Gleeson v Health Services Union NSW

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Gleeson v Health Services Union NSW [2023] NSWPIC 15
APPLICANT:	Sarah Gleeson
RESPONDENT:	Health Services Union of NSW
Member:	John Isaksen
DATE OF DECISION:	13 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation and permanent impairment for psychological injury; respondent disputes claim due to failure by the worker to give notice of injury and make a claim for compensation within the time required, that the worker did not sustain injury in the course of her employment with the respondent, and the extent of any incapacity which results from any psychological injury; worker alleges ignorance of the six month period required to make a claim for compensation and another reasonable cause for failure to make a claim within the required time; reference to Albury Real Estate P/L v Rouse on both excuses for delay given by the worker; reference to Garratt v Tooheys Ltd on ‘other reasonable cause’ for failure to make a claim in time required; Held – respondent not prejudiced by failure by worker to give notice of injury as soon as possible; worker does not satisfy the excuses of ignorance or other reasonable cause to allow her to receive compensation benefits.
determinations made:	1. The applicant can recover compensation because the respondent has not been prejudiced by the applicant’s failure to give notice of injury as soon as possible after the injury happened. 2. The applicant cannot recover compensation because a claim for compensation was not made within six months after the injury happened and the applicant has not established that the failure to make a claim for compensation within the time required by s 261 (1) of the Workers Compensation Act 1987 was occasioned by ignorance or other reasonable cause.

STATEMENT OF REASONS

BACKGROUND

Sarah Gleeson, the applicant in these proceedings, claims that she sustained psychological injury in the course of her employment with the respondent, Health Services Union of NSW.
Ms Gleeson was employed with the respondent as a union organiser from March 2017 to
12 December 2019. She claims that during the course of her employment with the respondent she was exposed to bullying and harassment, excessive workloads, and unwarranted actions from other employees, which caused her to sustain psychological injury.
Ms Gleeson gave notice of her resignation from her employment with the respondent on
11 December 2019.
Ms Gleeson obtained a Certificate of Capacity from Dr Brittain on 25 June 2021 which certified her as having no current work capacity due to “adjustment disorder possible PTSD”. She then made a workers compensation claim for psychological injury.
Icare, the insurer of the respondent, has issued dispute notices dated 3 August 2021,
27 October 2021 and 10 February 2022 wherein it disputes liability on the grounds that
Ms Gleeson did not sustain an injury in the course of her employment with the respondent, that her employment was not the main contributing factor to a disease injury, and that she had not given notice of injury and made a claim for compensation within the time prescribed by the workers compensation legislation.
Ms Gleeson claims the deemed date of injury in the Application to Resolve a Dispute (ARD) is 25 June 2021, being the date when she obtained a Certificate of Capacity which certified her as having no work capacity due to a work injury.
Ms Gleeson claims weekly payments of compensation on the basis of having no current work capacity from 25 June 2021. She has also made a claim for a lump sum payment for 22% whole person impairment as a result of the psychological injury which he claims to have been sustained in the course of her employment with the respondent.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant can recover compensation despite notice of injury not being given as soon as possible after the injury happened (s 254 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act));
(b)    whether the applicant can recover compensation despite not making a claim for compensation within six months after the injury happened (s 261 of the 1998 Act);
(c)    whether the applicant sustained injury in the course of her employment with the respondent (s 4 of the Workers Compensation Act 1987 (the 1987 Act), and
(d)    the extent of any incapacity sustained by the applicant as a result of any work injury (ss 32A, 33, 36 and 37 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 26 October 2022. 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.
Mr Young appeared for Ms Gleeson, instructed by Mr Bartley. Ms Goodman appeared for the respondent, instructed by Ms Blake.
The hearing was conducted by video link.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,538.46.
The hearing was not completed on 26 October 2022, despite allocating a day for the conciliation and arbitration. A timetable was set for the completion of submissions as follows:
(a) the respondent to file and serve the remainder of its submissions by
23 November 2022 (extended by consent to 28 November 2022), and
(b) Ms Gleeson to file and serve any submissions in reply by 9 December 2022 (extended by consent to 16 December 2022).

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply filed by the first respondent and attached documents, and
(c)    Application to Admit Late Documents filed by the applicant on 21 October 2022.

Oral evidence

The respondent was granted leave to cross examine Ms Gleeson on evidence which was relevant to her claim of incapacity.

Whether the applicant can recover compensation despite notice of injury not being given as soon as possible after the injury happened

The evidence on this issue

The clinical notes from Martha Knox-Haly, psychologist, record that Ms Gleeson initially attended Ms Knox-Haly on 2 September 2019. The notes from that initial consultation includes details of another employee, Ben Chapman, giving Ms Gleeson a lot of “special attention” and then stalking her, and also being “gaslighted” by a manager by being overloaded with hundreds of emails.
There are references to difficulties which Ms Gleeson was having in the workplace in the clinical notes from Ms Knox-Haly for consultations on 9 September 2019, 7 October 2019,
25 November 2019, 2 December 2019 and 9 December 2019.
There are references to ‘work stress’ in the clinical notes from Avoca Street Medical Centre for attendances by Ms Gleeson on 13 June 2019 and 3 July 2019. Dr Wong from that medical practice records a mental health plan being prepared and a referral to Ms Knox-Haly on 21 August 2019.
There are references to stress being related to Ms Gleeson’s work in clinical notes from Avoca Street Medical Centre on 9 October 2019, 4 November 2019 and 8 November 2019. A medical certificate was issued by Dr Cao-Xuan on 4 November 2019 certifying Ms Gleeson as being unfit for work from 4 November 2019 to 6 November 2019, with a diagnosis of ‘medical illness’. A medical certificate was issued by Dr Wong on 8 November 2019 certifying Ms Gleeson as being unfit for work on that day, also with a diagnosis of ‘medical illness’.
Ms Knox-Haly records on 11 November 2019: “Sarah has been of work this week with a physical illness”.
Ms Gleeson states that she decided to resign her employment with the respondent in the lead up to the staff Christmas party as she did not feel safe considering everything that had been going on at work, including with Mr Chapman.
Ms Gleeson provided her resignation of employment with the respondent by letter dated
11 December 2019. There is no reference in the two paragraphs of that letter to any psychological injury sustained by Ms Gleeson in the course of her employment with the respondent. The letter from Ms Gleeson commences:
“I would like to thank you for the opportunity to grow and develop, both personally and professionally during my time employed by the HSU as an Organiser, firstly in the Aged Care team and then in Public Health.”
Ms Gleeson states that she provided two weeks notice of her resignation of employment, but she was told that her employment was being terminated immediately and “had me walked from the workplace”.
Ms Gleeson states that she felt some improvement in her condition after her resignation and at that time she wanted nothing to do with the respondent. She states that her condition did not improve, and her symptoms were aggravated by triggering incidents.
Ms Gleeson wrote by email to Gerard Hayes, the Secretary of the respondent, on
5 October 2020, stating:
“I left the HSU because I faced ongoing sexual harassment in the workplace, not from yourself but from your Chief of Staff, Ben Chapman. It has taken me ten months to be able to put this in writing, and send an apology for resigning in such a fashion. I loved my job and sincerely regret not speaking up sooner.”
It would appear from the available evidence that this email from Ms Gleeson is the first time that the respondent was put on notice that Ms Gleeson may have sustained a psychological injury in the course of her employment with the respondent, although there is no actual reference to an injury in that email.
The respondent acted promptly in response to this email and arranged for an independent investigation to be undertaken by Workdynamic Australia of some 16 allegations made by
Ms Gleeson of sexual harassment and other aggressive conduct perpetrated by Ben Chapman. The report from Workdynamic Australia dated 9 December 2020 addresses the different versions of events in regard to those allegations, but the report does not address issues in regard to any psychological injury sustained by Ms Gleeson as a result of these incidents.
Ms Gleeson states that she made a workers compensation claim after she obtained a Certificate of Capacity from Dr Brittain on 25 June 2021 which certified her as having no current work capacity due to “adjustment disorder possible PTSD”.

Determination

Section 254 of the 1998 Act relevantly provides:
“(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act.”
Ms Gleeson does not provide her own evidence as to whether she did not work on those days in early November 2019 when she was certified as unfit for work by her general practitioners. However, there is a clear link between the records made by those general practitioners on 4 November and 8 November 2019 of work related stress and the medical certificates issued on those days that Ms Gleeson was unfit for work. There is the record made by Ms Knox-Haly on 11 November 2019 that Ms Gleeson had been off work at that time with ‘a physical illness’, but no further details are included in the notes from Ms Knox-Haly for that consultation.
It would therefore appear, and I accept, that notice of a psychological injury should have been made as soon as possible by Ms Gleeson from early November 2019 when she was informing her general practitioners and Ms Knox-Haly of stress which she was experiencing at work, and which required her to have at least some days off work. However, notice of injury was not made by Ms Gleeson until over 18 months later in late June 2021.
Therefore, no compensation is recoverable by Ms Gleeson unless she can satisfy one of the special circumstances provided for in s 254 (3).
Counsel for both parties did not address s 254 in very much detail, and instead concentrated on the application of s 261 of the 1998 Act.
I am satisfied that Ms Gleeson meets the special circumstances of s 254 (3)(a) in that the respondent has not been prejudiced by the failure to give notice as required by s 254 (1).
The dispute notices issued on behalf of the respondent do not set out any specific details of how the respondent has been prejudiced by the delay in giving notice of injury. The respondent has been able to obtain statements from three of the four employees whom
Ms Gleeson claims engaged in bullying and harassing behaviour towards her. The Procare report dated 27 January 2022 states that Cindy Paull was the only employee named by
Ms Gleeson who did not want to provide a statement or any other information, but the respondent does not complain that any evidence from Ms Paull would be crucial to the defence of this claim.
The respondent has also had the benefit of details and information set out in the Workdynamic Australia dated 9 December 2020 which focused on allegations of harassment and other hostile conduct by Mr Chapman. The respondent has been able to obtain statements from another seven employees to assist in their defence of this claim.
I therefore find that although Ms Gleeson did not give notice of injury as possible after the injury happened, which was by early November 2019, she nonetheless satisfies the special circumstances set out in s 254 (3)(a) of the 1987 Act, and accordingly s 254 (1) does not bar her from recovering compensation.

Whether the applicant can recover compensation despite a claim for compensation not being made within six months after the injury happened

The evidence on this issue

Ms Gleeson states that her doctors were supportive of her separation from the respondent and that it was a step in the right direction for the applicant to focus on her health. She states in her statement dated 23 March 2022:
“As best I can recall, my general practitioner at that point, I believe it was Dr Brittain, made a passing comment of not recommending I pursue a workers compensation claim because it would not be in the interests of my health to do so. I am not sure exactly how that recommendation from my GP came about, but again I was very focused on that time to feel better and put the HSU behind me.”
Ms Gleeson states that she was in contact with an old work colleague, Karen Rogers, in early to mid 2021 and Ms Rogers strongly encouraged her to look into making a workers compensation claim considering the ongoing effects of Ms Gleeson’s psychological injury. She states that Ms Rogers had also experienced bullying and harassment while employed with the respondent and had an accepted workers compensation claim for psychological injury. She states that Ms Rogers provided her with the details of a solicitor, James Bartley, and that Ms Gleeson had an appointment with Mr Bartley on 22 June 2021.
Ms Gleeson states that during her conference with Mr Bartley she was advised about the nature of the workers compensation scheme and that there were timeframes for commencing such a claim, including the need to have a claim form submitted within six months of the date of an injury. She states that this was the first time she received legal advice in relation to an entitlement to workers compensation benefits and any timeframes for the commencement of a claim.
Ms Gleeson states that she obtained a Certificate of Capacity from Dr Brittain on
25 June 2021 and then made a claim through the online portal with icare.
In a further statement dated 7 July 2022, Ms Gleeson states that she was specifically directed not to become involved with or provide advice regarding workers compensation claims while she was employed as an organiser with the respondent. She states that organisers were not provided with training or advice in relation to the New South Wales workers compensation scheme. She states that an organiser would provide a business card with a mobile phone number for ‘Member Services Division’ if a union member approached an organiser with a potential claim regarding a workplace injury.
Ms Gleeson states that organisers were told that workers compensation was a complex scheme and if she was found to be providing advice on workers compensation then she understood there was a concern of significant risk to the respondent of being sued for negligence if something went wrong.
Ms Gleeson states that she completed the course of ‘Equal Opportunity and Law’ in 2016 while undertaking a law degree. She states that this course was about Queensland and federal jurisdictions, and that the focus of the course was on national employment standards.
The clinical notes from Ms Knox-Haly for Ms Gleeson’s attendance on 3 February 2020 include:
“She has also discovered that there was a workers compensation claim lodged by Karen Rogers which cited Ben as being responsible for bullying and harassment, which had also involved complaints of assault by Ben Chapman.”
The clinical notes from Ms Knox-Haly for Ms Gleeson’s attendance on 30 March 2020 include:
“In a very positive development, Sarah went and represented a lawyer from Minter Ellison in a performance management meeting. Sarah did a positive job and the lawyer suggested that they open a business around advising people who are being bullied in the workplace. They have teamed up with a CFO providing advice on the financial side, this is beginning to take off.”
The clinical notes from Ms Knox-Haly for Ms Gleeson’s attendance on 20 July 2020 include:
“She is continuing to pursue her bok writing her legal studies, and the idea is to set up an employment advocacy consultancy.”
The clinical notes from Ms Knox-Haly in the Reply also include copies of text messages between Ms Gleeson and Ms Knox Haly. The messages include the following:
“Mon, 20 Jul, 14:50
Hi Martha, I already have two websites related to employment. One I’d pinkcollar workers.com.au and the other is pinkcollarworkers.org.a”
The entry made by Dr Brittain on 21 July 2020 is as follows:
“Subjective:
needs to travel as advocate
Objective:
appears very on the ball
Assessment:
needs facilitation in this new business
Plan:
Ms Sarah Gleeson works as a consultant in advocacy for clients who are exposed to psychological harm in the workplace from bullying and harassment. She is required to commute between Wollongong and Sydney to provide this healthcare.
Actions:
Medical Certificate given”
Dr Brittain also provides a medical certificate on 21 July 2020 which states that Ms Gleeson “works as a consultant in advocacy for clients who are exposed to psychological harm in the workplace from bullying and harassment.”
An entry made by Dr Brittain on 13 October 2020 includes the following:
“new mental health care plan
will be getting the police to advise on the nature of the touch and she experienced
I dont think a WC case is advisable”

Determination

Section 261 of the 1998 Act relevantly provides:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
…..
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
…………
(6) if an injured worker first becomes aware that he or she has received an injury after the injury was received, the injuries for the purposes of this section taken to have been received when the worker first became so aware.”
Mr Young on behalf of Ms Gleeson submits that his client’s failure to make a claim within six months of when the injury happened is overcome by that failure being occasioned by ‘ignorance’ and/or ‘other reasonable cause’.
Mr Young concedes that Ms Gleeson had experience and knowledge in employment law from her work as a union organiser, and that she was not ignorant of her ability to make a claim, but she was ignorant of the need to make a claim within six months after the injury happened.
Mr Young submits that the ‘other reasonable cause’ in the failure by Ms Gleeson in making a claim within the time required was due to the advice given by Dr Brittain that Ms Gleeson should not pursue a workers compensation claim but try and move on with her life.
Ms Goodman for the respondent submits that Ms Gleeson was well aware of the requirements to make a workers compensation claim and her assertion that she was not aware of the specific time limits prescribed by the legislation is not enough to satisfy failure occasioned by ignorance in s 261 (4).
Ms Goodman submits that a decision to delay a claim does not amount to a ‘reasonable cause’ and refers to the decision of Jones v Qantas Airways Ltd [2017] NSWWCCPD 11 (Jones) in support of that submission.
Ms Goodman also submits that Ms Gleeson is unlike many of the applicants who seek redress in this jurisdiction who may be ignorant of the ability to claim workers compensation. She submits that Ms Gleeson is a very capable and articulate lady who would be well aware of the requirements to claim workers compensation.
In Gregson v L & M R Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 (Gregson) Burke CCJ said of “ignorance” as it applied to s 65 (13) of the 1998 Act at [61]:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
That passage from Gregson was referred to with approval in the Commission decisions of Westlake v Sydney Symphony Subscribers Committee [2009] NSWWCCPD 12 (Westlake) and Irvin v LA Logistics Pty Ltd [2011] NSWWCCPD 23.
Ms Gleeson states that she worked as an organiser with The Services Union in Queensland from April 2013 to March 2015, and then as an organiser with the respondent from
March 2017 to December 2019. Ms Gleeson would at the very least have known from her several years of experience as a union organiser that if a worker sustained an injury at work and lost wages or incurred medical expenses as a result of that injury then a compensation claim should be made.
I do not accept that Ms Gleeson was ignorant of her rights and obligations to make a claim for compensation from any psychological injury she sustained while employed by the respondent in accordance with what Burke CCJ said in Gregson, and Mr Young did not seek to argue otherwise.
The reliance by Ms Gleeson on ‘ignorance’ is limited to the quite narrow and very specific claim that Ms Gleeson did not know of the time limit for making a claim for compensation. Section 65 (13) of the 1998 Act (but which now applies to s 261 of the 1998 Act) has been held to include the situation where a worker does not know of the need to give notice within a specified time. In Albury Real Estate Pty Ltd v Rouse [2006] NSWWCCPD 139 (Rouse), ADP Roche said at [29]:
“The words used in section 65(13) are virtually identical to those used in section 53(1)(b) of the Workers Compensation Act 1926 (‘the 1926 Act’). Under that legislation it was accepted that ‘mistake’ included a mistake of fact, one of law, and a mixed mistake of fact and law (C P Mills Workers Compensation (New South Wales) second edition (‘C P Mills’) page 466 and Stevenson v Metropolitan Meat Industry Commissioner [1937] WCR 120 at 124-5). In G C Singleton & Co Pty Ltd v Lean (Seymour)[1970] ALR 129 (‘Seymour’) it was held that ‘ignorance’ will include the case where the worker does not know of the need to give the notice within the specified time. Seymour was applied to similar legislation by the South Australian Workers Compensation Tribunal in Zac Paul Williams v WorkCover/GIO Australia (Simar Transit Mixers) [1998] SAWCT 101where Judge Cawthorne said:
‘In my view the failure on the worker’s part to make his claim within the prescribed period should not create a bar to the making of the claim. In reaching that conclusion to my mind two factors stand out. First until the worker saw Dr. Tolis in February 1997 and was told of the seriousness of his injury he had no intention of making a claim for compensation being under the misapprehension that his problem was only one of muscular strain which would eventually resolve. In the light of all of the evidence and in particular that of Mr. McCulloch that was clearly a mistaken view on the worker’s part. Second, although I am prepared to accept that the worker had some understanding of the compensation system having made earlier claims, I accept his evidence that he was not aware that a time limit existed for the making of a claim for compensation. In those circumstances it is my view that the failure of the worker to make a claim within the prescribed period was also occasioned by ignorance (G.C. Singleton and Co. Pty. Ltd. v. Lean (Seymour)1970 A.L.R. 129) or mistake on his part’.”
The reference to what was said by Cawthorne J in Zac Paul Williams v WorkCover/GIO Australia (Simar Transit Mixers) in Rouse would arguably be sufficient for Ms Gleeson to overcome the requirement for her to make a claim within six months of when the injury happened. However, each case depends on its own facts, and the worker bears the onus of overcoming the limitation imposed by s 261 (1) of the 1998 Act.
What appears crucial in the decision of Cawthorne J in Zac Paul Williams v WorkCover/GIO Australia (Simar Transit Mixers) is that his Honour accepted the evidence of the worker of ignorance of a time limit which applied in the South Australian legislation. However, on my review of the evidence in this dispute I find that I cannot accept the very limited and specific claim of ignorance made by Ms Gleeson in her effort to overcome s 261 (1).
Ms Gleeson contends that although she worked as a union organiser, she did not provide advice in regard to workers compensation claims, and she had been directed by the respondent to refer a member with such an enquiry to a different section of the union. However, even though that may have been the situation while she was employed with the respondent, the record made by Dr Brittain on 21 July 2020 provides compelling evidence that Ms Gleeson would have had knowledge by at least that time of the requirements for making a workers compensation claim for a psychological injury. The record made by
Dr Brittain was not merely that Ms Gleeson could assist people with employment issues, but she had particular expertise in advocating for clients who had been exposed to psychological harm from bullying and harassment in the workplace.
I acknowledge that clinical notes, especially from general practitioners, should be approached with caution. Santow JA observed in Nominal Defendant v Clancy [2007] NSWCA 349 at [54-55]:
“While clinical notes, as McColl JA observes, making common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive… Clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document.”
Nonetheless, the record made by Dr Brittain is quite specific and the same details are repeated in a medical certificate issued by Dr Brittain on that same date. The conclusion that can be drawn from the details set out in that part of Dr Brittain’s clinical notes and the medical certificate which are written at the same time, is that those quite specific details were provided to Dr Brittain by Ms Gleeson.
Ms Gleeson states that she worked for about one and a half months doing some claims management work from late February 2020, but she had to stop that work because she was not coping because of her psychological workplace injury. However, Ms Gleeson provides no evidence of any advocacy work she undertook for employees who sustained psychological harm due to bullying in the workplace. This is despite the record made by Ms Knox-Haly on 30 March 2020 that her business of advising people who were being bullied in the workplace was “beginning to take off”, and the record made by Dr Brittain on 21 July 2020 that
Ms Gleeson worked as an advocate for clients who were exposed to psychological harm from bullying in the workplace.
There is also no evidence from Ms Gleeson regarding the website: pinkcollarworkers.org.au, which Ms Gleeson informs Ms Knox-Haly is related to employment law and which was operating at the same time that Dr Brittain records that Ms Gleeson was doing advocacy work. I have concluded that the text message sent by Ms Gleeson to Ms Knox-Haly on 20 July must have been sent in the year of 2020 because Ms Gleeson had not commenced to see Ms Knox-Haly until September 2019, and there are no records of Ms Gleeson seeing
Ms Knox-Haly in July 2021.
There is the entry made by Ms Knox-Haly on 20 July 2020 that Ms Gleeson has the “idea” of setting up an employment advocacy consultancy, which suggests that Ms Gleeson had yet to start this business. However, there is other evidence which I have already referred to strongly supports a finding that from late March 2020 Ms Gleeson had expertise in advocating for employees who had been subject to bullying and harassment in the workplace.
I find it is logical and reasonable to conclude from the material which I have referred to that Ms Gleeson would have been aware from at least by July 2020, in her role and expertise as an advocate for clients who are exposed to psychological harm from bullying and harassment in the workplace, of the time limits for making a workers compensation claim. However, Ms Gleeson made no attempt to make a compensation claim at this time, and it was almost another 12 months before Ms Gleeson makes a claim for compensation.
It is Ms Gleeson who bears the onus of proof on this quite specific excuse for the delay in making a claim for compensation, and I am not satisfied that Ms Gleeson has adequately addressed the records made by her medical providers of the expertise she claims to have had in advocating for workers who had suffered psychological harm in the workplace.
I therefore do not accept that Ms Gleeson was ignorant of the requirements for making a claim for compensation until she obtained legal advice in June 2021. There was a period of at least 11 months from the time that Ms Gleeson is recorded as having expertise in advocating for clients who had suffered psychological harm in the workplace for Ms Gleeson to make a claim for compensation, but Ms Gleeson provides no explanation as to why she did not act upon the knowledge she would have had as an advocate in a quite specialised area of employment law to make a claim for compensation.
Ms Gleeson therefore fails to establish that her failure to make a claim within six months after her injury happened was occasioned by ignorance.
The decision of Rouse also involved a consideration of ‘reasonable cause’ in s 261 (4). Acting Deputy President Roche referred to a much earlier decision of Judge Rainbow in Garratt v Tooheys Ltd [1949] WCR 80 (Garratt) and said at [30-32]:
“30. The phrase ‘reasonable cause’ was considered in Garratt v Tooheys Ltd [1949] WCR 80 (‘Garratt’) at 86-7. In that case Judge Rainbow said at 86:
‘The next question is whether the applicant’s failure was occasioned by some reasonable cause. In its context, cause means the grounds which led the workmen to omit to claim. And the mixture of facts, circumstances and motive which constitute the explanation of the failure must be reasonable. It is sometimes argued that the reasonableness of the cause is only to be measured and considered from the viewpoint of the worker and reference is made for example to King v Port of London Authority [1920] AC 1 where Lord Atkinson at page 24 said: ‘Of course it is reasonable cause having reference to the workman himself’. If this argument means that the inquiry is to be limited to discovering whether the worker believed himself to be acting or thinking reasonably that is not the law: cf Brown v Aveling and Porter, (22 BWCC 165 at 169). It is not the worker who is to be reasonable, it is the cause. As Lord Birkenhead said in King v Port of London Authority, ‘the general atmosphere must always be considered’. The reasonableness is to be measured objectively in the light of every circumstance in the case relevant to showing why the failure to claim occurred: cf Atherton v Chorley Colliery Co Ltd (19 BWCC 314).’
31. Commenting on Garratt C P Mills said at page 468:
‘The mixture of facts, circumstances and motive which constitute the explanation of the omission must be reasonable, considered from the view point of the worker not in the sense that he considered his omission reasonable, but rather in the sense that the cause of the omission is reasonable in the light of all the circumstances in which the worker found himself’.
32. In Garratt the facts were that the worker delayed in making his claim because he did not want to prejudice any retirement benefit he might receive from his employer. It was held that such a reason for delaying was not a ‘reasonable cause’ within the terms of the Act. The word ‘ignorance’ was not in the relevant legislation at that time.”
ADP Roche then said in Rouse at [35]:
“I agree with the comment by C P Mills that it is the “mixture of facts, circumstances and motive which constitute the explanation of the omission” that must be reasonable. If the explanation is ‘reasonable’ and if the failure to claim within six months was occasioned by that ‘cause’, then the subsection has been satisfied.”
The reasonable cause which Ms Gleeson relies upon is the advice given by Dr Brittain that Ms Gleeson should not pursue a workers compensation claim but try and move on with her life.
However, Ms Gleeson does not identify with any precision when this advice by Dr Brittain was given to her. Ms Gleeson’s evidence indicates that the advice from Dr Brittain was proffered soon after Ms Gleeson ceased employment with the respondent when she states:
“My doctors were certainly supportive of my separation from the HSU and which we discussed was going to be a step in the right direction for me to focus on my health. As best I can recall, my general practitioner at that point, I believe it was Dr Brittain, made a passing comment of not recommending I pursue a workers compensation claim because it would not be in the interests of my health to do so.”
Dr Brittain has not provided a report which might have addressed this issue. There is the entry made by Dr Brittain on 30 October 2020: “I dont think a WC case is advisable”, which is almost a year after Ms Gleeson had ceased employment with the respondent. However, I do not consider it safe to draw any inference or conclusion as to what was meant by that entry in the absence of an explanation from Dr Brittain.
The timing of when Dr Brittain gave that advice to Ms Gleeson and any significant events or developments which occurred after that advice was given is important because a determination needs to be made from a “mixture of facts, circumstances and motive” as to why Ms Gleeson omitted to make a claim for compensation for some 18 months after she ceased employment with the respondent.
I do not agree with the submission made by Ms Goodman that a decision to delay a claim could not amount to a reasonable cause as provided for by s 261 (4). The decision of Jones, which Ms Goodman made reference to in her submissions, turned very much on the facts of that particular dispute wherein both the Senior Arbitrator and President Keating considered the worker’s belief that hearing aids would make his hearing loss worse was not a reasonable cause for the delay in making a claim for compensation.
However, President Keating made an apt summary in Jones of what is required to establish a reasonable cause, which is consistent with what was said in Garratt, when he stated at [82]:
“…the question of reasonableness of Mr Jones’ conduct is not measured by an objective view of Mr Jones’ mindset but rather it is measured objectively in light of every circumstance in the case relevant to showing why the failure occurred.”
Although Ms Gleeson states that Dr Brittain recommended that she should not pursue a workers compensation claim, and the evidence from Ms Gleeson is that this advice was proffered soon after she ceased employment with the respondent, Ms Gleeson does not provide any further information as to what occurred over the ensuing 18 months which caused her to delay a claim for compensation being made by her. There is no evidence from Ms Gleeson as to the ‘circumstances and motive’ as to why she did not make a claim over that period of time, despite there being circumstances during those 18 months which were relevant to this issue.
Ms Gleeson was motivated in October 2020 to write to Mr Hayes to allege that she was the subject of ongoing sexual harassment by Mr Chapman while she was employed by the respondent. Ms Gleeson co-operated in the subsequent investigation undertaken by Kate Peterson of Workdynamic Australia. However, Ms Gleeson provides no explanation as to why she did not also take steps at this time to make a compensation claim.
The notes from Ms Knox-Haly on 20 July 2020 record that Ms Gleeson attended the police to make a statement. Ms Gleeson also states that in October 2020 she made attempts to approach the police regarding her allegations of sexual harassment by Mr Chapman. An entry made by Dr Brittain on 13 October 2020 refers to Ms Gleeson planning to contact the police. However, no explanation is provided by Ms Gleeson as to why she did not also commence to make a compensation claim around this time.
The clinical notes from Dr Brittain on 13 October 2020 also include the entry: “I don’t think a WC case is advisable”, but I have already observed that whatever may have been the reason for that advice at that particular time, such advice occurs at a much later date after the “passing comment” which Ms Gleeson states Dr Brittain made to her regarding the pursuit of a workers compensation claim following her resignation of employment.
It may be that Ms Gleeson was not psychologically or emotionally in a position to pursue a claim over that 18 month period. In Rouse it was accepted that a delay of almost three years in making a claim by the widow of a deceased worker amounted to a reasonable cause at least partly because the widow was not psychologically or emotionally in a position to pursue a claim for that period of time.

However, no such evidence is provided by Ms Gleeson or by her treating practitioners in regard to this. There remains the significant contrast between Ms Gleeson being able to initiate a complaint of sexual harassment in October 2020, participate in a subsequent investigation, and also make a complaint to the police, but not have the motivation to bring a workers compensation claim at around that same time. No explanation or assistance is provided by Ms Gleeson or by Dr Brittain in regard to this.
If Ms Gleeson was following medical advice not to make a workers compensation claim because it would not be in the interests of her health to do so, she offers no explanation as to why in October 2020 took these other measures which brought on confrontation between herself and the respondent.
Furthermore, Ms Gleeson’s evidence as to the reason for her ultimate decision to make a workers compensation claim in late June 2021 is not based on her evidence of any medical advice she received, but rather the encouragement given to her by Karen Rogers.
Ms Rogers has provided a statement dated 17 September 2021, but Ms Rogers makes no mention of conversations which Ms Gleeson claims to have had with her in early to mid-2021, wherein Ms Rogers encouraged her to bring a compensation claim.
Mr Young submits that the gap in the period of time from onset of injury to the making of a compensation claim is narrowed when Ms Gleeson’s symptoms worsen after she ceases treatment with Ms Knox-Haly. Ms Gleeson states that she ceased seeing Ms Knox-Haly in mid-2020, and that appears to be supported by the notes from Ms Knox-Haly which are in evidence and which end on 20 July 2020.
However, I do not consider that this submission assists Ms Gleeson because it is still another 11 months before Ms Gleeson makes her compensation claim, with no explanation for this delay if there was a deterioration in her psychological condition following the cessation of treatment by Ms Knox-Haly.
I find that the reason provided by Ms Gleeson for her delay in making a compensation claim, being that she should try and improve her psychological health following upon her cessation of employment with the respondent rather than pursue a workers compensation claim, is not a reasonable cause for that delay when measured objectively against the circumstances and motivations of Ms Gleeson between the time she ceased employment with the respondent in December 2019 and the making a claim for compensation in late June 2021.
The provisions of s 261 (1) of the 1998 Act therefore bar Ms Gleeson from being paid workers compensation benefits for the psychological injury she claims to have sustained in the course of her employment with the respondent.
The ARD claims the date of injury to be 25 June 2021, which coincides with the Certificate of Capacity issued by Dr Brittain on that day. I presume that the nomination of this date as being the date is to meet the requirements of ss 15 or 16 of the 1987 Act. However,
Mr Young did not seek to argue that the six months referred to in s 261 (1) ran from
25 June 2021.
Sections 254 and 261 of the 1998 Act refer to when the “injury happened.” In Trustees of the Roman Catholic for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 (Barnes) DP Roche said at [54]:
“…Cases are determined on the evidence and arguments presented (Banque Commerciale SA (in liq) v Akhil Holdings Ltd[1990] HCA 11; 169 CLR 279 at 296–297), not on the pleadings or particulars, which are only a ‘means to an end’ (Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd[1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd[2012] NSWCA 138 at [14] and [15])).”
A review of the contemporaneous medical evidence from Avoca Street Medical Centre and Ms Knox-Haly, which I have already referred to in this decision, indicates that any injury
Ms Gleeson may have sustained in the course of her employment with the respondent, and which meets the requirements of s 4 of the 1987 Act, happened in the period up until
11 December 2019.
Ms Gleeson did not make a claim for compensation within six months of when any psychological injury may have happened, and Ms Gleeson has not been able to obtain the benefit of the exceptions provided for by s 261 (4) of the 1998 Act.

[2023] NSWPIC 15

13 January 2023