Gebara v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gebara v Secretary, Department of Education [2025] NSWPIC 377
APPLICANT:	Sahar Gebara
RESPONDENT:	Secretary, Department of Education
MEMBER:	Mitchell Strachan
DATE OF DECISION:	6 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; defence under section 11A with respect to discipline and/or performance appraisal; incapacity; Kushwaha v Queanbeyan City Council, Yeo v Western Sydney Area Health Service, Department of Education and Training v Sinclair, Director General, Department of Education and Training v Pembroke, and Irwin v Director-General of School Education considered and applied; Held – defence with respect to discipline nor performance appraisal made out; no current work capacity; award for the applicant.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant sustained a psychological injury in the course of her employment with the respondent. 2. The respondent’s defence pursuant to s 11 A of the Workers Compensation Act 1987 with respect to discipline and/or performance appraisal is not made out. 3. The applicant has had no current work capacity from 19 September 2024 to date. The Personal Injury Commission orders: 4. Respondent to pay the applicant weekly compensation from 19 September 2024 to date and continuing as follows: (a) From 19 September 2024 to 30 September 2024 at the rate of $2,223 per week pursuant to s 36 of the Workers Compensation Act 1987. (b) From 1 October 2024 to 19 December 2024 at the rate of $2,270.50 per week pursuant to s 36 of the Workers Compensation Act 1987. (c) From 20 December 2024 to 30 March 2025 at the rate of $1,912 per week pursuant to s 37 of the Workers Compensation Act 1987. (d) From 1 April 2025 to date and continuing at the rate of $1,920 per week pursuant to s 37 of the Workers Compensation Act 1987. 5. As a matter of law, the respondent is to have credit for payments made. 6. The parties have liberty to apply with respect to indexation and the formation of the award for weekly compensation. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained a psychological injury in the course of her employment with the respondent. The injury was a result of her perception of certain events.
The respondent did not dispute that the applicant sustained an injury but relied on a defence that the injury was wholly or predominately caused by reasonable action taken by the respondent with respect to discipline and performance appraisal. The respondent also asserted that any incapacity had resolved or was a result of pre-existing conditions.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) respondent’s defence under s 11A of the Workers Compensation Act 1987 (the 1987 Act) with respect to discipline and performance appraisal, and
(b) whether any incapacity results from the accepted injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing on 22 July 2025 in Sydney. Mr Pecelj of counsel instructed by Mr Hunter appeared for the applicant. The applicant was in attendance supported by her daughter. Mr Hanrahan of counsel appeared for the respondent instructed by Ms Lungtok. Mr Sherry of the respondent’s insurer was also in attendance.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attachments.

FINDINGS AND REASONS

Section 11A

There is not dispute that the applicant sustained a psychological injury in the course of her employment with the respondent. The injury is described by the applicant’s general practitioner as post-traumatic stress disorder. Dr Saboor, psychiatrist qualified on behalf of the applicant describes the condition as a major depressive disorder with anxious distress. Dr Sudhakar, psychiatrist qualified on behalf of the respondent describes the condition as an adjustment disorder. While the nature of the diagnosis reached is different, each doctor accepts the applicant is suffering from psychological symptoms as a result of her employment with the respondent.
The respondent submits however that the applicant’s injury is not compensable as it was wholly or predominately caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and/or discipline.
To succeed in its defence, the respondent must first establish that the circumstances leading to the applicant’s injury falls within the categories of performance appraisal and/or discipline.
Before embarking on an analysis in this regard, it is necessary to set out the circumstances leading to the applicant’s injury.
It is clear from the applicant’s evidence that she came to work at Liverpool Boys High School having experienced a difficult time while working for the respondent at Condell Park High School. However she states that she experienced “new-found feelings of security” at Liverpool Boys High School.
However, on 16 September 2024 the applicant states that she was approached by a student who told her that the previous Friday, when the applicant was not working, the department head teacher, Ms Pappas, had questioned students in her class about her conduct. She states that the students who understood she had made the claims, had previously been threatening to report the applicant by making false claims against her with the view the “getting her in trouble”.
It was on learning that the students had been questioned about her that she had a strong physical response and felt as if she had been attacked.
The applicant states she spoke to Ms Pappas who told her “not to worry” and that on the following Thursday there would be a meeting with other executive staff members to discuss her wellbeing.
This factual background is supported by statement evidence from Mr Saxon, principal, who confirmed that Ms Pappas has been reviewing a concern a student had made against the applicant that was thought not to be true. Ms Pappas had spoken to the boys in the class and nothing was found. Ms Saxon noted that these were not “allegations” and that was too strong a word and they “didn’t have allegations or investigations. We had an issue and we had to resolve it.” He states that they did not tell the applicant about the concern as there was significant doubt as to its veracity.
This review of a concern however happened in the context of the respondent having separate concerns with respect to the applicant’s wellbeing. Ms Pappas in her statement describes difficulty that the applicant had been having with a class and the support structures that she had put in place which had been ongoing for a number of weeks. Ms Pappas had also involved Ms Gorman, the deputy principal. At around the same time as Ms Pappas had reviewed the concern raised by the student, Ms Gorman (it would seem unrelatedly) asked Ms Pappas how the applicant was going. It was agreed they would meet with her informally to discuss the support structures and if anything further was required. Ms Pappas states she emailed the applicant regarding the meeting, and she was initially very receptive and Ms Pappas set about finding a suitable time. The applicant subsequently (I infer following finding about the enquires made by Ms Pappas into the student concern) approached Ms Pappas unhappy that Ms Gorman was attending the meeting and spoke about the student who torments her.
Having considered the statement evidence of the applicant, Mr Saxon, Ms Pappas and Ms Gorman it would seem that the applicant was under the apprehension that the meeting being arranged with Ms Pappas and Ms Gorman was with respect to the concern and Ms Pappas’s subsequent enquiries whereas Ms Pappas and Ms Gorman had intended the meeting to be a continuation of the supports they had been providing to the applicant.
It was the learning of the concern and enquires made by Ms Pappas from another student and the subsequent arrangements for the meeting with Ms Pappas and Ms Gorman that are central to the onset of the applicant’s psychological injury. This is confirmed by the opinions of Dr Saboor and Dr Sudhakar as well as the history take by the Helen Ly in the consultation on 3 October 2024.
The question then becomes whether the action taken by the employer with respect to the management of the student concern and subsequent enquires and/or the management of the support provided to the applicant in dealing with a difficult class falls within the specified classes of disciple and/or performance appraisal.
Discipline was broadly defined by Nielson CCJ (as his Honour then was) in Kushwahav Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR 339 as learning by instruction, and the maintenance of that learning by training, exercise or repetition with the narrow meaning of punishment or chastisement being secondary to this broader meaning.
Further, the communication of a complaint that, if substantiated, could lead to disciplinary action, are actions with respect to discipline (Yeo v Western Sydney Area Health Service [1999] NSWCC 1; (1999) 17 NSWCCR 573) (Yeo).
“Reasonable actions with respect to discipline” extends to the entire process involved, including the course of an investigation (see Yeo and Department of Education and Training v Sinclair [2005] NSWCA 465 at [35]).
It is clear that the applicant was under the apprehension that the concern raised by the student was being investigated.
Mr Saxon states:
“There weren’t any allegations, that’s too strong a word. We didn’t have allegations or investigations. We had an issue and we had to resolve it. We didn’t tell her about the issue because we had significant doubt the incident the student raised was true. We wanted verification before taking it to Sahar. There was insufficient evidence and so we weren’t going to take it to Sahar.
…
She has not asked me what those allegations were and I don’t know who she did ask. In the meeting with her last week, we went through the way these issues weren’t put to her. If I had given her the student concern, I believe that would have been a psychosocial hazard. It was an unsubstantiated concern that I won’t put to a staff member. Doing that has the potential to cause unnecessary distress.”
Ms Pappas states:
“I was just gathering information, there were no allegations. I don’t understand why see thinks there were allegations. This confuses me.”
Ms Gorman states:
“I do not believe that “allegations” is the appropriate word to use in these circumstances. I believe that Sahar has catastrophised the situation and perceived the situation to be far more serious that the reality”.
In their evidence, Mr Saxon, Ms Pappas and Ms Gorman all oppose the characterisation of what took place as “allegations” or “investigations”.
I accept, following what was said in Yeo and Sinclair that the communication of a complaint which could leave to disciplinary action and the subsequent investigation are actions with respect to discipline for the purpose of s 11A of the 1987 Act.
However, it cannot be that every concern raised reaches such a threshold. In light of their evidence, it is evident that this was also in the mind of Mr Saxon, Ms Pappas and Ms Gorman.
Aware of the student who raised the concern and his antecedents it was as much the conduct of the student in raising the concern which was being enquired into as the conduct of the applicant. The respondent was not itself satisfied that the concern required investigation as an issue which could lead to disciplinary action against the applicant. The respondent, personified by Mr Saxon, Ms Pappas and Ms Gorman, did not regard the concern as a disciplinary matter. It was for precisely this reason that they had not advised the applicant of it. It was only the applicant, having heard through a third party of Ms Pappas’s enquires, who, to adopt the words of Ms Gorman, “catastrophised the situation and perceived the situation to be far more serious that the reality”.
As such, I am not satisfied that actual disciplinary action took place. For these reasons, the respondent’s defence under s 11A with respect to discipline cannot succeed.
If I am wrong in this regard, I am further not satisfied that the conduct of the applicant was reasonable.
The respondent submitted, and I accept, that reasonableness needs to be assessed objectively taking into account the requirements of both the employee and the employer (Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182 at [26]).
However, at a rudimentary level, reasonable action with respect to discipline requires that the applicant be afforded procedural fairness including being informed of the nature of the complaint made against them and given the opportunity to respond. Learning of an investigation being undertaken without their knowledge from a third party cannot be said to be reasonable.
The respondent also advances a defence on the basis that the applicant’s injury was wholly or predominantly caused by reasonable action taken with respect to performance appraisal.
Performance appraisal is discreet from discipline in the sense of ongoing instruction discussed above. As submitted by the respondent, I accept that performance appraisal refers to a process and not necessarily discreet events.
In Irwin v Director-General of School Education (NSWCC No 14068/97, 18 June 1998, unreported) Geraghty J noted:
“[performance appraisal is] somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited, discrete process with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance.”
Having regard to the evidence before the Commission however I am not satisfied that the events leading up to the applicant’s injury amount to performance appraisal in the sense of a discrete recognised process or procedure.
The applicant in her statement of 11 November 2024 states “I have never been subject to formal performance management or disciplinary action”. This is not contradicted by evidence from representatives of the respondent.
Mr Saxon in his statement evidence stated “I’m not aware if Sahar has ever been subject to formal performance management or disciplinary action”.
Ms Pappas in her statement evidence states:
“She was informed of what the meeting was in regard to, there was no agenda or allegations. It was simply an ‘are you okay?’ meeting. I was going in for the wellbeing meeting, no allegations were going to be addressed. Just checking on Sahar’s well being and support structures I had put in place to support Sahar with that difficult class.”
Ms Gorman in her statement evidence states:
“I would describe Sahar’s performance as of a satisfactory standard. However, more recently I was concerned about her wellbeing.
…
I am not aware of Sahar has been subject to any formal performance management or disciplinary action.”
If the applicant had been the subject of a former performance appraisal process, of the nature described by Geraghty J in Irwin while at Liverpool Boys High School then it would be expected that Mr Saxon as principal, Ms Gorman as deputy or Ms Pappas as the relevant department head teacher to whom the appellant reported would have been aware of it.
The support provided to the applicant in dealing with difficult classroom situations, including the meetings with Ms Pappas and the meeting planned with Ms Pappas and Ms Gorman to check in on her wellbeing were not part of a performance appraisal process.
For these reasons, the respondent’s defence with respect to performance appraisal cannot succeed.

Incapacity

The applicant alleges that as a result of psychological injury sustained while working at Liverpool Boys High School she has no current work capacity and is therefore entitled to weekly compensation.
The respondent submits that she has recovered from any injury sustained at Liverpool Boys High School and any ongoing incapacity is a result of pre-existing conditions. The respondent noted that no injury with respect to earlier periods of employment is conceded in these proceedings.
The respondent referred to a report of the general practitioner (completed in response to questions from the respondent’s insurer) where it was noted the GP expected the applicant to return to fulltime work within 3 to 6 months. The respondent submitted that the antidepressant medication the applicant was taking when examined by Dr Sudhakar in January 2025 was less than prior to her injury.
Dr Sudhakar, psychiatrist qualified on behalf of the respondent considered in a report of
30 January 2025 that a period of six months would be adequate for the applicant to expect a full recovery although at the time of the assessment noted that the applicant was unfit for employment and that her ongoing symptoms required treatment before she could be considered for a return to work.
It appears that the last psychological counselling with Ms Hussein occurred in January 2025 around the same time as the assessment with Dr Sudhakar.
Handwritten clinical records are available after January 2025, identified in the index to the documents as being from Dr Ismail Mohamed.
The record of a case conference on 21 February 2025 note that following treatment for ADHD in August 2023 there had been significant improvement in her symptoms and Lexapro had been ceased because her depressive symptoms had resolved. However the work-related incidents have caused anxiety and depressive symptoms. These records continue to 7 March 2025 with no evidence of significant improvement in the applicant’s symptoms.
Dr Mohamed issued a certificate of capacity on 20 February 2025 indicating the applicant had no capacity for employment through until 20 March (the certificate says 2024 but that seems to be an error given it was issued in 2025). Dr Mohamed expected a six month recovery period.
Dr Saboor, psychiatrist qualified on behalf of the applicant, provided a report dated 9 April 2025. He considered that the applicant was totally incapacitated at that time and had not had adequate treatment.
The applicant’s statement of 13 May 2025 indicates she is not able to return to work. I also had the benefit of observing the applicant during the arbitration hearing where she appeared to be anxious and upset and required the assistance of her daughter who was also present.
The available evidence indicates that through to at least April 2025 the applicant had pervasive psychological symptoms and was completely unfit for work and further treatment was required.
There is some evidence that the applicant’s symptoms would resolve, allowing for a return to work, with suitable treatment, including the general practitioner and Dr Sudhakar who considered resolution likely within six months. These assessments were on the basis of ongoing treatment and were a prognostic prediction rather than an assessment as to current capacity which does not appear to have been borne out with the passage of time.
I am satisfied, having regard to the evidence that I have set out above, that the applicant’s psychological symptoms continue and she has no current work capacity.

I accept there is some evidence of difficulties in prior employment and a diagnosis of ADHD. The applicant does not resile from this in her statement evidence. However, she was able to work through until the circumstances at Liverpool Boys High School occurred. The records from Dr Mohamed indicate that she had had a resolution of her earlier symptoms. On this basis, I do not accept the respondent’s submissions that the current injury had ceased and any incapacity results from pre-existing conditions. The incapacity results from the injury sustained at Liverpool Boys High School.
Having found that the applicant has no current work capacity and that that incapacity results from the injury with the respondent, there will be an award in favour of the applicant for weekly compensation from 19 September 2024 to date and continuing.

Payments already made to applicant during period of award.

Following the conclusion of the arbitration hearing the parties sought through the registry that I return to the hearing room.
They subsequently raised a disagreement with respect to the manner in which payments which had been made to the applicant during the period for which weekly compensation in sought ought be treated were I to make an award in favour of the applicant as I have done. These discussions, coming after the conclusion of the arbitration hearing, were not recorded. Additionally, no evidence was put before the Commission with respect to these payments and their nature.
The issue ought to have been raised at an earlier time and a wages schedule and evidence made available by the respondent with respect to these payments.
I note however that ss 49 and 50, with respect to weekly compensation and holiday pay and weekly compensation and sick leave respectively operate as a matter of law. Further, an award of weekly compensation is not intended to have the effect of putting the applicant in a better position that they would have been had they not been injured.
If there is a dispute with respect to the manner in which these provisions operate with respect to the award made in favour of the applicant, the parties have liberty to apply.
The applicant’s PIAWE was pleaded at $2,340 per week and is not disputed.
The PIAWE is subjection to indexation in accordance with s 82A of the 1987 Act which I have calculated as follows (rounded to nearest $10 as required):
(a)    From 19 September 2024 to 30 September 2024            $2,340
(b)    From 1 October 2024  $2,390
(c)    From 1 April 2025  $2,400
The award for weekly compensation reflects these indexed PIAWE rates.

SUMMARY

For the reasons set out above, I make findings and orders as set out in the attached certificate of determination.

[2025] NSWPIC 377

6 August 2025