Gharibeh v NSW Health Pathology
[2021] NSWPIC 486
•29 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gharibeh v NSW Health Pathology [2021] NSWPIC 486 |
| APPLICANT: | Kusai Gharibeh |
| RESPONDENT: | NSW Health Pathology |
| MEMBER: | John Harris |
| DATE OF DECISION: | 29 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant suffered an accepted primary psychological injury; the issues were the causes of the psychological injury and whether the psychological injury was wholly or predominantly caused by the pleaded section 11A actions; Held - the consistent histories and balance of medical opinion ascribed an incident when the applicant was hit by a trolley and the sequalae as causative of psychological injury; the applicant also perceived this event as hostile; State Transit Authority of NSW v Fritzi Chemler applied; the respondent relied on a medical opinion supporting its section 11A defence; that medical opinion contradicted an earlier opinion by that doctor as to causes and was expressed in bare terms that section 11A actions wholly caused the psychological injury; section 11A defence not established; matter remitted to Medical Assessor. |
| FINDINGS MADE: | 1. The defence pursuant to s 11A of the Workers Compensation Act 1987 is unsuccessful. |
| ORDERS MADE: | 2. The matter is remitted to the President for referral to a Medical Assessor on the following basis: Date of Injury: 24 August 2020 (deemed) Body part: Psychological Assessment: Whole person impairment 3. The documents to be forwarded to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments (excluding the report of Dr Lucas Murphy dated 12 March 2018 wherever appearing); (c) Application to Admit Late Documents filed by the applicant dated 25 August 2021; (d) Application to Admit Late Documents filed by the respondent dated 3 September 2021, and (e) Application to Admit Late Documents filed by the applicant dated 29 September 2021. |
STATEMENT OF REASONS
BACKGROUND
Mr Kusai Gharibeh (the applicant) was employed by NSW Health Pathology (the respondent). It is agreed that Mr Gharibeh suffered a primary psychological injury deemed to have occurred on 24 August 2020.
This matter was initially heard on 7 September 2021 when there was argument about the extent of the defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) and whether leave should be granted pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Written reasons on these issues were delivered on 13 September 2021.[1]
[1] Gharibeh v NSW Health Pathology [2021] PIC 343 (Gharibeh (No 1)).
The matter was again listed for hearing on 5 November 2021. Mr McManamey of counsel again appeared for the applicant and Mr McMahon of counsel appeared for the respondent.
As was indicated on the first day of the hearing, the description of injury was amended in accordance with the Application to Admit Late Documents filed on 29 September 2021. The description of injury was based on interpersonal conflict rather than the unsatisfactory description of “bullying and harassment”.
On the first hearing day there was also a dispute about the admission of a statement of
Mr Gautray dated 22 February 2018. The parties were then ordered to relist the matter prior to the second day if there was dispute about the admission of that statement.The matter was not relisted for mention prior to the second hearing day.
The matter was listed for further hearing on 5 November 2021. The first two hours of the second hearing day concerned argument on the admissibility of a witness statements from Ms Morse dated 22 February 2018 and Mr Gautray dated 22 February 2018. The application to tender those statements was eventually withdrawn.
Earlier decision
The respondent’s application in Gharibeh (No 1) to expand the particulars of the s 11A defence was rejected. The expanded version relied on the following particulars:
“1. Letter dated 15 February 2017 – performance appraisal/discipline (Reply, p 47).
2. Letter dated 17 February 2017 – performance appraisal/discipline (Reply, p 48).
3. Letter dated 9 May 2017 – performance appraisal/discipline (Application, p 53).
4. Letter dated 11 May 2017 – performance appraisal/discipline/transfer (Application, p 55).
5. Letter dated 18 September 2017 – discipline (Reply, p 49).
6. Letter dated 4 December 2017 - performance appraisal/discipline (Reply, p 50).
7. Letter dated 7 December 2017 – discipline (Reply, p 52).
8. Letter dated 8 March 2018 – transfer (Reply, p 53).
9. Meeting in November 2017 – transfer (referred to in Affidavit, Application, p 25, paragraph 47).
10. Meeting on 11 January 2018 - performance appraisal/discipline/transfer (referred to in an email dated 15 January 2018, Application, p 110).
11. Meeting on 27 November 2017 - performance appraisal/discipline (referred to in the correspondent in the Reply, p 50).”
The respondent also relied on documents/meetings “in and around those events” but the above matters were the actions relied upon in the defence.
The previous ruling limited the respondent to the particulars in which it had provided notice pursuant to the provisions of the 1998 Act, namely:
(a) Particulars 5 and 7, and
(b) Particulars 1, 2, 3, 4, 6 and 10, 11 insofar as they relate to performance appraisal.
The issues
The parties agreed that the applicant sustained a primary psychological injury deemed to have occurred on 24 August 2020.
The following issues are in dispute:
(a)the causes of the primary psychological injury, and
(b)the respondent’s defence pursuant to s 11A of the 1987 Act.
On the second hearing day the applicant was cross-examined for approximately one hour. The cross-examination could have continued indefinitely, however, the respondent’s counsel properly accepted that it would limit the cross-examination.
The parties were advised that the initial issues which would be determined were the causes of the primary psychological injury and the issue of “wholly or predominantly” in s 11A. The restriction of issues arose because the matter had already proceeded over two days with substantial time wasted.
These are my reasons for the causes of the primary psychological injury and a portion of the s 11A defence, that is the issue of whether the psychological injury was wholly or predominantly caused by the pleaded s 11A actions taken by the employer.
LEGISLATION
Section 11A(1) of the 1987 Act relevantly provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
SUBMISSIONS
The parties’ submissions have been recorded. Where necessary they are referenced in the findings.
EVIDENCE
Applicant’s evidence
Mr Gharibeh stated he was working on 3 December 2016 when a co-worker “deliberately smashed a trolley into my left foot”.[2] He stated that his place of employment was transferred to Liverpool hospital in early 2017 and forced by his Liverpool manger, Wendy, to undertake full and unrestricted duties despite being certified as unfit for specific duties:
“Due to the unreasonable demands of my manager, I was in a lot of physical pain for my entire shift. All my concerns were ignored by my employer. This in turn, caused me to experience feelings of anxiety and stress. I was in an impossible situation wherein,
I was not physically able to complete the duties of my employment, however, whenI asked for a short break I was ignored and ridiculed.”[2] Application, p 2.
Mr Gharibeh stated that at Liverpool hospital he was isolated from other co-workers and forced to sit alone. He said he was bullied and harassed by his manger and one manager said he would “hit me”.
Mr Gharibeh stated that he was forced to sit alone, felt a lack of support and loneliness. He stated that his stress was exacerbated by frequent and unjustified meetings.
In late 2017 the applicant stated the bullying intensified when he was intentionally kicked by a co-worker.[3]
[3] Application, p 7.
Ms Christine Kaye provided a statement dated 9 October 2019. Relevant portions of this statement were:[4]
[4] Application, p 210
10. In or about May 2017, I bumped into Kusai while working in the Clinical Building Pathology Collection Rooms on Level One of the Hospital. I had not spoken to him since I left Bankstown and was surprised to see him at Liverpool Hospital. We had a conversation to the following effect:
I said: Hi Kusai. How have you been doing? What are you doing here in Liverpool?
Kusai said: Hi Christine. / have been sent here for assessment on Blood Collections. Apparently, I did not get the proper training.
I said: Oh really? That is ridiculous. I trained you in Blood Collections. I signed off on it last year.
Kusai said; I don't understand why they transferred me here.
I said; I don't either. On the bright side, I know you weren't provided with training in Data Entry when you first started, so this will be good for you. Now you will have the same level of training as other employees.
11. Following this conversation, my supervisor and Deputy Blood Collections Manager, Jo Cabasa ("Jo"), asked me to observe Kusai's blood collection skills and complete a 'Vein Selection Assessment'. We had a conversation to the following effect:
Jo said: Kusai has reported a workplace foot injury in the past. But you don't have to worry about that though. Just take this form down to the main Outpatients Pathology area and complete Kusai's assessment.
I said: Why are we going all the way to the main Outpatients Pathology area on the ground floor. I can assess him in the Clinical Building. Most assessments take place there anyway and my office is there too. It'll be easier especially considering his foot injury.
Jo said: I told you not to worry about the injury. Just do it.
I said: Ok.
12. Following this conversation, I escorted Kusai to the ground floor to complete his
assessment. I observed and recorded Kusai's work and technique while he performed
several blood collections over a period of three hours. I was satisfied with Kusai' s
performance, adherence to facility policies and procedures as well as his time
management skills. Annexed hereto and marked 'A' is a copy of the Vein SelectionAssessment I completed.
13. At that time, I provided Jo and the Blood Collections Manager, Michelle Hecimovic
("Michelle") with a copy of the Vein Selection Assessment that I had completed. Michelle and I had a conversation to the following effect:Michelle said: This is not what I wanted. You did not conduct the assessment on Kusai's performance to my expectations.
I said: What were your expectations?
Michelle said: I wanted you to record that Kusai was wasting time.
I said: I did not observe him doing that at all. He was very efficient and productive. Very professional, especially with the patients.
Michelle said: You were supposed to observe how bad he is in the Collections Department.
I said: He competently collected blood from patients one after the other without a break for 3 hours. I won't lie about his performance.
14. I often visited the Specimen Reception and Outpatient Collections Department, where Kusai was working, to deliver samples when the Pneumatic Tube Delivery System was broken and to perform other related tasks. While I was in that department, I observed Kusai being treated unfairly on several occasions, namely:
a. He was kept in isolation at the samples near the triaging area of the samples bench
where most of the heavy workload of samples came from the wards via the
Pneumatic Delivery System.b. He was required to stand for longer periods of time without rest.
c. He did not have anyone to share the workload with while completing bench duties.
d. When collecting blood, he was instructed not to use his own barcode label, which
made it harder for him to log himself in as the blood collector.e. He was constantly sent to perform blood collections in the main Outpatients
Pathology area rather than in the Clinical Building where the workload would have
been less stressful and strenuous on his injured foot.f. He was frequently being asked to collect supplies from inventory.
g. He was always given multiple tasks to complete at once, while other employees were free to sit down and chat.”
Mr Mohammad Ayubi provided an affidavit dated 9 October 2019.[5] He relevantly stated:
“7. On several occasions I observed the laboratory Manager, Wendy Morse ("Wendy")
treating Kusai unfairly, namely:
a. She was always speaking to Kusai in a rude manner.
b. She was always asking Kusai to walk more than any other employees in the Specimen Reception Department.
c. She does not say "please" or "thank you" when speaking to Kusai, however, I noticed that she always says it to other employees in the Specimen Reception Department.
d. She always gestured with her finger at Kusai to move Specimen Samples from the
Bench to the Haematology Department. She always said to Kusai words to the effect of: "go, go, go".
8. I also frequently observed the Human Resource Manager, Jack Gautray ("Jack"), standing at the doorway of the Specimen Reception Department gesturing with his finger at Kusai to accompany him for meetings. He did not address Kusai by his name, just ordered him to follow.”
[5] Application, p 217.
As the applicant correctly submitted, the respondent made no submissions about the corroborative evidence and why that evidence should not be accepted.
A note, described in submissions as made by Mr Whittaker, provided that the applicant believed there was animosity in the trolley bump. Mr Whittaker stated:[6]
“Sometime in late January 2017 Kusai mentioned to me that Andrew Harper had bumped into his ankle with a collection trolley, Kusai suggested that there was some animosity in the bump. I told him he needed to submit an IIMS, (a process that he had done before) or give me something in writing, either handwritten or typed so that I could act on it. I needed some details. Kusai never once mentioned another thing about this incident until the 26th April 2017.”
[6] Reply, p 11.
Mr Gharibeh continued to complain about the effects of the trolley incident. On 4 May 2017 he forwarded the following email to Emma:[7]
“in spite of I provided may manager (Geoffrey Whittaker) that walking for long hours cause pain to my feel, and I also provided him evidence from my Gp, he insist to put me again inward.
I also would love to add that my regular roster for the next week Is 3 days outward (where long hours walking Is not required). he changed It today to Inward (where long walking hours required!!!! (please see the attachments)
unfortunately, in spite of my Injury, my manger, didn't take any consideration to my condition, which made my condition bad, and it will get worse and worse. if he Insist to put me inward.(where long walking hours required).
my simple request Is to transfer me from Inward to outward where long walking hours Is not required, otherwise my condition will not Improve.
·
Dear Emma Fulham and Imelda Daniel, I don’t know why my manger changed today my roster even though he knows about my Injury.????????????I have attached a copy of the (two roster schedules) and (original letter) to him with my email.”
[7] Application, p 51
Medical evidence
On 5 December 2016 the applicant complained to his general practitioner of heel pain after “another work mate pushed a trolley and hit inner side of his left heel”.[8]
[8] Application, p 288.
On 22 February 2017 the general practitioner recorded that the applicant had “left heel pain after walking for about 2 hours”.[9] A clinical note dated 19 April 2017 again referred to the trolley incident and pain over the achilles tendon.[10] On 24 April 2017 the applicant reported that the left foot was “worse after walking at work”.[11]
[9] Application, p 287.
[10] Application, p 285.
[11] Application. p 285.
On 8 May 2017, Dr Soliman recorded that the applicant complained of bullying and wanted it recorded by the doctor.[12]
[12] Application, p 283.
On 15 September 2017 the doctor referred to a history of plantar fasciitis, difficulty walking and a sitting job is easier and causing no feet pain.[13]
[13] Application, p 277.
On 19 September 2017 the doctor recorded:[14]
“He says he is being bullied at work
This is causing anxiety
Work wants to resign but he does not want toFeels depressed.”[14] Application, p 277.
On 14 November 2017 the general practitioner recorded that the applicant wanted to work in specimen reception position.[15]
[15] Application, p 276.
On 27 November 2017 the doctor recorded the applicant said he had been “bullied at work”, felt “nervous” and “sleeping problem”.[16] On 29 November 2017 the general practitioner recorded:[17]
“feels anxious/depress
As on going bullying issue
He has notified already to HR
CounselledMental health care plan done”[16] Application, p 275.
[17] Application, p 274.
A medical certificate dated 19 December 2017 completed by Dr Awal noted that Mr Gharibeh stated his present workplace at Liverpool was “causing him work stress as victim of bullying” and his “previous workplace in Bankstown was much better”.[18] The clinical note of that date is to the same effect.[19]
[18] Application, p 239.
[19] Application, p 274.
Further clinical notes dated 22 December 2017, 5 January 2018 and 23 January 2018 refer to “bullying”.
Dr Ashraf Phillips, Consultant Psychiatrist examined the applicant on a number of occasions. In a letter dated 30 August 2019 Dr Phillips stated that he had treated the applicant since 2 July 2018 “for chronic depressive symptoms due to work related issues”.[20]
[20] Application, p 242.
In a report dated 2 July 2018, Dr Phillips stated:[21]
“Kusai reported that he was subjected to work place bullying and harassment since he started his job in 9/2016. He described that he was purposively injured in his ankle and then was subjected to different harassment to “get rid of me”. He stated that the management used different techniques for instance performance reports. He had to go on leave without pay since November/December 2017.”
[21] Applicant’s late Application, p 8.
In a further report dated 31 May 2019 Dr Phillips opined that the applicant continued to suffer depressive and anxiety symptoms.[22]
[22] Applicant’s late Application, p 10.
Dr Ben Teoh, Psychiatrist was qualified by the applicant and provided a report dated 3 July 2020.[23] In his initial report Dr Teoh referred to the trolley incident and opined that
Mr Gharibeh suffered a psychological condition caused by the injury which resulted in chronic pain and the subsequent “harassment and unfair treatment at work”.[23] Application, p 243.
In a further report dated 6 August 2021,[24] Dr Teoh recorded that Mr Gharibeh alleged “that he was bullied and harassed at work, and he had to report to Human Resources about his concern. He had numerous inappropriate meetings where he was required to work full and unrestricted duties, despite his injury”. The doctor confirmed his psychiatric diagnosis.
[24] Applicant’s late Application, p 1.
Dr Graham George, Psychiatrist, was qualified by the respondent and provided a report dated 21 June 2021.[25] Dr George recorded a history of the trolley incident, unfair treatment by management and the second incident when he was kicked by another person.
[25] Reply, p 80.
In response to a question of whether the applicant suffered a primary psychological injury,
Dr George stated:[26]“He indicated, on the day when he was struck by a trolley initially at Bankstown
Hospital, that the action was deliberate and he saw this as bullying. He said that his
distress started from that point in time and therefore, this appears to be a primaryinjury, according to his self-reported symptoms.”
[26] Reply, p 87.
Dr George was provided further information and provided a second report dated 30 August 2021.[27] The doctor stated:
[27] Respondent’s late Application, p 2.
“1. Having reviewed the additional documentation, would you consider that the
worker’s psychological symptoms were wholly or predominantly caused by
actions taken by NSW Health Pathology with respect to performance appraisal
undertaken by NSW Health Pathology during the course of the worker’s
employment? Please provide details for your answer.Having reviewed the documents which you have supplied in relation to this
supplementary report request, I agree that Mr Gharibeh’s psychological symptoms
have been wholly and predominantly caused by actions taken by NSW Health
Pathology with respect to performance appraisal. I note the issues associated with
his work performance and I believe that the actions of his employer have beenreasonable.”
Dr George did not associate the psychological injury as being caused by the transfer. He was then asked about discipline and stated:[28]
“There are a number of issues over which he was disciplined and they did relate to his
employment. I believe that the issues which were raised with him were valid and his
condition could have been contributed to by actions of NSW Health Pathology inrelation to discipline.”
[28] Respondent’s late Application, p 3.
Documents evidencing the s 11A defence
On 15 February 2017 Mr Geoff Whittaker wrote to the applicant listing “a couple of points” for the smooth operation of the department. The points related to the routine for the collection of blood from different wards of the hospital. The letter concluded:[29]
“These are all points that should assist you and I request that you follow these. If in doubt, asked one of the experienced collectors on a course of action prior to coming and asking myself.”
[29] Reply, p 47.
On 17 February 2017, Mr Whittaker forwarded the following letter:[30]
[30] Reply, p 48.
“Further to my previous letter on the 15th February 2017.
• I am informed that you believe when you are allocated to perform ward round collections you are only required to take 30-35 collection labels with you. This is not correct. The morning ward round collection labels/list is divided equally among all collectors. Note: All your allocation of labels are taken with you during ward rounds.
Collections are then to be performed in the following order.
Do not deviate from this order unless required to perform fasting patients or instructed to do so. Level 3 (Upstairs) start with ICU ➔ CCU ➔ 3H ➔ 3E ➔ 3D and then 3A➔ 3B ➔ 3C➔ 3F.
Prioritise your collections and discuss with your co-workers. See if there are any fasting
patients that need collecting prior to other ward first, etc
Similarly for level 2. Start with 2J ➔ 2A➔ 2B ➔ 2C➔ 2D ➔ Banks House ➔ 2G ➔2F . Likewise, prioritise your collections and discuss with your co-worker. Is there fasting or Physio patients that need collecting first before they vacate their ward, etc These type of collections need to get priority
• Follow the order of wards to be collected. Do not leave some patients not collected in a ward and move onto the next ward. Jumping from non-consecutive wards and different levels for selected choice of wards is not allowed. This is wasting time.
• Rotate upstairs or downstairs between different shifts. Finish one level before seeing if staff on the other level need assistance to finish collection list.
• Unfinished collection list will be re-assigned. These should be returned to collection staff at the front desk. DO NOT LEAVE THEM ON THE SIGN IN BOOK”On 9 May 2017 Mr Cabasa emailed the applicant. Relevant portions of that email are:[31]
[31] Application, p 53.
“Following our conversation today, I write to confirm the details of the meeting scheduled for your attendance. The details of the meeting are as follows:
Date: 11th of May 2017
Time: 1;00 pm
Venue: Clinical Building, Level 1
Liverpool Hospital
The purpose of this meeting Is to discuss complaints that have been made against you in relation to your performance and conduct and to provide you with the opportunity to comment and respond.
The complaints are in relation to:
• Not working as a Team Member
• Poor Time Management
• Non Adherence to Policies and Procedures
• Disregarding Instruction from Immediate SupervisorIn attendance at this meeting Is myself and Michelle Heclmovic, Collections. You are welcome to be accompanied by a· support person including a union representative, friend or colleague.
Please be reminded that this Investigation ls confidential. You must not discuss it with any other person with the exception of your support person. If you discuss the Investigation in any other context you may be disciplined for breach of a lawful direction.
May I also remind you of the confidential and free Employee Assistance Programme (EAP) available to you. I have attached a brochure with the details.”
On 11 May 2017 Ms Heclmovic wrote to the applicant in the following terms:[32]
[32] Application, p 55.
“I write in relation to our meeting held today at 1pm at Liverpool Hospital, with JoJo Cabasa, 21C and myself In attendance. The purpose of this meeting was to discuss complaints that have been raised against you in relation to your performance and conduct and to provide you with the opportunity to comment and respond.
I note your responses have been considered by JoJo Cabasa and myself and It has been determined that you require further training and development to support you in performing your duties in your position as Technical Assistant with SSWPS.
Please be advised that the decision has been made to assign you to re- training before you return to collection duties at Bankstown Laboratory. Following this advice you have been rostered to attend your shifts at Liverpool Hospital. Your roster Is as follows:
• Friday, 12 May 2017, 7:30am -11:30am
• Monday, 15 May 2017, 7:30am-11:30am
• Tuesday, 16 May 2017, 7:30am-11:30am
• Wednesday, 17 May 2017, 7:30am -11:30am
• Thursday, 18 May 2017, 7:30am-11:30am
• Friday, 19th May 2017, 7:30am -11:30amYour reporting manager during your re-training at Liverpool Hospital Is Jo Cabasa and can be contacted on XXXXX X.
Please be advised that this Is a lawful direction and failure to comply may lead to disciplinary action, including the termination of your employment.
I take this opportunity to remind you of the confidential and free Employee Assistance Programme (EAP) available to you. I have attached a brochure with the details.”
By letter dated 18 September 2017 the respondent wrote to the applicant in the following terms:[33]
[33] Reply, p 49.
“Further to our meeting on 18 September 2015, I write to you in relation to the following absences whereby you failed to attend a rostered shift and failed to provide sufficient notice and an acceptable reason as to why you were unable to attend your rostered shift:
1. Friday 12 May 2017
2. Monday 31 July 2017
3. Tuesday 1 August 2017
4. Friday 8 September 2017
5. Friday 15 September 2015I note that in all of the abovementioned instances you did not inform your manager Geoff Whittaker, or acting manager, Wendy Morse of your absence either prior to your shift or on the day you were absent. You are required to take all practical and reasonable steps to inform your manager by telephone of your absence from work. It is preferable that advice is provided at least one hour prior to a shift starting. You mentioned that some of your absences were due to the inability to obtain a medical certificate for your return to work plan. It was reiterated that it is your responsibility to obtain a medical certificate in a timely manner outside of your work hours.
Failing to attend to a rostered shift and failing to provide sufficient notice or an acceptable reason for when you are unable to attend is considered a breach of the Code of Conduct PD 2015_049.
Please be advised that you may be subject to disciplinary action if you do not comply with the above protocol to report when you are unavailable to attend a rostered shift or seeking to change your roster.”
In November 2017 the applicant had a conversation with “Imelda” relating to a new position.[34]
[34] Application, p 25, paragraph 47.
The applicant had a meeting with Jack Gautray on 27 November 2017 concerning unsatisfactory work performance. That meeting is referenced in the letter dated 4 December 2017.[35] The letter dated 4 December 2017 relevantly provided:[36]
[35] Reply, p 50.
[36] Reply, p 50.
“Unsatisfactory work performance
Following your discussion with Jack Gautray, HR Manager on Monday, 27 November 2017, I write to advise that a meeting has been scheduled following concerns that your work performance is not meeting the required standard in specimen reception and data-entry.
The concerns are as follows.
1. Accuracy in activities such as specimen identification and data entry.
2. Assist with the provision of test results and pathology reports to support timely responses to requests in accordance with documented protocols, processes and procedures.
3. Working effectively as part of a team in a busy environment.
It is important that we discuss these concerns and that you are provided with an opportunity to respond to them. I have therefore arranged the following meeting.Time: 11 am
Date: Thursday, 7 December 2017
Venue: Meeting Room, Level 1, Pathology Administration, Liverpool Hospital
Attendees: Wendy Morse, Laboratory Manager and Emma Hlasiuk, HR Consultant
You are welcome to bring a support person with you to this meeting and this can include a union representative, family member, friend or colleague. However, you do not have to have a support person present if you do not wish to. The support person must not act as an advocate at the meeting.
At the meeting a draft Performance Improvement Plan may be developed in consultation with you after you have been provided with an opportunity to respond to the concerns, your response has been taken into account and if I find that the concerns are valid. If the concerns are validated, time frames will be agreed for further meetings to occur so you can be provided with a reasonable time in which to improve your performance and receive feedback as to your progress.It is important to note that failure to improve to an acceptable level within a reasonable time frame may result in disciplinary action up to and including termination of employment.”
The respondent forwarded a further letter dated 7 December 2017 which relevantly provided:[37]
[37] Reply, p 52.
“Unauthorised Leave Without Pay/ Lawful Direction to return to work
I have been advised that you went on leave, without permission from your Manager, on Monday, 4 December 2017. I have been advised that you did not attend for Normal Duties that were rostered for Monday, 4 December 2017, Tuesday, 5 December 2017, Wednesday, 6 December 2017 and Thursday, 7 December 2017 and further, you failed to provide notice or provide any reason as to why you were unable to attend these rostered shifts.
Wendy Morse has told me that you advised her on Monday, 4 December 2017 on the phone that you had obtained approval for three (3) weeks leave without pay effective Monday, 4 December 2017 from Rudy Angulo and that Rudy Angulo had your signed application form. You said you were meeting again with Rudy Angulo on Tuesday, 5 December 2017 and would return to Wendy Morse on Tuesday, 5 December 2017 with the approved application.
I have been advised that Rudy Angulo did not approve you going on leave and informed you on
Friday, 1 December 2017 that he was unable to approve your request without first discussing
operational needs with your rostering manager Wendy Morse. Rudy Angulo specifically told you
that you must attend your rostered shift on Monday, 4 December 2017, if your leave request had not been approved prior to the start of that shift.Failing to attend to a rostered shift and failing to provide sufficient notice or an acceptable reason for not attending is a breach of your contract of employment with NSWHP. It is unauthorized leave which has seriously impacted service delivery in the Laboratory at Liverpool Hospital.
I enclose a copy of the letter dated 18 September 2017, in which you were reminded of your
obligation to give adequate notice when you are unavailable to attend a rostered shift or when
seeking to change your rostered work days.Given that your leave was not authorized and its effect on service delivery, I direct you to return to work on Friday, 8 December 2017. This is a lawful direction.
If you do not return to work on Friday, 8 December 2017, you will be in breach of this direction and NSHWP will take disciplinary action in relation to the breach, which may extend to termination of your employment.
Please note that you can obtain support, free of charge and on a confidential basis, by telephoning the Employee Assistance Programme (EAP) on 1300 678 327.”
On 15 January 2018 Ms Hiley forwarded an email to the applicant relating to their discussions at a meeting on 11 January 2018.[38] The email referred to a number of concerns raised by the applicant including that he was hit by a trolley whilst at work, went on worker’s compensation leave and returned to work with restrictions.
[38] Application, p 110.
On 8 March 2018 the respondent sent the applicant an email discussing return to work.[39]
[39] Reply, p 53.
The respondent referred to a number of witness statements.
A diary note by Rudy Angulo dated 1 December 2017 referred to the applicant’s request to transfer to Bankstown hospital. Mr Angulo recorded:[40]
“He repeated that he feels bullied at work and added that he was deliberately hit on his injured foot by a colleague at work.”
[40] Reply, p 6.
Mr Gautray prepared a statement dated 21 December 2017 concerning a discussion with the applicant on 27 November regarding “performance issues”.[41] At that time the applicant raised bullying allegations against Mr Whittaker. Mr Gautray stated:[42]
“I was subsequently informed that KG raised allegations of bullying against me and I was instructed to remove myself from all issues involving KG.
In my view, I have exercised reasonable action to advised KG of his performance issues and he has retaliated with lies of being bullied by me. I have treated KG as I would treat any other staff member.”
[41] Reply, p 6.
[42] Reply, p 7.
Ms Morse noted that the applicant came to Liverpool in May 2017 under the supervision of Jo Cabasa performing collections.[43] A number of issues were discussed by Ms Morse concerning the applicant’s deficiencies. She described the applicant as “not what I call a good team worker”.[44]
[43] Reply, p 8.
[44] Reply, p 9.
Mr Whittaker is the pathology manager at Bankstown hospital and provided a statement dated 20 February 2018. He noted that the applicant commenced work at Bankstown hospital around August 2016. Mr Whittaker stated that in late January 2017 the applicant mentioned that a co-worker had bumped into his ankle with a collection trolley and there was “some animosity in the bump”.[45]
[45] Reply, p 11.
Mr Whittaker said there were issues and comments from other collection staff about the applicant’s performance and teamwork and he issued two memorandums regarding the applicant’s work performance dated 15 February 2017 and 17 February 2017. Mr Whittaker stated that there were issues about the applicant’s level of work performance and the applicant “always had an excuse for his level of collections”.[46]
[46] Reply, p 11.
In March Mr Whittaker was again addressing the applicant’s unproductive work performance when the applicant mentioned his sore ankle and inability to walk great distances due to the trolley incident.
Mr Whittaker noted that the applicant was transferred to Liverpool hospital in May 2017 because Bankstown hospital could not accommodate his restrictions due to the ankle injury.
Ms Webb provided a statement dated 22 February 2018.[47] She first met the applicant on 26 June 2017 when he commenced training for date entry. Ms Webb referred to the applicant’s attitude towards herself and other female staff as if “we weren’t important and we were inferior to him”.[48] She describe the applicant’s attitude to her as “arrogant during the time
I was training him”.[47] Reply, p 24.
[48] Reply, p 25.
FINDINGS
The Commission is required to provide a brief statement of reasons.[49]
[49] Section 294(2) of the 1998 Act.
The applicant bears the onus of proof in establishing the causes of the psychological injury. However, that statement must be seen in the context of the present case where psychological injury within the meaning of s 4(b) of the 1987 Act is admitted.
The respondent must prove the defence pursuant to s 11A of the 1987 Act on the balance of probabilities: Northern NSW Local Health Network v Heggie.[50]
[50] [2013] NSWCA 255 (Heggie) at [59].
Causes of psychological injury
The applicant gave oral evidence at the hearing. He often provided inconsistent and/or
non-responsive answers to questions. I did not form the view that the applicant was untruthful or, as the respondent submitted, anything he said could not be believed, although
I was unimpressed with his oral evidence.I am not of the view that the applicant’s evidence required corroboration to be accepted. However, where there is a contradictory account, I will not accept it unless the applicant’s evidence is corroborated.
As the applicant correctly submitted, critical portions of the applicant’s evidence were either corroborated or not contradicted by the respondent. It referred to the statements provided by Ms Kaye and Mr Ayubi.
I do not accept the applicant’s evidence that he was threatened by Mr Gautray. There was no contemporaneous account that he was threatened, and the allegation first arises some months later. Mr Gautray denied the allegation in a general way in his statement dated 21 December 2017.
The incidents allegedly causing psychological injury were particularised in a document attached to an Application to Admit Late Documents filed by the applicant between the first and second day of hearing. The particulars are extensive. Summarised, they rely on the events complained about by the applicant in his statement dated 1 December 2020, events described by applicant in his letter dated 14 May 2018 and certain other events.
The respondent’s submissions contesting the applicant’s credit means that factual findings are required on the underlying events.
In State Transit Authority of New South Wales v Fritzi Chemler[51], Spiegelman CJ stated:[52]
“As McGrath CJ Comp Ct indicated, as quoted above, 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”.
[51] [2007] NSWCA 249 (Chemler).
[52] Chemler at [54], Bryson AJA agreeing.
Basten JA expressed the test in slightly different terms. His Honour stated:
“If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established.”
These observations have particular relevance to this case. In late 2016 Mr Gharibeh was hit in the leg by a trolley. He suffered injury and he believed that the co-worker intentionally hit him and that he was poorly treated by management concerning his work injury. Whether there was an intention to hit the applicant is irrelevant. The relevant question is whether there was a real event that the applicant perceived to be offensive or hostile.
In submissions the respondent was initially neutral about whether this incident occurred but eventually conceded that it was reported by the applicant at the time to Mr Whittaker and the applicant immediately consulted his doctor. The respondent’s alternative submission was that the applicant had exaggerated the incident and the effects of the symptoms.
The event occurred and the applicant obviously perceived it was intentional.
There is a consistent complaint by the applicant to the trolley incident and its consequence. This incident is mentioned in a number of places including the email of 4 May 2017, the applicant’s statement, discussed with Ms Hiley in January 2018 as evidenced by the 15 January 2018 email, the complaint to Mr Whittaker, the opinion of Dr Phillips, the opinion of Dr Teoh and in the first report of Dr George.
I accept that the trolley incident was causative of psychological injury.
Further, the applicant perceived that he was excluded and isolated. The basis of that conclusion is the applicant’s statement, the evidence of Ms Kaye[53] and the absence of any contradictory account.
[53] See paragraph 14(a) of her statement set out at paragraph 22 herein.
Further, the applicant had difficulty undertaking his duties following the injury to the foot. The attendances on the general practitioner in February and April 2017 record these issues. The email of 4 May 2017 also records those problems.
In late 2017 the applicant was again hit in his leg. The basis for that finding is the applicant’s evidence, Mr Ayubi’s evidence[54], Mr Angulo’s diary note and the absence of any contradictory account. It is logical that the further incident would aggravate a psychiatric condition in circumstances where the applicant already perceived his workplace as a hostile environment.
[54] Application, p 219.
There is extensive evidence concerning Mr Gharibeh’s unsatisfactory work performance relied upon by the respondent and set out earlier. The evidence establishes that the applicant’s work was seen by his mangers as less than satisfactory, had been disciplined over his work and was rude to co-workers such as Ms Webb.
I agree with the common submission that portions of the medical records are unhelpful in analysing and determining the precise causes of injury because the record within the notes to “bullying” does not specify what the bullying is.
I also agree with the submissions that references in the clinical notes may be associated temporally with events occurring at that time.
The respondent initially submitted that the complaint to the general practitioner on 8 May 2017 was significant and related to the discipline occurring at that time. Mr McManamey submitted that the visit to the general practitioner pre-dated the discipline on 9 May 2017 and could not be supportive of the respondent’s s 11A defence. The respondent subsequently withdrew the submission that the complaint recorded on 8 May 2017 related to discipline and did not make any alternative submission as to what it did relate to.
I agree with the applicant’s submission that the record on 8 May 2017 probably related to the events described in the email sent by the applicant on 4 May 2017. That complaint related to Mr Gharibeh’s perception of the trolly incident and how it limited his ability to undertake his duties.
I accept the respondent ‘s submission that the clinical note of 19 September 2017 which stated that “works want [him] to resign” is probably related to the discipline that occurred on 18 September 2017 and/or around that time.[55] The temporal connection between the employer’s actions and the attendance on the general practitioner is compelling. The doctor’s record that it records the applicant’s perception that his work wants him to resign is clearly consistent with being disciplined on 18 September 2017. I reject the applicant’s contrary submission.
[55] See Reply, p 49.
The disciplinary event on 7 December 2017 is also consistent with clinical notes around that time when the applicant complained about his workplace being stressful and “bullying”.[56] However, the clinical notes in November and December could also relate to other matters such as the applicant being kicked by a co-worker.
[56] See clinical note dated 19 December 2017, Application, p 274.
Whilst the clinical notes are of some assistance, they only go so far as they often refer to the vague term of “bullying”.
The medical reports otherwise provide some assistance on the causes of psychological injury although as a general observation they were vague on associating particular events as causative of injury.
The reports of Dr Phillips can and should be read together: Hancock v East Coast Timber Products Pty Ltd[57]. The doctor’s opinion supports the conclusion that the trolley incident and its sequelae was causative of psychological injury. The opinion is relevant and from a treating specialist who examined the applicant on a number of occasions. A plain reading of Dr Phillips reports associated the trolley incident and its consequence to the psychological injury.
[57] [2011] NSWCA 11 at [87].
Dr Phillips also suggests unspecified action by management to dismiss the applicant as causative of psychological injury.
The opinion expressed by Dr George in his first report associated the trolley incident and the unfair workload with psychological injury. So much is clear from the history recorded by
Dr George[58] and the statement:[59]“He indicated, on the day when he was struck by a trolley initially at Bankstown
Hospital, that the action was deliberate and he saw this as bullying. He said that his
distress started from that point in time and therefore, this appears to be a primaryinjury, according to his self-reported symptoms.”
[58] Reply, p 83, first and fourth paragraphs under “Presenting Complaints”
[59] Reply, p 87
The doctor then concluded that “according to his self-reports, his employment has been a substantial contributing factor to his injury”. That opinion must be based on the self-reports which included the trolley incident. The respondent’s submission that Dr George did not reach this conclusion in this report is rejected.
The trolley incident and the applicant’s perception of its sequelae is not mentioned in
Dr George’s second report. It is unclear from the second report why this trolly incident and its sequelae is not considered causative of psychological injury.Dr Teoh’s opinion in his first report related the psychological condition to the trolley incident which caused chronic pain and subsequent “harassment and unfair treatment at work”.
It is difficult to be precise as what events were causative of psychological injury. I find that the trolley incident and its sequelae which the applicant considered unfair such as being isolated and had difficulty doing his work was causative of injury. I accept that the discipline in September and probably December 2017 was also probably causative of psychological injury. The further kicking injury in late 2017 was also probably causative of injury.
I also accept, consistent with Dr Phillips’ opinion, that techniques used by management such as performance reports were causative of injury. Again, consistent with the vagueness of reports in this case, the nature of those techniques is unclear.
In the expanded s 11A particulars the respondent relied on a conversation in November 2017 and a letter dated 8 March 2018 which were alleged to be actions with respect to transfer. There were no submissions referring to any evidence that supported these matters as being causative of injury.
Dr George opined that the injury “has not necessarily come about due to his transfer from Bankstown Hospital to Liverpool Hospital in my opinion” which is not the same as the actions that were particularised with respect to transfer.
The applicant did not refer to any transfer actions that was causative of psychological injury.
For completeness, I find that any actions with respect to transfer were not causative of injury.
Issue of wholly or predominantly
The respondent relied on the conclusion reached by Dr George that it had satisfied the onus of proof that the psychological injury was caused by the pleaded s 11A actions. The opinion expressed by Dr George in his second report is deficient for the following reasons:
(a)the doctor accepts in his first report that the first trolley incident was causative of injury. This incident is ignored in the second report and no reason is proffered why that event, and Mr Gharibeh’s perception of the event and the consequences of that event, were not causative of psychological injury;
(b)the conclusion is that the psychological symptoms were “wholly and predominantly caused by actions taken by NSW Health”. Whilst that may be seen as lose language, the actions cannot be both. It shows a lack of consideration in the opinion as to whether the psychological condition was wholly caused, or, if “predominantly” caused, what events outside the s 11A defence were causative;
(c)the doctor goes outside his speciality by then commenting that the actions were reasonable. That comment is made on the basis of a bare assertion clearly outside his expertise;
(d)the doctor does not specify the performance appraisal actions which were undertaken by the respondent. It is unclear what the performance appraisal actions are in circumstances where the applicant is disputing that some of these actions are performance appraisal. It is unclear whether what the doctor considers to be performance appraisal matters are as alleged by the respondent, and
(e)there is a lack of any reasoning behind the opinion, particularly in circumstances where it is contradicts the earlier report that the trolley incident, unrelated to performance appraisal, was causative of psychological injury.
I otherwise reject the respondent submission that only Dr George had undertaken a proper evaluative exercise in forming a conclusion on the various causes of the psychological injury. I am far from satisfied that Dr George has undertaken that exercise. The doctor has expressed bare opinions of minimal value in his second report which is otherwise inconsistent with my findings and his earlier conclusion that work events outside performance appraisal and discipline were causative of the psychological injury.
The respondent relied on the clinical notes and emphasised their importance in the context of establishing the onus of proof under s 11A. However, as mentioned earlier, the clinical note of 8 May 2017 probably related to matters outside the s 11A matters.
Based on that conclusion, the causative weight of employment matters that fell outside the
s 11A actions are strengthened and the s 11 A defence is weakened.I find that the trolley incident and its consequences was a significant cause of psychological injury. This conclusion arises from the repeated references by the applicant to this event expressed to several people and the applicant’s reference to it as recorded by Dr Teoh, Dr George and
Dr Phillips.There are work events associated with the trolley incident and its consequences that were causative of psychological injury and are not s 11A actions. Accordingly, the psychological injury was not wholly caused by reasonable action.
Accepting the respondent’s particulars of the s 11A defence at its highest and in the expanded version pleaded at the first day of hearing and accepting that all actions were either performance appraisal and/or discipline, I am not satisfied that the respondent has discharged the onus that the psychological injury was predominantly caused by the s 11A actions.
The short second report from Dr George with its various deficiencies mentioned earlier and read with the various clinical notes does not satisfy the onus of proof that the psychological injury was predominantly caused by the s 11A actions.
Orders and findings
The finding and orders are set out in the Certificate of Determination.
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