George Weston Foods Ltd v Bogdanoski
[2011] NSWWCCPD 62
•3 November 2011
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | George Weston Foods Ltd v Bogdanoski [2011] NSWWCCPD 62 | |||||
| APPELLANT: | George Weston Foods Ltd | |||||
| RESPONDENT: | Nada Bogdanoski | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-2339/11 | |||||
| ARBITRATOR: | Ms C Rimmer | |||||
| DATE OF ARBITRATOR’S DECISION: | 5 July 2011 | |||||
| DATE OF APPEAL HEARING: | 27 October 2011 | |||||
| DATE OF APPEAL DECISION: | 3 November 2011 | |||||
| SUBJECT MATTER OF DECISION: | Psychological injury; assessment of evidence; application to extend time to appeal; no prospects of success; unmeritorious appeal; no demonstrable or substantial injustice if time to appeal not extended; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| REPRESENTATION: | Appellant: | Mr T Wardell, solicitor, Edwards Michael Lawyers | ||||
| Respondent: | Mr B Carney, instructed by Thomas Booler & Co | |||||
ORDERS MADE ON APPEAL: | The application to extend time to appeal is refused. The Arbitrator’s determination of 5 July 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | |||||
BACKGROUND
The respondent worker, Nada Bogdanoski, worked for the appellant employer, George Weston Foods Ltd, as a machine operator. She alleges that she received a psychiatric injury (complex post-traumatic stress disorder and severe depression) as a result of victimisation, bullying and harassment in the course of her employment between 7 October 2005 and June 2008, and as a result of assaults at work on 2 July 2006 and 22 June 2008.
The appellant disputed liability on the grounds that:
(a) no bullying or harassment occurred and Ms Bogdanoski had not been assaulted;
(b) Ms Bogdanoski had not received a psychological or psychiatric injury;
(c) if she had received such an injury, her employment was not a substantial contributing factor to the injury;
(d) she was not incapacitated;
(e) her medical treatment was not reasonably necessary as a result of any injury, and
(f) if Ms Bogdanoski received a psychiatric injury, the injury was wholly or predominantly caused by reasonable action taken by the appellant with respect to discipline and/or performance appraisal under s 11A of the Workers Compensation Act 1987 (the 1987 Act).
The Commission listed the matter for conciliation and arbitration on 20 June 2011. Mr Carney, of counsel, appeared for Ms Bogdanoski and Mr Flett, of counsel, appeared for the appellant. The matter could not be resolved at conciliation and proceeded to arbitration. Counsel made lengthy submissions, but called no oral evidence.
In a reserved decision delivered on 5 July 2011, the Arbitrator found, based on an acceptance of the worker’s evidence and the evidence from the worker’s doctors, that Ms Bogdanoski had received a psychiatric injury, namely, post-traumatic stress disorder with major depression and panic disorder, to which her employment had been a substantial contributing factor. The s 11A defence failed because the Arbitrator found that any action with respect to discipline and performance appraisal was not the predominant cause of the injury. She added that some of the actions taken by team leaders were not reasonable.
The Commission issued a Certificate of Determination on 5 July 2011 in the following terms:
“The Commission determines:
1. That the respondent pay the applicant weekly compensation as follows:
(a)$1,000 per week from 30 June 2008 to 11 December 2008 pursuant to section 36 of the Workers Compensation Act 1987;
(b)$381.40 per week from 12 December 2008 to 31 March 2009 pursuant to section 36 of the Workers Compensation Act 1987;
(c)$389.10 per week from 1 April 2009 to 30 September 2009 pursuant to section 36 of the Workers Compensation Act 1987;
(d)$396.10 per week from 1 October 2009 to 31 March 2010 pursuant to section 36 of the Workers Compensation Act 1987;
(e)$ 403.70 per week from 1 April 2010 to 30 September 2010 pursuant to section 36 of the Workers Compensation Act 1987;
(f)$409.10 per week from 1 October 2010 to 31 March 2011 pursuant to section 36 of the Workers Compensation Act 1987, and
(g)$417.40 per week from 1 April 2011 to date and continuing pursuant to section 36 of the Workers Compensation Act 1987.
2. That the respondent pay the applicant’s section 60 expenses on production of accounts, receipts and/or Medicare notice of charge.
3. That the matter be remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment of a psychiatric condition attributable to the injuries between 7 October 2006 and June 2008 including the incident on 2 July 2006.
4. All documents attached to the Application to Resolve a Dispute, the Reply and the Application to Admit Late Documents dated 17 June 2011 are admitted and are to be sent to the Approved Medical Specialist.
5. That the respondent has liberty to apply.
6. That the respondent pay the applicant’s costs as agreed or assessed.
7. This matter is certified as complex.
8. I certify an uplift of the applicant’s costs at 15 per cent.
9. I certify an uplift of the respondent’s costs at 15 per cent.
10. This matter is a separate resolution for the purposes of the calculation or assessment of costs for the respondent pursuant to clause 9(2) of Schedule 6 of the Workers Compensation Regulation 2010.”
In an appeal lodged on 3 August 2011, the employer has challenged the whole of the Arbitrator’s decision.
PRELIMINARY MATTERS
Monetary threshold
It is not disputed that the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) are satisfied.
Time
The appeal was lodged on 3 August 2011, one day outside the 28-day time limit in s 352(4) of the 1998 Act and the appellant seeks an extension of time in which to appeal. In support of that application, the appellant submitted that:
(a) he “miscalculated the time in which the Appeal had to be lodged”;
(b) the appeal is only one day out of time, meaning there can be little or no prejudice to Ms Bogdanoski, particularly where the appellant accepts there is a liability to make weekly payments under the award pending the appeal in any event, and
(c) there would be a demonstrable and substantial injustice to the appellant if the right the appellant “otherwise clearly enjoys to Appeal the Decision of the Arbitrator were withdrawn by reason of a mathematical error which has caused no prejudice to the worker”.
In response to a direction by the Commission on 6 October 2011, the appellant filed supplementary submissions on this issue on 17 October 2011. Though the direction also requested submissions from the respondent worker, none were filed until the day of the oral hearing of the appeal.
In supplementary submissions, the appellant submitted that, on receipt of the Commission’s email on 5 August 2011 advising that the appeal had been lodged out of time, he moved promptly to seek an extension of time and the respondent worker had not objected to time being extended. He added that:
(a) the existence of exceptional circumstances is not a pre-condition to the granting of an extension of time in which to appeal;
(b) the history of the matter was unexceptional;
(c) the issues in dispute between the parties are significant, in that the appellant’s position is that the respondent worker has no right to compensation and the compensation awarded is significant and ongoing, and
(d) the consequences of refusing to extend time to appeal are significant for the appellant.
Mr Carney submitted that:
(a) the appeal has little or no prospect of success because it is based on an assumption that the Arbitrator refused an application to cross-examine when no application was pressed by the appellant’s counsel at the arbitration;
(b) substantial prejudice will result if the matter is, in effect, re-litigated on what is essentially an insurer questioning an Arbitrator’s factual findings, and
(c) an appeal is limited to an error of fact, law or discretion and no error is discernable in the Arbitrator’s reasons.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules) , which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by McHugh J in Gallo v Dawson [1990] HCA 30; 93 ALR 479 (Gallo) at 480. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) the fact that, upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
The Commission has held in several cases that an oversight or administrative error by a solicitor does not, of itself, provide exceptional circumstances to justify the extension of time to appeal (Department of Education and Training v Mekhail [2006] NSWWCCPD 1; Department of Corrective Services v Buxton [2007] NSWWCCPD 55). Nevertheless, even if the reason for the appeal being lodged out of time is less than satisfactory, it is still possible to satisfy the test in r 16.2(12) if it is otherwise established that to lose the right to appeal would create a demonstrable and substantial injustice.
Allsop P considered Pt 16 r 16.2(11) of the Workers Compensation Commission Rules 2006, which was in the same terms as r 16.2(12) of the current Rules, in Bryce v Department of Corrective Services [2009] NSWCA 188. His Honour held (at [10], Beazley and Giles JJA agreeing) that:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction…”
Whether there will be a demonstrable or substantial injustice if time to appeal is not extended in the present case requires a close and careful consideration of the merits of the appeal.
FACTUAL BACKGROUND
Ms Bogdanoski was born in Macedonia in 1962. She completed high school in Macedonia and came to Australia in 1986. Her first job in Australia was as a process worker, which she did for about two years before leaving the workforce to start a family. She returned to work in 2000 doing meal preparation for Ansett. When Ansett closed in 2001, she worked for Qantas doing similar work until she left in 2005 to take a job with the appellant closer to her home.
She started work with the appellant at its Chullora “Tip Top” factory as a machine operator on the bread making line on 7 October 2005. She worked with a team of four, which included a team leader. She was initially employed as a causal, but was made a permanent full-time employee after two-and-a-half months.
Ms Bogdanoski’s complaints fall into three main categories: allegations of general harassment and bullying by co-workers and team leaders between 2005 and June 2008; an incident on 2 July 2006 when she was approached by Iwona Kulaga (known to the worker and others as “Yvonne”) and Jamie Johnson in which it is alleged that Ms Johnson waved a spanner at her; and an incident on 22 June 2008 when two co-workers stood on a conveyor and thrust their pelvises at her.
Ms Bogdanoski gave evidence in a statement dated 29 April 2010 that, a few days after she started work with the appellant, one of the women on her team, Ms Kulaga, was talking to a man from the warehouse named Chris. Chris was looking at her as if he was angry with her and that night, as she left the factory, he drove past her car near the factory and shouted “fuck off” at her.
Over the next few days and weeks she noticed that other people in her team began to look at her strangely and turn their backs on her or walk away when she approached them. She felt that they ignored her. She said that Ms Kulaga screamed at her, which she found disturbing. Though the factory was noisy, it was not necessary for Ms Kulaga to scream. After five or six weeks, Ms Bogdanoski complained to her team leader, Yassim, and spoke to the manager, Adrian Smith. She was told not to worry because “Yvonne shouted at everyone” and the company was happy with her (Ms Bogdanoski’s) performance.
Workers continued to turn their backs on Ms Bogdanoski and Ms Kulaga continued to scream at her, even during breaks when they were in the lunchroom. She found their behaviour demeaning and draining. She said that Ms Kulaga raised her finger to her and, from time to time, told her to “fuck off”. Ms Bogdanoski continued to complain to her team leader and to Mr Smith.
On occasions, Ms Bogdanoski noticed Chris’s car behind her when she was driving away from the factory after finishing the afternoon shift and she worried about what might happen because he was Ms Kulaga’s friend. After further complaints to Yassim, Ms Bogdanoski was moved to another side of the line, away from Ms Kulaga.
On 2 July 2006, Jamie Johnson, a co-worker and friend of Ms Kulaga’s, called Ms Bogdanoski from behind. As Ms Bogdanoski turned, she saw Ms Johnson holding a large spanner above her head as if she was going to hit the worker. Ms Kulaga was standing next to Jamie. The worker felt “terrified”. Jamie said, “Why have you been complaining to Yassim?”. Ms Kulaga said, “You can fuck off”. Ms Bogdanoski said that she did not respond and was shaking and too scared to speak.
Ms Bogdanoski reported this incident to Andrew Cooper, a production shift manager/production planner. Mr Cooper said in a statement dated 23 October 2009 that he had limited association with Ms Bogdanoski, but he was aware that she had difficulties with her co-workers.
Mr Cooper provided a statement dated 23 October 2009. He recalled an incident in 2006 when the worker came into his office complaining that other workers had been talking about her. She identified Ms Kulaga and Ms Johnson. He said that Ms Bogdanoski’s English was poor and, as she was crying, it was “extremely difficult to understand what she was saying”. It was his understanding that Ms Bogdanoski said that Ms Kulaga and Ms Johnson were talking about her and laughing at her. He spoke to the three women. Ms Kulaga and Ms Johnson denied that they had been talking about Ms Bogdanoski and laughing at her. He told Ms Bogdanoski that he had no control over what people talked about and, as there were no independent witnesses, he could not do anything about it.
Ms Bogdanoski saw her general practitioner, Dr Kurrie, on 2 July 2006. The doctor’s notes record:
“Stressed out at work – picked on by other workers, sworn at. (Works at Tip Top). 3-4/12. Psychiatric complaints. Complained to manager without relief. Needs the job. W/Com 2/10/7/06.”
Notes kept by Mr Charmand, the production manager, include a note handed to him by Adrian Smith about incidents before he (Mr Charmand) started with the company in September 2006. It reads:
“Sunday July 2nd at approximately 5.30pm there was an incident with Nada, Iwona and Jamie where Nada claimed that she was verbally abused. Andrew asked Nada to go home and come back tomorrow and see Adrian. Nada has not returned since.”
Ms Kulaga gave evidence in a statement dated 11 June 2010 that Ms Bogdanoski complained about everybody from the time she started work, and that everyone in the team found it difficult to talk to her. She agreed that if she called out to the worker, she did it loudly so the worker could hear. She agreed that Ms Bogdanoski said she was yelling at her. She said the worker would never accept that she had made a mistake and would blame someone else. She also claimed that if people avoided talking to the worker, she would complain that they were ignoring her.
Just before the worker went on stress leave (presumably in July 2006), Ms Kulaga and Ms Johnson approached the worker after their shift. Ms Kulaga asked Ms Bogdanoski why she was always saying that she (Ms Kulaga) was talking about her. Ms Kulaga said that she had not been talking about the worker. She said that Ms Bogdanoski “ran off to the office and it looked like she was crying” and saying, “Jamie and I wanted to kill her”.
Ms Johnson and Ms Kulaga were called to the office and explained that they had not threatened Ms Bogdanoski. Ms Kulaga did not know why the worker said they were waving a spanner at her, but it was not true.
Ms Bogdanoski stayed off work for about three weeks in July 2006 and received voluntary payments of workers compensation. After returning to work, she was transferred to a different team with a new team leader, Nemar Jurdi. She said that, on her first day back, people began to go out of their way to make her feel unwanted and an outsider. A group of co-workers called her to join them. As she approached, someone suddenly jumped out of the truck in front of her and shouted. This startled her and caused her to jump back in shock. Team members sometimes got behind her and shouted or made loud noises so that she was startled and jumped.
The worker complained that Nemar Jurdi constantly found fault with her work and criticised and belittled her. In December 2007, Ms Bogdanoski said that Mr Jurdi falsely accused her of breaking a machine. Ms Bogdanoski complained to the shift supervisor, Mark Charmand, and to Mr Smith.
Dr Kurrie’s notes record that he saw Ms Bogdanoski on 7 December 2007, when she was in obvious emotional stress due to a disagreement with the boss at work. On 14 December 2007, Dr Kurrie recorded that Ms Bogdanoski still complained of headaches and that she had had a disagreement with the foreman.
Ms Bogdanoski was transferred to a team led by Carlos Casis and things seemed better, but she soon started to have the same problems. She said that Carlos shouted at her and treated her like an idiot. When he shouted at her, she felt hot and sweaty and embarrassed. On one occasion, she broke down and could not stop crying. She took three days sick leave. After she complained to the production manager, Russell, Mr Casis’s behaviour improved but the improvement did not last.
Ms Bogdanoski said that she arrived at work early in January 2008 and set up the slicing machine. When Mr Casis arrived, he took it apart. When she tried to explain that she had set it up correctly, he threw an empty box at her and screamed at her when the bread line started. She said that he was “down on [her] over every little thing he could find”. At the end of the day, she saw Dr Kurrie, who put her off work for a few days.
Dr Kurrie recorded on 8 January 2008:
“Difficulties at work. Can’t sleep. Difficult with team leader. Pain left arm, lots of psychosomatic complaints.”
Dr Kurrie put in place a general practitioner’s mental health action care assessment and plan and referred Ms Bogdanoski to Wendy Sawtell.
Ms Bogdanoski complained to Russell again and, on 8 January 2008, lodged a workers compensation claim. A WorkCover certificate from Dr Kurrie diagnosed “anxiety/depression/work stress”, caused by “work stress, anxiety and depression”. He ticked “yes” to employment being a substantial contributing factor to the injury. At about this time, a meeting was held with the worker, Mr Charmand and Jackie, the “OHS” person. She said that Mr Charmand said she was a good worker and a good operator, and they were happy with her performance. She was transferred to another team.
Mr Charmand’s notes record that he saw Ms Bogdanoski on 18 January 2008 regarding an issue she had with Carlos Casis, her team leader. She complained that he was treating her like an animal and would get upset if she did not operate the machine the way he wanted. Mr Charmand met Mr Casis, who said that Ms Bogdanoski had not followed instructions and refused to go to the crate wash when he asked her. Mr Casis highlighted mistakes Ms Bogdanoski had made with the bread counts and in the set-up of the machines. He said that she refused to acknowledge that she made any errors and simply said that Mr Casis was picking on her.
Ms Bogdanoski was transferred to a team headed by Joseph Habak. She said this occurred on 9 or 10 January 2008 but, having regard to Mr Charmand’s notes, it seems likely that it occurred after the 18 January 2008 meeting. She said that Mr Habak refused to speak with her. He did not make “break” arrangements for her and she had to make her own. She needed to ask other team members to fill in for her whenever she needed a toilet break, which she found embarrassing. She felt that Mr Habak was going out of his way to make her feel unwelcome. She found it increasingly stressful and embarrassing because Mr Habak would talk to everyone else in the team but not her. She felt it was deliberately belittling and frustrating.
Dr Kurrie recorded on 22 January 2008 that Ms Bogdanoski was back at work in a different working environment. He added:
“Manager says she should seek a new job. Still unhappy at work, feels victimised.”
On 26 February 2008, Dr Kurrie saw the worker again and recorded that Ms Bogdanoski was vomiting and had headaches. He reported that she was very unhappy with her work situation, but had a new position.
Ms Bogdanoski said that on or about 26 June 2008, the production run ended at about 2.00 am and the line stopped. She said that most of the workers left, but she was still at her work station when Mr Habak and another worker, Chris, got on the conveyer in front of her station. They stood facing her and made “thrusting motions back and forward with their hips while laughing”. She stopped work in June 2008 and has not returned since.
The appellant tendered a statement from Christopher Blagonic dated 28 July 2010. He started work with the appellant in November 2007 and worked in Ms Bogdanoski’s team. He did not recall there being any problems with her or her complaining that he was ganging up on her. He was not aware of problems between the worker and Ms Kulaga. He had never sworn at the worker or had any arguments with her. He recalled seeing the worker in the car park and saying goodbye to her. He described Ms Bogdanoski as the type of person who was always complaining and, if anything went wrong, it was someone else’s fault and not hers. He agreed that she seemed to be in some degree of conflict with other employees but he was not involved in those conflicts.
With respect to the incident on 26 June 2008, Mr Blagonic said that, at that time of the year, they would “normally finish one production run around 7.00 pm and then the next shift would start at 10.00 pm and work through until about 7.00 am or 8.00 am the next morning”. He said that a production run would not finish at 2.00 am. He denied ever standing on the conveyor and making thrusting motions.
Mr Charmand said that Ms Bogdanoski did not turn up for work at the end of June 2008 and, on the basis that she had abandoned her employment, the appellant terminated her employment on 15 October 2008.
Other medical evidence
Dr Kurrie’s notes record an entry on 9 August 2005:
“Stress at work – last 3 weeks/headaches (tension). Crying during consultation. Conflict at work/difficulty breathing … Stress, Counselling.”
His next entry relating to stress or work problems was made on 2 July 2006 and is set out at [27] above.
On 3 March 2008, Mr Scott Nash, clinical psychologist, said that, based on Ms Bogdanoski’s self-reported symptoms and presentation, she appeared to meet the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. Her test results indicated extremely severe levels of depression, anxiety and stress. She denied the presence of any concurrent life stressors. Her financial situation was fine and she was very strong in terms of her (physical) health. She got on well with her husband’s family. She returned home while a break and enter was in progress in February 2007 and this caused some distress and it took her about six months to feel fully safe in her home. In relation to prior psychological difficulties, she said that she was very strong and had only felt distress in relation to her treatment by the appellant.
Mr Nash said that the worker complained that Mr Jurdi had put her down several times and that she had heard him tell other staff that, during Ramadan, he had “prayed to get rid of her”. She complained to Mr Charmand and to Mr Smith. Mr Jurdi rebuked her again over mechanical problems with a machine when it was not her fault. She was transferred to another team under Darren and he was also rude to her. She was transferred to a team run by Carlos and he treated her very badly. He dismantled a machine she had set up and threw a box at her. Following that incident, she took a number of days off work.
Mr Nash interviewed Mr Jurdi. Mr Jurdi said that he had tried to support Ms Bogdanoski, who was having family problems. He would let her finish early to pick up her daughter. He often saw the worker crying. She had a tendency to listen to and believe people in the lunch room when they said things such as “Nemar wants you off his team” and she became upset over such matters and would complain to him about different staff. He denied he said that he wanted to get rid of her, but towards the end of her time in his team, he did not speak to her unless asked to do so by management.
Mr Nash said that Ms Bogdanoski had a tendency to interpret being given instructions as being bullied. He thought that certain personality traits, such as an unwillingness to admit mistakes, may have contributed to her distress, and that she may have some predisposition to psychological distress, particularly in relation to her current work environment. He added that a number of staff interviewed in the course of his assessment indicated that communication difficulties were relatively common among staff due to various factors, such as lower levels of education, or having English as a second language. He recommended that staff could benefit from training related to basic communication skills.
Dr White, psychiatrist, examined Ms Bogdanoski on behalf of the appellant’s solicitors on 15 May 2008. He recorded that she had not suffered from anxiety or depression in the past and had not previously required medication such as anti-depressants or been referred to a psychiatrist or medical health professional.
Dr White took a history that, in early 2006, Yvonne had threatened to strike the worker with a hammer, resulting in the worker going on workers compensation for about three weeks. After she returned to work with a different crew, she was always upset and crying. Nemar Jurdi yelled at her and made negative comments and unreasonable requests. Ms Bogdanoski believed that he was trying to get rid of her. Though she complained to Mr Smith and Mr Charmand, they did not do anything. People made bad jokes and bad comments and did things to make her startle.
According to Dr White, Ms Bogdanoski said that she had recovered and, while she remained apprehensive about future problems at work, it was his view that there was little evidence that she was “mentally ill” as against “very upset” when she saw Dr Kurrie on 8 January 2008. There was no psychological injury.
He added that personality dysfunction could provide an alternative explanation for emotional distress that is alleged to be entirely due to a compensable focus. Personality dysfunction “may have been the primary cause for any workplace incident at issue”. Ms Bogdanoski appeared to fulfil “some of the criteria for so-called ‘Cluster B’ personality traits from the DSM-IV characterised by dramatic, emotional, aggressive, stubborn, impulsive, or erratic behaviours of sufficient severity to affect a person’s life and relationships”. It appeared to Dr White that there had been no discussion by any of Ms Bogdanoski’s “treaters” about her contribution to her problems at work. Until a person can learn about what he or she was doing to contribute to the problems, he or she is unlikely to change.
In his supplementary report of 15 May 2008, Dr White said that Ms Bogdanoski had no disability and no mental illness. He added that, while the “prognosis of mental illness is good, her volatile personality could contribute to problems in the future”. In answer to the question of whether work-related stressors were “within the range [Ms Bogdanoski] should reasonably expect to confront in her day to day employment”, Dr White said that, while that remained in dispute, “factual information suggests that there were no extraordinary psychosocial stressors”.
In answer to the question of whether the worker was “satisfactory or unsatisfactory”, Dr White said that remained in dispute, “but factual information indicates that she was a good but difficult worker”. He noted that the reasonableness of Ms Bogdanoski’s “supervision” was in dispute, but the factual information suggested that supervision was reasonable. There were no alternative causes for Ms Bogdanoski’s emotional distress.
In answer to the question, “[d]id personality dysfunction contribute to psychological symptoms, to an over-reaction to reasonable employment condition, or to the focus of disagreement?”, Dr White said that personality dysfunction was “central to the issue”. Apart from some review of her personality style, no treatment was required.
Dr White thought it would be helpful to obtain reports or a review of the “entire file”, including specialist reports from past and present treating general practitioners. He said that, if the matter proceeded, it would be necessary for Ms Bogdanoski to obtain a reasoned and reasonable opinion from an independent psychiatrist qualified on her behalf.
Dr Pukanic, the worker’s new general practitioner, reported on 18 August 2008 that Ms Bogdanoski had been involved in an incident on 2 July 2006 when she was attacked with a “spanner and shifter by another fellow worker (the woman)”. Though she did not sustain any physical injuries “the perpetrator verbally abused her”. She saw Dr Kurrie and was put off work for approximately three-and-a-half weeks.
Dr Pukanic said that Ms Bogdanoski was unhappy after her return to work because her follow workers constantly abused her. She complained of depression, severe insomnia, headaches, nightmares, fear, and extreme nervousness. On 30 June 2008, Ms Bogdanoski was constantly crying during the consultation and he prescribed anti-depressants and tranquilisers, and referred her to Steven Whyte, psychologist, and Dr Ann Stephenson, psychiatrist, for assessment and treatment.
Dr Pukanic concluded that Ms Bogdanoski had developed a severe anxiety and depression as a result of the incident at work on 2 July 2006 and subsequent abuse at work over a long period.
Ms Bogdanoski saw Dr Stephenson, her treating psychiatrist, on 21 August 2008. Dr Stephenson reported on 20 January 2009 that, two or three days after starting work for the appellant, Ms Bogdanoski observed a man, Chris from the warehouse, talking to Ms Kulaga while looking at her “crossly” as if they were cranky with her. After finishing work at midnight one night, she drove to a red light at the entrance to the factory when two young men, including Chris, drove past and told her to “f…off”. She was scared. Subsequently, Chris drove near her in dark streets late at night.
Dr Stephenson recorded that Ms Kulaga had screamed at the worker. In respect of the incident on 2 July 2006, Dr Stephenson recorded:
“Turning around, Mrs Bogdanoski saw a large spanner in the right hand of Jamie. Jamie asked Mrs Bogdanoski why she was talking to Yassim about herself and Yvonne. Yvonne told Mrs Bogdanoski to “F… off”. At that moment Mrs Bogdanoski believed they would hit her with the spanner.”
Dr Stephenson described Ms Bogdanoski as agitated, distressed and dysphoric, and breathing heavily as she described her workplace experiences. She diagnosed major depression associated with panic disorder, which was substantially related to her workplace relationships and intimidation by colleagues, particularly the incident where she was threatened with a spanner. She did not find specific symptoms to support a diagnosis of post-traumatic stress disorder.
Ms Bogdanoski relied on evidence from Dr Clark, consultant psychiatrist. He reported on 28 October 2008 that she had been threatened by a follow worker with a shifting spanner and, as a consequence, developed severe depression. She said that she had been laughed at and ostracised by her crew, and her team leader had stopped talking to her. Everyone ignored her, except the boys, who made suggestive, insulting remarks. She was unable to continue to work.
In a report dated 22 June 2009, Dr Stephenson said that, with the passage of time, the aid of a professional interpreter and the development of rapport, it was apparent that Ms Bogdanoski had post-traumatic stress disorder in addition to major depression with panic disorder. Limitations at the earlier interview involved “a lack of coherence with limitation of verbal skills”. Ms Bogdanoski continued to wake at night, re-experiencing events in which she feared for her safety because of actions by her fellow workers.
Dr Pukanic reported on 21 June 2010 that Ms Bogdanoski continued to suffer from severe anxiety and major depression, with frequent panic attacks and fear. She frequently cried during consultations. He felt that it was consistent that the incident at work on 2 July 2006 and the continuous abuse at work had produced her symptoms. Ms Bogdanoski was totally unfit for work.
Mr Whyte first saw the worker on 25 July 2008. He reported on 19 September 2010 that Ms Bogdanoski recounted being yelled at in an abusive, threatening manner, having things thrown at her, and being accused of making mistakes that were not her fault. She described her work environment as hostile and threatening. It appeared that threats to harm Ms Bogdanoski physically were made and, at one stage, she was threatened with a large spanner. It was emotionally distressing and very traumatic.
Mr Whyte said that, by Christmas 2007, Ms Bogdanoski was working in an environment where she felt isolated, unsupported, bullied and harassed, and there were no options available to her. He thought she was experiencing significant psychological symptoms that prevented her from functioning appropriately. He considered that her situation at work was causing her significant emotional distress and dysfunction in her personal, social and occupational domains. She had become more socially withdrawn, had depressed thoughts and experienced sleep problems. He added:
“Also she reports experiencing confused cognitions leading to memory and concentration difficulties and loss of motivation. This has had an impact on her ability to problem solve and make appropriate decisions. Mrs Bogdanovski [sic] has also experienced periods of crying for no particular reason and thoughts of self harm including suicide.”
Testing administered by Mr Whyte on 2 October 2009 and 19 June 2010 indicated that the worker was still experiencing significant trauma and emotional distress regarding the work incidents. The tests strongly suggested that she had an initial primary condition of an adjustment disorder with anxiety and depression that had developed into a major depressive disorder. The essential feature of an adjustment disorder was the development of clinically significant emotional and/or behavioural symptoms as a consequence of identifiable psycho-social stressors. In Ms Bogdanoski’s case, it was coming from work in the form of bullying and harassment from her supervisors and other workers. He thought it unlikely that she could return to any full-time employment.
Dr Stephenson saw the worker again on 22 November 2010 and wrote to Dr Pukanic, general practitioner, on 24 November 2010. Ms Bogdanoski had reported that, three days prior to an assault on her son in December 2005, for which he required spinal surgery, a young man working at Tip Top, Chris, had asked where she lived and said that he had been told to bash her son. Subsequently, Chris dropped a basket onto the worker’s chest, swore at her and threatened her repeatedly. Dr Stephenson considered that the involvement of Chris in a serious assault on the worker’s son was significant.
Dr Clark reported on 24 November 2011 that Ms Bogdanoski suffered from post-traumatic stress disorder with severe depression and was not employable. He said that Ms Bogdanoski had suffered a traumatic time at work, which had developed into an anxiety phobic reaction with many features of a post-traumatic stress disorder that evolved into severe depression.
ISSUES IN DISPUTE
The issues sought to be argued on appeal are whether the Arbitrator erred in:
(a) the exercise of her discretion in refusing to allow cross-examination of witnesses relied upon by either party in circumstances where there were clear issues raised in relation to Ms Bogdanoski’s credit, and where there was a significant conflict in the evidence relevant to the issues of injury, substantial contributing factor and whether the injury (if any) had been wholly or predominantly caused by reasonable action on the part of the employer in relation to performance appraisal and/or discipline (oral evidence);
(b) failing to give any reasons as to why oral evidence was not permitted and failing to acknowledge in her decision that the question of whether oral evidence should be heard was raised by the parties (oral evidence);
(c) making adverse findings in relation to the credit of the witness Iwona Kulaga without providing an opportunity for that witness to give oral evidence, be cross-examined and be confronted with the prospect of such a finding being made without having had the opportunity to respond (Ms Kulaga’s evidence);
(d) preferring Ms Bogdanoski’s evidence over that of Ms Kulaga in relation to the incident on 2 July 2006 in that she:
(i)failed to acknowledge or appreciate that Ms Bogdanoski carried the onus of establishing that her account of the circumstances of that incident were more probable than not, and
(ii)failed to give any or any adequate reasons for accepting the evidence of Ms Bogdanoski over the evidence of Ms Kulaga in relation to that incident (Ms Kulaga’s evidence).
(e) finding that “Chris” may not have been Christopher Blagonic when there was no evidence from the worker that that was the case (Christopher Blagonic);
(f) finding that the events described in Dr Stephenson’s report to Dr Pukanic dated 24 November 2010 were “reflections of a disturbed mind” in the absence of any medical or other evidence to support such a finding and in circumstances where it was equally open to conclude that the assertion made to Dr Stephenson was yet another manifestation of the unfounded delusions that had manifested themselves throughout the period during which Ms Bogdanoski alleged having suffered injury (Dr Stephenson’s report of 24 November 2010);
(g) accepting Ms Bogdanoski’s account of events was more probable than not and sufficient to discharge the onus of proof which rested on her in circumstances where such evidence was not corroborated and had been directly challenged by a number of witnesses (Ms Bogdanoski’s evidence);
(h) failing to recognise, when considering whether Ms Bogdanoski’s injury had been wholly or predominantly caused by reasonable action on the part of the employer in relation to performance appraisal and/or discipline within the meaning of s 11A of the Workers Compensation Act 1987 (the 1987 Act), that the management of Ms Bogdanoski’s “behaviour” by her team leaders and supervisors constituted performance appraisal and/or discipline within the meaning of s 11A, thereby causing the determination to miscarry (s 11A).
Though this will involve some repetition (because several of the issues overlap), it is convenient to deal with the issues in the order set out above.
ORAL EVIDENCE
Appellant’s submissions
On appeal, it was initially submitted by the appellant that Mr Flett had raised at the conciliation and arbitration the fact that the determination would require findings in relation to the credit of witnesses and involved a contest between the evidence of witnesses for the appellant and the worker’s evidence. It was submitted that the Arbitrator was referred to Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock) and that she declined to allow oral evidence and gave no reasons for that decision. It was “understood” that she declined to allow oral evidence because no application had been foreshadowed at the teleconference.
The appellant referred to Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 (Zheng). In that case, Bryson JA acknowledged (at [37]) that there was no legal right to cross-examine witnesses in the Commission, and the decision whether to allow cross-examination is a discretionary decision that must be made in the context of the legislation and practices which the Commission follows, and “in the context of the facts and circumstances of the case under consideration”.
That oral evidence “should be taken” in circumstances where credit is in issue and there is a clear conflict between the evidence of witnesses whose statements are before the Commission in relation to issues central to the determination of the dispute is acknowledged, the appellant submitted, by Practice Direction No 1. It also quoted Tobias JA in Hancock where his Honour said (at [116]):
“The Practice Direction then states that there will be many disputes suitable for determination on the papers and provides a number of examples where such a determination would be appropriate in the circumstances. It is noteworthy that those examples do not include those cases where there are factual disputes and, in particular, where the credit of the applicant or a witness is in issue. Thus, under the heading ‘Factors relevant to a determination on the papers’, the Practice Direction states that without restricting the matters that may be relevant to the decision to determine a matter on the papers, the following factors will be considered of which, relevantly for present purposes, is whether there are questions as to the credit of the applicant or a witness. As I indicate below, the present matter was such a case.”
The appellant also relied on the following statement by Tobias JA (at [141]):
“Both the Commission and the legal profession should, as Practice Direction No 1 makes clear, give serious consideration as to whether it is appropriate for a matter to be determined wholly on the papers where questions as to the credit of the applicant or a witness are in issue as in the present case.”
In the present matter, Ms Bogdanoski alleged that she had been bullied and harassed by co-workers, supervisors and team leaders. The appellant’s case on appeal is that either Ms Bogdanoski’s assertions were deliberately untrue or the result of delusion not founded in reality or, to the extent that she was spoken to by team leaders and supervisors, such conversations came under the “umbrella of performance appraisal and/or discipline” in that they related either to the management of the manner in which the worker performed her duties or to the worker’s behaviour, which was a disruptive factor in the workplace.
In these circumstances, it was submitted that it was not appropriate for the Arbitrator to arbitrarily accept some parts of Ms Bogdanoski evidence and to reject other parts. Nor was it appropriate, the appellant submitted, to accept parts of the evidence of witnesses without affording those witnesses (including Ms Bogdanoski) the opportunity to respond to challenges to their evidence. The Arbitrator erred by failing to place herself in a position where she could have the benefit of seeing the witnesses give evidence in order to form an impression as to their credibility and reliability.
It was submitted that, in these circumstances, the discretion as to whether to allow oral evidence “as raised by the parties” miscarried, in that the refusal by the Arbitrator took into account irrelevant considerations, failed to take into account relevant considerations or was so unreasonable that it should not stand, particularly having regard to the comments in Hancock to which the Arbitrator’s attention was drawn. The fact that oral evidence had not been foreshadowed at the teleconference was not a relevant consideration to the exclusion of all others.
In failing to refer in her reasons to the issue of oral evidence, the Arbitrator failed to give any reasons in relation to her purported exercise of the discretion in relation to her refusal to allow oral evidence. A failure to give reasons will constitute an error of law.
Ms Bogdanoski submitted that, at the conciliation stage of the proceedings, the Arbitrator said that “cross-examination would not assist” her in this case and that the appellant then withdrew its application to cross-examine without further argument or submission as to why it should be given leave to cross-examine.
In supplementary submissions, the appellant conceded that the issue of whether Ms Bogdanoski should have been cross-examined was raised during the conciliation stage and that no formal application to cross-examine was made during the arbitration. It added that, in light of the Arbitrator’s comment that cross-examination would not assist her, its counsel did not press the application.
Notwithstanding the error in the initial submissions, the appellant still argued that the Arbitrator erred in adopting the attitude that cross-examination would not assist, and submitted that in Hancock it was made clear that the Commission was expected to take a proactive role in determining whether oral evidence was required in order to deal with the substantial merits of the case and the resolution of the issues between the parties.
Thus, while the appellant conceded that its counsel made no formal application to cross-examine, it was common ground between the parties that the issue was raised during the conciliation stage and that the Arbitrator expressed a view that was erroneous for the reasons set out in the original submissions in support of the appeal. Those submissions have been summarised above.
Discussion and findings
I do not accept the appellant’s submissions.
The relevance of the failure to cross-examine in Hancock, and the comments made about it, must be seen in its proper context. In that case, Beazley JA expressed concern that submissions had been made (on appeal) that Mr Hancock and his treating doctor had deliberately withheld information. Her Honour said that those submissions were “improper” in circumstances where neither Mr Hancock nor the doctor had had such suggestions put to them.
In that context, Tobias JA added the obiter remarks quoted at [80]–[81] above. His Honour said (at [114]) that, when informing itself on any matter, in addition to bearing in mind that the evidence should be logical and probative, the evidence should be “complete in that it does not contain unnecessary gaps or leave matters which require explanation unexplained”.
His Honour observed that, as noted in the Commission’s Practice Directions, where an issue as to the credit of an applicant or a witness arises, that is a factor to be taken into account when considering whether to determine a matter “on the papers”. His Honour added (at [132]) that one might be forgiven for thinking that, before an adverse finding as to Mr Hancock’s credit was made, he should have been given the opportunity of answering or explaining the evidence of his work colleagues.
The Court of Appeal considered and explained Hancock in McCarthy v Patrick Stevedores No 1 Pty Ltd [2011] NSWCA 311. In that case, it was argued that I had erred in rejecting the evidence of eight lay witnesses and the applicant worker where there had been no cross-examination. After referring to the context in which Beazley JA made her comments, which were noted to be expressly obiter, Basten JA said (at [8]):
“There is no obligation to accord procedural fairness to a witness: nor will a judgment be set aside on the basis of a failure to take such a step. The impropriety in issue in Hancock was that of a party in making submissions attacking the integrity of a witness in circumstances where it had not sought to cross-examine.”
None of the issues that concerned the Court in Hancock are present in Ms Bogdanoski’s case. The question of cross-examination came up at the informal conciliation stage of the proceedings (which are never recorded or transcribed) when no formal orders or directions are made. The parties agree that the Arbitrator expressed a preliminary view that cross-examination would not assist her. Whether that related to cross-examination of Ms Bogdanoski or to cross-examination of witnesses generally is not known. It was open to her to express that preliminary view. However, the matter did not rest there.
At the conclusion of the conciliation, the Arbitrator started the arbitration. A transcript of the arbitration reveals that the Arbitrator asked if the parties had any objection to her hearing the matter (T1.44). Neither party objected. She said that she would rely on evidence that included the written material filed and served by the parties, which she then identified (T2.1). After a brief discussion about wages, she then said (at T3.1):
“ARBITRATOR: I now need to determine if any further evidence from the parties be [sic] taken. Does either party wish to make an Application at this time?
MR CARNEY: Not from the Applicant’s point of view.
MR FLETT: No.
ARBITRATOR: Alright well then it’s just a question for submissions. Both parties have filed evidence in this matter. I normally ask the Respondent to start.”
The Arbitrator’s expression of a preliminary view at the conciliation stage was not a ruling and did not prevent either party from applying for leave to cross-examine or call oral evidence. The Arbitrator expressly asked if the parties wished to make any application about further evidence. That clearly included any application for leave to cross-examine or call oral evidence. Both parties declined. A party is normally bound by the conduct of his or her case at trial (Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 (Metwally) at 71) and there is no reason why that should not be so in this case. In these circumstances, it is not open to complain on appeal that the arbitration proceeded as it did.
Contrary to the appellant’s submission, Practice Direction No 1 does not say that oral evidence “should be taken” where credit is in issue. The Practice Direction relates to the circumstances in which a matter can be determined “on the papers”, in the absence of any conference or formal hearing. In determining that question, the credit of a party or witness will be a relevant factor to take into account. The Arbitrator did not determine the matter “on the papers”, but proceeded with an oral hearing. She inquired if either party wanted to call further evidence and both counsel said no.
In deciding whether an Arbitrator has accorded the parties procedural fairness, it must be kept firmly in mind that the Commission is not a court and is not expected to function as a court (Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 at [91]). Cross-examination is only allowed by leave and “much is left to the discretion of the Arbitrator”, who is “in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise” (Zheng at [25]).
I agree with Mr Carney’s submission that, on several key issues, there was little direct conflict in the evidence. As is discussed in detail below, it is clear beyond doubt that something happened at work on 2 July 2006 and that Ms Bogdanoski was extremely distressed by it. It is also clear, as Mr Nash discussed, that “communication difficulties were relatively common” at work. Those difficulties led to tensions and conflicts in the workplace. In these circumstances, even if it were open to challenge on appeal the preliminary view expressed by the Arbitrator at the conciliation, that view was open to her and discloses no error.
The obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties (Brambles Industries Ltd v Bell [2010] NSWCA 162). As the appellant made no application to call oral evidence, the Arbitrator did not err in failing to deal with it in her reasons.
The Arbitrator’s conduct of the arbitration was not unfair to the appellant. As the following reasons demonstrate, she did not determine the case by reference to the witnesses’ credit, but by a careful and detailed analysis of the contemporaneous material and the objective facts.
MS KULAGA’S EVIDENCE
The Arbitrator’s reasons
The Arbitrator said (at [113]) that it was clear from the evidence from Ms Bogdanoski, Mr Smith, Mr Cooper and Ms Kulaga that an incident occurred on 2 July 2006 involving Ms Bogdanoski, Ms Kulaga and Ms Johnson. She accepted that Ms Kulaga and Ms Johnson approached the worker and spoke to her. She said that it was clear that, following the encounter, Ms Bogdanoski was visibly distressed and crying, not only after the encounter with Ms Kulaga and Ms Johnson, but also when she saw Mr Cooper.
The question of whether Ms Johnson was holding a spanner was, in the Arbitrator’s opinion, less clear. She noted that “Ms Kulaga denied that anyone was waving a spanner at the applicant but not that Jamie was holding a spanner”. On balance, she preferred Ms Bogdanoski’s evidence on this issue to that of Ms Kulaga. She referred to Ms Kulaga’s evidence that the worker had said that Ms Kulaga and Ms Johnson were trying to kill her. The Arbitrator concluded that it appeared “more plausible that something threatening had occurred, such as the holding of the spanner by Jamie in the encounter, for the applicant to make such a statement and also to rush off crying”.
Appellant’s submissions
The appellant has submitted that the Arbitrator rejected Ms Kulaga’s evidence “on the basis that the fact that the Respondent worker appeared visibly distressed (by Ms Kulaga’s admission) and ran off to see a more senior supervisor, Mr Cooper, supported the proposition that the Respondent worker had been threatened”. The difficulty is that the appellant contends that Ms Bogdanoski’s “account of this incident was a manifestation of her delusional behaviour and her tendency to refuse to accept criticism”. Her reaction in crying and going to see Mr Cooper was a “manifestation of [Ms Bogdanoski’s] delusional and paranoid personality unrelated to any real event in the workplace”.
In other words, the very things considered by the Arbitrator to corroborate Ms Bogdanoski’s account were the manifestations of the behaviour the appellant asserted typified Ms Bogdanoski’s conduct. The worker’s assertion that Ms Kulaga and Ms Johnson said that they were “trying to kill her” clearly had no foundation and was uncorroborated.
In these circumstances, the Arbitrator’s refusal to allow Ms Kulaga to give oral evidence and then to reject her evidence was a “clear denial of procedural fairness to both Ms Kulaga and the appellant employer and provides a specific example of the manner in which the Arbitrator’s discretion in relation to the giving of oral evidence miscarried”.
Next, it was submitted that the Arbitrator found that Ms Bogdanoski had suffered a psychological injury as a result of the incident on 2 July 2006 on the basis that Ms Bogdanoski had been threatened, apparently in a physical sense, by Ms Johnson and Ms Kulaga. In doing so, she rejected Ms Kulaga’s evidence and accepted Ms Bogdanoski’s evidence. It was submitted that:
(a) Ms Bogdanoski’s evidence of having been threatened was not corroborated;
(b) Mr Cooper had no recollection of Ms Bogdanoski complaining that she had been physically threatened;
(c) it was Ms Kulaga’s evidence that Ms Bogdanoski had asserted, while in Mr Cooper’s office, that she and Ms Johnson had been waving a spanner at her. Ms Kulaga denied that assertion, and
(d) the Arbitrator resolved the conflict in the evidence by concluding that it was “more plausible that something threatening had occurred, such as the holding of a spanner by Jamie” because Ms Bogdanoski had rushed off crying and asserted that Ms Kulaga and Ms Johnson were “trying to kill her”.
The difficulty with this approach is that, on the evidence before the Arbitrator, Ms Bogdanoski was and remains at most delusional and, at least, prone to significant exaggeration. In these circumstances, the Arbitrator erred in accepting Ms Bogdanoski’s evidence and in finding that Ms Bogdanoski had discharged the onus of proof in respect of the incident on 2 July 2006.
Further, it was submitted that the Arbitrator failed to give any or any adequate reasons why she preferred the evidence of Ms Bogdanoski to that of Ms Kulaga.
Discussion and findings
I do not accept these submissions.
The submission that the refusal to allow Ms Kulaga to give oral evidence was a “clear denial of procedural fairness” is incorrect. This submission is not soundly based and has been dealt with above: there was no application to call Ms Kulaga to give oral evidence. In any event, there is no obligation to accord procedural fairness to a witness. Mr Wardell argued that the denial of procedural fairness occurred because the appellant was denied the opportunity to put its case and to test Ms Bogdanoski’s case. However, the appellant had every opportunity to put its case and made no application to call oral evidence from Ms Kulaga or to test Ms Bogdanoski’s evidence in cross-examination.
The submissions put on appeal, namely, that Ms Bogdanoski’s account was a “manifestation of her delusional and paranoid personality”, were not put at the arbitration. Counsel at the arbitration put a logical and succinct argument, based on the evidence, that the Arbitrator should not accept Ms Bogdanoski’s evidence. He did not put anything like the submissions put by the appellant on appeal. The reason he did not do so, was that there is no evidence to suggest that Ms Bogdanoski was or is delusional. As noted above, parties are bound by the conduct of their case at first instance. However, as there is no prejudice to the worker, I will deal with the appellant’s new argument.
Ms Bogdanoski’s reaction was clearly related to events in the workplace. Exactly what happened at work was the subject of conflicting evidence. On the key issues surrounding the event on 2 July 2006, the Arbitrator accepted the worker’s evidence. The submission that the Arbitrator erred in accepting Ms Bogdanoski’s evidence is based on the false assumption that the statement by Ms Bogdanoski that Ms Kulaga and Ms Johnson were “trying to kill her” had no foundation because Ms Bogdanoski was delusional and the statement was uncorroborated.
Dealing first with the allegation that Ms Bogdanoski was delusional, Dr White suggested that personality dysfunction could provide an alternative explanation for emotional distress that was alleged to be due to a compensable focus. He added that personality dysfunction “may have been the primary cause for any workplace incident at issue” (emphasis added). He did not say, or even imply, that Ms Bogdanoski was delusional. There is no evidence that Ms Bogdanoski was delusional. The fact that the appellant disputed a number of the worker’s allegations does not support a submission that she was delusional.
The Arbitrator was satisfied that many of the things that Ms Bogdanoski complained of did happen. Even if they did not occur exactly in the way Ms Bogdanoski described them, it cannot be seriously contended that there was no conflict at work or that that conflict did not cause Ms Bogdanoski’s injury. This issue is considered in more detail below under “Ms Bogdanoski’s evidence”.
With respect to the alleged lack of corroboration, there is no rule of law that evidence in a civil action must be corroborated before it can be accepted (Chanaa v Zarour [2011] NSWCA 199 (Chanaa). In any event, the submission is incorrect. That a distressing event occurred at work on 2 July 2006 is corroborated by Dr Kurrie’s notes recorded on the day of the event. Those notes confirm that Ms Bogdanoski:
(a) was stressed at work;
(b) was picked on by other workers and sworn at;
(c) had psychiatric complaints, and
(d) had complained to the manager.
The note kept by Mr Charmand dated 2 July 2006 (though not prepared by him) also confirms that Ms Bogdanoski complained that she had been “verbally abused” on that day in an incident involving Ms Kulaga and Ms Johnson.
While neither note referred to a spanner, the Arbitrator correctly observed that, though Ms Kulaga denied that anyone had been waving a spanner at Ms Bogdanoski, she did not deny that Ms Johnson may have been holding a spanner. That fact, taken together with the evidence that spanners were readily available at the workplace, provided a sound basis for the Arbitrator’s conclusion that “something threatening” occurred on 2 July 2006. The Arbitrator’s conclusion that it was plausible that Ms Johnson was holding a spanner was open to her.
More importantly, the question is not whether Ms Kulaga and Ms Johnson were trying to kill the worker, but whether Ms Bogdanoski perceived that the events at work created “an offensive or hostile working environment” (per Basten JA State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [69]; 5 DDCR 286 (Chemler). If so, and a psychological injury resulted from that environment, it was open to the Arbitrator to conclude that causation was established.
It is true that Mr Cooper made no mention of Ms Bogdanoski complaining of having been physically threatened. However, given that Mr Cooper found it extremely difficult to understand what Ms Bogdanoski was saying, it is difficult to place much weight on his evidence other than to note, as the Arbitrator did, that he confirmed that an incident occurred in 2006 involving the worker, Ms Kulaga and Ms Johnson, and that the worker was distressed and crying. His evidence supports the worker’s evidence about the effect the incident had on her.
I do not accept the appellant’s submission that the assertion that Ms Kulaga and Ms Johnson were “trying to kill her” had no foundation and was uncorroborated. That Ms Bogdanoski said that Ms Kulaga and Ms Johnson were “trying to kill her” came from Ms Kulaga. Whether they were in fact trying to kill her is not the point. The issue was whether Ms Bogdanoski perceived that events at work created a hostile environment and caused her injury. The Arbitrator was satisfied on both issues.
The submission that Ms Bogdanoski was prone to significant exaggeration does not assist the appellant unless it is established that the extent of the exaggeration was so great that the Arbitrator erred in accepting her evidence. The appellant has not come close to establishing that. It is clear beyond doubt that there was significant friction between Ms Bogdanoski and her co-workers and team leaders. The evidence confirms that Ms Bogdanoski perceived her work environment to be hostile. The question of who was at fault (if anyone) is only relevant in the specific circumstances set out in s 11A, which are dealt with below.
With the exception of Dr White, who did not accept that Ms Bogdanoski had any psychological condition, the medical evidence strongly supports a connection between the events at work and the development of Ms Bogdanoski’s injury. In these circumstances, it was open to the Arbitrator to find that Ms Bogdanoski found her work environment to be hostile and that her psychological injury resulted from the events at work.
I would add (though I do not base my decision on it) that there is also a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference available to Ms Bogdanoski because of the appellant’s failure to tender any evidence from Ms Johnson. The Arbitrator did not draw that inference because Ms Johnson was on holidays when Mr Nash conducted his enquiries in early 2008. However, there is no explanation for why the appellant did not obtain a statement from Ms Johnson in the years since 2008. It is open to infer that Ms Johnson’s evidence would not have advanced the appellant’s case and to accept Ms Bogdanoski’s evidence about what happened on 2 July 2006.
The Arbitrator did not err in not accepting Ms Kulaga’s evidence.
CHRISTOPHER BLAGONIC
The Arbitrator’s reasons
The Arbitrator said that another inconsistency argued by the appellant related to Ms Bogdanoski’s evidence concerning “Chris”. Given that Mr Blagonic did not start work with the appellant until late 2006, the Arbitrator accepted that he could not have been looking at Ms Bogdanoski in her first few days after she started work in 2005. She did not consider that to be a “particularly significant matter” and that it was possible Ms Bogdanoski was confused in terms of who she was talking about when she made her statement and recounted the history to Dr Stephenson. It was not clear that the “Chris” from the warehouse was Mr Blagonic because Mr Blagonic had started work as a casual process worker and progressed to team leader. Mr Blagonic gave no evidence of having worked in the warehouse and that suggested that he may not have been the worker Ms Bogdanoski referred to in relation to the 2005 events.
Appellant’s submissions
The appellant submitted that the worker’s evidence about Chris was a clear example of inconsistency and inaccuracy in her evidence that the Arbitrator attempted to “gloss over”. The appellant argued that there was no evidence upon which the Arbitrator could conclude that “Chris” and Mr Blagonic were not the same person and Ms Bogdanoski made no such assertion. Once again, it was submitted that the failure to allow oral evidence had “tainted the decision making process” and the Arbitrator had engaged in “speculation” and the making of “unsubstantiated assumptions” precluded by Pt 15 r 15.2 of the Commission’s Rules.
Further, the Arbitrator’s statement that the inconsistency in the worker’s evidence was not a “particularly significant matter” missed the point. While the incident may not have been significant, it was indicative that, in a material respect, Ms Bogdanoski’s evidence was established to be incorrect and unreliable. It was therefore highly relevant in the context of the Arbitrator being required to choose which account of events, such as the incident of 2 July 2006, she was to accept, having regard to the fact that Ms Bogdanoski carried the onus of proving relevant facts to be more probable than not. If Ms Bogdanoski’s evidence was shown to be incorrect or inaccurate in relation to this incident, this undermined her credit generally and rendered it difficult to conclude that her evidence should be preferred, on the balance of probabilities, in relation to other assertions made by her.
The Arbitrator erred by engaging in “speculation” and by making “unsubstantiated assumptions” in relation to the issues that were germane to the overall determination of the matter, namely, whether Ms Bogdanoski’s evidence could be accepted and whether she should be accepted as a witness of truth.
Discussion and findings
I do not accept these submissions.
The Arbitrator did not “gloss over” the evidence about Chris relating to the events in 2005. She considered it in detail at [131]–[132] of her decision. Her reasons for finding that Mr Blagonic was not the Chris who looked at Ms Bogdanoski in 2005 were not based on speculation. They were based on the worker’s evidence that the Chris who looked at her worked in the warehouse and the unchallenged evidence that Mr Blagonic did not start work with the appellant until November 2006 and, when he did, he did not work in the warehouse. That was not speculation; that was the evidence and the Arbitrator’s conclusion based on that evidence discloses no error.
For the reasons stated earlier in this decision, I do not accept that the Arbitrator failed to allow oral evidence. The appellant made no application to call oral evidence. If I am wrong on that issue, I do not accept that the failure to allow oral evidence has “tainted the decision making process”. It is unclear which oral evidence the appellant is referring to in its submissions on this point, as none has been identified. The evidence from Ms Bogdanoski and Mr Blagonic was clear, and it is difficult to see that anything useful would have been gained by cross-examining Ms Bogdanoski on this issue, or by calling oral evidence from Mr Blagonic.
It might have been useful if the appellant had called evidence (in statements served with the reply, as required by the legislation and Rules, not as oral evidence) that the only Chris it employed during the period concerned was Mr Blagonic. It did not do so. In these circumstances, it was open to the Arbitrator to determine the matter on the evidence tendered. If Ms Bogdanoski thought that the Chris who looked at her in 2005 was Mr Blagonic, she was mistaken. Even accepting that she was mistaken on that issue, her case did not depend solely, or even mainly, on the incidents involving Chris in 2005, and it was open to the Arbitrator to conclude that it was not a significant matter.
The Arbitrator did not “miss the point”, as the appellant has submitted. She acknowledged that the evidence about Chris was “[a]nother inconsistency raised” by the appellant about Ms Bogdanoski’s evidence. She considered it and gave clear and succinct reasons why she did not consider it critical. Her approach discloses no error. An inconsistency in one part of a witness’s evidence does not mean that the whole of that person’s evidence must be rejected as unreliable. The Arbitrator considered the large volume of evidence and concluded that, on crucial issues, she accepted Ms Bogdanoski’s evidence. That approach was open to her.
DR STEPHENSON’S REPORT OF 24 NOVEMBER 2010
The Arbitrator’s reasons
In her letter to Dr Pukanic of 24 November 2010, Dr Stephenson recorded a history from Ms Bogdanoski that, three days prior to her son being assaulted, a young man from Tip Top, Chris, asked her where she lived and said he had been told to bash her son. The Arbitrator said (at [134]):
“I accept that it is quite possible that the events described in the letter are reflections of a disturbed mind. The applicant’s condition had evolved from a post traumatic stress disorder into a major depression associated with panic disorder, but it is not sufficiently clear to me that such letter has any significant probative value, in all the circumstances, on the issues or the applicant’s credibility.”
Appellant’s submissions
The appellant has submitted that the Arbitrator’s conclusion is based on “speculation” and “unsubstantiated assumptions” because there is no medical evidence that the evolution of Ms Bogdanoski’s psychological condition caused her to be any more delusional than she had been at the time of the events which she asserted had caused her psychological injury. Dr Stephenson proceeded on the assumption that the assertions reported to her by Ms Bogdanoski were factually correct.
The Arbitrator has “effectively reversed the onus of proof” and failed to properly appreciate the submission made in relation to Dr Stephenson’s history. The appellant had, in its submissions, pointed to a number of aspects of the worker’s evidence which, taken individually and as a whole, reflected adversely on her credibility and reliability as a witness.
The Arbitrator erred in finding that the events recorded by Dr Stephenson did not have any “significant probative value”, in that she failed to appreciate that the probative value of the issue, as far as it related to Ms Bogdanoski’s credibility, was one aspect in which it had been shown (or was accepted by the Arbitrator) that Ms Bogdanoski’s evidence was simply wrong.
In the absence of any medical evidence, it was not open to the Arbitrator to speculate that the assertions made by Ms Bogdanoski to Dr Stephenson were merely “reflections of a disturbed mind” that could be dismissed. Even if they were “reflections of a disturbed mind”, that begged the question as to what other assertions made by Ms Bogdanoski could be similarly dismissed in the absence of any evidence to support the proposition that her capacity for delusion and exaggeration had increased over time by reasons of her psychological condition.
Discussion and findings
I do not accept these submissions.
The Arbitrator’s statement that it was “possible” that the statement recorded by Dr Stephenson was the reflection of a disturbed mind was not speculation. Mr Whyte said in his report of 19 September 2010 (see [72] above) that Ms Bogdanoski reported experiencing “confused cognitions leading to memory and concentration difficulties”. Whether that accounted for the history recorded by Dr Stephenson is far from clear because Mr Whyte did not give oral evidence. However, the Arbitrator did not make a positive finding on that matter, but merely referred to it as a possibility.
That Dr Stephenson considered the involvement of Chris in a serious assault as significant is not determinative. The worker’s case did not hinge on the report of 24 November 2010. Dr Stephenson strongly supported the worker’s case in her earlier reports and there is no suggestion that that would have changed if she had not taken the history recorded in the November 2010 report.
I do not accept that the Arbitrator effectively reversed the onus of proof. She carefully considered the submissions put to her and gave reasons why she accepted the worker’s case on the critical issues. The history recorded by Dr Stephenson in November 2010 did not, either on its own, or taken with the other evidence relied on by the appellant, so undermine Ms Bogdanoski’s case that the Arbitrator erred in accepting it. I have already referred (at [117]–[118] above) to the evidence that corroborates Ms Bogdanoski’s case. It is further discussed below under “Ms Bogdanoski’s evidence”.
MS BOGDANOSKI’S EVIDENCE
Arbitrator’s reasons
The Arbitrator said (at [113]) that it was clear from the evidence from Ms Bogdanoski, Mr Smith, Mr Cooper and Ms Kulaga that there was an incident on 2 July 2006 involving Ms Bogdanoski, Ms Kulaga and Ms Johnson. It was also clear that, following that encounter, Ms Bogdanoski was visibly distressed and crying. On balance, she preferred the worker’s evidence to that of Ms Kulaga. Ms Kulaga said that Ms Bogdanoski said that she and Jamie were trying to kill her. It appeared more plausible that something threatening happened, such as the holding of the spanner by Ms Johnson in the encounter, for Ms Bogdanoski to have made such a statement and to rush off crying.
The Arbitrator said (at [135]):
“Having, on balance, preferred the evidence of the applicant to that of Ms Kulaga in respect of the incident on 2 July 2006, I have found that the encounter on that date and the conflict that she described in the workplace causally contributed to her developing post traumatic stress disorder and a major depression associated with panic disorder. The conduct and treatment of her by team leaders was only a part of the conduct, namely, victimisation, bullying and harassment, complained of by the applicant between 7 October 2006 [sic, 2005] and June 2008 in the workplace and that too contributed to the development of the psychiatric injury. I am not satisfied that the incident on 26 June 2008 was a significant causative factor given the medical evidence in this matter.”
Appellant’s submissions
The appellant disputed whether the incidents that allegedly caused Ms Bogdanoski’s psychological injury in fact happened. There were a number of inconsistencies and impossibilities in Ms Bogdanoski’s evidence that “mandated” a finding that her evidence could not be accepted and a conclusion that she had not discharged the onus of proof. The resolution of the conflict in the evidence between Ms Bogdanoski and the appellant’s witnesses was crucial to the determination of the claim.
Ms Bogdanoski’s evidence was “in no way corroborated by any other witness”. The contemporaneous records kept by the appellant constituted proof only of the worker having made certain assertions, and not the truth of the assertions. The Arbitrator appears to have accepted, at least to a degree, that not all of the assertions made by Ms Bogdanoski in fact occurred and, to that extent, her evidence should be approached with caution.
The task undertaken by the Arbitrator has “miscarried in that she has failed to have any or any proper regard to the onus of proof resting upon [Ms Bogdanoski] in that the evidence given by her could not support the findings of fact made by the Arbitrator on the balance of probabilities”. The Arbitrator erred in concluding that Ms Bogdanoski was a witness of credit and/or that her evidence was sufficiently reliable to enable a conclusion that the onus of proof had been discharged. Again, the failure to allow the giving of oral evidence has further “infected the fact finding process”.
Discussion and findings
I do not accept these submissions.
In no part of the Arbitrator’s decision did she say anything that even remotely suggests that she did not approach the case on the basis that Ms Bogdanoski carried the onus of proof. She considered the evidence in detail and concluded that, on balance, she preferred Ms Bogdanoski’s evidence on several critical issues. It was open to the Arbitrator to accept Ms Bogdanoski’s evidence of the distress the events at work caused her. That evidence, coupled with the worker’s strong medical case, provided a sound basis for her conclusions.
The Arbitrator carefully considered the alleged inconsistencies in Ms Bogdanoski’s evidence, as put to her by the appellant’s counsel at the arbitration. Those matters did not come close to “mandating” that the Arbitrator find that Ms Bogdanoski’s evidence could not be accepted or that she had not discharged the onus of proof.
As I said when dealing with Ms Kulaga’s evidence, there is no legal requirement that evidence in a civil case must be corroborated before it can be accepted. On the question of corroboration and assessment of evidence generally, the observations of Campbell JA (Bathurst CJ and Tobias AJA agreeing) in Chanaa are instructive. His Honour said (at [86]):
(a) “in the civil law corroboration is not a technical term, or a legal requirement”;
(b) the denial of certain evidence by one party “does not obliterate the denied evidence from the case”;
(c) “the task of the judge is to decide, on the basis of the whole evidence (denials and all), what he or she accepts”, and, in doing that,
(d) “there is no requirement for the judge to accept the whole of the evidence of any one witness”.
The Arbitrator considered the denials in the appellant’s case and concluded that, on balance, she accepted Ms Bogdanoski’s case. That was open to her and discloses no error. Though she did not accept all of the worker’s evidence, that did not prevent her from finding in the worker’s favour and did not mean that she had to find in favour of the appellant. The Arbitrator had to weigh all the evidence. She did that and, after dealing with the alleged inconsistencies, she accepted that there was considerable conflict in the workplace and that that conflict was a substantial contributing factor to Ms Bogdanoski’s psychiatric injury. That finding was consistent with the objective evidence.
In addition to the corroboration noted earlier in this decision, Dr Kurrie’s notes corroborate Ms Bogdanoski’s complaint that she was “stressed out” by work and that she had been picked on by other workers. The notes kept by Mr Charmand (not reproduced in this decision but summarised at [34]–[45] of the Arbitrator’s decision) also confirm that there were tensions and personality clashes between Ms Bogdanoski and her co-workers that upset her. The appellant’s witnesses all attest to the distress Ms Bogdanoski experienced at work. I do not accept the submission that the contemporaneous records do not provide corroboration.
Mr Jurdi’s evidence also corroborates Ms Bogdanoski’s claims. While he denied that he wanted to get rid of her, he conceded that she would listen to things said in the lunchroom and become upset over those matters. He confirmed that she complained to him about different staff. He also agreed, consistent with Ms Bogdanoski’s evidence, that towards the end of her time in his team, he did not speak to her unless asked to do so by management. Those matters were real, not imagined.
Whether the incident on 2 July 2006 occurred in the manner described by Ms Bogdanoski or in the manner described by Ms Kulaga was a matter for the Arbitrator to determine. She considered that issue at [106]–[114] of her decision. After referring to the evidence, she accepted that:
(a) Ms Kulaga and Ms Johnson approached Ms Bogdanoski and spoke to her;
(b) following the encounter, Ms Bogdanoski was visibly distressed and crying, not only after the encounter but also when she saw Mr Cooper;
(c) Ms Kulaga denied that anyone was waving a spanner, but not that Ms Johnson was holding a spanner, and
(d) Ms Kulaga’s evidence was that Ms Bogdanoski said she (Ms Kulaga) and Ms Johnson were trying to kill her.
This was a perfectly logical and accurate analysis of the evidence. Based on this analysis, it was open to the Arbitrator to accept Ms Bogdanoski’s evidence on the ground that it “appeared more plausible that something threatening had occurred, such as the holding of the spanner by Jamie in the encounter, for [Ms Bogdanoski] to make such a statement and also to rush off crying”. The overwhelming weight of the evidence is that the incident on 2 July 2006 was extremely distressing to Ms Bogdanoski. Even Ms Kulaga’s evidence confirms that fact. The medical evidence established that the incident was a significant cause of Ms Bogdanoski’s psychological injury.
For the reasons outlined earlier in this decision, the appellant’s complaint that the failure to allow oral evidence has “infected the fact finding process” is untenable.
SECTION 11A
Legislation and the Arbitrator’s reasons
Section 11A(1) provides:
“(1) 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.”
After quoting this section, and stating that she accepted that “whole or predominant” means “mainly or principally caused” (Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 at [24]), the Arbitrator said that “the first question” was whether the conduct and treatment of Ms Bogdanoski by the team leaders and managers in the period between 2007 and 2008 was the whole or predominant cause of the injury.
The Arbitrator then reviewed the evidence on the issue of causation and concluded (at [157]) that:
“The consensus of the medical evidence in my view is that her condition was mainly or principally caused by the incident on 2 July 2006, and workplace conflict with other staff members including team leaders. Many of the issues appear to relate to the applicant’s behaviour and not her work performance. The only clear performance issue relating to the applicant was her unwillingness to take instruction or direction from her team leaders. Mr Charmand stated that the team leaders consistently reported to him that Nada was not accepting feedback on her work or actions. It is clear from the evidence including the clinical notes that the applicant had disagreements and difficulties in December 2007 and January 2008 with her team leaders.”
She was satisfied that any action taken with respect to discipline and performance appraisal by managers and team leaders in 2007 and 2008 was not the predominant cause of the injury. She added (at [159]) that some parts of Ms Bogdanoski’s evidence, which were uncontested, would support a finding that some of the actions taken by the team leaders were not reasonable, such as the action of Carlos Casis in throwing a box at her. Nor did she consider it reasonable for team leaders, such as Mr Habak, not to talk to Ms Bogdanoski but to talk to all other members of the team, when it was obvious to Ms Bogdanoski that that was occurring. That looked to the Arbitrator like “deliberate isolation of [Ms Bogdanoski]”.
Appellant’s submissions
The appellant submitted that, on the one hand, the Arbitrator accepted that Ms Bogdanoski had “disagreements and difficulties” with her team leaders in relation to “her unwillingness to take instruction or direction”, but, on the other hand, these issues related to “behaviour” rather than “work performance” and therefore did not fall within the ambit of “performance appraisal” or “discipline” within the meaning of s 11A.
The Arbitrator failed to apply the correct legal test, in that “discipline” includes discussion and reprimands about the standard of work, and behaviour that undermines harmony in the workplace and thereby disrupts the employer’s operations and distracts other workers.
In Kushwaha v Queanbeyan City Council [2002] NSWCC 25; 23 NSWCCR 339 (Kushwaha), it was held that the employer’s process in drawing the worker’s unsatisfactory work performance to her attention, asking her to improve her performance and suggesting ways of doing so was “discipline”. The judge found (at [52]) that “discipline” included “learning or instruction imparted to the learner”. Kushwaha was followed in ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27 (Milovanovic), where it was held that the employer’s actions in reprimanding the worker because of the standard of her cleaning would appear to come within the primary meaning of discipline.
Speaking to Ms Bogdanoski in relation to the performance of her duties and in relation to her disruptive behaviour towards other workers and team leaders would fall within the scope of “discipline” and it appears that the Arbitrator accepted that Ms Bogdanoski’s “behaviour” included her “not accepting feedback on her work or actions” and that such issues constituted “disagreements and difficulties” which contributed to her injury.
Because the Arbitrator failed to apply the broader definition of “discipline” referred to in Kushwaha, she failed to properly consider the extent to which Ms Bogdanoski’s psychological injury related to issues concerning her “behaviour”, as distinct from “work performance”. She also failed to consider whether these matters were in fact the predominant cause of the injury.
The “central theme” of the appellant’s case was that, if Ms Bogdanoski suffered a psychological injury, it resulted from her adverse reaction to action taken by the appellant through its team leaders in relation to her performance, her failure to accept criticism in this regard, and her tendency to disrupt the workplace and react to criticism constituting “discipline” by making unfounded and exaggerated accusations against her team leaders and other staff members.
The Arbitrator failed to determine the issue of reasonableness and this warrants the matter being remitted for rehearing by another Arbitrator. If the Arbitrator’s comments at [159] could be taken as findings, she failed to give any adequate reasons for making the findings.
Discussion and findings
The appellant’s submissions are based on a dubious reconstruction of the Arbitrator’s reasons and have completely ignored the critical issue, namely, what caused the psychological injury, and the evidence dealing with that issue. The appellant carries the onus of establishing a defence under s 11A and it has not come close to discharging that onus.
The appellant has not referred to any of the medical evidence in its submissions on this issue. That is because, regardless of the definition of “discipline”, there is no persuasive medical evidence that Ms Bogdanoski’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline. Dr White did not address the s 11A issue because he did not accept that Ms Bogdanoski suffers from a formal psychiatric disorder.
Even if it is accepted that the definition of “discipline” in Kushwaha is correct, which is open to serious doubt in light of recent authorities on statutory interpretation, there is no evidence that “learning and instruction” imparted to Ms Bogdanoski was the whole or predominant cause of her psychological injury. Based on the Arbitrator’s findings, which disclose no error, Ms Bogdanoski’s injury had two main causes: the incident on 2 July 2006 and the workplace conflict with co-workers between 2005 and 2008. On any version of the July 2006 incident, it had nothing to do with discipline or performance appraisal. Therefore, even if the workplace conflict related wholly to discipline and performance appraisal, which is not supported by the evidence, it is impossible for that conflict to be the whole or predominant cause of the injury.
In Kushwaha, the evidence was that the employer’s process of drawing the worker’s attention to unsatisfactory work performance, asking her to improve that performance, and suggesting ways that could achieve that end, and of offering assistance and/or training was “discipline” and that those actions had caused the psychological injury. Nothing approaching that evidence is present in Ms Bogdanoski’s case.
In Milovanovic, the Acting Deputy President felt that the reprimand of the worker and the request that she do extra work was “discipline”. However, the conclusion in that case was that the actions with respect to discipline were not the whole or predominant cause of the injury. It provides the appellant with no assistance.
While there are general allegations that Ms Bogdanoski did not accept feedback on her work or actions, that falls well short of establishing that the feedback was discipline under s 11A, or that the feedback was the whole or predominant cause of the psychological injury. Merely telling a worker how to carry out his or her work, that is, giving lawful instructions, is not performance appraisal (Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; 19 NSWCCR 135 at [33]). Nor is it discipline.
The evidence about Ms Bogdanoski’s work performance is extremely limited. She gave evidence that she was told that her performance was good (see [21] and [39] above). The appellant’s evidence has not dealt with that. Dr White said that the factual information was that Ms Bogdanoski was a “good but difficult worker” (see [59] above). While there were complaints about Ms Bogdanoski having difficulties with co-workers, there is no evidence that the appellant dealt with those complaints as discipline or performance issues. Nor is there any evidence that the appellant gave her instruction about her actions or suggested ways of improvement.
Mr Cooper said that he had no control over what people talked about and, without independent witnesses, he could not do anything about it. He made this comment in the context of Ms Bogdanoski’s complaints about co-workers, rather than complaints by team leaders about Ms Bogdanoski’s performance. Neither he nor Mr Charmand ever took steps against or in relation to Ms Bogdanoski that could be described as action taken with respect to discipline or performance appraisal.
It follows that the s 11A defence is untenable and the Arbitrator did not err in rejecting it.
CONCLUSION
Having carefully considered the appellant’s arguments on appeal, I have concluded that the appeal is completely without merit and that the arguments in support of it are untenable. The Arbitrator did not deny the appellant procedural fairness. She comprehensively dealt with the issues argued before her and her conclusions were consistent with the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]). They disclose no error.
It follows that the appellant has not established that, in exceptional circumstances, to lose the right to appeal would result in any injustice, let alone a “demonstrable and substantial injustice”, as is required under the Rules. The application to extend time to appeal is refused.
DECISION
The application to extend time to appeal is refused.
The Arbitrator’s determination of 5 July 2011 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
3 November 2011
I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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