Ghanem v Bluescope Steel Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ghanem v Bluescope Steel Limited [2022] NSWPIC 626
APPLICANT:	Joseph Ghanem
RESPONDENT:	Bluescope Steel Limited
Member:	Karen Garner
DATE OF DECISION:	10 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Psychological Injury; claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act); applicant alleged he sustained a psychological injury due to bullying and harassing behaviour at work by his supervisor and a difficult work environment; respondent accepted that applicant had a psychological condition; whether the applicant sustained an injury pursuant to sections 4(a), 9A and 4(b)(i) of the 1987 Act; respondent raised defence pursuant to section 11A of the 1987 Act; whether 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 performance appraisal or discipline; Held – applicant sustained a compensable psychological injury pursuant to sections 4(a), 9A and 66 of the 1987 Act; injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; respondent had not established a defence under section 11A of the 1987 Act; consistent medical evidence in relation to assessment of whole person impairment; award in favour of the applicant for 22% whole person impairment ($37,759) resulting from the work-related psychological injury.
determinations made:	1. The applicant sustained a compensable psychological injury pursuant to ss 4(a), 9A and 66 of the Workers Compensation Act 1987. 2. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987.
orders made:	1. Award in favour of the applicant for 22% whole person impairment ($37,750) resulting from the work-related psychological injury.

STATEMENT OF REASONS

BACKGROUND

Joseph Ghanem (the applicant) is a 62 year old man who was employed as a Transport Allocator by Bluescope Steel Limited (the respondent).
The applicant claims permanent impairment lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of psychological injury.
The applicant alleges that he sustained psychological injury as a consequence of bullying, harassment and unfair treatment by his supervisor, Mr Felsch, and a difficult work environment commencing from around late 2015. The applicant alleges that he first sought treatment for the psychological injury in April 2017 and that the psychological injury caused an incapacity from September 2017.
The applicant first submitted a claim in respect of the injury in January 2018 when he submitted a WorkCover NSW certificate of capacity from Dr Tsang dated 25 January 2018.
On 15 March 2018, the respondent issued a dispute notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent placed ss 4 and 9A of the 1987 Act in dispute and raised a defence under s 11A. The respondent also relied upon alleged failure by the applicant to report his injury or make a claim within the relevant times provided by ss 254 and 261 of the 1998 Act. The respondent provided further material in support of its s 74 notice, by letters dated 11 May 2018 and
3 June 2018.
On 14 June 2018, the respondent issued a replacement s 74 notice. The respondent again placed ss 4 and 9A of the 1987 Act in dispute and raised a defence under s 11A. The respondent also relied upon ss 254 and 261 of the 1998 Act.
By letter dated 9 September 2019, the applicant sought a review of that decision and made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act calculated on the basis of 22% whole person impairment (WPI) ($37,750), weekly benefits compensation pursuant to s 33 of the 1987 Act and medical expenses pursuant to s 60 of the 1987 Act.
On 11 November 2019, the respondent issued a dispute notice pursuant to ss 78 and 287A of the 1998 Act. The respondent placed ss 4, 9A, 33 and 60 in dispute and raised a defence under s 11A of the 1987 Act. The respondent also relied upon ss 254 and 261 of the 1998 Act.
On 20 February 2020, the respondent issued a notice pursuant to ss 78 and 287A of the 1998 Act. The respondent placed ss 4, 9A, 33 and 60 in dispute and raised a defence under s 11A of the 1987 Act. The respondent also relied upon ss 254 and 261 of the 1998 Act.
On 23 July 2020, the Personal Injury Commission (Commission) issued a Certificate of Determination – Consent Order which noted that the parties agreed that the respondent would, on a voluntary basis without admission of liability, pay certain s 60 expenses related to inpatient treatment proposed by Dr Tsang in his report of 18 June 2020. The respondent maintained its defences should the applicant bring any further claims or proceedings. The applicant undertook not to bring any further claims or proceedings for s 33 weekly compensation or s 60 expenses in respect of any psychological or physical injuries or conditions unless the applicant did not reach 15% WPI for psychological injury, a work injury damages claim was finalised or the applicant decided not to pursue the proposed inpatient treatment. The parties agreed that, in the event that the applicant submitted a claim for 15% (or more) WPI for psychological injury and claimed s 66 compensation, there must be a determination of liability in respect of psychological injury and the respondent could raise its defences.
On 18 May 2021, the applicant sought a review of the s 74 notice dated 14 June 2018 and all later declinature notices and made an amended claim which sought compensation pursuant to s 66 of the 1987 Act in respect of psychological injuries sustained due to the nature and conditions of employment, calculated on the basis of 22% WPI ($37,750).
On 13 July 2021, the respondent issued a notice pursuant to ss 78 and 287A of the 1998 Act. The respondent placed ss 4 and 9A in dispute and raised a defence under s 11A of the 1987 Act. The respondent also relied upon ss 254 and 261 of the 1998 Act.
By email dated 17 January 2022, the respondent’s solicitor advised that the respondent maintained its denial of liability for the alleged injury and payment of compensation as stated in its previous dispute notices dated 15 March 2018, 14 June 2018, 11 November 2019,
20 February 2020 and 13 July 2021.
On 5 May 2022, the Commission issued a Certificate of Determination – Order, which noted that proceedings commenced in the Commission were discontinued on application by the applicant.
The applicant filed an Application to Resolve a Dispute (ARD) in the Commission on
8 July 2022.
On 8 August 2022 at a conference conducted by the Commission, the applicant sought leave to amend the ARD. The respondent consented to that application. Accordingly, the Commission directed that the ARD was amended to the effect that the applicant claims compensation pursuant to s 66 of the 1987 Act in respect of :
(a) psychological injury pursuant to s 4(a) of the 1987 Act, being personal injury arising out of or in the course of employment, namely the nature and conditions of employment from in or about October 2015 to 8 September 2017, and
(b) in the alternative, psychological injury pursuant to s 4(b)(i) of the 1987 Act, being a disease that was contracted by the applicant in the course of employment and employment was the main contributing factor to contracting the disease, namely a disease process with a deemed date of 8 September 2017.

PROCEDURE BEFORE THE COMMISSION

At a hearing on 9 September 2022, the applicant was represented by Ms Eraine Grotte, counsel, instructed by Ms Melissa Gouveia of Shine Lawyers. The respondent was represented by Mr Graham Barter, counsel, instructed by Mr Mick Franco of Bartier Perry Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The respondent does not dispute that the applicant has a psychological condition (as noted in the Commission’s direction made on 8 August 2022).
At the hearing, Mr Barter stated that the respondent withdrew it’s reliance on ss 354 and 261 of the 1998 Act but otherwise maintained its denial of liability on the grounds set out in the dispute notices.
The issues for determination are:
(a)    did the factual allegations asserted by the applicant occur?
(b)    if the factual allegations asserted by the applicant did occur:
(i)did the applicant suffer the psychological injury arising out of or in the course of employment, namely the nature and conditions of employment from in or about October 2015 to 8 September 2017 (as required by s 4(a) of the 1987 Act) and was that a substantial contributing factor to the psychological injury (as required by s 9A of the 1987 Act)? or
(ii) did the applicant suffer the psychological injury being a disease contracted in the course of employment and employment was the main contributing factor to contracting the disease, namely a disease process with a deemed date of 8 September 2017 (as required by
s 4(b)(i) of the 1987 Act)?
(c)    if relevant, was the psychological injury wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to demotion, transfer, provision or employment benefits, performance appraisal or dismissal (required to enliven a defence pursuant to
s 11A of the 1987 Act)? and
(d) further if relevant, what is the extent and quantification of the applicant’s entitlement to permanent impairment lump sum compensation pursuant to s 66 of the 1987 Act in respect of the psychological injury?

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attachments;
(b)    Reply to ARD and attachments, and
(c)    Application to Admit Late Documents dated 29 July 2022 and attachments.

Oral evidence

At the hearing, Mr Barter sought leave to cross-examine the applicant. Mr Barter submitted that cross-examination would assist to identify precisely what incident or incidents the applicant relied upon as causative of the psychological injury and, particularly, the relevance of incidents prior to April 2017. Mr Barter submitted that cross-examination of the applicant would also assist the Commission to determine the credibility of the applicant’s evidence in relation to those incidents.
Ms Grotte opposed the application for leave to cross-examine the applicant. Ms Grotte submitted that there was no particular utility of cross-examination as there is already sufficient evidence provided by several written statements of the applicant, numerous statements of other witnesses and medical evidence including a medical clinical note dated 20 April 2017. Further, Ms Grotte submitted that medical evidence demonstrates that cross-examination could be psychologically harmful to the applicant having regard to his diagnosed major depressive disorder.
The Commission refused leave to cross-examine the applicant for the following reasons:
(a)    there is already considerable evidence in relation to the applicant’s factual allegations provided by four statements of the applicant together with numerous other witness statements;
(b)    having regard to that evidence, I am not satisfied that there will be any particular utility in cross-examination of the applicant;
(c)    there is no dispute that the applicant has a psychological condition;
(d)    in her report dated 25 May 2022, Ms Delimanis expressed the opinion that the applicant was not psychologically fit to be cross-examined;[1]
(e)    in his report dated 26 May 2022, Dr Tsang expressed the opinion that the applicant was not psychologically fit to be cross-examined;[2]
(f)    having regard to the medical evidence, I accept that cross-examination may cause further psychological harm to the applicant, and
(g)    having regard to all of the circumstances, I am not satisfied that the interests of justice are served by cross-examination of the applicant.
[1] ARD, pages 120-121.
[2] ARD, pages 134-135.
No other application was made to adduce oral evidence nor cross-examine any other witness.

Applicant’s evidence

Applicant

The applicant gave evidence by statements dated 25 May 2018,[3] 21 April 2021,[4]
[3] ARD, page 2.
[4] ARD, page 27.
[5] ARD, page 31.
[6] ARD, page 39.
6 May 2022[5] and 24 June 2022.[6]
The applicant commenced employment with the respondent in 2000. From 2004, he was employed full-time in the position of Transport Allocator which required him to get loads of steel products ready for distribution to customers. The applicant was a union delegate.
The applicant sustained psychological injuries due to the nature and conditions of his employment from 2015 to 2017, particularly by prolonged bullying and harassment of
Mr Felsch.
Prior to Mr Felsch becoming the applicant’s supervisor in October 2015, the applicant had no prior psychological condition, the applicant had a good relationship with his managers and was regarded as a valuable employee.
After his promotion to the supervisor position in October 2015, Mr Felsch’s attitude and behaviour towards the applicant significantly changed and he appeared to be on a “power trip”. Mr Felsch spoke to the applicant in a chastising manner in front of other employees.
In front of other employees, Mr Felsch said to the applicant “you need to focus on what is best for the business” as if the applicant had not been doing that.
On 21 October 2015, in front of other employees, Mr Felsch called the applicant out and confronted him in a chastising tone of voice about a load not being done and not doing his job. Mr Felsch’s criticism of the applicant was inconsistent with previously accepted practice and unfair.
On 3 November 2015, in front of other employees, Mr Felsch repeatedly asked the applicant in an aggressive and angry manner why he didn’t want to help with a load. After the applicant said that he was busy with another job, Mr Felsch told the applicant to just go.
On 14 December 2015, in front of another employee, Mr Felsch aggressively asked the applicant why a truck had not been loaded and said that his priority was loading trucks. The applicant perceived that he was unfairly targeted because he had loaded nine other trucks that morning when another employee had loaded only one. Mr Felsch replied “I only saw you. Maybe I should come in early in the morning to delegate your work and look into your overtime”.
After those incidents, another employee Mr Collins, sent the applicant text messages of support.
The applicant felt targeted, ashamed, demeaned and humiliated by his perception of being publicly chastised by Mr Felsch on those occasions.
The applicant started to experience psychological symptoms including feeling anxious about going to work and have difficulty sleeping.
In about February 2016, the applicant verbally reported to managers Mr Hilton and Mr Kater that he was having difficulties with Mr Felsch and recounted those incidents. Mr Hilton and Mr Kater immediately responded by asking if the applicant had yelled or screamed at
Mr Felsch. The applicant felt unfairly accused. The applicant advised the names of two witnesses to the incidents who could confirm the applicant’s allegations. The applicant asked Mr Hilton and Mr Kater to speak to those witnesses and they agreed to do so.
After a staff meeting in February 2016, the applicant asked why management had not responded to his complaint and given him feedback following investigation of his witnesses. Mr Hilton responded to the effect that he thought he had given feedback. The applicant denied that had occurred and said that Mr Hilton was avoiding him.
The applicant began to feel increasingly worse about going to work, anxious, angry and lacking in energy and motivation. He worried about what Mr Felsch targeting him and he had difficulty sleeping.
On 7 March 2016, in front of other employees, Mr Felsch asked the applicant in a concerning tone “what did you do last Friday between 12-2pm”. Mr Felsch did not ask the other employees. When the applicant asked why he wanted to know, Mr Felsch did not explain. The applicant started shaking and trembling and felt like he was being publicly used as a scapegoat.
The applicant told the respondent’s human resources (HR) managers about his concerns and he “was continuing to chase HR regarding the complaint that I had lodged” and whether they had spoken with the witnesses that he had identified. HR managers told the applicant they had not spoken to the witnesses and no further investigation was needed.
The applicant asked Mr Kater if he could have a copy of the statement that he had given regarding Mr Felsch’s conduct. Mr Kater initially replied in the affirmative but subsequently told the applicant that was not possible and that he should have kept his own records.
On 9 June 2016, Mr Kater questioned the applicant’s absence to attend a dentist appointment the previous day and failure to give appropriate notification of absence. The applicant explained that he had acted in accordance with previously accepted practice.
Mr Kater’s record of the applicant’s statement omitted information. The applicant asked if the incident would go on his record, whether it was a new practice that would be enforced and if there would be a business wide meeting to address it. Mr Kater brushed off the applicant’s questions and there was no follow up regarding the incident.
The applicant felt that the respondent’s management were trying to pull him up for things that everyone did (but never in a formal manner) which caused the applicant to feel fear and uneasiness every time he attended work.
On 10 June 2016, the applicant met with Mr Kater to follow up on his request to investigate Mr Felsch’s conduct. The applicant asked for a status update and whether they had spoken to all of the witnesses that he had nominated. The applicant was advised that had not occurred. The applicant felt frustrated and upset.
On 20 June 2016, the applicant met with Mr Kater and asked him for an update regarding the investigation of Mr Felsch’s conduct. Mr Kater kept avoiding the applicant and didn’t want to speak with him.
On 21 June 2016, the applicant again met with Mr Kater and asked about the outcome of the investigation. Mr Kater said he would get back to the applicant.
The respondent’s management said that the investigation was finalised but never spoke with all of the applicant’s witnesses.
On 27 June 2016, the applicant and a colleague met with HR managers. Mr Kater questioned why the applicant needed another meeting with HR, as if the applicant was doing something wrong by going to HR with his concerns. The applicant felt “brushed off” as nothing was being done regarding the problems he had raised.
The applicant began to have difficulties with Mr Felsch constantly changing his instructions.
On 29 June 2016, Mr Durant and Mr Felsch chastised the applicant for work not being done although the applicant had been undertaking other work in accordance with Mr Felsch’s earlier instructions. The applicant felt that Mr Felsch was purposely trying to confuse him and make him look incompetent.
The applicant wanted to know whether management had spoken with his witnesses and the result of that investigation but HR kept brushing him off.
In July 2016, Mr Kater told the applicant that he was willing to talk to his witnesses if the applicant promised not to take it any further. The applicant was stunned and felt that he had no support and nowhere to turn.

At numerous times since 2015, the applicant had complained to management about
Mr Felsch’s behaviour towards him. However, management never took any meaningful action in fully investigating the applicant’s complaints. Management simply told the applicant that his complaints were unsubstantiated, which made the applicant feel disheartened.
None of the above incidents were part of any formal performance appraisal process or disciplinary process and at no time did the applicant receive any formal reports regarding his work performance.
In April 2017, the applicant and Mr Felsch had a heated argument regarding Mr Felsch’s direction that the applicant unload a truck. In the presence of other employees, Mr Felsch critically compared the applicant to another employee, saying “even [employee] can do a better job than you”. The applicant felt mocked, degraded and humiliated by Mr Felsch’s public criticism. The applicant felt physically unwell and was shaking and trembling. The applicant felt that incident was “the final straw” after two years of constant bullying and harassment, and lack of support by management with respect to his concerns.
After that incident, the applicant attended a general practitioner for the first time regarding his psychological condition and began to experience issues with his blood pressure.
One day Mr Felsch criticised the applicant for being on the phone and not working. Mr Felsch said “I am your Supervisor I am watching you”. When the applicant challenged Mr Felsch about his own phone use, Mr Felsch replied “they are not going to believe you”. The applicant perceived Mr Felsch to have a smirk on his face and his manner to be threatening. No follow up, performance appraisal or disciplinary action was taken against the applicant regarding phone use.
Mr Felsch’s actions caused the applicant to feel stressed, overwhelmed and anxious and he experienced nausea, high blood pressure and a racing heart going to work. The applicant started to have time off work after every “run in” with Mr Felsch due to the applicant feeling stressed and unwell.
On 14 June 2017, in front of other employees, when the applicant did not agree to undertake certain work due to safety concerns, Mr Felsch became angry and aggressive and said words to the effect “I am your Supervisor and you should do what I tell you”. The applicant said that Mr Felsch was not listening to his safety concerns. Mr Felsch said “We will deal with it Monday”. The applicant felt threatened.
On 17 July 2017, the applicant injured his back at work (“the back injury”).
Mr Felsch and Mr Kater attended the applicant’s appointments with treating doctors. The applicant found it extremely embarrassing and humiliating to be required to undress in front of his supervisors for his medical examination, and particularly because of the history between the applicant and Mr Felsch. The applicant ultimately changed treating practitioners.
Following the back injury, Mr Felsch continued to bully and harass the applicant. Mr Felsch spoke to the applicant in a negative tone. The applicant was instructed to report every single thing that he did to Mr Felsch, including when he went to the toilet. The applicant felt embarrassed. Mr Felsch directed the applicant, when he was undertaking light duties, to sit in Mr Felsch’s office at a desk very close to and directly behind Mr Felsch’s desk. When the applicant asked what he should do if he needed to stretch, Mr Felsch said that the applicant would have to walk in front of Mr Felsch’s desk.
On 20 July 2017, Mr Kater said that Mr Felsch had reported that the applicant had breached rules by not following Mr Felsch’s instructions when he was taken to a medical appointment. Mr Kater said he would investigate the incident. The applicant felt shocked and upset.
On 24 July 2017, when the applicant was talking with other employees in the lunchroom,
Mr Felsch angrily told the applicant “come to the front office” and said “I have wasted enough time with you, I have more important things to do” and instructed the applicant to “go and sit there, Jesse will deal with you”. The applicant felt humiliated, punished and treated like a child.
On numerous occasions during August and September 2017, the applicant was subjected to surveillance investigation in respect of his back injury.
Mr Hilton and the respondent’s management were generally unsupportive and dismissive of the applicant’s complaints about Mr Felsch’s conduct. They accused the applicant of being a bully.
In September 2017, the applicant was given a Performance Management Plan.
At no time prior to September 2017, was the applicant subjected to discipline or performance appraisal.
The applicant experienced psychological injury as a result of the alleged stressors.
Once the applicant changed his nominated treating doctor and saw an independent general practitioner, he was referred for psychological and psychiatric treatment.
From 8 September 2017, the applicant was certified unfit for work due to psychological injuries. He has not returned to work since that time. The applicant had no prior history of psychological injury.
The applicant first sought treatment for the psychological injury in April 2017 and the psychological injury caused incapacity from September 2017.
The first notification of the applicant’s psychological injury was by a WorkCover certificate of capacity from Dr Tsang on 25 January 2018.
In October 2020, the applicant had a 10 day psychiatric inpatient admission under the care of psychiatrist, Dr Tang. The applicant continues to experience and be treated for psychological symptoms.

Mr Chahine, applicant’s friend, colleague & union delegate

Mr Chahine gave evidence by written statements dated 21 April 2022[7] and 22 June 2022.[8]
[7] ARD, page 29.
[8] ARD, page 37.
During the 16 years that he worked with the applicant, Mr Chahine observed the applicant’s strong work ethic. He never witnessed any disciplinary action taken against the applicant.
In July 2016, he attended a meeting with a HR representative, Mr Kater and the applicant regarding the applicant’s complaints about Mr Felsch’s bullying and harassing treatment of him. The applicant asked whether HR had spoken with witnesses that the applicant had identified. Mr Kater appeared to avoid the applicant’s questions which appeared to upset the applicant. The applicant asked “why are you making it so hard”. Mr Kater replied “I promise to talk to the witnesses if you promise that you will not take the matter any further”. The applicant then said “are you offering me a deal?”. Everyone appeared shocked and the applicant was upset.
HR and management appeared to avoid dealing with and investigating the applicant’s complaints about Mr Felsch, which appeared to upset the applicant.

Mr Dickens, applicant’s colleague and union delegate

Mr Dickens gave the following evidence by written statements dated 8 April 2019[9] and
[9] ARD, page 23.
[10] ARD, page 35.
21 June 2022.[10]
Mr Dickens observed the applicant to be a hard, consistent worker with a strong work ethic.
Mr Dickens did not personally witness Mr Felsch’s inappropriate behaviour towards the applicant. However, Mr Dickens was verbally advised of such behaviour by the applicant or third parties. On many occasions, the applicant complained to Mr Dickens regarding bullying and harassing behaviour by Mr Felsch. The applicant appeared to be uncharacteristically rattled and upset by Mr Felsch’s behaviour.
Mr Dickens attended the applicant’s meetings with management regarding the applicant’s complaints about Mr Felsch’s behaviour. The meetings appeared to be one-sided in
Mr Felsch’s favour and there was no particular outcome of the meetings.
Despite the applicant’s complaints, the applicant was still required to work with Mr Felsch.
Mr Felsch monitored the applicant’s return to work after his back injury. On one occasion,
Mr Felsch required the applicant to sit behind him in the supervisors office in a very tight space which made the applicant uncomfortable and upset.

Mr Scotti, applicant’s colleague and friend

Mr Scotti provided the following evidence by an undated letter.[11]
[11] ARD, page 24.
Over a period of at least 15 years, Mr Scotti observed the applicant to be honest, hardworking and reliable, willing to assist others and mindful of health and safety requirements.

Other evidence

A copy of two text messages both dated 3 November 2015[12] are alleged by the applicant to be from Mr Collins although it is somewhat unclear from the content of the document. One stated: “... it’s not right what’s happening there, and to you in particular...”. Another referred to Mr Felsch’s promotion, the difficulty of the applicant’s job and asked the applicant to “chill out”.
[12] ARD, page 25.
An email dated 8 August 2017[13] from the union to Mr Kater referred to an incident on
17 July 2017 and stated that the applicant was changing his nominated treating doctor (to
Dr Kassar) because he was intimidated by the doctor’s unprofessional and inappropriate relationship with the respondent’s management. It stated that the respondent’s management attended the applicant’s medical appointments with the nominated treating doctor, which was intimidating and caused the applicant to feel anxiety and stress. It also stated that at the medical appointments, the doctor inappropriately asked the respondent’s management if it was okay for the applicant to have a day off or to work from home.

Respondent’s evidence

[13] ARD, page 1.

Mr Felsch, transport supervisor

Mr Felsch gave the following evidence by an oral statement that was recorded in writing by Mr Kater on 24 July 2017,[14] a written statement dated 28 March 2018[15] and attachments.
[14] Reply to ARD, page 54.
[15] Reply to ARD, page167.
The applicant resented Mr Felsch’s promotion to the position of supervisor in
November 2015. The applicant rejected Mr Felsch’s authority and argued aggressively with Mr Felsch. The applicant refused and failed to comply with Mr Felsch’s instructions, acted inappropriately, was inflexible with meal breaks, was not contactable, spent excessive time on his phone, distracted other staff and failed to notify Mr Felsch of his movements including leaving early for work.
Mr Felsch reported the applicant’s behaviour to managers Mr Hilton and, after he left,
Mr Kater. Because of the applicant’s role as union delegate, management was loathe to formalise any issue regarding the applicant and instructed Mr Felsch to informally de-escalate matters with the applicant. The applicant’s inappropriate behaviour was “swept under the carpet”. However, that had the effect of emboldening the applicant to always behave inappropriately and push back on any instruction given by Mr Felsch.
Mr Felsch largely avoided contact with the applicant and only raised legitimate workplace issues with the applicant out of sheer necessity. On those occasions, the applicant would behave disproportionately and aggressively rant at Mr Felsch, yelling at his face and waving his hands and pointing his finger at Mr Felsch. Mr Felsch “simply had to cop his abuse because I had no support from management to effectively deal with the claimant”.[16] At times, Mr Felsch considered himself making a formal grievance of bullying and harassment by the applicant.
[16] Reply to ARD, page 172.
Mr Felsch acted appropriately towards the applicant at all times. Mr Felsch did not target or unfairly criticise the applicant.
Mr Felsch said that every time he approached the applicant about a work related subject, the applicant immediately felt it was a personal attack.
On 3 November 2015, Mr Felsch asked the applicant to take a later break. The applicant was unhappy about that request and became “agitated”. Shortly thereafter, the applicant took sick leave.
On one occasion in 2016, Mr Kater spoke with the entire transport team about their behaviour and the applicant became loud and argumentative.
On 8 February 2016, the applicant refused Mr Felsch’s direction to load a truck, even though it was part of his required duties and he was being paid overtime to do so. The applicant took offence by Mr Felsch’s instruction and felt that it was a personal criticism and attack. The discussion became heated. At all times, Mr Felsch spoke to the applicant in a reasonable and appropriate manner. Mr Felsch was later informed that the applicant had formally complained to HR about Mr Felsch’s conduct. Shortly thereafter, the applicant left work to attend a dental appointment without notifying Mr Felsch or other management staff.
On 10 June 2016, Mr Felsch completed a Performance Discussion Form which noted the applicant’s failure to directly inform his supervisor regarding his absence from work on
8 June 2016. It stated the respondent’s expected behaviour. The form noted an outcome of “Diary Note” rather than a warning.
Mr Felsch’s diary note dated 28 July 2016 states that he had an “informal discussion” regarding crib times. Mr Felsch said that unloading trucks currently in attendance should take priority over planning for future trucks. The applicant yelled and waved his arms and accused Mr Felsch of always checking up on him, telling him what to do, picking on him and not appreciating him. Mr Chahine attended.
Mr Felsch did not reprimand the applicant about use of his mobile phone.
Mr Felsch’s diary note dated 19 April 2017 states that after Mr Felsch told the applicant of his future later start time, the applicant stated that Mr Felsch was “out to get him” and was only targeting him. The applicant was loud and aggressive. Mr Felsch noted that the conversation then reverted to a previous discussion “where I had asked him to provide me with details of tasks performed on Thursday 13/4/2017. I had given him overnight to ‘remember’ what he had done between his morning tea break and the end of the shift”. The applicant again became aggressive and pointed out that the smokers stand around not working while on the job. Mr Felsch said that he noticed the applicant around lunchtime most days talking on his telephone out on the lawn. The applicant questioned whether he needed to report every time he made a call or went to the toilet. The applicant asked “what if I have diarrhoea? do I have to report it every time?”.
Mr Felsch’s diary note dated 24 April 2017 states that after the applicant returned from sick leave, Mr Felsch said that the applicant had not answered his calls or messages. There was a heated exchange between Mr Felsch and the applicant which lasted approximately sixty minutes. At one point during the conversation, the applicant noted Mr Felsch pointing at him. Mr Felsch apologised and noted that it was not intentionally a threatening gesture. The applicant accused Mr Felsch of harassing and targeting him. Mr Felsch noted that it was the third time that the applicant had taken sick leave after a heated discussion between the two of them. The applicant responded that “when he is stressed he can’t focus and think straight”.
Mr Felsch’s diary note dated 29 June 2017 stated that, on a number of occasions, the applicant had left site or gone missing after being asked to perform work that he did not wish to undertake. Mr Felsch noted that the applicant did not work in a team environment within the set parameters and often ignored and aggressively challenged instructions. Mr Felsch noted that the applicant was aggressive and abusive towards him on occasion.
Mr Felsch’s diary note dated 11 July 2017 states that the applicant complained to Mr Felsch that Mr Durant, the tolls allocator, was applying too much pressure on him to perform his job. The applicant felt offended that Mr Durant was suggesting that he could not do his job properly. The applicant was emotional. Mr Durant denied that he had acted inappropriately. The applicant later told Mr Felsch that he had gone home unwell, a doctor had been called to his home after work and he was diagnosed with “very high blood pressure”.
Mr Felsch’s diary note dated 17 July 2017 states that he drove the applicant to an appointment with Dr Khan and waited with the applicant in the reception room.
The applicant resented the requirement that Mr Felsch was involved in the management of his return to work following his back injury.
On 24 July 2017, when the applicant was late presenting to the administration office for required duties, at about 9.25am, Mr Felsch found the applicant elsewhere onsite talking with
Mr Cahain. Mr Felsch said hello to both of them and asked what the applicant was up to. The applicant responded that he was just getting a bit of sun and trying to warm up. Mr Felsch said “could you come inside to get you started”. Mr Felsch did not specify that the applicant come to the office immediately because he did not want to interrupt the applicant conducting any union business. Mr Felsch returned to the office and waited for the applicant. At about 9.33am, the applicant had not presented at the office and Mr Felsch went looking for him.
Mr Felsch saw the applicant with another employee walking towards the crib room doors. The applicant asked “where do you want me?”. Mr Felsch replied “I’m running late now. Come back up to admin and I’ll get JK to look after you”. Mr Felsch walked up to the office. The applicant did not follow but continued talking with other employees. The applicant took about 10 minutes to get to the office. When the applicant arrived in the office, Mr Felsch indicated him to sit on the lounge and said “Jesse will look after you when he is available”.
On or about 25 July 2017, the applicant was on a return to work plan working restricted duties following an alleged work injury. The applicant spoke with other employees, whilst he kept Mr Felsch waiting for about an hour for the applicant to present to Mr Felsch as directed. After waiting for the applicant, Mr Felsch finally directed the applicant to go to Mr Kater’s office. Mr Felsch had run out of time and had to attend to another matter. When the applicant attended Mr Kater’s office, Mr Kater was on his phone so Mr Felsch gestured for the applicant to sit down and wait for Mr Kater. Mr Felsch said to Mr Billington that he would be in the transport office if required and that the applicant was waiting for Mr Kater. Mr Felsch was subsequently advised that the applicant alleged that Mr Felsch had been rude to him and belittled him. Mr Felsch was dumbfounded by the allegations as he had behaved appropriately at all times. The applicant had been rude by taking about an hour to attend the office.
Mr Felsch’s diary note dated 31 July 2017 states that when the applicant attended work on restricted duties, Mr Felsch directed the applicant to perform various restricted duties, sitting or standing to accommodate the applicant’s pain. Mr Felsch directed the applicant to perform certain duties at a spare desk behind Mr Felsch’s desk, either sitting, standing or walking.
Mr Felsch did not allow the applicant’s request to work in the lunch room because the applicant would be interrupted by other employees on their break and the television. The applicant threw the procedure on the table, said that he was going home and walked out.
The applicant’s last day of work was on or about 11 September 2017. Leading up to that time, the applicant was becoming increasingly hostile to his return to work plan.

Mr Billington, operations coordinator

Mr Billington gave the following evidence by an oral statement that was recorded in writing by Mr Kater on 24 July 2017,[17] written statements dated 6 April 2018[18] and 16 May 2022[19] and attachments.
[17] Reply to ARD, page 58.
[18] Reply to ARD, page 198.
[19] Reply to ARD, page 314.
Mr Billington has never witnessed Mr Felsch, or anyone, behave inappropriately towards the applicant.
Mr Billington witnessed the applicant behaving inappropriately at work. He would not accept instructions, became argumentative and spoke loudly without respect. The applicant would ignore people as they spoke with him. Typically, the applicant acted in that manner towards Mr Felsch.

The applicant intermittently made complaints that Mr Felsch was bullying and harassing him. The applicant said that Mr Felsch would issue unnecessary instructions. Mr Billington told the applicant that Mr Felsch was just doing his job and that the applicant had to accept
Mr Felsch’s instruction. The applicant would not accept that feedback and remained in denial with a belief that he had been wronged by Mr Felsch. The applicant resented receiving instruction from Mr Felsch.
The applicant alleged that he injured his back at work in mid-2017 after he was directed to perform work he did not want to undertake. The applicant was subsequently certified fit for restricted hours and duties. The applicant did not diligently perform his allocated restricted duties as required, worked slowly and avoided work including by scheduling physiotherapy appointments during restricted work hours.
As a result, Mr Kater instructed the applicant while on restricted duties to present to work at 9am and then to report to Mr Felsch to be allocated duties. The applicant resented that instruction.
On 24 July 2017, the applicant took over an hour to report to Mr Felsch. When the applicant came to the office, Mr Felsch directed the applicant to sit on a couch and wait for Mr Kater. Mr Felsch presented in a conversational tone and did not yell. Mr Felsch apparently was not happy but he was not agitated. The applicant subsequently complained about the manner in which Mr Felsch spoke to him.
Just prior to the applicant permanently ceasing work for the respondent, the applicant was placed on a performance improvement plan in relation to the manner in which he communicated with Mr Felsch.
Mr Billington’s handwritten diary note dated 7 September 2017 noted a discussion on that date between the applicant, Mr Leslie, Mr Billington and Mr Kater in relation to a performance improvement plan issued to the applicant. The applicant complained that he had gone from being bullied to being accused of being a bully. Mr Kater explained that the respondent’s investigation of the applicant’s complaint of bullying by Mr Felsch was complete and finalised. The applicant maintained that the respondent’s investigation of his complaint was incomplete. The applicant stated that the respondent would not talk with witnesses unless he agreed not to go any further. The applicant agreed to follow the performance improvement plan but refused to sign the plan.

Ms Young, employee

Ms Young gave evidence by an oral statement that was recorded in writing by Mr Kater on 24 July 2017.[20] Ms Young did not hear anything out of the ordinary.
[20] Reply to ARD, page 59.

The applicant

The applicant gave evidence by an oral statement that was recorded in writing by Mr Kater on 24 July 2017.[21]
[21] Reply to ARD, page 63.
At about 9.15am on 24 July 2017, the applicant left Mr Kater’s office after Mr Kater directed him to go and see Mr Felsch. The applicant stopped to talk with other employees. Mr Felsch approached the applicant and said that he was looking for him. The applicant replied “ok, no worries, I am just charging up my body in the sun”. At about 9.27am, Mr Felsch returned and came “storming down” to the applicant and said “let’s go to the office”. Mr Felsch was clearly unhappy. Mr Felsch left to go to the office.
When the applicant attended the office a few minutes after 9.30am, Mr Felsch was already there. The applicant asked what he was going to do. Mr Felsch said “I have been waiting long enough”. Mr Felsch pointed at the applicant with his hand and said in an angry tone of voice “you’ll see [Mr Kater]”. The applicant was offended and angry because he did not know why Mr Felsch was angry with him.

Mr Chahine, applicant’s colleague and friend, union delegate

Mr Chahine gave evidence by an oral statement that was recorded in writing by Mr Kater on 24 July 2017[22] and a written statement dated 31 May 2022.[23]
[22] Reply to ARD, page 60.
[23] Reply to ARD, page 316.
From about 2016, the applicant routinely, about twice a week, complained to Mr Chahine as union delegate about Mr Felsch. Mr Chahine is “100% certain” that he never witnessed
Mr Felsch behave inappropriately towards the applicant. However, Mr Chahine worked in a different section and did not normally see the applicant and Mr Felsch together and interacting.

Mr Ounepaseuth, storeman

Mr Ounepaseuth gave evidence by written statements dated 6 April 2018[24] and 10 May 2022.[25]
[24] Reply to ARD, page 196.
[25] Reply to ARD, page 302.
Mr Ounepaseuth did not witness Mr Felsch, nor anyone else, behave inappropriately towards the applicant.
The applicant behaved inappropriately towards Mr Felsch and would “blow up” and abuse
Mr Felsch whenever he tried to speak with the applicant. When that occurred, Mr Felsch would stand and listen. Mr Felsch did nothing to aggravate the applicant’s behaviour. The applicant also refused to work as instructed.
Mr Ounepaseuth complained to Mr Felsch about the applicant’s performance.

Mr Russell, storeman

Mr Russell gave evidence by written statements dated 6 April 2022[26] and 10 May 2022.[27]
[26] Reply to ARD, page 207.
[27] Reply to ARD, page 305.
Mr Russell did not witness Mr Felsch, nor anyone else, behave inappropriately towards the applicant.
Mr Russell witnessed the applicant behave inappropriately towards Mr Felsch including yelling and waving his arms in front of Mr Felsch’s face. That normally occurred when
Mr Felsch was trying to issue the applicant with a work instruction. Mr Felsch acted in a calm and reasonable manner towards the applicant.

Ms Lottey, logistics coordinator

Ms Lottey gave evidence by written statement dated 6 April 2022.[28]
[28] Reply to ARD, page 209.
Ms Lottey was “dumbfounded” that the applicant made allegations against Mr Felsch.
On two occasions, Ms Lottey witnessed Mr Felsch issue the applicant with an instruction and the applicant got within an inch of Mr Felsch’s face and screamed at him. The applicant’s behaviour was “totally unacceptable and disgusting” and Ms Lottey advised Mr Felsch to report the applicant’s behaviour. The applicant “always complained” and was “openly critical” of Mr Felsch. It appeared obvious that the applicant did not like Mr Felsch and the applicant resisted any instructions from Mr Felsch.

Mr Kater, operations leader

Mr Kater gave evidence by written statements dated 20 April 2018[29] and 13 May 2022[30] and attachments.
[29] Reply to ARD, page 212.
[30] Reply to ARD, page 310.
Mr Kater had no exposure to the relationship between the applicant and Mr Felsch until 2016. Mr Kater never witnessed Mr Felsch, nor anyone else, behave inappropriately towards the applicant.
In June 2016, the applicant complained to Mr Kater about Mr Felsch’s behaviour towards him. The applicant stated that Mr Hilton had not addressed a previous complaint that the applicant had made about Mr Felsch.
Mr Kater enquired with Mr Hilton about those matters. Mr Kater found that Mr Hilton had investigated the applicant’s complaint in February 2016, found that Mr Felsch had behaved appropriately towards the claimant and verbally advised the applicant of the outcome of the investigation.
Mr Kater then reinvestigated the matter. Mr Kater found that Mr Felsch had acted appropriately and lawfully towards the applicant.
On 10 June 2016, Mr Kater met with the applicant, in the presence of a support person, and the HR adviser. Mr Kater said that Mr Hilton had interviewed witnesses and then given
Mr Felsch “feedback on the floor”. The applicant denied receiving feedback. Mr Kater advised the applicant that the outcome of the two investigations was that Mr Felsch had not acted inappropriately. The applicant complained that Mr Hilton had not spoken to all the witnesses identified by him. The applicant asked if a witness from Toll had been interviewed. Mr Kater acknowledged that the applicant’s witness had not been formally spoken to because they were not an employee of the respondent and that the investigation was substantiated on the existing information. The applicant refused to accept the outcome of the two enquiries. Mr Kater offered the applicant a mediation session which he declined.
Mr Kater denied that he avoided the applicant’s questions at the meeting. Mr Kater denied that the applicant asked words to the effect “Why are you making it so hard” and that
Mr Kater replied words to the effect, “I promise to talk to witnesses if you promise you will not take the matter any further”.
Subsequently, the applicant intermittently casually complained to Mr Kater about Mr Felsch’s instructions and manner of communication and about having to report to Mr Felsch. Upon enquiry, Mr Kater found that each incident involved the applicant’s resentment of receiving routine lawful instruction from Mr Felsch. Mr Kater never found that Mr Felsch’s actions or conduct were inappropriate.
Mr Felsch complained that the applicant ranted and raved when issued with routine instructions by Mr Felsch. Mr Kater never witnessed such behaviour by the applicant but accepted that the applicant acted inappropriately and disproportionately to lawful instruction.
Mr Kater was unsuccessful in his informal attempts to try to improve the relationship between the applicant and Mr Felsch
In April 2017, the respondent commenced a more formal approach in relation to the applicant’s conduct.
In July 2017, the applicant was injured at work. The applicant was subsequently placed on a return to work plan which involved restricted duties and hours. The applicant continually complained of discomfort and left work to attend doctor appointments. Mr Kater believed that the applicant was trying to be disruptive and avoid working under the return to work plan. The complainant’s behaviour at work deteriorated, he did not communicate with Mr Felsch nor perform duties as instructed.
Whilst on restricted duties, the applicant complained to HR about Mr Felsch speaking to him in an angry tone when he attended the office as directed. Mr Kater later investigated that allegation and found that the allegation was not substantiated. HR substantiated the investigation as correct.
In about September 2017, Mr Kater initiated the applicant being placed on a performance improvement plan to improve his work performance. Problems identified for improvement included absenteeism, inappropriate tone and negative approach when discussing workplace matters, inappropriate notification of absences to the applicant’s supervisor, difficulty in following reasonable direction of the supervisor and not participating in problem solving to resolve an issue regarding crib times. The applicant was required to attend weekly review meetings with Mr Kater.
After the first review meeting, the applicant obtained a medical certificate which stated he was unfit for work. The applicant has not returned to work since that time.
The applicant’s complaints about Mr Felsch were all found to be unsubstantiated. However, the applicant never accepted that outcome.
It was normal practice for a representative of the respondent to attend medical appointments for injured workers to ensure good communication. With the consent of the employee,
Mr Kater routinely attended medical examinations of injured workers. Mr Kater asked if the worker did not want him present. If a worker was to get undressed, Mr Kater would ask the worker if they wanted him to leave the examination. If the worker refused consent for
Mr Kater to remain present during the examination, Mr Kater spoke with the doctor afterwards. At all medical examinations with the applicant, Mr Kater asked if the applicant consented for him to be present during the examination and the applicant agreed. The applicant never got undressed in Mr Kater’s presence.

Mr Hilton, operations manager

Mr Hilton gave evidence by written statement dated 17 April 2022.[31]
[31] Reply to ARD, page 229.
Mr Hilton denied ever behaving inappropriately towards the applicant. He never witnessed
Mr Felsch or anyone else behave inappropriately towards the applicant.
Regularly, about every one or two months verbally in casual conversation, the applicant complained to Mr Hilton about Mr Felsch’s speaking to him poorly and treating him unfairly. The applicant never put his complaints about Mr Felsch in writing.
Mr Hilton believed that the applicant’s complaints related to Mr Felsch’s safe, fair and lawful instructions as supervisor.
Mr Hilton made “informal enquiries” into the applicant’s first complaint regarding Mr Felsch’s behaviour. Mr Felsch is aware that the applicant subsequently raised the complaint again with Mr Kater in about May 2016 and that Mr Kater investigated the matter. Both Mr Hilton and Mr Kater came to the same conclusion that Mr Felsch had issued the applicant with a lawful instruction as his supervisor.
During the time that Mr Hilton worked at the site, no formal action was taken against the applicant in relation to his behaviour.

Mr Hilton’s notes

Mr Hilton prepared a summary of his investigation which he provided to Mr Kater.[32]
[32] Reply to ARD, pages 214 and 220.
Mr Hilton’s file note in the week starting 7 December 2015 noted that the applicant approached Mr Hilton regarding issues that he was having with Mr Felsch. Mr Hilton spoke with Mr Felsch about the applicant’s concerns . Mr Hilton stated that Mr Felsch had made reasonable requests for the applicant to perform tasks. The file note recorded that no issues were raised again and the case was closed.
Mr Hilton’s file note dated 18 February 2016 indicated that the applicant again raised the same issues concerning Mr Felsch’s behaviour. The applicant complained that he was being unfairly treated by Mr Felsch by being given additional and excessive tasks, was being unfairly denied the opportunity to train as a cabin crane operator. Mr Hilton spoke with
Mr Felsch. Mr Hilton concluded that Mr Felsch acted reasonably towards the applicant and he so informed the applicant.
Mr Hilton’s file note dated March 2016 noted that Mr Hilton provided verbal feedback to the applicant that Mr Felsch had the authority to set tasks for the applicant as well as amending the applicant’s set tasks, provide feedback and review schedules. Mr Hilton stated that he did not believe that Mr Felsch set about being threatening towards the applicant.

Ms Sutherland, HR advisor

Ms Sutherland gave evidence by written statement dated 23 April 2022[33] and attachments.
[33] Reply to ARD, page 232.
HR records noted that in late 2015 and during 2016, the applicant complained to the respondent’s management about being unfairly and inappropriately treated by Mr Felsch.
A letter dated 25 July 2016[34] from the applicant’s union to the respondent’s HR advisor stated that the applicant had, earlier that year, informed HR department that he was bullied by Mr Felsch in October, November and December 2015, and that HR had advised the applicant that it would investigate the incidents and interview witnesses. The letter stated that the investigation was recently completed and the applicant was advised that there were no adverse findings. The letter stated that the applicant was not provided with a copy of its investigation report or other supporting material. The letter further stated that the applicant had subsequently been told that a number of identified witnesses were never interviewed, despite the respondent stating otherwise.
[34] Reply to ARD, page 291 (also at Reply to ARD, page 49).
A letter dated 9 August 2016[35] from the respondent to the union stated that Mr Hilton had conducted an “informal investigation” and had a number of “informal discussions with the employees involved” and concluded that the appropriate response would focus on mending the relationship between the applicant and Mr Felsch. The letter advised that the respondent “has chosen not to investigate” a further alleged incident between the applicant and
[35] Reply to ARD, page 301 (also at Reply to ARD, page 50).
Mr Felsch on 28 July 2016, nor to “re-investigate the earlier incidents”.
On or about 24 July 2017, the applicant complained to Mr Kater that Mr Felsch had not spoken to him in an appropriate manner at work. Mr Kater investigated the applicant’s complaint and found no evidence to substantiate the complaint.
The applicant was dissatisfied with Mr Kater’s determination and applicant escalated the matter to HR for review. In an email to Ms Sutherland dated 31 July 2017,[36] the applicant stated that Mr Kater’s investigation “was biased and apparent in favour of the other person which is always in the case, and it left a bitter taste and disappointment as I have experienced similar outcome in the past which has not been resolved till this day”.
[36] Reply to ARD, page 63.
An investigation report[37] prepared by Ms Sutherland noted that the applicant had made previous complaints about Mr Felsch’s behaviour towards him and that Ms Sutherland’s investigation “was investigating the matter that occurred on the 24^th July 2017 and not other issues that have occurred in the past, as these had been addressed by the Company previously”. The investigation report noted that Ms Sutherland conducted the review by meeting with the applicant and Mr Kater and reviewing notes and witness statements that were provided to her by Mr Kater as part of his investigation process.
[37] Reply to ARD, page 234.
Ms Sutherland’s notes of a meeting with the applicant and Mr Dickens (as the applicant’s support person) dated 10 August 2017[38] appear to note, in relation to complaints made some years prior, that:
“...
JG... Outcome wrong. Not fair or complete. Missing links not followed up. Gave names of ppl to speak [with], they made bargain [with] me. Said would speak to them if promise not to take any further. Jesse said this. George Chanine was witness.
...
When Bruce became T/L I became targeted...
...
JG Need to review all matters. Only want to look [at] one side of story. Process is always incomplete and one sided...”
The applicant referred to a history of incidents between him and Mr Felsch. The applicant stated that Mr Felsch had humiliated him at work since 2015. The applicant stated that he had complained about Mr Felsch’s behaviour three or four times and his complaints had never been accepted. The applicant complained that the respondent’s investigation process “is always incomplete and one sided”. Ms Sutherland declined to discuss previous incidents or complaints and focused discussion on the incident of 24 July 2017.
[38] Reply to ARD, page 238.
Ms Sutherland’s diary note dated 10 August 2017,[39] noted that in a meeting about the investigation, the applicant “... presented very tense & anxious & stressed...”.
[39] Reply to ARD, page 244.
The outcome of Ms Sutherland’s review concerning the incident on 24 July 2017 was that
Ms Sutherland found that Mr Kater’s investigation had been conducted correctly and had no flaws. Ms Sutherland upheld the initial determination that there was no evidence to substantiate the applicant’s complaint against Mr Felsch. The applicant was verbally advised of the outcome of Ms Sutherland’s investigation.
A letter from the respondent to the applicant dated 30 August 2017[40] required the applicant to improve his work behaviour and performance. The letter noted that all of the applicant’s past complaints about Mr Felsch had not been substantiated. It stated that the applicant’s “repeated behaviour of raising complaints, is having a negative effect on your work performance, places undue stress on your supervisor Bruce Felsch, and creates a significant drain on resources to investigate”. The letter also required the applicant to address other issues with his work performance including absenteeism, inappropriate tone, inappropriate notification of absences to his supervisor, difficulty in following reasonable direction and not participating in problem solving to resolve an issue with crib times.
[40] Reply to ARD, page 262 (also at Reply to ARD, page 133).

Mr Dickens, applicant’s colleague and union delegate

Mr Dickens gave evidence by written statement dated 10 May 2022.[41]
[41] Reply to ARD, page 307.
Mr Dickens never witnessed Mr Felsch, nor any other person, behave inappropriately towards the applicant.
On several occasions, the applicant complained to Mr Dickens about Mr Felsch’s behaviour. The respondent’s management investigated the applicant’s complaints against Mr Felsch but never found the complaints to be substantiated.
The applicant was deeply upset with Mr Felsch issuing him with instructions as supervisor. It was obvious that over the years, Mr Felsch’s instructions to the applicant as to how to perform his work “took a toll” on the applicant and “the applicant appeared anxious to be at work and seemed nervous”. The applicant seemed to be “rattled” by various run-ins with
Mr Felsch and spoke with Mr Dickens about it “in a panicky breathless manner”.
The applicant complained to Mr Dickens that after his physical injury as part of his return to work plan, he was required to work in close proximity to Mr Felsch in an office directly behind Mr Felsch’s desk. The applicant complained that made him feel uncomfortable given the number of unsubstantiated complaints that he had made against Mr Felsch.

Mr Farrell, investigator

Mr Farrell gave evidence by written statement dated 17 July 2022.[42]
[42] Reply to ARD, page 318.
Mr Farrell conducted an investigation into the applicant’s workers compensation claim.

Other evidence

Various other file notes, correspondence and other documents (some of which were also addressed in the context of the evidence of relevant witnesses) included:
(a)    notes of Mr Hilton dated 7 December 2015, 18 February 2016, 22 February 2016 and March 2016;[43]
[43] Reply to ARD, page 41.
(b)    notes of Mr Kater of a meeting with the applicant, Mr Kater and Ms Lambert on 10 June 2016;[44]
[44] Reply to ARD, page 43.
(c)    notes of Ms Lambert concerning a meeting with the applicant, Mr Kater,
Ms Lambert and a support person on 10 June 2016:[45] which noted that Mr Kater stated that “yesterday’s discussion was not disciplinary” and the applicant stated “not talking disciplinary”;
[45] Reply to ARD, page 44.
(d)    notes of Mr Kater regarding an incident on 30 June 2016:[46] which noted actions of verbal discussions with Mr Felsch in relation to giving a department direction and addressing employees in a respectful manner;
[46] Reply to ARD, page 48.
(e)    letter from the union to the respondent dated 25 July 2016;[47]
[47] Reply to ARD, page 49.
(f)    letter from the respondent to the union dated 9 August 2016;[48]
[48] Reply to ARD, page 50.
(g)    notes of Mr Kater regarding an incident on 24 July 2017;[49]
[49] Reply to ARD, page 51.
(h)    various statements taken by Mr Kater from the applicant, Mr Felsch, Mr Billington, Ms Young and Mr Chahine on 24 July 2017;[50]
[50] Reply to ARD, pages 52 to 60.
(i)    notes of a meeting between the applicant, Mr Kater, Mr Dickens and Mr Billington dated 25 July 2017:[51] which noted that the applicant complained that the applicant was stressed because Mr Felsch continued to bully and target him even though none of the previous investigations had found that Mr Felsch engaged in bullying behaviour;
[51] Reply to ARD, page 61.
(j)    email from the applicant to Ms Sutherland dated 31 July 2017;[52]
[52] Reply to ARD, page 63.
(k)    notes of a meeting with the applicant, Ms Sutherland and Mr Dickens dated
10 August 2017;[53]
[53] Reply to ARD, page 64.
(l)    notes of a meeting with Ms Sutherland and Mr Kater dated 10 August 2017;[54]
[54] Reply to ARD, page 69.
(m)     notes of Ms Sutherland dated 15 August 2017;[55]
[55] Reply to ARD, page 71.
(n)    investigation reports of an independent investigator dated 20 August 2017,
5 September 2017 and a surveillance report dated 24 September 2017, prepared in relation to the applicant’s physical work injury;[56]
[56] Reply to ARD, pages 72 to 130.
(o)    notes of a meeting between the applicant, Ms Sutherland and Mr Took on
30 August 2017;[57]
(p)    letter from the respondent to the applicant dated 30 August 2017, which stated that all of the applicant’s complaints about Mr Felsch had been investigated and had not been substantiated. The letter stated that the applicant’s repeated behaviour of raising complaints was having a negative effect on his work performance, placed undue stress on Mr Felsch and created a drain on resources to investigate. The letter stated concerns regarding the applicant’s work performance including absenteeism, inappropriate tone and approach when discussing workplace matters, inappropriate notification of absences, difficulty in following reasonable direction of his supervisor and not participating in problem solving to resolve an issue with crib times. The letter required the applicant to improve his conduct and performance;[58]
(q)    Performance Improvement Plan issued to the applicant dated
5 September 2017;[59]
(r)    notes of a meeting between the applicant, Mr Kater and Mr Billington on
7 September 2017,[60] and
(s)    the respondent’s supervisor notes and employee details dated between
June 2016 and March 2018.[61]

Treating medical evidence

[57] Reply to ARD, page 131.

[58] Reply to ARD, page 133.

[59] Reply to ARD, page 135.

[60] Reply to ARD, page 142.

[61] Reply to ARD, page 147.

Medical Certificate and GP Mental Health Care Plan

A letter of referral to Dr Phillips and a GP Mental Health Care Plan both completed by
Dr Ghannoum on 20 April 2017, referred the applicant for psychiatric opinion and management and psychological therapy in relation to “stress / work related / about one year / ignited again about 2 weeks ago issues with his supervisor”. The GP Mental Health Care Plan noted symptoms including depressed mood, anxious and stress at work. It also noted a K10 diagnostic score of 37 and a diagnosis of “depression/anxiety”.

Reports of Ms Delimanis, clinical psychologist

Ms Delimanis treated the applicant from November 2017 through to 2019.
Ms Delimanis’ report dated 4 January 2018 noted that the applicant had been referred to her for treatment of depression. It stated that the applicant “reported symptoms consistent with full Diagnostic Statistics Manual, Version Five (DSM-V) criteria for Major Depressive Disorder (Severe, with catatonic features) as well as symptoms of anxiety and panic characteristic of Adjustment Disorder due to a work related issue”.[62] Ms Delimanis noted the serious nature of the applicant’s symptoms despite psychological treatment and recommended that the applicant should be reviewed by a psychiatrist.
[62] AALD, page 111.
Ms Delimanis’ report dated 8 May 2018 noted the applicant’s ongoing serious psychological symptoms despite further treatment and recommended that treatment continued. The report stated that the applicant’s “current mental health issues are clearly related to his workplace injuries”.
Ms Delimanis’ report dated 14 November 2019 noted that had observed a continued deterioration of his psychological functioning during the period of treatment from 2017 to 2019. Ms Delimanis recommended inpatient admission to a mental health clinic for a significant period of time.
Ms Delimanis’ report dated 25 May 2022, prepared at the request of his lawyers, noted that the applicant reported no previous mental health issues prior to workplace issues.[63]
Ms Delimanis stated that the applicant reported ongoing psychological symptoms “since injuring himself at work and the ongoing purported psychological abuse by his supervisor and lack of support from senior management”.[64] Based on DSM-5 diagnostic criteria,
[63] AALD, page 118.
[64] AALD, page 119.
Ms Delimanis diagnosed major depressive disorder with severe catatonic features and adjustment disorder with anxiety features. Ms Delimanis stated that the applicant was not psychologically fit to engage in the cross-examination process.

Reports of Dr Tsang, psychiatrist

Dr Tsang treated the applicant from January 2018.
Dr Tsang’s report dated 18 January 2018 stated that the applicant had shown no significant improvement of his distressing symptoms after treatment by clinical psychologist,
Ms Delimanis. Dr Tsang noted that the applicant presented with about three months history of psychological symptoms which included avoiding work, being worried to see his supervisor and paranoia that his supervisor or associates would be spying on him (based on his real experience related to his physical injury workers compensation claim). Dr Tsang noted that “happened in context of more than 12 months of perceived bullying from his new supervisor where he felt he was continually being targeted and treated unfairly”.[65] The report noted that the applicant reported no prior history of work issues and no prior mental health issues.
[65] AALD, page 123.
Dr Tsang diagnosed moderate to severe major depression with comorbid anxiety disorder, and a differential diagnosis of post-traumatic stress disorder.
Dr Tsang’s report dated 22 February 2018 noted that the applicant “remains deeply depressed, ruminating and pre-occupied by every details of his work place bullying” and also experienced paranoia and over-valued ideation.[66] Dr Tsang recommended inpatient admission for treatment.
[66] AALD, page 125.
Dr Tsang’s report dated 11 February 2019 noted that the applicant’s symptoms had stabilised and he was in a generally depressive state. The applicant had “less intense ruminating and pre-occupied by the every details of his work place bullying” and no longer demonstrated paranoia and over-valued ideation.[67]
[67] AALD, page 127.
Dr Tsang’s report dated 6 June 2019 noted mild improvement in the applicant’s symptoms following treatment.
Dr Tsang’s report dated 18 June 2020 stated that the applicant fulfilled the DMS-5 criteria of severe major depressive disorder with melancholic features. Dr Tsang stated that he believed that the applicant’s employment was the main contributing factor to the onset of his psychological condition because the applicant had no previous mental health issues, had a long good working record in the same company, the first ever onset of symptoms occurred after the work incidents and his theme of depressive ruminations are work-related.[68]
[68] AALD, page 131.
Dr Tsang’s report dated 16 May 2022 stated that the applicant had “clinical features similar to severe post-traumatic stress disorder on top of his depressive symptoms, characterised by severe rumination of events, flashbacks, suppressed anger and recurrent nightmares closely related to his perceived traumatic work-related events and moral injuries”.[69] Dr Tsang stated that the applicant was not fit to engage in cross-examination.
[69] AALD, page 134.
Other evidence included:
(a) an undated letter from the applicant to Dr Tsang, which stated the applicant’s preferences in relation to treatment options, and
(b) various prescriptions written by Dr Tsang.

Clinical notes of St John of God Medical Centre

Various clinical notes of the St John of God Medical Centre noted Dr Tsang’s review and treatment of the applicant.

Clinical notes of Dutton Street Medical Centre

Various clinical notes of the Dutton Street Medical Centre noted the applicant’s attendances and treatment.
A clinical note recorded that the applicant consulted with Dr Ghannoum on 20 April 2017 and stated:
“stress / work related / about one year ignited again about 2 weeks ago
issues with his supervisor...
couldn’t sleep last night
feels anxious [sic] / when he sees his supervisor / due to his negative attitude and feedback...:”
The clinical note stated psychological symptoms including poor sleep, early morning wakening, low self-esteem, depressed mood, anxious, stress at work, relationship problem, irritability, irrational fears and panic attacks. The clinical noted stated the reason for the visit was “anxiety disorder”. The clinical notes included a K10 assessment dated 20 April 2017, a GP Mental Health Care Plan Patient Assessment dated 20 April 2017, a referral to Dr Phillips dated 20 April 2017 and a medical certificate certifying the applicant unfit for work from
20 April to 21 April 2017.
Clinical notes recorded that the applicant consulted with Dr Ghannoum on 9 May 2017 for a medical certificate with a history of work stress and issues with his supervisor. Dr Ghannoum issued a medical certificate certifying the applicant unfit for work from 9 May to 10 May 2017.

Clinical notes of Dr Kassar

Clinical notes of Dr Kassar show that the applicant consulted with Dr Kassar on
20 October 2017 claiming that he was very depressed.
The applicant consulted with Dr Kassar again on 31 October 2017 for depression. Dr Kassar prepared a GP Mental Health Treatment Plan which noted a provisional diagnosis of depression and stated “work related injury – victimised at work and liability denied – clear signs and symptoms of depression with anxiety”.
Clinical notes record that the applicant subsequently consulted with Dr Kassar in relation to psychological symptoms on numerous occasions from November 2017 to May 2018.
Dr Kassar completed a number of referrals to Dr Tsang from January 2018.

Workers compensation medical certificates

Various Medical Certificates and Certificates of Capacity/Fitness certified the applicant’s capacity for work.
A Certificate of Capacity dated 26 July 2017 referred to injury to the applicant’s back, left shin and groin as a result of a work accident ton 17 July 2017. It also stated that:
“Further advises that the incident with his supervisor Bruce and [sic] has been internally investigated and result is in supervisor’s favour
Patient advises that supervisor’s reaction and tone on 24.7.17 was harsh and abrupt
Patient advises tha the intends to involve HR with regard to this incident
History with current supervisor
-patient advises past issue of bullying and harassment 2 years ago – unresolved
-patient advises that the supervisor made his life “hell”
-he advises that there have been multiple previous HR episodes with current supervisor with no satisfactory outcome with any of them
Case conference Pt/Employers representative JK/NTD
-patient advises that he is unhappy with the outcome of previous HR investigation
-employer’s rep will be on leave and handover issue to Mr SO
-advised that the main RTW barrier for patient is the poor employer-employee relations at present [sic] and ongoing disagreement regarding the dispute resolution process”
A Certificate of Capacity dated 2 August 2017 referred to the applicant’s ongoing physical injury and stated that the applicant felt that “everyone at work is questioning him about stretching and exercises... the others think that he is ‘good’. He states that they felt there should be a ‘magic wand’ to assist him”. It noted that the applicant experienced “friction” between him and his supervisor regarding where he was to sit whilst performing restricted duties. It noted that the applicant attempted to sit in the lunch room but his supervisor advised the applicant to return to the supervisor’s office and to sit behind him.[70]
[70] AALD, page 265.
A Certificate of Capacity dated 22 September 2017 stated that the applicant had no capacity for work and referred to the applicant’s physical injury and also “work place conflict causing anxiety illness” with a stated date of injury being 17 July 2017.
Various Certificates of Capacity from at least July 2018 to June 2022 stated that the applicant had no capacity for work due to workplace conflict causing major depressive / anxiety illness, with a stated date of injury being 17 July 2017.

WorkCover NSW medical certificates

Various WorkCover NSW medical certificates were completed by Dr Tsang during 2018 which certified the applicant unfit to work with a diagnosis of major depression with melancholic features (severe).

Independent medical evidence

Dr Gertler, consultant psychiatrist

A medico-legal report of Dr Gertler dated 2 October 2018 stated a diagnosis of major depression, which was pervasive and had been present for almost 12 months and not resolving despite appropriate psychological treatment. Dr Gertler stated that the prognosis was guarded. Dr Gertler stated that the applicant’s employment, specifically alleged harassment and bullying to which he was subjected over a period of some two years, was a substantial contributing factor to the development of the adjustment disorder. Dr Gertler noted that the alleged harassment occurred from 2015 and involved recurrent criticism of the applicant’s work practices, humiliation and a lack of support not only from his immediate supervisor but also by other senior staff, and an inability finally, and despite a strong work ethic, to continue in the workplace. Dr Gertler stated that the applicant had been incapable of working since January of 2018 because of the severity of his major depression. Dr Gertler believed that the applicant had reached maximum medical improvement and he assessed 22% WPI.
In a supplementary report dated 5 February 2019, Dr Gertler stated that the applicant had been unfit for work since September 2017 to the present time.
In a further supplementary report dated 31 March 2020, Dr Gertler stated that the applicant was suffering from a persistent major depression which appeared to have worsened since 2018. Dr Gertler stated that the applicant required further intensive treatment including psychiatric hospitalisation. Dr Gertler stated that the applicant’s condition was not at maximum medical improvement. Dr Gertler stated that he remained of the opinion that the applicant’s psychiatric condition was the result of perceived humiliating treatment, harassment and bullying experienced by him from 2015 which was inconsistent with and did not acknowledge the fact that the applicant had worked for the respondent for many years without difficulty and with loyalty. Dr Gertler stated that the applicant does not suffer from a disease of gradual process, but suffers from a psychiatric condition, and the applicant’s employment was the main contributing factor to the development of the psychiatric condition.
In a further supplementary report dated 4 February 2021, Dr Gertler stated that he saw the applicant for psychiatric reassessment on 1 February 2021. Dr Gertler noted that the applicant had a 10 day psychiatric inpatient admission in October 2020. Dr Gertler stated a diagnosis of major depression with melancholic features and maintained that the applicant’s employment was a substantial contributing factor to the development of the injury. Dr Gertler stated that the applicant had reached maximum medical improvement and he assessed 22% WPI.

Dr Smith, consultant psychiatrist

A medico-legal report of Dr Smith dated 5 March 2018 stated a diagnosis of major depressive disorder. Dr Smith stated that, assuming the accuracy of the applicant’s account, the development of the applicant’s condition was causally contributed to by employment events, which included criticism of his performance and conduct by his manager, which the applicant considered was unfair. Dr Smith stated that, in his opinion, the main contributing factor to the development of the applicant’s depressive symptoms was performance appraisal and discipline regarding conduct issues by his manager. Dr Smith considered that the applicant was incapacitated for work from a psychiatric perspective.
In a supplementary report dated 15 May 2018, Dr Smith maintained his opinion that the applicant’s perception of the attempts at managing his performance and conduct was the predominant contributing factor to his depressive condition. Dr Smith expressed his view that the applicant’s depressive condition was predominantly caused by employer action as to performance appraisal or discipline. Dr Smith noted that the applicant ceased work in the context of being notified of the applicant’s intention to implement the performance management plan.
In a further supplementary report dated 11 February 2020, Dr Smith stated a diagnosis of persistent depressive disorder with persistent major depressive episode. Dr Smith expressed the opinion that contributing factors were workplace events, persistent back pain and his inability to return to work resulting in financial distress. Dr Smith noted that the applicant continued to report the development of depressive symptoms in the context of the criticism by his manager and Dr Smith maintained his opinion that the applicant’s depressive condition evolved in that context and was predominantly caused by employer action as to performance appraisal or discipline. Dr Smith stated that the applicant was completely incapacitated for work from a psychiatric perspective. Dr Smith stated that the applicant had reached maximum medical improvement and he assessed 22% WPI.

CONSIDERATION

Injury

The applicant alleges psychological injury pursuant to ss 4(a) and 9A of the 1987 Act and, in the alternative, pursuant to s 4(b)(i) of the 1987 Act, with a deemed date of
8 September 2017. The respondent has placed injury in issue.
Determination of whether the applicant sustained an injury as alleged is a question of fact and consideration of lay evidence and medical evidence is required.
The applicant bears the onus of proving he sustained psychological injury as alleged, on the balance of probabilities.
To be satisfied on the balance of probabilities of a fact, I am required to feel an actual persuasion of the existence of that fact.[71]
[71] Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWC 246.
Relevant to the issue of causation, in Kooragang Cement Pty Ltd v Bates[72], Kirby P (as he then was) stated:[73]
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death is not determinative of the entitlement to compensation. In each case, the question of whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact determined on the basis of the evidence, including where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case the Judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and to ask the question of whether the dispute of incapacity or death ‘resulted from’ the work injury which is impugned.”
[72] (1994) 35 NSWLR 452.
[73] (1994) 35 NSWLR 452, at [463].
Relevant to the issue of causation of psychological injury, particularly in relation to a worker’s perception of real events at work, in Attorney General’s Department v K[74], Roche DP (as he then was), summarised the principles to be applied:[75]
[74] [2020] NSWCCPD 76.
[75] [2020] NSWCCPD 76, at [52].
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on a ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)     it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered. (at [52])”.
And said:[76]
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional...”

The alleged stressors

[76] [2020] NSWCCPD 76, at [54].

The applicant essentially submitted that the psychological injury that he sustained developed in the context of work stressors, being bullying, harassment and unfair treatment by his supervisor, Mr Felsch, and a difficult work environment commencing from around late 2015.
The respondent essentially submitted that the applicant had not been subjected to bullying, harassment or unfair treatment at work and submitted that interactions were normal and reasonable interactions between a union delegate and management, albeit the applicant resented Mr Felsch’s status as supervisor. The respondent also raised the credibility of the applicant.
Mr Felsch denied acting inappropriately towards the applicant. Other managers also denied acting inappropriately towards the applicant.
There is no direct evidence which corroborates the applicant’s evidence that Mr Felsch bullied and harassed him in the workplace.
However, there is evidence that the applicant complained about such treatment by
Mr Felsch. Mr Chahine stated that from about 2016, the applicant routinely, about twice a week, complained to Mr Chahine as union delegate about Mr Felsch. Mr Dickens stated that on many occasions, the applicant complained to Mr Dickens about bullying and harassing behaviour by Mr Felsch and the applicant appeared to be uncharacteristically upset and rattled by Mr Felsch’s behaviour.
Further, there is consistent evidence, and it is not disputed, that from soon after Mr Felsch’s appointment as supervisor and during late 2015, throughout 2016 and through to
[77] Reply to ARD, Hilton statement, pages 230- 231; Kater statement, pages 214-215.
[78] Reply to ARD, page 133.
September 2017, the applicant made numerous complaints to the respondent’s management alleging such inappropriate treatment by Mr Felsch.[77] Indeed, that was the subject of numerous discussions, file notes and some correspondence. The respondent determined that the applicant’s various complaints about Mr Felsch were unsubstantiated. During the period, the respondent made a number of offers of assistance with mediation to improve the applicant’s relationship with Mr Felsch, which were all rejected by the applicant. Ultimately, in a letter dated 30 August 2017, the respondent acknowledged that the applicant’s “repeated behaviour of raising complaints, is having a negative effect on your work performance, places undue stress on your supervisor [Mr] Felsch, and creates a significant drain on resources to investigate”.[78]
Dr Ghannoum’s clinical records of 20 April 2017, when the applicant first sought medical treatment for psychological symptoms, noted that the applicant reported having experienced work related stress for about a year and issues with his supervisor. The applicant gave generally consistent accounts to other doctors.
The applicant did not accept the respondent’s investigation of his complaints about Mr Felsch and the respondents determinations that his complaints were unsubstantiated.
Mr Hilton stated that the first time that the applicant complained to him about Mr Felsch’s conduct, Mr Hilton made “informal enquiries into the matter” and concluded that Mr Felsch “had issued the claimant with lawful instruction as his supervisor”.[79] Mr Kater stated that the applicant subsequently complained to him that Mr Felsch had treated him unfairly in the past and that Mr Hilton had not properly addressed his concerns. Mr Kater stated that he made enquiries with Mr Hilton and found that Mr Hilton had investigated the matters in
[79] Reply to ARD, Hilton statement, page 231.
[80] Reply to ARD, Kater statement, pages 214 and 223.
February 2016 and found that Mr Felsch had behaved appropriately towards the applicant, and had verbally advised the applicant of that outcome. Mr Kater informed the applicant of the outcome of his investigation in a meeting also attended by Mr Sundaresan and a HR representative on 10 June 2016.[80]
Mr Kater stated that at the meeting on 10 June 2016, the applicant complained that Mr Hilton had not spoken with all the witnesses the applicant had identified as relevant to his complaint about Mr Felsch’s behaviour. Mr Kater replied that one of the applicant’s nominated witnesses had not been formally spoken to by Mr Hilton “because they were not an employee of the business and that the investigation was substantiated on the existing information”.[81] I note that the meeting notes in respect of that meeting did not specifically include such statements.[82] To that extent, the applicant’s stated concern that the investigation of his complaint against Mr Felsch was inadequate because Mr Hilton had not spoken with all witnesses that the applicant identified, is factually accurate.
[81] Reply to ARD, Kater statement, page 312.
[82] Reply to ARD, Kater statement, page 223.
Mr Chanine supported the applicant’s evidence that at the meeting on 10 June 2016, the applicant said words to the effect, “Why are you making it so hard” and that Mr Kater replied to the effect, “I promise to talk to witnesses if you promise you will not take the matter any further”.[83] Mr Kater denied making such statements. [84] No statements to that effect were included in the meeting notes, however the meeting notes clearly did not record the entirety of the meeting because they also did not record Mr Hilton’s concession that Mr Kater did not speak with all the witnesses that the applicant had identified.[85]
[83] Applicant’s AALD, pages 29-30.
[84] Reply to ARD, Kater statement, page 312.
[85] Reply to ARD, Kater statement, page 223.
In a letter dated 9 August 2016, the respondent confirmed that Mr Kater had conducted an “informal investigation into the matter during February and March 2016” and “had a number of informal discussions with the employees involved in the matters”. The letter noted
Mr Kater’s conclusion that Mr Felsch had acted appropriately. Further, it stated that recently, on 28 July 2016, there was another incident between the applicant and Mr Felsch and that the respondent “has chosen not to investigate this incident or re-investigate the earlier incidents”. The letter proposed mediation between the applicant and Mr Felsch. The letter did not acknowledge that, in fact, Mr Hilton had not spoken with all of the witnesses that the applicant had identified and, further, it did not specifically address the applicant’s concerns in that regard.
It is clear from the evidence that the applicant continued to complain about the inadequacy of the respondent’s investigation of his complaints about Mr Felsch’s behaviour. The respondent effectively dismissed the applicant’s complaints in that regard.[86]
[86] Reply to ARD, pages 64, 67.
It is clear from all of the evidence that, despite the applicant’s numerous complaints regarding Mr Felsch’s behaviour towards him from late 2015, the respondent required the applicant to continue to work under the supervision of, and subject to the direction of,
Mr Felsch.
There is no dispute that, after the applicant’s physical work injury, representatives of the applicant routinely transported the applicant to medical appointments and attended those appointments with the applicant. Mr Kater stated that, when he attended with the applicant, he would routinely ask the applicant if it was okay for him to be present and the applicant never refused. Mr Kater stated that the applicant never undressed in front of him.[87] There is no denial that Mr Felsch also accompanied the applicant to medical appointments on occasion.
[87] Reply to ARD, page 311.
Despite the respondent’s submissions to the contrary, and whilst acknowledging that the applicant’s evidence about certain specific conduct by Mr Felsch is denied and otherwise substantially uncorroborated by direct evidence, on a consideration of the evidence as a whole, I am of the view that the applicant provided a consistent and credible history, which is supported by parts of the respondent’s evidence in some material ways. I accept that the applicant is a credible witness. Accordingly, I prefer and accept the evidence of the applicant.
For that reason, I accept the factual allegations in relation to the alleged stressors described by the applicant in his evidence. On that basis, I accept that the events complained of by the applicant did occur in the workplace and, further, I find that the applicant perceived them as creating an offensive or hostile working environment.

The medical evidence as to causation of psychological condition

The respondent does not dispute that the applicant has a psychological condition.
There is no evidence that the applicant had any psychological condition prior to April 2017.
The applicant first consulted with his general practitioner Dr Ghannoum regarding psychological symptoms on 20 April 2017. At that time, Dr Ghannoum recorded that the applicant reported having experienced work stress caused by his supervisor for about a year which reignited two weeks prior and diagnosed “depression / anxiety”.
In late October 2017, the applicant consulted with Dr Kassar who treated the applicant for depression on numerous occasions through to May 2018. Dr Kassar noted a provisional diagnosis of depression and noted it was a “work related injury - victimised at work and liability denied”.
Although Dr Ghannoum completed a Mental Health Treatment Plan and referred the applicant for psychological treatment in April 2017, there is no evidence that the applicant received psychological treatment prior to attending Ms Delimanis in November 2017.
Ms Delimanis treated the applicant from November 2017 through to 2019. Ms Delimanis diagnosed major depressive disorder with severe catatonic features and adjustment disorder with anxiety features due to a work related issue. Ms Delimanis noted that the applicant reported ongoing psychological symptoms “since injuring himself at work and the ongoing purported psychological abuse by his supervisor and lack of support from senior management”.[88]
[88] AALD, page 119.
Dr Tsang treated the applicant from January 2018. Dr Tsang initially diagnosed major depression however by June 2020 diagnosed severe major depressive disorder with melancholic features. Dr Tsang’s opinion was that the applicant’s employment was the main contributing factor to the applicant’s psychological condition. Dr Tsang noted that the applicant reported symptoms in the context of more than 12 months of perceived bullying by his supervisor, being continually targeted and treated unfairly.
In October 2018, Dr Gertler initially diagnosed major depression. By March 2020, Dr Gertler diagnosed a persistent major depression. Dr Gertler stated that the applicant does not suffer from a disease of gradual process, but suffers from a psychiatric condition, and the applicant’s employment was the main contributing factor to the development of the psychiatric condition. Dr Gertler remained of the opinion that the applicant’s psychiatric condition was the result of perceived humiliating treatment, harassment and bullying experienced by him from 2015 which was inconsistent with and did not acknowledge the fact that the applicant had worked for the respondent for many years without difficulty and with loyalty.
In March 2018, Dr Smith diagnosed major depressive disorder. By February 2020, Dr Smith diagnosed persistent major depressive disorder. Dr Smith accepted that the applicant’s condition was causally contributed to by employment events, which included criticism of his performance and conduct of his manager, which the applicant considered was unfair. But
Dr Smith opined that the applicant’s condition was predominantly caused by employer action as to performance appraisal or discipline.
I do not accept the respondent’s submission that the applicant’s failure to have psychological treatment prior to November 2017 and to give notice of psychological injury prior to
25 January 2018 should necessitate a finding that the alleged stressor events were not causative of the applicant’s psychological condition. I also do not accept the respondent’s submission that the applicant’s psychological injury is unlikely due to bullying and harassment because the applicant position as union delegate would have meant that he would not fail to report an injury and make a claim if he genuinely believed he was being bullied and harassed to the extent of suffering psychological injury. Those matters could be well explained by unrelated reasons.
I also do not accept the respondent’s submission that the medical evidence is unclear on what caused the applicant to decompensate, nor that it is more likely than not (absent an established alternative cause) that the applicant’s current condition is idiopathic in the sense that it is of the applicant’s own making, arising out of a persisting belligerent attitude towards Mr Felsch born of resentment at his promotion.
There is no evidence that the applicant had any psychological condition prior to the alleged stressor events. The first ever onset of symptoms occurred after the accepted stressor events. With the exception of Dr Smith’s opinion to an extent, there is reasonable consistency in the medical opinion as to causation of the applicant’s psychological condition. The medical evidence largely indicates that the theme of the applicant’s depressive ruminations are work-related and refers to stressor events consistent with the accepted stressor events. There is no medical evidence of any significant stressor events unrelated to the workplace.
Considering the evidence as a whole, I prefer and accept the evidence of the applicant’s treating medical practitioners and independent medical expert. I feel an actual sense of persuasion and am satisfied that:
(a)    the applicant initially sustained a psychological condition of depression and anxiety in April 2017, which developed over time into a more serious and persistent psychological condition in the nature of a persistent major depression;
(b) the applicant sustained a psychological injury within the meaning of s 11A(3) of the 1987 Act, which was a primary psychological injury;
(c)    the applicant’s psychological condition arose out of or in the course of his employment, namely the nature and conditions of employment from in or about October 2015 to 8 September 2017;
(d)    the alleged stressors were a substantial contributing factor to the applicant’s psychological injury, and
(e)    particularly, having regard to the opinion of Dr Gertler, I am not satisfied that the applicant sustained a disease that was contracted by the applicant in the course of employment.

Defence under s 11A

The respondent has raised a defence under s 11A(1) of the 1987 Act in the alternative. The respondent has the onus of establishing such defence.
Firstly, in order to establish the defence, the injury must be “wholly or predominantly caused” by the respondent’s actions regarding one of the categories referred to in s 11A(1). The respondent relies on the categories of performance appraisal and discipline. In Hamad v Q Catering Limited[89], the Commission suggested that medical evidence is necessary to determine the causation issue. In Smith v Roads and Traffic Authority of NSW,[90] Snell ADP accepted “wholly” and “predominantly” are different concepts.
[89] [2017] NSWWCCPD 6.
[90] [2008] NSWWCCPD 130.

In relation to the term “performance appraisal”, in Irwin, Geraghty J stated:
“It is important to consider the meaning of the term “performance appraisal”. The respondent submitted that it should receive its ordinary street meaning, that it is not a term of art. But it seems to me to be a rather precious and precise expression. It is framed within the context of other processes like ‘transfer’, ‘demotion’, ‘promotion’, retrenchment or ‘dismissal’ of workers. It must be seen in this context. Furthermore, performance appraisal is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged. ‘Performance appraisal’ is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discreet process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance.”
In relation to the term “discipline”, in Kushwaha v Queanbeyan City Council,[91] the Court said that:[92]
“... the primary meaning of ‘discipline’ is learning or instruction imparted to a learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of that word as punishment or chastisement is secondary to the primary meaning...”
[91] [2002] NSWCC 25; 23 NSWCCR 329.
[92] [2002] NSWCC 25; 23 NSWCCR 329, at [152].
In Northern NSW Local Health Network v Heggie,[93] (Heggie) the Court of Appeal said that a broad approach is to be taken to the expression “action with respect to discipline” in
[93] [2013] NSWCA 255; 12 DDCR 95.
s 11A(1), and it is “capable of extending to the entire process” involved in disciplinary action.
Secondly, if it is established that the applicant’s psychological injury was “wholly or predominantly” caused by the respondent’s actions regarding discipline, then the respondent is required to establish the respondent’s actions were “reasonable”. In Heggie[94] Sackville AJA stated the following principles regarding s 11A(1):[95]
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”

Wholly or predominantly caused by performance appraisal or discipline

[94] [2013] NSWCA 255; 12 DDCR 95.

[95] At [61].

As previously stated, I am satisfied having regard to the whole of the evidence, that the applicant initially sustained a psychological condition of depression and anxiety in April 2017, which developed over time into a more serious and persistent psychological condition in the nature of a persistent major depression. Further, I am satisfied that the applicant’s psychological condition arose out of or in the course of his employment, namely the nature and conditions of employment from in or about October 2015 to 8 September 2017, and the alleged stressors were a substantial contributing factor to the applicant’s psychological condition.
However, the respondent submitted that the applicant’s current psychological condition has a genesis in the meeting of 10 June 2016 and all incidents following that meeting, including the respondent’s letters of 9 August 2016 and 30 August 2017 and the actions of Mr Felsch as the applicant’s supervisor. The respondent submitted that all of those incidents fall within the description of “performance appraisal”.
Having regard to the evidence, I accept the applicant’s submission that the meeting on
10 June 2016 was a meeting held to address the applicant’s concerns and allegations of being targeted by Mr Felsch. Following the meeting, on 25 July 2016, the union sent a letter to the respondent’s HR division addressing the investigation into the applicant’s complaints. The respondent’s letter of 9 August also addressed the investigation of the applicant’s complaints.
I do not accept the respondent’s submissions that addressing the applicant’s complaints was “performance appraisal” of the applicant because it was a necessary element to establish the bona fides of the applicant’s complaints against Mr Felsch.
The evidence does not disclose any proper identified “performance appraisal” of which the applicant was notified or informed prior to the letter of 30 August 2017 and the initiation of the Performance Improvement Plan dated 5 September 2017.
The respondent did not make any significant submissions in support of its contention regarding discipline. The respondent acknowledged that the applicant’s employment was not at risk throughout the period of his employment to the commencement of the performance improvement plan on or about 30 August 2017.[96]
[96] Respondents submissions at [18].
Mr Chahine gave evidence that he never witnessed any disciplinary action being taken against the applicant.[97] It would be reasonable that Mr Chahine, as union delegate, would have had knowledge if a disciplinary process was commenced against the applicant.
[97] AALD, page 37.
With the exception of Dr Smith’s opinion, there is reasonable consistency in the medical opinion as to causation of the applicant’s psychological condition. The medical evidence largely indicates that the applicant’s psychological condition was substantially caused by the accepted stressors.
I accept that the applicant was affected by the perceived treatment by Mr Felsch in
April 2017 to such a degree that he consulted his general practitioner. This was as a result of unsatisfactory interactions with Mr Felsch and unsatisfactory outcomes of his complaints to management. His perception of real events was that he was being targeted and picked on, and he was not supported by his employer. The applicant’s psychological injury was already sustained by the time of the Performance Improvement Plan in September 2017.
Having regard to the evidence as a whole, I am not satisfied that the applicant’s psychological condition was wholly or predominantly caused by action taken or proposed to be taken by the respondent with respect to performance appraisal or discipline. On that basis, the respondent has not established the defence pursuant to s 11A and accordingly that defence is not available to the applicant.

Reasonableness

In the circumstances, I am not required to consider whether the respondent’s actions were, in all the circumstances, reasonable.

DETERMINATION OF WHOLE PERSON IMPAIRMENT

Both Dr Gertler and Dr Smith assessed 22% WPI.
There is no medical dispute to be referred to assessment.
On that basis, it is appropriate to enter an award in favour of the applicant for 22% WPI resulting from the work-related psychological injury.

SUMMARY

Having regard to the legal principles set out above and the whole of the evidence, I feel a real sense of persuasion that there is a causal chain between the alleged stressors and the applicant’s primary psychological injury.
For the above reasons, I am satisfied that:
(a) the applicant has an “injury” within s 4(a) of the 1987 Act, namely a primary psychological injury that arose out of and in the course of the applicant’s employment, namely the nature and conditions of employment from in or about October 2015 to 8 September 2017, and the applicant’s employment was a substantial contributing factor to the applicant’s psychological injury pursuant to
s 9A of the 1987 Act;
(b) the applicant does not have an “injury” within s 4(b)(i) of the 1987 Act, and
(c) the respondent has not discharged its onus of establishing that the applicant’s psychological 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 performance appraisal or discipline and accordingly no defence is available to the respondent pursuant to s 11A of the 1987 Act.
Accordingly, I determine that:
(a) the applicant sustained a compensable psychological injury pursuant to ss 4(a), 9A and 66 of the 1987 Act, and
(b) the respondent has not established a defence under s 11A of the 1987 Act.
The degree of the applicant’s impairment is not in dispute and there is consistent medical evidence in that regard. On that basis, it is appropriate to enter an award in favour of the applicant for 22% WPI ($37,750) resulting from the work-related psychological injury.

[2022] NSWPIC 626

10 November 2022