Giannos v AGL Energy Limited
[2021] NSWPIC 179
•10 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Giannos v AGL Energy Limited [2021] NSWPIC 179 |
| APPLICANT: | Vanessa Giannos |
| RESPONDENT: | AGL Energy Limited |
| MEMBER: | Jane Peacock |
| DATE OF DECISION: | 10 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological Injury; dispute under section 11A of the 1987 Act; whether the applicant’s undisputed psychological injury was wholly or predominantly caused by the reasonable action of the employer in relation to performance appraisal; employer bears onus of proof; evidence weighed in the balance; Held- not satisfied on the balance of probabilities that the psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in relation to performance appraisal; worker not precluded from the recovery of compensation by reason of section 11A; award for the worker. |
| DETERMINATIONS MADE: | 1. The respondent pay the applicant weekly compensation from 19 September 2019 to date and continuing at the applicable statutory maximum less $360, with the respondent to have credit for payments made. 2. The parties to have liberty to apply within 14 days as to the form of order 1. 3. The respondent pay the applicant’s section 60 expenses on production of accounts and/or receipts. |
STATEMENT OF REASONS
By Application to Resolve a Dispute (the Application) Ms Vanessa Giannos (the applicant) seeks weekly compensation and compensation for medical expenses as a result of an alleged psychological injury deemed to have occurred on 19 September 2019.
The respondent is AGL Energy Limited. The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual NSW Limited (the insurer).
The respondent denied liability for the claim.
ISSUES FOR DETERMINATION
There is no dispute that the applicant suffered a psychological injury within the meaning of the Workers Compensation Act 1987 (the 1987 Act).
There is no dispute that the injury is deemed to have occurred on 19 September 2019.
The dispute relates to section 11A of the 1987 Act, that is whether 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 of the applicant.
There is a dispute before me that the employer’s actions in relation to performance appraisal were the whole or predominant cause of the applicant’s psychological injury.
There is also a dispute before me as to whether the employer’s actions taken in relation to performance appraisal were reasonable.
The applicant seeks a general order in respect of section 60 expenses. In the event the applicant is successful on the question of liability, the respondent consents to a general order being made in respect of section 60 expenses in favour of the applicant.
The applicant sought amendment of the Application to seek weekly compensation from the date of injury on 19 September 2019. The respondent consented to the amendment back to the date of injury on the proviso that, in the event the applicant was successful on liability, the respondent would have credit for payments made.
In the event the applicant is successful on liability, the applicant’s capacity for work, and any award of weekly compensation to be made, is the subject of dispute.
The pre-injury average weekly earnings (PIAWE) is agreed at $3,219.71 per week.
The amount of the PIAWE is such that a statutory maximum applies.
It is not disputed that the applicant cannot return to work with the respondent.
In the event the applicant is successful on liability, her primary contention is that she has no current work capacity in respect of all periods claimed.
If the applicant is found to have a current work capacity, then the applicant says that is limited to 10 hours per week, If this is the finding the parties agree that this would be assessed at $30 per hour or $300 per week.
The respondent says that her work capacity is greater than 10 hours per week. Whilst the respondent agrees she could not return to work with the respondent, the respondent says she could perform her pre-injury role with another employer on a full time basis such that there would be no loss.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
For the applicant:
(a) Application and attached documents.
(b) An amended section 60 schedule and late documents filed 2 Npvember 2020.
For the respondent:
(a) The Reply and attached documents.
(b) Late documents filed 18 November 2020 to some of which objection was taken. Argument was recorded on the transcript and need not be repeated here.
Oral evidence
The applicant did not seek leave to adduce further oral evidence.
Counsel for the respondent sought leave to cross-examine the applicant which was objected to by the applicant. The argument is recorded on the transcript and does not need repeating here. Leave was granted for the applicant to be cross-examined.
Directions for submissions:
As a result of evidence given under cross-examination, the parties were directed to file written submissions on 14 January 2021 as follows:
“Matter Number: 4006-20
Applicant: Vanessa Giannos Respondent: AGL Energy Limited
In this matter a conciliation/arbitration was held in the course of which the Applicant was cross-examined. During cross-examination the Applicant gave evidence that she was in receipt of job keeper payments. Limited submissions were made in respect of this in view of the fact that this evidence was given for the first time under cross-examination. The following submissions were made by the Applicant’s counsel in respect of the issues raised by the Respondent about the Applicant’s receipt of JobKeeper payments:
“Firstly, the JobKeeper circumstances. Mr Young has admitted that he’s no expert on JobKeeper so I would caution the Commission in accepting his submissions in this regard. I have, in fact, personally received JobKeeper over the last year so I am relatively familiar with how it happens. The applicant’s submission is basically that she was running a business in the past, that was making money and then she ceased working but the business was still registered. Because the business had reduced its earning capacity by 30 per cent she actually was entitled to claim JobKeeper.
Claiming JobKeeper does not mean that you are putting yourself out to the Federal Government that you are working or trying to work, just means you have a registered company, that’s why there was a lot of media attention on phantom companies and people receiving payments for nothing. That’s not what the applicant’s doing. The applicant isn’t earning income within the definition of the Act and the applicant isn’t lying to the Federal Government about JobKeeper. She is just getting paid under the entitlements like everybody else is. To impinge her credit in this regard is frankly ridiculous. There was then an attempt to impinge her credit in respect of alleged income received - - -
ARBITRATOR: Stop you there. Before you move on JobKeeper. Do you assert – so the business that creates the eligibility – so I understand you to say she’s claimed JobKeeper, she was running a business in the past that was registered and she’s, therefore, eligible because of her 30 per cent drop.
MR GRIMES: Yes.
ARBITRATOR: This does not mean that she’s misrepresented herself to the Federal Government.
MR GRIMES: Absolutely.
ARBITRATOR: Is that what you’re submitting?
MR GRIMES: That’s exactly how it works. She does not have to be holding herself out - - -
ARBITRATOR: Hang on. Mr Grimes.
MR GRIMES: Okay.
ARBITRATOR: Just summarising what you’ve said, let me ask my question please. The business is a trust, is it? It’s run as a trust?
MR GRIMES: I believe that’s the case.
ARBITRATOR: And are you saying – is your submission to me that there’s been no misrepresentation because all you have to do is - to qualify for JobKeeper is have a 30 per cent reduction in turnover?
MR GRIMES: Yes, and that’s consistent with her not working or making any money from her consultancy business. That’s exactly how it works and that’s exactly what she’s done.
ARBITRATOR: And so that there’s no requirement - - -
MR GRIMES: Absolutely not.
ARBITRATOR: - - - that – let me finish because you may need to make further submissions. There’s no requirement if this business is run as a trust that you are the – that you’re actively engaged in the business at the time you make application?
MR GRIMES: Hundred per cent.
ARBITRATOR: And that there’s no specific preclusion that you’re not totally incapacitated for employment?
MR GRIMES: Yes, there’s nothing as such and Mr Young has not pointed you to anything as such and my submission is completely consistent with the evidence from the applicant as to how she – as to how and why she’s received it and that’s how everybody receives it. It is sheerly based on a turnover test. If the business is still registered and the turnover is lower you are entitled to the money irrespective of whether it’s an actual going concern or not. Nothing - - -
ARBITRATOR: You’re very confident in that submissions?
MR GRIMES: I’m a hundred per cent sure about it and you have nothing before you to dispute it. Mr Young himself has said he is not an expert on JobKeeper.
ARBITRATOR: So the criteria that you addressed me on can the Commission confirm that?
MR GRIMES: You can take judicial note - - -
ARBITRATOR: Because I am actually – I am concerned that someone is asserting that they have no current capacity for employment and seeking to have the insurer pay in respect of that but on the other hand representing to the Federal Government that they have a business and that they’re entitled to JobKeeper. Now, you are submitting to me specifically and with great confidence that the only criteria is that you have to have at least 30 per cent loss? You don’t have to be actively engaged in the business, you can be totally incapacitated for employment but receive this payment, is that correct?
MR GRIMES: Yes, a hundred per cent. And you have nothing from Mr Young to dispute that.
ARBITRATOR: So the ATO website, if I were to consult that, that would confirm your submissions?
MR GRIMES: Yes, this has been my discussions with my accountant throughout the whole process of the year and that has been exactly how it’s been represented in the media and you have nothing before you by way of expert evidence to dispute it and this is the exact explanation the applicant was given. It has got nothing to do with her capacity for employment. Nothing.
ARBITRATOR: So can the Commission confirm that by consulting the ATO’s website?
MR GRIMES: Yes.
ARBITRATOR: Thank you. So I put you on notice that I will do that.”
The ATO’s website appears to provide that to be an eligible business participant for a job keeper fortnight the participant would need to be activity engaged in the business as at 1 March 2020 and not be totally incapacitated for work and receiving payments under an Australian workers compensation law in respect of their total incapacity to work.
The applicant seeks weekly payments in respect of all periods claimed from 19 September 2019 on the basis she was totally incapacitated for work.
Given the potential implications of the claiming and receipt of job keeper in these circumstances, the Commission wants to afford both parties procedural fairness and provide them the further opportunity to address on this issue.
Accordingly the following directions are made:
1. The Applicant to file and serve within 21 days (that is by 4pm 4 February 2021) written submissions addressing these issues, including the receipt of job keeper payments in the period for which weekly compensation is claimed on the basis of total incapacity;
2. The Respondent to file and serve within a further 21 days (that is by 4pm 25 February 2021) any written submission in response;
3. The Applicant to file and serve within a further 14 days (that is, by 4pm 11 March 2021) any written submissions in reply.”
Due consideration was given to the application made in the submissions and the following determination was made:
“CERTIFICATE OF DETERMINATION
| Matter Number: | 4406/20 |
| Applicant: | Vanessa Giannos |
| Respondent: | AGL Energy Limited |
| Date of Determination: | 8 April 2021 |
| Member: | Jane Peacock |
The Commission determines:
1. The parties were directed to file written submissions in this matter.
2. The applicant requested a transcript in her submissions as opposed to making an application for the transcript before making her submissions. Notwithstanding this, the applicant’s request for a transcript is granted and the commission is to provide a copy of the transcript to both parties forthwith.
3. The applicant has submitted that she is reserving her right to file a further statement and the respondent objects to this but if granted would seek to issue various directions for production and file further evidence.
4. The commission’s rules provide for an upfront filing system. These rules are designed to allow the commission to run an effective and efficient case management system that allows fairness to both parties. At all times the applicant was aware that she was in receipt of job keeper and she was able to provide evidence about this. She did not disclose this in her statement of evidence and she resisted the respondent’s request to cross-examine her. Any application to adduce further evidence by the applicant if granted would result in the need to give the opportunity to the respondent to test that evidence and file further evidence in response. The interests of justice would not be served by allowing the case to be opened back up when the evidentiary case is closed and the matter is in submissions. If the matter remains on foot it will proceed to a determination on the evidence that is before the Commission.
5. Before the matter proceeds to a determination and given the applicant’s request for a transcript is granted, both parties can have the opportunity to further address with the benefit of the transcript as follows:
(a)The applicant to file and serve further written submissions within 14 days, that is , by 4pm 22 April 2021;
(b)The respondent to file and serve further written submission within a further 14 days, that is by 4pm 6 May 2021.”
Both parties subsequently advised the Commission that they did not intend to file any further submissions and that they wished the matter to proceed to a determination on the evidence before the Commission.
FINDINGS AND REASONS
There is no dispute that the applicant suffered a psychological injury in the course of or arising out of her employment with the respondent as a Change Planning Manager.
The dispute concerns section 11A of the 1987 Act.
Section 11A provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent relies on the head of performance appraisal.
The respondent bears the onus of proof.
There is a dispute that the employer’s actions in relation to performance appraisal were the whole or predominant cause of the applicant’s psychological injury.
There is also dispute as to whether the employer’s actions in relation to performance appraisal were reasonable.
The respondent’s counsel submitted that the respondent has undertaken a fair process in relation to performance appraisal of the applicant because it is a process that it applies to all employees across the board. The respondent’s counsel submitted as follows:
“It says that it’s a process that is applied to all employees and that the assessment initially by the manager, in this case Mr Simon Fieldhouse, was and he admits he gave the applicant a three out of five score. Now, we know at page 18 of the ARD, and this is paragraph 148, this is the applicant’s own statement. She acknowledges that this calibration or recalibration, it’s also referred to, is done to place employees and their scores on a bell curve.
Now, that statistically is what is being done, this is something the respondent says is to show fairness to all employees across the board. So the mere fact of a recalibration is of itself, we say, part of a reasonable process. The applicant herself doesn’t like the outcome, that, on my submission, doesn’t make the process unfair, it does reflect something that she doesn’t like.
Now, on the respondent’s case we say that it has done and followed its own process, it’s their process in a fair way and that the way that the applicant has reacted to that is something that we say is unfortunate but it is still as a result of the reasonable process.”
Counsel for the applicant submitted that the process is not a fair one and not reasonable. The applicant’s counsel submitted:
“As is noted there’s no issue as to injury. My friend’s sole defence relates to section 11A. While we all know what 11A says, my friend has made absolutely no submissions on the wholly and predominantly requirement of it. He’s conceded that there is - the onus of proof lies with his client in respect of the section 11A defence. It’s also important to note that Sinclair’s case indicates that for the defence to be successful the respondent must prove that their behaviour was reasonable.
In my submission, the respondent has not succeeded in their onus because there are numerous other reasons why the applicant has suffered this undisputed injury putting aside the performance appraisal and solely on the basis of wholly and predominantly the defence would not stand. This is quite clear when you compare the allegations made in the applicant’s statement and contrast them with Mr Sinclair’s statement and the lack of evidence from the other parties which were involved in the applicant’s employment and causing her injury even prior to the recalibration.”
The applicant’s counsel submitted that in any event the performance appraisal process was not a reasonable action taken by the employer. The applicant’s counsel submitted:
“Arbitrator, then specifically in respect of the recalibration, my submission would be that even if you were satisfied that the injury was wholly and predominantly caused by the performance appraisal you’ll not consider that the actions of the respondent was reasonable as there is minimal evidence as to why the applicant was downgraded from 2 to 3. We have no statement from the people involved in HR which was the essential peer review. We have no internal policy that one could look at and determine whether it’s being followed.
Mr Fieldhouse, who was the applicant’s direct supervisor, originally rated her as 3, she was then downgraded by people that she had not worked with for a 2. The applicant has been told – she put in a grievance in respect of this particular downgrading and she was told that she would not receive the criteria of her reasons for the grievance, it was merely rejected. Finally, the overarching principle of downgrading people on the basis of a bell curve rather than their own performance, I would submit, is a completely unreasonable way in which to grade and reward people throughout an organisation.
Mr Fieldhouse’s statement does not contain any of the reasons why the downgrade was reasonable and we don’t have any statement from the respondent in respect of the peripheral people involved. Arbitrator, for those reasons you would not be satisfied that the injury was wholly and predominantly caused by performance appraisal and you’d certainly not be satisfied that, if it was, that the respondent has acted reasonably.”
If the defence under section 11A is made out this will preclude the applicant from recovery of compensation.
I must make a determination in this case on the evidence and in accordance with the law.
Turning now to an examination of the evidence in this case.
The applicant gave evidence in a statement dated 6 December 2019.
The applicant was employed by the respondent as the Change Planning Manager. She worked full time and was required to travel.
The applicant reported to Mr Simon Fieldhouse, her direct supervisor. Mr Fieldhouse is the head of Change and Transformation.
She gave evidence that the role was unclear.
The applicant gave evidence:
“The role is very unclear. I was supposed to be assessing what projects were happening, what was about to take off, where they were landing, what is changing, what is our capacity and to start assessing priorities and help the executive team make decisions about impacts and capacities to plan and schedule projects going forward. Anything to do with people, projects we were sending people to work on, I was going to assess and report.”
The applicant went onto give evidence that:
“Simon left us to our own devices to work out what we were doing. I was the first from our team going out into other teams to see what was going on. I was super unclear on what to do”.
The applicant gave evidence that she encountered difficulties from the commencement of her employment:
“As it turns out, it took forever to get anywhere in my role, I couldn’t get hold of anyone. I didn’t know who had a PA, I was looking for phone numbers and emails. I was emailing them, if I had a phone number, I would ring them. I managed to get into contact with a couple and they were wholly unimpressed and most of them just told me to talk to so and so.
I went back to Simon and said I am not getting very far. Simon just said whatever, talk to their direct reports. It took me a few days as there was also a new HR system. I went through the place asking who reports to who, where people are and what are they doing.
As I started going down the chain I kept getting who the fuck are you? why are you ringing me’ ‘why is Simon involved in this, why are you asking about projects, what info do you need? Almost everyone pointed to someone else’.”There was a big project called the SAP project. The applicant says she encountered difficulties getting information about this project. When she passed on comments about managers being unhappy with rostering changes, she was told she had nothing to do with HR projects. Michelle (the HR manager) was upset by the comments the applicant passed on and she spoke to Simon. Simon asked the applicant to speak to Michelle and straighten it out. The applicant gave evidence:
“I did say to Simon at the time, is this type of passive aggressive behaviour normal, why would Michele go to you and not me, This was about the second week in my role and this was the start of being subjected to passive aggressive and aggressive behaviour from managers and executives.
I rang her and apologised to appease her, I said I am sorry I don’t want to sound like I was making an assumption, I didn’t mean to upset anyone, I was trying to get info in 10 minutes, I hadn’t been able to get anyone in a room together. I guess wrong move and I am sorry.That one incident came back to bite me in 7 months.
Michele was one of the people who reviewed by performance and based her review in her opinion of me. It was that I didn’t base my assumption on the roster on enough data points in her opinion.
Simon shouldn’t have told me what she said in my review, but he did, this was the last straw, 6 months ago. I upset Michele and apologised and went out of my way to do this and that incident has made me an under performer.
That was one example and then it happened from then on, often when I rang someone and asked them questions, they would ring my boss Simon. People would call Simon and would say they are upset, who do I think I am etc.
As soon as I got hold of anyone, I would ask question s as it was my only chance to get information and collect data for my deadline. So whilst I spent a few minutes trying to rapport build, most weren’t interested and were annoyed at me wasting their time, when they had way more important things to be doing.
I started getting all this backstabbing and bitching. Simon kept calling and saying that x person was bitching about me. This happened so often I had to start ignoring his calls for my own sanity and safety. I wouldn’t have been able to continue with the exceptional level of resistance being shown. My own resilience was struggling with coping (with) negativity everywhere I turned.”The applicant gave evidence that she raised these concerns with Mr Simon Fieldhouse:
“I asked him how he expects me to do my role with no plans, no real project managers or project plans, I asked him what the alternative is. If no one will give me anything to start with or to look at, how can I produce the outcome? I had zero to help me.”
The applicant suggested a governance process that she had used successfully before which she described as “a standard project operating model”. She said that she asked for a meeting with the head of finance but he just emailed Simon.
The applicant gave evidence that this did not get implemented despite Simon assuring her it would. She said:
“I can’t do the job without any governance; I can’t keep asking 200 managers what is going on and chase 600+ projects about (and that just the ones I discovered)!”
The applicant gave evidence that she faced “hostility after hostility”.
When she raised her concerns with Simon he told her that he expected her to rock the boat and “he kept justifying it, with this is the first time we have done this. You are literally poking holes in the wound and we have to expect the business will not react well.”
The applicant gave evidence:
“Even though I was stressed out, I kept working. Simon had no filter, offered nothing constructive, he would just go off about specific benign words I used. In the end I was so anxious about choosing words, in case, god forbid, someone would be upset, For examples, the phrase ‘it seems’ was not acceptable as people assumed I was making assumptions! The irony!”.
The applicant gave evidence that managers often laughed in her face. She was told by them not to get involved.
The applicant says she experienced “bullying, hostility , people not playing and constant negative feedback”.
The applicant gave evidence:
“Simon gave feedback in a way that indicated he thought it was all about your approach and style. So, you ended up thinking I’m doing something wrong. It crushed my self efficacy and self confidence.”
The applicant gave evidence:
“In the end over the six months, the performance review thing was the last straw.”
The applicant gave evidence that “Simon advised me I had met expectations”. She was subsequently advised that the management calibration process had determined she was rated as “needs improvement”.
The applicant gave evidence that Simon indicated she should look for other employment.
The applicant gave evidence that she perceived that Simon excluded her from team activities.
The applicant gave further evidence about the performance appraisal. She gave evidence that she was rated a 3 by Mr Fieldhouse and then this was “recalibrated” by the next level of management to a “2”
There is no dispute that the applicant suffered a psychological injury. The respondent relies on a defence that the psychological injury was wholly or predominantly caused by the reasonable action of the employer taken in relation to performance appraisal. The respondent bears the onus of proof.
It is clear from the evidence of the applicant that her difficulties and perceived difficulties in the role she was employed to perform resulted from more than the performance appraisal where her performance rating was downgraded from a 3 to a 2. Her evidence about the challenges she was facing, the hostility with which she was met when she tried to perform her role is largely unmet.
A factual investigation was conducted and as part of that Mr Simon Fieldhouse provided a statement.
Mr Simon Fieldhouse, the applicant’s manager, provided a statement of evidence dated 12 November 2019.
He says it was a newly created role that the applicant was asked to perform.
He says:
“I believe it was clear to her it was a new role and something we hadn’t been able to do across the fleet yet.”
Mr Fieldhouse acknowledges that the role was a fluid one.
Mr Fieldhouse says he helped the applicant when she raised concerns but that she did not always raise them with him and then she would get frustrated. He acknowledges the applicant as a person who liked to lock in goals and achievements and that she was frustrated by her inability to do so in the role.
He makes it clear that on his review he rated her a 3. This was then downgraded to a 2 after calibration by the next level of management.
Mr Fieldhouse’s evidence really amounts a broad-brush response to the detail of the applicant’s evidence. He acknowledges that the role was a newly created one and seems to acknowledge that the applicant would have encountered difficulties and resistance from other managers and employees. He says he provided the applicant with help when she asked. He gave evidence that he did rate her performance as 3, but this was downgraded to a 2 in a process known as calibration by the next level of management. He says the applicant was aggrieved by this decision.
A history broadly consistent with the evidence given in her statement is provided by the applicant to Dr Lee, consultant psychiatrist and the independent medical expert (IME) qualified on behalf of the applicant. This evidence is consistent with the histories given to those medical professionals that treated her for her psychological injury, namely Dr Kennedy (GP) and Dr George, private psychiatrist.
The applicant saw Dr Kennedy her GP on 27 September 2019 who records a history broadly consistent with the applicant’s evidence as follows:
“Difficulties in workplace. Since start new job, feels has bene bullied and harassed.
In job for 9 months has been finding workplace hostile from about 4 weeks into the role. Moved from QLD to take this job.
Not sleeping feeling anxious; high stressed avoidant behaviour; stated working from home to avoid going into work; low mood. Hostile environment
Male dominated work environment.
Was employed to help with a change of culture but is getting a high level of resistance from senior execs e.g., request for meetings ignored or hostile reactions to normal enquiries; demeaned regarding job performance in group meeting although pt. not present.
Has still met all performance objectives.”Dr Kennedy conducted a DASS test. The applicant’s score on the DASS test and symptomatology was such that Dr Kennedy referred the applicant to a psychiatrist, and a psychologist, issued a work cover certificate and commenced her on psychotropic medication.
Dr George first saw the applicant on 31 October 2019, an appointment approved and paid for by the insurer. The insurer requested Dr George provide a report to them requesting approval for further treatment. Dr George provided a report to the insurer dated 7 November 2019.
Dr George reported that the injuries sustained were “accumulative since the initial times of her commencement with the job”. Dr George reported that the applicant acknowledged she was accustomed to the demands of such a job given her background experience but “this particular job was stressful with what Vanessa stated as 4 changes of senior managers and whereby, the work environment was particularly stressful and reportedly toxic”. In addition, Dr George reported:
“Vanessa also explained a specific incident in mid-September 2019 as the final straw’ and was in relation to her performance being downgraded to a ‘substandard’ and under performing level, based on alleged 2 minor events.”
Dr George recorded the history of symptomatology and treatment and conducted a mental state examination of the applicant.
Dr George diagnosed “workplace difficulties of accumulative nature leading to affective symptoms of Major Depressive Disorder with anxious distress.”
She recommended ongoing treatment and sought approval for same from the insurer.
It is clear that Dr George has a history of both the performance appraisal and the difficulties that the applicant encountered in her workplace from the time of her commencement of her employment. That is, the diagnosis Dr George arrives at is a psychological injury caused by an accumulation of difficulties since the commencement of employment and not limited to a psychological response to the performance appraisal. This is consistent with the applicant’s evidence.
Dr Lee, psychiatrist, is the IME qualified on behalf of the applicant. Dr Lee provided a report dated 13 April 2020. He also takes a history, broadly consistent with the applicant’s evidence, of the difficulties that the applicant experienced over time since her commencement of employment and not limited to a psychological response to the performance appraisal.
Dr Lee opined:
“Based on the history provided, I consider that Ms Giannos suffers with a major depressive disorder with comorbid panic attacks and generalised anxiety.
In my opinion, your client’s condition has been caused by her employment based on the history that I am provided, specifically her impossible employment duties and inappropriate criticisms whilst employed with AGL energy.
I consider that the nature and condition of her employment to have been the main contributing factor towards causing her major depressive disorder with comorbid anxiety and panic disorder.
In my opinion her condition is currently clinically evident and causing her to have continuing incapacity and I consider that is affecting her activities of daily living to a significant extent.”
Dr Samuell is the IME qualified on behalf of the respondent who saw the applicant on 20 November 2019 (via skype) and provided a report dated 11 December 2019.
Dr Samuell took a history of the difficulties the applicant encountered in the workplace which is broadly consistent with the applicant’s evidence and a history of the performance appraisal.
He had the benefit of the factual investigation which contains the applicant’s detailed statement and Mr Fieldhouse’s evidence in response.
Dr Samuell conducted a mental state examination of the applicant.
He considered that the applicant suffered an Adjustment Disorder as opposed to Major Depressive Disorder. I note injury is not in dispute.
Dr Samuel considered that “receiving notification that her performance had been substandard was the main contributing factor to her adjustment disorder.”
Dr Samuel took into particular account the factual investigation and he opined:
“After reading the factual investigation in my professional opinion Vanessas psychological injury was wholly the result of performance management. This is consistent with the timing of the onset of symptoms that occurred after she returned from holiday in Europe where she was not experiencing psychological difficulty.”
Counsel for the respondent approached the case on the basis that the real question was whether the employer’s actions taken in relation to performance appraisal were reasonable. Counsel for the respondent submitted first and this is how he focused his submission. He did not address in any depth whether the injury was wholly or predominantly caused by the reasonable action of the employer taken in relation to performance appraisal. He did not really address the issue of “wholly or predominantly” except to point out that the applicant described the performance appraisal in her statement and to Dr George as “the last straw”. However, regard must be had to all of the evidence and the applicant’s statement that the performance appraisal was “the last straw” must be weighed in the context of all of the evidence. For example, Dr George took a history that the applicant said the performance appraisal was the last straw but Dr George also took a history of the other difficulties the applicant encountered in the workplace. Taking into account the context in which the applicant made the statement “last straw” Dr George diagnosed the injury as being an “accumulative” one arising from the commencement of employment. All of the evidence must be weighed in the balance and the applicant’s description of the performance appraisal as “the last straw” is not determinative of the “wholly or predominantly” issue but is part of the evidence that must be weighed in the balance with the other evidence in the case. Whether the applicant’s undisputed psychological injury was “wholly or predominantly” caused by the actions of the employer taken in relation to performance appraisal is a real issue in the case. It is not just whether those actions of the employer in relation to performance appraisal were reasonable. The applicant’s counsel firmly raised in his submissions that the respondent’s counsel had failed to address on this point. The respondent’s counsel made no submissions in reply on this issue despite having had the opportunity to do so.
I have to weigh all of the evidence in the balance and make a determination on the balance of probabilities whether the applicant’s undisputed psychological injury was wholly or predominantly caused by reasonable action taken by the employer in relation to performance appraisal.
When I weigh all of the evidence in the balance I am not satisfied that the applicant’s psychological injury was wholly or predominantly caused by the reasonable actions of the employer taken in relation to performance appraisal. This is because the applicant has given very clear evidence about the difficulties she experienced in the performance of her role from the commencement of her employment. She encountered hostility and what she describes as passive aggressive behaviour and aggressive behaviour from managers and executives. She says she was not supported by Mr Fieldhouse but was made to feel like she was at fault. The allegations of the applicant about the hostile behaviours she was exposed to are not really traversed by the respondent’s evidence. Mr Fieldhouse acknowledges it was a newly created role and that there would be resistance to change in the organisation. He says he gave her help when she asked for it. However, he does not address the detail of the allegations made in the applicant’s evidence. Instead, he gives a broad brushed assertion that he helped her when required. When regard is had to all of the evidence there is no doubt that the employers’ actions taken in relation to performance appraisal played a part in the causation of the applicant’s psychological injury. Dr Kennedy, Dr George, and Dr Lee all have a history of the accumulation of difficulties that the applicant faced in her employment. Importantly, the treating psychiatrist Dr George and the IME Dr Lee have a history of the performance appraisal and recalibration of the applicant’s performance by upper management. They all come to the view with this consistent history that the applicant’s psychological injury was a result of an accumulation of the difficulties she encountered in the workplace, not just the performance appraisal. Dr Samuel says he has had regard to the factual investigation and his opinion that the psychological injury largely results from the performance appraisal is based on that. He does not take adequate account of the applicant’s evidence about the difficulties she experienced in the workplace and the effect that had on her over time. Her treating doctors take this into account as does the IME Dr Lee. When I weigh all of the evidence in the balance, I prefer, for the reasons expressed throughout, the evidence of the applicant supported by Dr Kennedy, Dr George and Dr Lee. I am not satisfied that the respondent has discharged its onus of proof that the applicant’s psychological injury was wholly or predominantly caused by the reasonable action taken by the respondent in relation to performance appraisal.
I do not need therefore to consider whether the action of the respondent in relation to performance appraisal was reasonable because I have not been satisfied that it was the whole or predominant cause of the applicant’s psychological injury.
This means that the applicant is not precluded from the recovery of compensation because the respondent’s defence under section 11A has failed.
Turning next to the question of capacity. The applicant says she has no current work capacity. The respondent says she can do her pre-injury role, albeit not for the respondent, and could work full time.
I must make a determination on the balance of probabilities on the evidence in this case in accordance with the law.
The relevant legislation is found in Division 2 of the 1987 Act, specifically sections 32A, 33, 36 and 37 as follows:
“Division 2–Weekly compensation by way of income support
Subdivision 1–Interpretation
32A Definitions
(1) In this Division and in Schedule 3—
‘fair work instrument’ means—(a) a fair work instrument (other than an FWA order) within the meaning of the Fair Work Act 2009 of the Commonwealth, or
(b) a transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.
‘first entitlement period’, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.
‘maximum weekly compensation amount’ means the maximum weekly compensation amount under section 34.
‘second entitlement period’, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.
‘work capacity assessment’ means a work capacity assessment under section 44A.
‘work capacity decision’ —see section 43.
‘worker with high needs’ means a worker whose injury has resulted in permanent impairment and—(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
[Note: Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.](c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%,
and includes a worker with highest needs.
‘worker with highest needs’ means a worker whose injury has resulted in permanent impairment and—(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
[Note: Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.](c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.
(2) Words and expressions in this Division that are defined in Schedule 3 have the meanings provided by that Schedule. The regulations may amend Schedule 3.
[Note: Definitions include ‘current work capacity’, ‘current weekly earnings’ and ‘pre-injury average weekly earnings’.]Subdivision 2–Entitlement to weekly compensation
33 Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
[Note: Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.]
34 Maximum weekly compensation amount
(1AA) A weekly payment of compensation under this Subdivision is not to exceed the maximum weekly compensation amount.
(1) The "maximum weekly compensation amount" is $1,838.70.
(2) If the amount mentioned in subsection (1)—
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the maximum weekly compensation amount applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted.
(3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.
36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
In Wollongong Nursing Home Pty Ltd V Dewar [2014] NSWWCCPD 55 (Dewar), Deputy President Roche dealt with meaning of the phrases “no current work capacity”, “current work capacity” and “suitable employment” in section 32A of the 1987 Act. More specifically the appeal concerned the challenge to the Arbitrator’s finding in that case that the worker, whose treating general practitioner had certified her fit for suitable duties, had “no current work capacity” because, before employment can be viewed as “suitable employment”, as defined in section 32A, there must be a capacity “which is at least potentially able to be realised for financial reward on the labour market”. In that case, the worker was given light duties by her employer. Whilst that is not the case here, the Deputy President usefully outlines the approach that is to be taken when assessing a worker’s capacity for employment in light of the 2012 amendments as follows:
“In light of the 2012 amendments, care must be exercised in relying on Lawarra Nominees and Woods. Under those authorities, the task of assessing whether a worker was wholly or partially incapacitated was a ‘practical exercise’ that ‘nvolve[d] the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which [the worker] is to be engaged’’ (Mahoney P at [30] in Lawarra Nominees).
This approach was consistent with the High Court’s decision in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171, where Mason, Wilson, Deane and Dawson JJ said (at 178) that ‘the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work’ (emphasis added).It is the emphasised words in the two preceding paragraphs that have effectively been eliminated by the directions in s 32A that employment for which the worker is currently suited is determined ’regardless of’ whether the work or employment is ‘available’ and regardless of whether it is ‘of a type or nature that is generally available in the employment market’. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is ‘suited’ for suitable employment.
There is nothing in the context of the definition of suitable employment to suggest that ‘available’ should be given anything other than its relevant dictionary meaning. The third meaning attributed to ‘available’ in the Shorter Oxford English Dictionary (Oxford University Press, 6th ed, 2007) is ‘[a]ble to be used or turned to account; at one’s disposal; within one’s reach, obtainable’. Thus, just because the suitable employment the worker is able to perform is not ‘available’ in the labour market in which the employee was working or might reasonably be expected to work does not justify a finding that the worker has no current work capacity.However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.
If the Arbitrator meant to say that Mrs Dewar’s light duties with the Nursing Home were artificial in the sense referred to in the preceding paragraph, and therefore not suitable employment within the terms of s 32A, he did not properly explain how that was so. That is because the evidence about the light duties performed by Mrs Dewar was inconsistent and the Arbitrator did not resolve that inconsistency. In any event, even if it were accepted that the light duties were not ‘suitable employment’ that did not relieve the Arbitrator of his obligation to apply the remaining provision of s 32A to determine if Mrs Dewar was able to return to work in suitable employment.
The determination of what is suitable employment is a practical exercise that is conducted ‘having regard to’:
the nature of the incapacity and the details provided in medical information;
the worker’s age, education, skills and work experience;
any return to work plan, and
any occupational rehabilitation services that have been provided to the worker.However, without regard to:
(a)whether the work or employment is available, that is, obtainable;
(b)whether the work or the employment is of a type or nature that is generally available in the employment market;
(c)the nature of the worker’s pre-injury employment, and
(d)the worker’s place of employment.
Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’. The Arbitrator did not properly undertake that task and did not resolve the conflict in the evidence about the nature of the light duties Mrs Dewar performed (see [4] and [5] above).
In determining if a worker is ‘not able to return to work’ in suitable employment there will often be issues about the suitability of the work in question. Such issues will be determined on a case-by-case basis, depending on the available evidence dealing with the issues in sub‑s (a) of the definition. In the present case, the only evidence that addressed the issue, including the evidence from Mrs Dewar, was that she was fit for suitable employment, but with the restrictions noted by Dr Sherrell. Though the evidence of the kinds of jobs Mrs Dewar could now perform, given her present inability arising from her injury, was in a most unsatisfactory state, that did not relieve the Arbitrator from performing his statutory task.
The Arbitrator’s reliance on s 35 does not assist. That section identifies the factors to be used to determine the rate of weekly compensation payable. Before one considers that section, one must determine whether the worker has a current work capacity. The words ‘the worker is able to earn in suitable employment’ in s 35 do not govern the meaning of ‘current work capacity’ or ‘suitable employment’. Those terms are defined in s 32A.
If there is a current work capacity, that is relevant to calculating ‘E’ (the amount to be taken into account as the worker’s earnings after the injury, where the worker is not employed), which is then used in the equations in ss 36(2) and 37(2) and (3). If there is no current work capacity, one looks to s 36(1) or s 37(1), depending on whether the claim is in the first or second entitlement period.
Thus, the words ‘the amount the worker is able to earn in suitable employment’ in s 35 are not relevant to the preliminary question of whether a worker has a current work capacity. They are, however, relevant to determining the amount to be taken into account as the worker’s earnings after the injury where he or she is not employed. In assessing that amount, the reference to ‘the amount the worker is able to earn in suitable employment’ is a reference to the amount the worker is able to earn in suitable employment, as that term is defined in s 32A.
I accept, as Mr Wilson has submitted, that Mrs Dewar has an incapacity, and that ss 36 and 37 provide the methodology for calculating the amount of weekly compensation payable. However, that does not mean that the phrases ‘current work capacity’ and ‘no current work capacity’ have no purpose other than to determine which of the subsections in ss 36 and 37 applies. Before getting to ss 36 and 37, there must be a determination of whether the worker has a ‘current work capacity’ or ‘no current work capacity’. That is determined by reference to the definitions in s 32A.”
The question to be answered is whether Ms Galbraith has a “current work capacity” or no “current work capacity”. This is to be determined by reference to the definitions in section 32A.
Each case will of course turn on its own facts. Turning then to an examination of the evidence in this case.
The applicant says she should be assessed as having no current work capacity and sought as her primary case an award of weekly compensation based on this assessment from 19 September 2019 to date and continuing. The applicant was cross-examined and it transpired during the course of cross-examination that in fact the applicant had been receiving job-keeper payments during some of the period claimed. Written submissions were directed as set out above. As part of the applicant’s response, the applicant appeared to indicate in submissions that she had regarded herself as “not totally incapacitated” because of the contents of the insurer’s letter to her and hence the claim for job keeper. Submissions are not evidence and as the applicant has chosen to continue with her claim on the evidence that was before the Commission, I will confine my findings to the evidence that is before me including under cross-examination.
There is no dispute that the applicant cannot return to work with the respondent. This accords with the opinion of Dr Samuel, consultant psychiatrist, the IME qualified on behalf of the respondent.
Dr Samuell says she can work in any role with which she is suitably qualified. This would mean there is no loss of earning capacity.
Dr Lee assessed the applicant as having the capacity to work 12 hours per week in a less demanding role. The parties agreed that if this was found to be the assessment, the rate capable of being earned would be $30 per hour. The applicant said that in accordance with the work trial proposed by Dr George this would be 10 hours per week or $300 per week.
I have to weigh all of the evidence in the balance. Dr Samuel in assessing that the applicant could perform her pre-injury role, albeit not with the respondent, does not take adequate account of the ongoing psychological symptoms which the applicant is continuing, on the medical evidence of her treating doctors to experience, and for which she is undergoing ongoing treatment and medication. When I weigh all of the evidence in the balance I prefer therefore the opinion of Dr Lee to Dr Samuell. Dr Lee assesses capacity at 12 hours per week in less demanding work. If this was my finding an earning capacity of $30 per hour was agreed which equates to a capacity to earn of $360 per week.
PIAWE was agreed at $3,219.71 per week. Current work capacity is assessed at $360 per week for all periods of the claim.
For the section 36 period, Ninety five percent of PAIWE is $3,058.72 which less $360 gives $2698.72.
For the section 37 period, eighty percent of PAIWE is $2,575.77 which less $360 is $2215.77.
With these figures, the statutory maximum will come into effect. This means that the $360 get deducted from the statutory maximum for all periods because that will always be the lesser amount in accordance with sections 36 (2) (b) and 37 (3) (b) as set out above.
This sounds in an award of weekly compensation to the applicant at the applicable statutory maximum less $360 per week for all periods of the claim from 19 September 2019 to date and continuing in accordance with the provisions of the 1987 Act, with the respondent to have credit for payments made. The parties can have liberty to apply within 14 days in respect to the form of order.
It was agreed that a general order under section 60 would also be made in the applicant’s favour.
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