Gharibeh v Secretary, Ministry of Health (NSW Health Pathology)
[2021] NSWPIC 343
•13 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gharibeh v Secretary, Ministry of Health (NSW Health Pathology) [2021] NSWPIC 343 |
| APPLICANT: | Kusai Gharibeh |
| RESPONDENT: | NSW Health Pathology |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 13 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claimed permanent impairment compensation for psychological injury; the respondent admitted injury at the commencement of the arbitration hearing but asserted that the causes of injury were all actions that fell within the meaning of section 11A of the Workers Compensation Act 1987 (the 1987 Act); the preliminary issue for determination was the scope of the section 11A of the 1987 Act defence raised in the section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) notice and whether the respondent could have leave to widen the particulars pursuant to section 289A of the 1998 Act; Held - the principles of interpretation of the section 78 notice and whether leave should be given are separate issues; the parties agreed that the relevant principles were set out in Mateus v Zodune Pty Ltd; a plain reading of the section 78 notice did not support the respondent’s contention that its further particulars fell within the notice; the application for leave to widen the particulars rejected because the respondent had been guilty of gross delay, had not explained the delay, the application was made on the date of the hearing, had not shown the strength of the expanded defence and the applicant would suffer obvious prejudice from the further delay; observations made of the practice by applicant’s legal practitioners alleging “bullying and harassment when those terms have a legal meaning and often do not apply and to the respondent’s practice of providing unsatisfactory section 11A particulars; Gray v Busways Gosford EMP Pty Ltd referred to; balance of the claim stood over for hearing. |
| DETERMINATIONS MADE: | 1. The issues pursuant to s 11A of the Workers Compensation Act, 1987 raised by the respondent in the notice dated 7 July 2021 are limited to the matters set out at paragraph 18 of these reasons. 2. The respondent’s application to raise further issues pursuant to s 289A of the Workplace Injury Management & Workers Compensation Act, 1998 is declined. 3. The parties have liberty to relist this matter for a telephone conference if there is no agreement on the admissibility of the statement of Mr Gautray dated 22 February 2018. 4. The respondent is to advise the applicant of proposed areas of cross-examine. Leave is granted subject to determining the scope of the cross-examination. 5. The matter is listed for a further full day hearing on 5 November 2021 at 10.00 am by audio visual link. |
STATEMENT OF REASONS
BACKGROUND
Mr Kusai Gharibeh (the applicant) was employed by NSW Health Pathology (the respondent) and suffered psychological injury deemed to have occurred on 19 September 2017.
These are my interlocutory reasons on matters raised at the hearing of this matter heard on 7 September 2021.
At that time Mr McManamee of counsel appeared for the applicant and Mr McMahon of counsel appeared for the respondent. All material filed in the matter was admitted into evidence save as to the report of Dr Lucas Murphy dated 12 March 2018. The respondent did not press that report.
Procedural background
The respondent has served three notices pursuant to the former s 74 and the current s 78 of the Workplace Injury Management & Workers Compensation Act 1998 (the 1998 Act).
In its first notice dated 19 March 2018 the insurer denied liability pursuant to ss 4 and/or 9A of the Workers Compensation Act 1987 (the 1987 Act).[1]
[1] Reply, p 27.
The Application to Resolve a Dispute (Application) was filed on or about 15 June 2021. The Reply is dated 7 July 2021.
Attached to the Reply is a notice dated 1 July 2021 issued pursuant to the current s 78 of the 1998 Act. That notice denies liability pursuant to ss 4 and 9A of the 1987 Act and also asserts that any permanent impairment is not at least 15% as required by s 65A(3) of the 1987 Act.
A further notice dated 7 July 2021 was sent to Mr Gharibeh care of his solicitors (the s 78 notice). Accordingly, it is dated approximate to the filing of the Reply. The s 78 notice included for the first time a defence pursuant to s 11A of the 1987 Act. It is necessary to refer to portions of the s 78 notice as they are essential to the matter requiring determination in these Reasons.
The notice set out a number of allegations made by Mr Gharibeh and then relevantly provided the following discussion pertinent to the s 11A defence.
“In comparison, we arranged for you to be previously assessed by Dr Lucas Murphy who provided a report dated 12 March 2018. Dr Murphy noted that the main contributing factor to your symptoms were ‘industrial grievance’ based on your own self reporting, and concluded that your complaints revolved around your objection to being performance managed at Liverpool Hospital. Similarly, we recently had you assessed by Dr George who has provided a report dated 21 June 2021. Dr George recommended that you be referred for psychometric testing to verify the cause of your current complaints and symptoms. Dr George noted ‘certainly, there have been performance issues identified by his employer and Mr Gharibeh acknowledged this on the day of assessment. There has been a contribution to this situation by reasonable actions taken by his employer’. (emphasis in original)
We note that the documents provided by NSW Health Pathology indicate that you were performance managed throughout 2017 and 2018, before and after being transferred
to Liverpool Hospital. Additionally, you were issued with warning letters on 4 December 2017 and 7 December 2017 with respect to taking leave without prior approval, and failing to attend work when rostered on.
Considering the evidence you and NSW Health Pathology have provided, together with the medical evidence gathered, we consider that section 11A applies to your claim.
Section 11A of the Workers Compensation Act 1987 stipulates that no compensation is payable with respect to a psychological injury, where injury is wholly or predominantly
caused by the reasonable action taken or proposed to be taken by an employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal.In circumstances where you were disciplined on a number of occasions with respect to following procedure when applying for leave, and were being performance managed with respect to your duties before and after transferring to Liverpool Hospital, we consider that if any injury has been suffered, which is denied, that it is not compensable as the whole or predominant cause of your injury was the performance appraisal transfer and/or discipline undertaken by NSW Health Pathology during your employment.”
The s 78 notice denied liability based on s 11A and confirmed the disputes raised in the earlier notices dated 19 March 2018 and 2 (sic 1) July 2021. The notice also attached reports and documents which were “attached as required by clause 41(3) of the Workers Compensation Regulation 2016”.
The matter was listed for telephone conference before a Member of the Commission on 14 July 2021 who disqualified herself from further participating in the matter. The matter was set down for hearing before me as a full day hearing on 7 September 2021. Mr Gharibeh was available to be cross-examined although there had been no discussion or directions as to the scope of the proposed cross-examination.
The effect of the disqualification meant that any procedural issues requiring determination were left to the arbitration hearing. However, it is clear that the respondent did not seek leave at the telephone conference to widen the particulars of the s 11A defence.
At the commencement of the arbitration hearing the Application was amended by deleting the description of injury from “bullying and harassment” to read “interpersonal conflict”.
The applicant’s causes of injury were then set out which included a repeat of the description contained in the Insurer’s s 78 notice dated 7 July 2021.[2] The applicant was directed to confirm that list in writing after the hearing. There was no objection to those particulars.
[2] Reply, p 40.
The respondent admitted injury pursuant to s 4 of the 1987 Act but disputed the causes of the injury as alleged by the applicant. The respondent asserted that the causes of injury were essentially those relied upon in the s 11A particulars set out below.
The particulars of the s 11A defence were then described by the respondent’s counsel in the following terms:
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.
It is accepted by Mr Gharibeh that the following particulars fell within the s 78 notice:
(a)Particulars 5 and 7, and
(b)Particulars 1, 2, 3, 4, 6 and 10, 11 insofar as they relate to performance appraisal.
The applicant objected to all other particulars as being outside the s 78 notice.
LEGISLATION
Sections 78 and 79 of the 1998 Act relevantly provides:
78. (1) An insurer must give notice in accordance with this Division of any decision of the insurer—
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.….
79. (1) A notice required by this Division must be given—
(a) to the claimant or worker concerned, and
(b) in the case of a notice of a decision to dispute liability--to the worker's employer, if required by the regulations.
(2) The notice must contain a concise and readily understandable statement of the reason for the insurer's decision and of the issues relevant to the decision.
(3) In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.
Section 289A of the 1998 Act relevantly provides:
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a)it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.
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
Applicant’s submissions
The only s 11A particulars were in the penultimate paragraph of the s 78 notice. The reliance on discipline was specific in the s 78 notice and only related to a failure of “following procedure when applying for leave”.
The relevant principles were considered in Mateus v Zodune Pty Ltd.[3]
[3] [2007] NSWWCCPD 227 (Mateus).
It was accepted that the reference in the s 78 notice to “performance managed” would mean “performance appraisal”.
Transfer was never particularised and the reference to that category at the end of the sentence was unclear.
The matter had been prepared by the applicant on the basis that the respondent had mischaracterised the various actions and it could not prove the defence. The applicant was ready to run the matter.
The applicant had prepared his case on what was alleged to be the two types of defences under s 11A in the penultimate paragraph on page 40 of the Reply. They were, first, discipline with respect to procedure when applying for leave and secondly, performance appraisal before and after transferring to Liverpool Hospital.
The applicant accepted that portions of the particulars fell with the scope of the s 78 notice. It objected to leave outside the plain reading of what was specified in the s 78 notice.
The applicant was content to argue the case on that basis because the matters relied upon by the respondent as purporting to be performance appraisal did not meet that definition in accordance with the authorities such as Irwin v Director-General of School Education[4].
[4] (NSWCC, Geraghty J, 18 June 1998).
The granting of leaving would require the applicant to reprepare his case which would delay the matter. There was no suggestion that he was responsible for this delay.
The approach of an insurer being allowed to replead its case was inconsistent with the objectives of the Personal Injury Commission.
In reply, the applicant noted the reference to the further documents in the relevant s 78 notice did not put the applicant on notice that they would be relied upon as part of a s 11A defence outside the wording of the particulars. The respondent had a statutory obligation to include this material.
The matter was not raised at the telephone conference when the member attended to administrative issues. Nothing of substance was raised at that time.
The amended particulars do not fall within the s 78 notice and leave should not be granted to amend it.
Respondent’s submissions
The particulars are an issue of characterisation. It is often the case that discipline and performance appraisal are read together. The issues as particularised and set out earlier in these reasons fall within the scope of the s 78 notice.
Section 78 notices are “usually framed in this manner”.
The particulars raising disciple were raised in the s 78 notice because the word “disciple” in the first part of the sentence also relates to the scope of the defence set out in the second part of the sentence.
The other particulars of “performance managed” (paragraphs 3,4, 9 and 11) are all matters which fall within the general description of the s 78 notice. Each of those is based on material which the applicant had through his own knowledge or from documents provided to him. The documents that are relied upon were either attached to the s 78 notice or were documents provided by the applicant in these proceedings.
The concept of performance appraisal includes proposed performance appraisal. Particulars 3 and 4 are included with the terms of the s 78 notice and were also relied upon as performance appraisal.
The legislation requires that the respondent provide a concise description of the issues. That is what the respondent did in the s 78 notice.
The applicant is not prejudiced by the further particulars if they fall outside the scope of the notice. The matter should have or would normally have been dealt with at the telephone conference except that the Member did not determine procedural issues and left it to the hearing.
The respondent accepted the applicant’s response that further evidence was required. This could be adduced, and further directions made for the preparation of the matter.
Accepted that if this step was normally taken at the hearing, then the system could not function as the Commission could not act efficiently.
The respondent accepted that the relevant legal principles were discussed in Mateus.
There was no surprise to the applicant because it was part of the s 78 notice or included by the applicant in his evidence and it would cause no difficulty.
The respondent did not dispute that the applicant was prejudice and would have to be put on further evidence to respond to these particulars. The Commission is to determine the matter on its merits. There was no great surprise to the applicant given that the documents have been served or were the subject of his evidence.
REASONS
The issues for determination are whether the particulars reformulated by counsel fall within the scope of the s 11A defence referred to in the s 78 notice and if not, whether leave should be granted to allow the respondent to raise the further issues. The issues are distinct although the submissions sometimes blurred that distinction.
The s 78 defence
In Mateus Roche DP stated:[5]
“I agree with and endorse the Arbitrator’s general comments (reproduced at [36] above) about the obligations imposed on insurers by section 74. Attaching a document to the section 74 notice and leaving it to the worker to work out exactly which issues are disputed does not satisfy those obligations. A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient. The Arbitrator was therefore correct in determining that the issue of injury was a ‘previously unnotified’ matter and that leave was required before it could be disputed.”
[5] At [45].
The observations of the Arbitrator endorsed by Roche DP were set out earlier in his reasons. Those comments are:
“In my view, the obligation imposed by s 74(2)(a) of 1998 Act will not be discharged unless the reason/s the insurer disputes liability are clearly stated and the issues relevant to the decision particularised. A citation in the notice to another document does not in my view constitute disclosure of all issues addressed in that document for the purpose of s 74(2)(a). Nor, in my opinion, will a passing reference to a legislative provision constitute ‘catch all’ disclosure of any legal or factual issue that might arguably be relevant to the application of the provision. The wording of s 74(2) requires the insurer to state why it disputed liability and the matters relevant to its decision. In my view, it also requires the insurer to particularise those matters in a manner comprehensible to a person unfamiliar with the workers compensation jurisdiction. That reading of the provision is consistent with s 74 (2B) which requires the notice to be expressed in plain language.”
These comments have been applied in other Presidential decisions: see for example Department of Corrective Services v Bowditch[6].
[6] [2007] NSWWCCPD 244 at [37].
In Gray v Busways Gosford EMP Pty Ltd[7] the Commission discussed the obligations of employers in properly particularising a s 11A defence. The comments, set down 12 years previously, are pertinent to the present matter. Roche DP stated:[8]
“Insurers are again reminded that section 74 notices must be properly prepared and must fully and clearly state in plain language the issues in dispute. The repeated failure of insurers to comply with the clear terms of section 74 is unacceptable. If an insurer seeks to rely upon section 11A(1) of the Workers Compensation Act 1987 (‘the 1987 Act’), full and proper particulars of the specific part of that section must be provided. There are seven different parts to section 11A(1) and a worker is entitled to know precisely which part the insurer relies upon. No proper particulars have ever been provided in the present case and the worker has been left to guess as to which part of section 11A(1) allegedly defeats her claim. That is a totally unsatisfactory situation that should not occur.”
[7] [2009] NSWWCCPD 124 (Gray).
[8] Gray at [6].
The relevant portion of the s 78 defence is set out earlier in these reasons. I do not accept the respondent’s submissions.
The relevant portion of the s 78 notice is drafted as applying to two sets of actions. It refers to discipline in the first part of the sentence “with respect to following procedure when applying for leave” and then to being “performance managed” with “respect to your duties before and after transferring to Liverpool Hospital”. On a plain reading these are two separate types of action although the second is broadly defined. The last part of the sentence is a catch all and does not describe any relevant actions taken by the respondent.
On a plain reading of the s 78 notice the respondent has described two types of actions, they being:
(a)discipline on a number of occasions with respect to [failing to] follow procedure when applying for leave, and
(b)performance managed with respect to duties before and after transferring to Liverpool Hospital.
That interpretation of the final paragraph set out at [9] herein is entirely consistent with the wording of the second paragraph of the s 78 notice quoted above, which refers to the two types of actions. Those actions were described in the second paragraph as “performance managed throughout 2017 and 2018” and being “issued with warning letters on 4 December 2017 and 7 December 2017 with respect to taking leave without prior approval and failing to attend work when rostered on”.
The statement at the end of the sentence in the last paragraph that there was “performance appraisal, transfer and/or discipline undertaken by NSW Health Pathology during your employment” does not attempt to define any actions or proposed action taken by the respondent and is a general catch all.
The fact that documents were attached to the notice does not provide particulars of other actions. If there are other documents attached outside the above particulars, then it is simply guess work whether the respondent is relying on other documents to support other particulars. The applicant otherwise correctly submitted that cl 41 the 2016 Regulations requires the respondent to attach certain records. The fact that these documents are attached does not mean that the respondent will rely on other particulars outside those described in the s 78 notice. In that regard the respondent’s submissions are inconsistent with the observations in Mateus where the Deputy President referred to “an obscure reference to a document attached to the notice” and is rejected.
The respondent submitted that discipline and performance appraisal often run together and indicated that sometimes difficult to distinguish between the concepts. Whilst that submission is generally correct, it does not assist in determining the plain meaning of the s 78 notice.
For these reasons I reject the respondent’s submission that its s 11A defence, as set out in paragraph 16 herein, is in accordance with the s 78 notice.
Application for leave to amend the defence pursuant to s 289A
The matters relevant to the exercise of the discretion to allow a defence to be amended were also discussed in Mateus. Roche DP stated:
“In determining whether it was ‘in the interests of justice’ to allow the Respondent Employer to dispute injury, the Arbitrator correctly identified at paragraph 18 of her Reasons the matters relevant to the exercise of the discretion (see [38] above). To those matters I would add the following observations:
(a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b) any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c) any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;
(d) in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e) in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that is sought to be raised;
(f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.”
The respondent bears the onus of proof under s 11A.[9] This is relevant because it is not simply a matter of the respondent asserting that a worker has not proved his or her case but that particulars actions fall within the scope of s 11A and that those actions were the whole or predominant cause of the injury. That onus requires evidence[10] on the various aspects of the s 11A defence rather than an employer simply asserting that a worker has not proved his or her case.
[9] Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [34], [59].
[10] See Hamad v Q Catering Ltd [2017] NSWWCCPD 6 at [88].
There was no explanation provided by the respondent why it delayed providing any s 11A defence until after the proceedings had been commenced. There was no explanation why the defence was then not properly particularised and enlarged until the day of the hearing. The respondent referred to the fact that this should have been done at the telephone conference and was not done because the Member excused herself. That explanation does not explain why proper particulars were not provided at any time including after the telephone conference and before the arbitration hearing.
The way the further s 11A particulars were drafted on the run during the recent hearing shows the unsuitability of undertaking that exercise at that time. It otherwise shows that the respondent did not give proper thought to the matter until the actual day of the hearing. The objectives of the Commission as set out in s 3 of the Personal Injury Commission Act, 2020 would be frustrated if the way the respondent acted was repeated in other cases. Learned counsel for the respondent accepted as much.
In my view having seen what occurred and the way the particulars were given, the respondent did not appreciate how defective its s 11A particulars were until the matter was raised at the hearing. In those circumstances the Member’s excusal at the telephone conference does not explain this delay.
There was no suggestion that the applicant caused any part of the delay. The basis of any s 11A defence was entirely within the respondent’s knowledge. There is no reason why the respondent could and should have properly particularised the s 11A defence prior to the commencement of the proceedings.
The respondent is entirely at fault for the delay in particularising the defence. The injury occurred in 2017. The claim for s 66 compensation was particularised in August 2020 when Dr Teo’s report was served. The delay in this matter is unacceptable.
The applicant asserted and I accept that the amendments will require substantial evidence directed to both the medical issue of wholly and predominantly and the question of reasonableness. I accept that submission which was otherwise not contested by the respondent.
There were no submissions as to the strength of the s 11A defence, which as stated, the onus lies on the respondent. The respondent also bears the onus in showing that leave should be granted. Whilst it is self-evident from a review of the documents that the amended particulars would arguably encompass actions with respect to disciple and/or transfer, there were no submissions on the reasonableness of those actions and whether these actions were the whole or predominant cause of injury.
In his report dated 21 June 2021 Dr George’s comments on the issue of causation included the following conclusion:[11]
“Certainly, there have been performance issues identified by his employer and Mr Gharibeh acknowledged this on this on the day of assessment. There has been a
contribution to his situation by reasonable actions taken by his employer.”
[11] Reply, p 88.
In a short subsequent report dated 30 August 2021 Dr George enlarged on his opinion on causation when he stated:[12]
“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.”
[12] Respondent’s late Application, p 2.
In the latter opinion Dr George has concluded that the psychological symptoms are “wholly and predominantly caused” by actions with respect to performance appraisal.
In response to an observation of the brevity of Dr George’s opinion on “wholly or predominantly”, Mr McMahon submitted that reference would also be made to clinical notes supporting his client’s defence.
In those circumstances I express no observation on the strength of the respondent’s medical evidence as it is unclear. At this stage I am not persuaded that the strength of any s 11A defence is a factor weighing in favour of exercising the discretion.
The applicant has already suffered prejudice by the way the respondent has failed to promptly particularise its defence and delayed the hearing. There will be further delay if the amendment is allowed. There is now no dispute that the applicant suffers a psychological injury. It is a matter of commonsense that a psychiatrically ill person would feel frustrated by the further delay.
Mr McManamee flagged, without fully articulating his argument, that his client had prepared the matter based on what was pleaded. He submitted that the applicant would contend that many of the matters raised by the respondent were not performance appraisal and that it could not succeed. Whilst that issue is yet to be determined, it illustrated that the applicant was ready to argue the matter based on the admitted evidence and the s 78 notice.
I have considered the matters discussed in Mateus. The relevant factors discussed herein do not provide a basis why, in the interests of justice, leave should be granted.
I briefly considered whether leave should be granted to the respondent allowing a limited expansion of its particulars. However, the respondent made no submissions and did not seek, in the alternative, a limited expansion of what had been pleaded. The applicant obviously did not respond to an argument that was not made.
Given the absence of any alternative submission, I have not considered that course.
For these reasons, I am not satisfied that leave should be granted pursuant to s 289A of the 1998 Act to allow the respondent to amend its s 11A defence.
Observations
This case raises an ongoing general deficiency in the way claims alleging psychological injury are pleaded and defended in the Commission
First, there is the general pattern by applicants through their legal practitioners pleading psychological injury and alleging “bullying and harassment”. These words have legal meaning, and they, often, do not apply. The seriousness of the allegation only unnecessarily offends employers and its employees. In the present case the applicant’s learned counsel immediately distanced himself from that allegation by replacing the words with “interpersonal conflict”. Some care was also given by counsel to the various events that caused the psychological injury.
Secondly, there is a repeated failure by respondents to properly plead the s 11A defence. Often recourse is had to the general words of the section and rarely are the “actions” identified. The particulars drafted by the respondent’s learned counsel set out at paragraph 16 herein, provide an excellent example of a precise and concise pleading which would place a worker on notice as to the substance of the defence. This case is yet another example that the message set out by Roche DP in Gray is not followed.
It is a truism that s 11A cases can be extremely complex. The inadequacy of relevant particulars only adds to the complexity, inefficiencies and unnecessarily delays in these types of disputes.
Orders and findings
The finding and orders are set out in the Certificate of Determination.
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