what this is really about”. Ms Hill also asked her whether she felt supported at work to which she replied she did not feel supported by her stage leader or by Ms Hill.
As the meeting progressed, the applicant says that she felt frustrated and that she believed that she was being “unfairly targeted over a simple comment”. Ms Hill responded by stating: “In future, you need to behave in an appropriate and professional manner”.
She was offered the opportunity to go home, which she initially refused but then said that she would. She left the school at approximately 11 o’clock and went straight home. On the same day she contacted the NSW Teachers Federation which advised her to lodge a worker’s compensation claim. She also visited Dr Nicolas at Schwarz Medical Practice. She continues:
“Following the incident with Christie, I became very anxious. I was having even more difficulty sleeping and I was very worried about the potential repercussions of the meeting on my job and career.”
The applicant says that since 13 May 2020, she has applied to work casually at other locations but Ms Hill has refused to approve it “due to staffing number requirements at Leumeah Public School.”
In August 2020, the applicant participated in a telephone conference with an employee of the Department and her general practitioner with a view to gradual return to work two days per week at the school (15 to 20 minutes from home). The applicant was told that she must return to LPS. She states this appears to be inconsistent with the NSW Department of Education’s recovery for work program which provides for teachers to work at different locations while returning to work.
The applicant says that her health has deteriorated since the failed return to work program. Her Lexapro dosage has increased and her doctor has changed her medication to “a stronger one”. The applicant concludes thus:
“In general, my psychological condition has developed as resulted [sic] of 5 years of unsupported, inappropriate and unprofessional conduct from the executive at Leumeah Public School. An accumulation of events as described above, led to my reaction with Christie during our meeting. I still currently experience heightened stress and anxiety which leads to difficulties sleeping and relaxing. I would not be able to return to work at Leumeah Public School, as I am unable to work with the current school.”

RESPONDENT’S LAY EVIDENCE

The respondent’s lay evidence consists of a series of statements and memoranda which are unsigned. There was no objection to this material at the arbitration hearing, I will briefly recite aspects of this evidence below.

Linda Hambley

Ms Hambley recounts that on 12 May 2020, she told the applicant that her student role for the stage 1 post COVID face to face teaching program was in the teacher’s pigeon-holes. After the applicant called out her class, there was some discussion of how the process of teaching face to face during COVID would be organised.
On 13 May 2020, the teachers and pupils assembled in the K-2 quad where teachers began announcing the names of their assigned students. Ms Hambley continues:
“When all of the house groups were announced I could see Coleen was gesturing/waving her paper up and down. I went over and asked if she was alright. Coleen replied, I have 15 kids. She repeated loudly over and over – I have 15 kids and continued to wave her paper up and down, gesturing – this was in front of students. Jo and I were both present at this point. I said to Jo I can take some students … I sent 3 students to my group. Coleen stopped her gesturing and moved into her room.”
Ms Hambley also recounts that at lunch she could hear the applicant yelling in the Principal’s office. The yelling continued for five minutes.

Joanne Fair

Ms Fair reports that she was monitoring the post-COVID student return when she heard the applicant loudly state repeatedly “I’ve got 15”. She says this was repeated several times in a loud voice in front of other teachers and students. While Ms Hambley checked the list,
Ms Fair heard the applicant repeatedly say:
“Yep, the list is correct, I’ve got 15 and in the smallest class”.
Ms Fair states that during lunchtime she heard the applicant “yelling in an aggressive tone”. When the yelling ceased, she entered Christie Hill’s office. Ms Hill informed her that she was ok but that she had “never been yelled at like that from a staff member and was shocked at the response”.

Leanne Pritchard

Ms Pritchard also recounts that she heard the applicant yelling “irrationally” for about 10 minutes in Ms Hill’s office.

Ms Hill

Ms Hill states that she was told at about 9.15 am on 13 May 2020 that the applicant had made a “scene”. She recounts that Ms Hambley told her that the applicant repeatedly stated quite loudly in front of the children “I’ve got 15”. Ms Hill continues:
“As Mrs Garai had demonstrated similar behaviours the day before, and she seemed to have a problem with the organisation, but had not raised that previously, I thought I needed to have a conversation with her. I was frustrated that she had acted that way, when it had been made very clear that changes were not to be made and if she had questions, she should clarify that with myself or Ms Fair in a more appropriate manner.”
Ms Hill states that during a lunchtime meeting with the applicant she enquired as to why she had spoken in an unprofessional manner that morning in front of staff and students. The applicant responded by yelling at her and stating that no one at the school likes her and that she was unable to leave because “no one will support her”.
The balance of Ms Hill’s statement deals with some aspects of the applicant’s performance prior to 2020. She records the applicant’s frustration during performance meetings where the applicant indicated to her that “being in that role and working specific days meant that she did not receive professional learning with the syllabus documentation”. Ms Hill says that she tried to assist the applicant with this and “improve her performance, but there was often an excuse for these”.

Schwarz Medical Practice

On 10 April 2018, Dr Lau recorded that the applicant was suffering from stress and anxiety. He recorded that the applicant was starting back on a class teaching role two days per week, in preparation for returning to full-time work. The doctor recorded the following:
“not coping well with change of role
has found that many things in syllabus has changed
no support provided with coping with new programming and data collection etc
stage coordinator not supportive or helpful
very distressed and anxious about working
feeling tense, nervous, teary, panicky when thinking about going to work
no panic attacks per se
not sleeping well due to ruminating and worrying
not eating well – no appetite
self-esteem low”
The doctor prescribed Lexapro and Diazepam. He recommended psychological treatment suggesting the names two psychologists.
On 10 May 2018, the applicant reported that she was coping better after taking the medication for three weeks. She had one counselling session but was still having difficulty sleeping. The doctor recommended a continuation of Lexapro and counselling.
On 4 June 2018, the applicant reported that she was coping better on Lexapro and her sleep was improving. Dr Nicolas encouraged her to continue with medications and psychological counselling.
On 16 July 2018, Dr Nicolas recorded that the applicant was “coping better at work”, although still waking upt [sic] early.” She was to continue mediation and psychological treatment.
On 24 August 2018, Dr Gnanasekar recorded that the applicant was experiencing stress and anxiety as a result of “workplace bullying”. The applicant stated that she felt teary and anxious. She requested an increased dose of Lexapro. She was advised to see another psychologist.
On 17 September 2018, Dr Gnanasekar recorded that the applicant was tolerating the increased dose of Lexapro well. She was to continue with that dose. On 18 October 2018,
Dr Gnanasekar recorded that the applicant continued to experience insomnia. He discussed referral to a sleep psychologist and considered changing her medication from Lexapro to Avanza.
On 25 October 2018, the applicant reported that she was experiencing stress/workplace bullying/insomnia. Dr Gnanasekar provided a referral to a sleep psychologist. He carried out a DASS test and stated that the applicant suffered from “mild anxiety/stress”.
There is no further reference to stress or anxiety in the doctor’s notes until the applicant attended Dr Nicolas on 15 May 2020. While the applicant stated that she had taken Lexapro since 2018, it is not clear from the clinical notes that she had continuously been prescribed that medication throughout 2019 and early 2020. The histories recorded in the aftermath of the incident of 13 May 2020, however, suggest that this is likely.

DISCUSSION AND FINDINGS

Whole or predominant

It is unnecessary to determine whether the applicant was bullied and harassed by the executive staff of the LPS during the period between 2015 and the cessation of her employment on 13 May 2020. As Mr Grant submits, many of the applicant’s criticisms of the executive staff of the school are vague and insubstantial. They extend to each of the principals, assistant principals, or mentors who supervised or engaged with the applicant during this period. It is unlikely that each of those persons bullied or harassed the applicant.
Nonetheless, there is ample evidence that the applicant had difficulty during the period of her preparation for and return to full-time work between 2018 and 2020. It is equally clear that she believed she was not supported by the school executive during this period.
The clinical note of Dr Lau of 10 April 2018, of course, records that the applicant was not coping well with her change of role and that she felt that no support was provided with the changed syllabus by her stage coordinator. The theme of a lack of support giving rise to psychological symptoms persists throughout the clinical notes from the Schwarz Medical Practice which I have set out above. These notes provide a contemporaneous insight into the development of the applicant’s psychological illness in 2018.
I have little doubt that these notes are an accurate record of the applicant’s perception of the incidents at work, which engendered a psychological condition for which she required treatment and counselling in 2018. The clinical records were brought into existence well before litigation was contemplated and well before the applicant ceased work on 13 May 2020.
The difficulties which the applicant experienced at the school are also evidenced in Ms Hill’s account of their conversation on 13 May 2020. Ms Hill also records that she perceived that the applicant had a “a problem with the organisation”. She recounts that the applicant previously expressed dissatisfaction during performance meetings that she had received insufficient performance training to equip her to return to class teaching. The applicant’s perception that she was unsupported is also evident from her responses to Ms Hill during the meeting on 13 May 2020. Ms Hill records the applicant:
“responded with a raised voice, yelling at me, no one likes me here, everyone hates me that is why I can’t leave because no one will support me.”
It is true that Ms Hill attributes some responsibility for inadequate performance training to the applicant. But it is unnecessary to apportion responsibility for the applicant’s perception that she was unsupported. It is only necessary that the perception is a reaction to real events in the workplace. To paraphrase the principles enunciated by Roche DP in Attorney General’s Department v K [2010] NSWWCCPD 76, if events which actually occurred in the workplace are perceived by a worker as creating an offensive or hostile working environment, and a psychological injury follows, it is open to the Commission to conclude that the psychological injury was caused by these events.
It is, therefore, unnecessary to accept all that the applicant says to conclude in that she was involved in a series of incidents at work between 2017 and 2020 that caused her psychological distress. She sought medical treatment for a psychological condition during 2018, but she states that the incidents in the workplace continued beyond that date. In late 2018, she had a meeting with Kerry Wood during which she was “upset and crying” and left feeling “distraught and uncertain” about her future at the school. In February 2020, she details a series of incidents involving Linda Fair and another relieving deputy principal, David Coates, which at first blush appears to be relatively minor, but which the applicant says caused her to be anxious and unsettled. Underlying these incidents was the applicant’s continuing dissatisfaction with the training provided to her, her difficulties in returning to a class teaching role, and, probably, the desire to leave the school.
Against that background, Dr Canaris, the psychiatrist qualified by the applicant’s solicitor, expressed the following opinion as to the cause of the applicant’s psychological injury:
“While your client’s departure from the workplace was triggered by an admonitory interview with her principal, the history on offer suggests that her psychological injury was in evidence for at least 2 years prior to that event and related to perceived hostility, intrusive oversight and lack of support from the school executive and the principal. Her condition was therefore not wholly or predominantly caused by that interview though that event aggravated her injury. While it is not my place as a psychiatrist to determine whether the interview in question was a reasonable action, I note your client’s understandable perception that she was treated unfairly and unjustly in part because she was not offered the opportunity to have a support person.”
In my opinion, the hypothesis of Dr Canaris is reasonably consistent with the applicant’s evidence and, importantly, the evidence of history, diagnosis and treatment contained in the notes of the Scharwz Medical Practice. I note that Dr Canaris has utilised the word “perceived” before “hostility, intrusive oversight, and lack of support from the school executive and the principal.” That seems to me to be appropriate.
Dr Kumar, the psychiatrist qualified by the respondent’s solicitor, in his report of 23 March 2021 has taken a contrary view. He responds to the question posed by the respondent’s solicitor of whether the applicant’s injury was wholly or predominantly a result of the disciplinary meeting held on 13 May 2020, as follows:
“Based on the information available to me, her symptoms are predominantly due to the disciplinary actions taken by her employer. Please refer to the body of the report for details of these incidents.”
It is clear, however, that the doctor acknowledges that the applicant’s perception of how she was treated at work was also contributory to her psychological injury. In expressing the opinion that the applicant suffered from an adjustment disorder, Dr Kumar stated the following:
“The “stressor” in this case are the events described above, by Ms Garai about how she was treated at school, which then led her to cease work. In response to the stressor, she has developed emotional and behavioural symptoms described in the sections above. There is an impairment in functioning and these symptoms do not meet the criteria for another psychological disorder.”
The phrase the “events described above” must include the applicant’s history to Dr Kumar of her perceived ill-treatment by the executive of the school in 2017 and 2018. It is not evident that Dr Kumar was provided a complete account of the applicant’s psychological treatment in 2018. In my view that is a significant omission that detracts from his opinion.
A review of the notes of the Schwarz Medical Practice in 2018 establish that the applicant suffered psychological symptoms at that time and required the prescription of medication and the referral to psychologists. Dr Canaris’ opinion is that the applicant suffered a psychological injury at that time. That is an entirely plausible view of the evidence. While the applicant was not incapacitated in 2018, she sought medical treatment over an extended period for a condition diagnosed by the general practitioner as “anxiety”. It is clear from the notes that I have recorded above that the anxiety generated sufficient physical manifestations, including insomnia, nervousness, and loss of appetite, to be recognised as a psychological injury as opposed to a “mere emotional impulse”.
On the applicant’s evidence, which is not contradicted on this issue, she continued to experience, at least, some of the symptoms during the remainder of her time at LPS.
While the contention of each of the medical practitioners may be arguable, on balance I have concluded that the opinion of Dr Canaris should be preferred as it gives appropriate weight to the applicant’s psychological condition in 2018 as revealed in the clinical notes of the Schwarz Medical Practice. Dr Kumar’s report does not refer to this crucial evidence. It follows from an acceptance of Dr Canaris’ opinion that the respondent has not discharged its onus of establishing that the disciplinary action on 13 May 2020 was the whole or predominant cause of the applicant’s psychological injury.

REASONABLENESS

My finding in respect of the issue of “wholly or predominantly” means that the respondent’s defence under section 11(a)(1) of the 1987 Act must fail. Nonetheless, I should briefly express my opinion on the issue of reasonableness.
The concept of reasonableness in section 11A is not clearly defined in the case law. In Commissioner of Police v Minahan [2003] NSWCA (24 September 2003) the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
Then in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The judgment in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases c.f. Pirie v Franklins Ltd [2001] NSWCC 167 (10 September 2001).

The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.
In my opinion, the evidence unequivocally demonstrates that the Ms Hill, the Principal of LPS acted reasonably in convening what Dr Canaris described as the “admonitory interview” with the applicant 13 May 2020. While the applicant’s evidence attempts to diminish the significance of her behaviour during the allocation of students that morning, the evidence of the respondent’s witnesses suggests that the applicant repeatedly stated that she had been allocated the largest number of children in the smallest class in front of the assembled children. Given the circumstances of the staged return to face-to-face teaching after the Covid lockdown, it is understandable that the applicant’s behaviour drew a reaction from the school executive.
On the evidence before the Commission, I conclude that Ms Hill was entitled to call the applicant to the office at lunchtime, chastise her for her behaviour, and enquire as to the cause of the applicant’s behaviour that morning. While the applicant was chastised by
Ms Hill, the evidence does not suggest that the latter was contemplating any more serious disciplinary action then a rebuke for her behaviour. The authority of a headmistress would be completely undermined if she could not speak directly with staff about such issues.
I accept that if was contemplated that the applicant was to be formally charged with a disciplinary offence or given a written warning that she would be entitled to postpone an interview until a support person was available. But that is not the case here.
Mr Stockley argued that the previous relationship between the executive and that the applicant should be considered in determining the question of reasonableness. I accept that is the case. It is obvious that the applicant perceived the entirety of the school executive to be antipathetic to her. But that does not detract from the reasonableness of the action taken by Ms Hill on 13 May 2020.

Incapacity

It is common ground that the applicant had no residual current earning capacity up to mid-August 2020 as a result of her psychological injury. Thereafter the balance of the evidence suggests that the applicant was capable of performing work as a teacher.
Dr Canaris who saw the applicant in December 2020 expressed the opinion that the applicant was “manifestly not well enough” to work at LPS. He records that the applicant would appreciate a return to work plan in another setting if that was available. He assessed the applicant as having a moderate impairment for the purposes of the PIRS rating scale, which suggests that he thought she was fit for part time work.
Dr Kumar, who did not see the applicant until March 2021 expressed the opinion that the applicant was fit “to return to part time work”. He also said this:
“I recommend a return to work 2 days a week. Though Ms Garai still has ongoing symptoms, I believe that not working is also exacerbating her condition. A return to work will assist in alleviating symptoms especially as it will help in her financial situation. A return to work at Lumeah public school is likely going to be difficult as
Ms Garai perceives a lack of support and says she was bullied by management”.
On several occasions after ceasing work, the applicant stated to her general practitioner that she wished to return to work. On 20 July 2020, she sought a letter from her general practitioner stating that she was “fit to work full time with conditions need to go to another school.” The doctor declined to provide such a letter as he believed her “anxiety not resolved for patient to go back to work”.
On 20 August 2020, however, Dr Gnanasekar recorded the following:
“Wants to be moved to another school or restrictions in place to work in Lumeah
Pt thinking about going back to Leumeah if no other option”.
The doctor also recorded that either the patient or her prospects were “Looking more
optimistic now”.
In my opinion, the effect of the evidence referred to above is that the applicant was fit to work as a teacher or in some basic clerical capacity at a school other than LPS from 20 August 2020 on a part-time basis. It is obvious from the applicant’s evidence and the notes of the Schwarz Medical Practice that the most significant obstacle to the applicant’s return to work since that time has been the intransigence of the respondent’s bureaucracy and the executive of the LPS, who have repeatedly refused to contemplate the applicant returning to work at another school operated by the respondent. Given the medical opinion in the case, their stance on this issue is inimical to the interests of both parties which surely must be to return an experienced teacher to the workplace as expeditiously as possible.
Mr Stockley argued that as the evidence strongly suggested that the respondent would not employ the applicant at a school at which she could safely work, there was no real job available to her in accordance with the principles expressed in Wollongong Nursing Home Pty LtdvDewar [2014] NSWWCCPD 55 (2 September 2014) (Dewar). There is merit in this argument. However, on my findings the applicant could perform either teaching or reasonably sophisticated clerical work, which would probably provide her with equivalent remuneration, outside the respondent’s system. The is no evidence that the respondent would preclude her from performing such work.
I appreciate that teaching in the Catholic school system, or obtaining clerical employment, might not be readily available work for the applicant given her place of residence. But the definition of suitable employment in section 32A of the 1987 does not permit the Commission to take these matters into account. The section proscribes consideration of the availability of suitable employment.
Mr Stockley also argued that a combination of section 46 of the 1998 Act and section 32 (a) (iii) should lead to a finding that the applicant had no current earning capacity. However, as there has been no “plan or document prepared as part of the return to work process” in this matter, I do not believe that this argument is viable.
As I understand the position, it is not disputed that the applicant’s preinjury average weekly earnings were $2019.53 at all material times. I propose to find that:
(a)    The applicant suffered psychological injury namely an adjustment disorder arising out of and in the course of her employment with the respondent.
(b) The deemed date of injury for the purposes of sections 15 and 16 of the 1987 Act is 13 May 2020 the first date of incapacity.
(c) The respondent has not established on the balance of probabilities that the injury was wholly or predominantly caused by reasonable action taken with respect to discipline in accordance with section 11A(1).
(d)    The applicant had no current earning capacity from 13 May 2020 to 20 August 2020.
(e)    Thereafter the applicant was fit for suitable employment in the form of teaching at a school other than LPS or clerical work two days each week.
(f) The applicant’s preinjury average weekly earnings were $2019.53. From 21 August 2020 the applicant was capable of earning in some suitable employment as that phrase is used in section 32A 1987 Act the sum of $870.81 per week.
(g)    Award for the applicant for weekly compensation as follows:
(i)at the rate of $1918.55 per week from 13 May 2020 to
12 August 2020 pursuant to section 36;
(ii)at the rate of $1615.62 per week from 13 August 2020 to
19 August 2020, and
(iii)at the rate of $807.81 per week from 20 August 2020 to date and continuing pursuant to section 37.
(h)    Credit to the respondent for payments made during this period.
(i)    Liberty to apply in respect of the calculations referred to above.
(j) Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60 of the 1987 Act.

[2021] NSWPIC 107

4 May 2021