Gazi v Canterbury Bankstown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Gazi v Canterbury Bankstown City Council [2023] NSWPIC 5
APPLICANT:	Claire Gazi
RESPONDENT:	Canterbury Bankstown City Council
Member:	John Isaksen
DATE OF DECISION:	10 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for payment of medical expenses for psychological injury; dispute previously the subject of a decision and appeal; Canterbury Bankstown City Council v Gazi [2019] NSWWCCPD 14; remitted to determine if reasonable action taken with respect to transfer was the whole or predominant cause of injury; reference to Many Pacific International Hotel v Doyle and The Greater Southern Area Health Service v Walsh; Held – the psychological injury sustained by the applicant was not wholly or predominantly caused by reasonable action taken by the employer with respect to transfer; order for the payment of medical expenses for treatment as a result of injury.
determinations made:	1. The applicant sustained a psychological injury in the course of her employment with the respondent, with a deemed date of injury on 14 August 2017. 2. The respondent has failed to establish a defence pursuant to s 11A of the Workers Compensation Act 1987.
ORDERS made:	1. The respondent is to pay the applicant’s reasonably necessary medical or related treatment for the psychological injury she sustained in the course of her employment with the respondent on 14 August 2017 pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Claire Gazi, claims that she sustained a psychological injury while employed as a Senior Finance Officer with the respondent, Canterbury Bankstown City Council.
The applicant had been employed for approximately 30 years with Canterbury Council. Canterbury Council and Bankstown Council amalgamated on or about 15 May 2016 and the applicant became employed by a new entity, Canterbury Bankstown City Council. The applicant was part of the finance team that moved to the premises of the previous Bankstown Council in late April 2017.
The applicant was initially certified as unfit for work due to stress related symptoms on
28 August 2017 and has not returned to any work since then.
The applicant completed a “Workers Compensation Initial Notification Form” on
26 October 2017 for the psychological injury which she claims was sustained in the course of her employment with the respondent.
The respondent issued dispute notices on 7 December 2017 and 1 June 2018 wherein liability was disputed on the grounds that the applicant’s employment had not been a substantial contributing factor to that injury, or that employment had not been the main contributing factor to the injury in the event that the injury is found to be a disease. The respondent also relied upon s 11A of the Workers Compensation Act 1987 (the 1987 Act) on the grounds that the psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer.
The dispute between the parties was the subject of a conciliation and arbitration before myself as an Arbitrator in the Workers Compensation Commission on 7 September 2018 and 3 October 2018 in matter no.2970/18. A determination was made that the applicant had sustained a psychological injury in the course of her employment with the respondent, with a deemed date of injury of 14 August 2017. The respondent was not able to establish a defence pursuant to s 11A of the 1987 Act.
That decision was the subject of an appeal by the respondent. President Phillips delivered a decision in Canterbury Bankstown City Council v Gazi [2019] NSWWCCPD 14 (Gazi) on
11 April 2019, wherein the following orders were made:
“1. Orders [1] and [2] of the Arbitrator’s Certificate of Determination dated 22 October 2018 are revoked.
2. The matter is remitted to the same Arbitrator for re-determination of the outstanding issues, consistent with these reasons.”
President Phillips referred to the majority decision in Manly Pacific International Hotel v Doyle [1999] NSWCA 465 (Doyle) and said at [179]:
“The Arbitrator failed to look at the circumstances, submitted by the appellant, that were allegedly a relevant cause of the psychological injury for the purposes of s 11A of the 1987 Act. The Arbitrator also failed to properly evaluate the evidence, against his findings on injury, in determining the appellant’s s 11A defence. This was a result of the Arbitrator’s misapplication of the decision in Doyle. The Arbitrator’s failure to undertake the appropriate task in determining the s 11A defence was an error of law.”
President Phillips then said at [182]:
“…it is apparent from a consideration of the submissions that the substance of this complaint relates to the Arbitrator’s mistaken application of the minority decision in Doyle and that the facts in the present case should have been considered consistently with the majority decision. The error of law in terms of the misapplication of Doyle and the failure to apply and consider the majority view in that decision was an error that affected the Arbitrator’s fact finding exercise and ultimate approach to determining the s 11A defence.”
President Phillips said at [184]:
“While it is desirable that the matter be re-determined on appeal, in the circumstances, to enable the parties an opportunity to ventilate the issues in accordance with the correct approach to s 11A of the 1987 Act it is necessary that the matter be remitted, pursuant to s 352(7) of the 1998 Act, to the same Arbitrator for re-determination. This will enable the appellant to properly articulate the actions it said it took with respect to transfer and how they relate to the psychological injury as found by the Arbitrator. Whether the employment conditions after the physical transfer were relevant to the s 11A inquiry and whether the psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant with respect to transfer will be a matter considered in the redetermination. This is, as was held in Doyle, a question of fact and degree involving a consideration of all the factors which produced Ms Gazi’s psychological injury.”
The applicant subsequently discontinued matter no. 2970/18 when her application was remitted for re-determination. These current proceedings were commenced by the filing of an Application to Resolve a Dispute (ARD) on 15 June 2022.

ISSUE FOR DETERMINATION

The following issue remains in dispute:
(a) whether the psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer (s 11A of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation/hearing on 9 December 2022. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Tanner appeared for the applicant. Mr Stockley appeared for the respondent.
The applicant had also sought a reconsideration of findings made in Certificate of Determination no.2970/18 in the filing of a Miscellaneous Application no. W3755/22. The applicant sought to have the Commission reconsider an issue of whether the applicant’s perception of unfair treatment at work due to her claims of bullying and harassment by other employees was a cause of her psychological injury.
I published a written decision on 5 December 2022 which provided reasons for that application to be dismissed. Mr Tanner made an application at the commencement of the hearing for that decision to be reconsidered, but that application was rejected. Mr Tanner asked that it be noted his client reserved her rights in regard to whether that decision on the reconsideration application could be the subject of further review by the Commission.
During the course of the hearing the applicant discontinued her claim for weekly payments of compensation, and now only seeks a general order that the respondent is to pay the cost of reasonably necessary medical treatment incurred by the applicant as a result of her psychological injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents, and
(b) Reply and attached documents (W3636/22).
The lay and medical evidence which is pertinent to this dispute was summarised in the decision in matter no. 2970/18, and also by President Phillips in Gazi, and I do not propose to do so again in this decision.

The respondent’s submissions

The respondent bears the onus of proving the s 11A defence.
Mr Stockley for the respondent submits that the requirement of the applicant and other employees from Canterbury Council to use the SAP system was action with respect to transfer and it was the difficulties she encountered with the SAP system, as part of that transfer, which then became the cause or predominant cause of her injury. He also submits that the use of the SAP system was part of an integration of systems which was required following upon the amalgamation of the two councils.
Mr Stockley concedes that this dispute is unusual because the action with respect to transfer which is causative of the injury and which is relied upon by the respondent, occurs some two months after the applicant is permanently transferred to the premises of the previous Bankstown Council. Nonetheless, the requirement to use the SAP system as part of the integration of systems of work was action with respect to transfer and this was the whole or predominant cause of the applicant’s injury.
Mr Stockley submits that the action taken by the respondent was reasonable. He points out that the amalgamation of the two councils was mandated by legislation. Mr Stockley submits that the respondent did all that it could by way of procedures such as tool box talks and a buddy system to ensure a smooth transition. He submits that the respondent did as much as was reasonably possible to assist the applicant following upon her transfer from Canterbury Council.

The applicant’s submissions

Mr Tanner for the applicant repeats a submission he made at the initial hearing that there must be an end point in the process of transfer, and it cannot be never-ending. He submits that the process of transfer had well and truly ended by the time the applicant began to develop her psychological injury from the end of June 2019 onwards.
Mr Tanner submits that the applicant was coping with the new systems of work even though she found them to be challenging, but her situation changed dramatically towards the end of the financial year, and this change was due to extra demands being placed upon the applicant was quite distinct from the process of transfer.
Mr Tanner submits that the action taken by the respondent could not be regarded as reasonable because there was a lack of training and support, and excessive workload and demands placed upon the applicant, all of which could not be considered to be reasonable.

Determination

Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Some of the categories of action taken, or proposed to be taken, in s 11A have been the subject of very helpful guidance from judicial decisions. For instance, the interpretation of ‘performance appraisal’ by Geraghty CCJ in Irwin v Director General of School Education, NSWCC no.14068/97 (18 June 1998, unreported) (Irwin) of “a limited, discrete process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance”, has been referred to and relied upon in many decisions of the Commission.
The meaning of ‘discipline’ set out by Neilson CCJ in Kushwaha v Queanbeyan City Council [2002] NSWCC 25; 23 NSWCCR 339 (Kushwaha) of “learning or instruction imparted to the learner and the maintenance of that learning by training, exercise or repetition” [at 362], has been the subject of some criticism in later decisions of the Commission, but it does provide a guide to the application of that particular category if relied upon by an employer.
However, I was not directed to, nor could I locate, any decision that is particularly helpful in interpreting and applying the category of ‘transfer’ in s 11A. The majority decision in Doyle was critical of the narrow meaning given by Davies AJA in that same case. Davies AJA had said of section 11A at [27]:
“The paragraph is thus looking to the worker’s response to the employer’s action or proposed action, not to the worker’s response to employment conditions encountered after a transfer, demotion, promotion, etc.”
Fitzgerald JA (with Mason P agreeing) in Doyle said at [7] that what was stated by Davies AJA was a proposition “too broadly stated”. However, his Honour did not provide much by way of further guidance as to how the category of ‘transfer’ should be interpreted and applied. Fitzgerald JA did state at [8]:
“It was an action taken by the appellant with respect to the transfer of Mr Doyle, namely, the transfer of him from one position to another, which caused him to work in "the circumstances ... which ... were the predominant cause of his breakdown". That being so, the appellant's material action, the transfer of Mr Doyle, cannot be automatically excluded as the whole or predominant cause of Mr Doyle’s psychological injury. Whether or not the appellant's transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle’s condition.”
The decision of Fitzgerald JA (with Mason P agreeing) means that the worker’s response to employment conditions encountered after a transfer might still be action taken with respect to transfer, and that otherwise it is “a question of fact and degree” as to whether a worker’s transfer is the whole or predominant cause of a psychological injury.
The applicant states that she moved to the former Bankstown Council premises in late April 2017, along with about 15 other employees from the former Canterbury Council finance team. Mr Stockley advised on his instructions that the specific date of transfer was
24 April 2017.
The applicant states: “I initially enjoyed working with my new team for approximately the first two months, until the end of June 2017, and did not experience any personal issues between myself and the team I worked with”. That is confirmed by Dr Whetton, who was the first doctor to record a detailed history from the applicant as to what occurred during the period that she worked for the respondent. Dr Whetton writes in his report dated 6 November 2017 that the applicant: “said that initially she was happy with her team and doing her work”.
The applicant states that she began to feel very stressed because of the change in systems and an increase in workload. She states that this occurred in early May 2017, which is only a few weeks after she commenced work at the Bankstown premises. That is also confirmed in the history taken by Dr Whetton. He records that in May 2017 there were increased work demands and there was other work which was accumulating and needed to be completed.
The applicant states: “in or about July 2017, my workload and Ranka’s management style of me began to affect my emotional state”. This coincides with several events identified by the applicant:
(a)    increased workload at the end of the financial year;
(b)    a change in the codes on the computer system that the applicant was working on, and
(c)    two employees taking leave in early July 2017 and the applicant having to undertake some of their work.
I found that I could not determine from the evidence as to whether the codes on the computer system had been changed, but I accepted that the applicant experienced stress when this particular problem with the computer system arose.
Those events led Dr Whetton to an opinion, which I accepted in my initial decision and continue to accept, that the cause of her psychological condition was:
“…. the reported excessive workload and demands being made upon her in the setting of the council amalgamation.”
From my review of the evidence, the significant stress which the applicant began to experience from the end of June 2017 onwards was not caused by her merely having to work on a new computer system, which I accept was part of action taken by the respondent with respect to transfer. Instead, the heightened stress experienced by the applicant from the end of June 2017 onwards was caused by particular demands placed upon the applicant in the operation of that computer system due to there being an increase in her workload, the particular difficulty which operating the computer system which the applicant perceived to have been due to a change in the codes, and in being required to undertake additional work when two employees had taken leave.
Those demands placed upon and endured by the applicant are confirmed by Dr Whetton when he sees the applicant less than three months after she had ceased work due to her psychological injury.
Dr Whetton adds to his opinion in a second report dated 22 November 2017 when he writes that the transfer of the applicant from her former role to the new role at the amalgamated council was the predominant cause of her psychological injury. However, that further opinion is based on a description of the transfer provided to him by the respondent. President Phillips noted the limits of that further opinion in Gazi, when he said at [188]:
“Relevantly, Dr Whetton did not evaluate why he formed that view nor did he identify the specific actions taken (or proposed to be taken) by the employer in respect of transfer that wholly or predominantly caused Ms Gazi’s psychological injury.”
The initial opinion from Dr Whetton that the cause of injury was due to excessive workload and demands upon the applicant is consistent with the applicant’s evidence and the details which Dr Whetton recites in that first report. That cause of injury was due to particular demands being placed upon the applicant some two months after she transferred to the Bankstown premises and had been working on a different computer system, and not merely because she was transferred to work in a different office with different employees and on a different computer system.
I have been directed to determine as “a question of fact” whether the actions of the respondent in respect of transfer caused the increased workload and resulting stress to the applicant (Gazi at [186]). I have provided my reasons as to why that increased workload was not action taken with respect to transfer, but rather due to particular demands which arose from the end of June 2017 onwards. Those demands did not amount to action with respect to transfer and therefore s11A cannot apply to bar the applicant from having compensation paid to her.
The finding which I made in my initial decision that the psychological injury sustained by the applicant was caused by an excessive load and demands being placed upon her was not disturbed in the appeal decision in Gazi. President Phillips said in Gazi at [192]:
“The Arbitrator’s finding that Ms Gazi was subjected to an excessive workload and his finding on causation of injury under s 4 of the 1987 Act was open to him and involved no error.”

I have provided my reasons as to why the demands that were placed upon the applicant by the end of June 2017 did not amount to action with respect to transfer. It therefore follows that given the findings which I had previously made as to the cause of injury, and which were not disturbed on appeal in Gazi, that action with respect to transfer cannot be the whole or predominant cause of the applicant’s psychological injury.
If I am found to be in error on the application of the category of transfer to the facts of this dispute, I do not consider such action taken by the respondent to have been reasonable.

47. Geraghty CCJ said in Irwin:

“The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of an employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”

As to the objective of the employer, Mr Stockley submits that the amalgamation of the two councils was mandated by legislation, and that the respondent did as much as was reasonably possible to assist the applicant and other employees from the finance department at Canterbury Council in their transfer to the new entity.
Ms Vlahovic states that the applicant and other employees attended the Bankstown premises before the actual transfer of personnel to learn the SAP system. She states that there were daily tool box meetings conducted in the first six weeks of the transfer of Canterbury Council employees to the Bankstown premises, and then there were smaller talks within each team thereafter. Ms Cheetham states that she and Ms Vlahovic had regular one on one discussions with employees.
Ms Vlahovic states that the decision to use the SAP system, rather than the JDE system which had been used at Canterbury Council, was made by senior management of the respondent.
Mr Stockley asked the rhetorical question during submissions as to what more the respondent could have done to assist the applicant, especially as the two councils were directed by the State government to amalgamate.
The mandatory statutory requirement for the two councils to amalgamate on its own does not satisfy the question of reasonable action on the part of the respondent. In The Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98 (Walsh), DP O’Grady said at [102]:
“The fact that legislation and guidelines may require and/or authorise certain action does not, alone, render action as being reasonable. Proper exercise of judgment and assessment of facts and circumstances must be made by those responsible to determine the threshold question as to whether such action is required.”
Deputy President O’Grady also said in Walsh at [78-79]:
“The word “reasonable” as it appears in s 11A(1) was addressed by Armitage J in Ritchie v Department of Community Services [1998] NSWCC 40; 16 NSWCCR 727 (Ritchie). In that matter, when considering the question of reasonableness of action, his Honour adopted what was said by Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251(at 263):
‘The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.’
I am guided by the observations then made by his Honour in Ritchie, in particular that which was stated at [47] where his Honour concluded that the test as to reasonableness is an objective one ‘where one must weigh the consequences of the respondent’s conduct against the reasons given for it’.”
The “consequences of the respondent’s conduct” in this dispute led to the applicant sustaining psychological injury. That conduct was an excessive workload and demands being placed upon the applicant from the end of June 2017 until 14 August 2017.
Ms Vlahovic and Ms Morley have challenged this, but I made a finding from a review of the evidence in my initial decision that the excessive workload and demands placed upon the applicant from the end of June 2017 were the cause of her injury, and this finding was not disturbed on appeal.
The consequences of that conduct by the respondent means that action taken by the respondent, even if it were to be found that such action was taken with respect to transfer, cannot be regarded as being reasonable.

Conclusion

The respondent has failed to establish a defence pursuant to s 11A of the 1987 Act.
The only compensation sought by the applicant in this application is an order for the payment of reasonably necessary medical expenses incurred by the applicant for treatment of her psychological injury.
There will be an order made that the respondent is to pay the applicant’s reasonably necessary medical or related treatment for the psychological injury she sustained in the course of her employment with the respondent on 14 August 2017 pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 5

10 January 2023