Golden Swan Investments (Australia) Pty Ltd v Yahiaoui
[2019] NSWWCCPD 40
•29 July 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Golden Swan Investments (Australia) Pty Ltd v Yahiaoui [2019] NSWWCCPD 40 | |
| APPELLANT: | Golden Swan Investments (Australia) Pty Ltd | |
| RESPONDENT: | Athmane Yahiaoui | |
| INSURER: | Hotel Employers Mutual | |
| FILE NUMBER: | A1-4494/18 | |
| ARBITRATOR: | Mr C Burge | |
| DATE OF ARBITRATOR’S DECISION: | 31 January 2019 | |
| DATE OF APPEAL DECISION: | 29 July 2019 | |
| SUBJECT MATTER OF DECISION: | Adequacy of reasons – Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq) [1999] HCA 3; 160 ALR 588; 73 ALJR 306, Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186; Palmer v Clarke (1989) 19 NSWLR 158, considered and applied | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | McCabe Curwood |
| Respondent: | Brydens Lawyers Pty Ltd | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 31 January 2019 is revoked. 2. The matter is remitted for re-determination of all issues by another Arbitrator. | |
INTRODUCTION AND BACKGROUND
Mr Athmane Yahiaoui (the respondent) commenced employment in a hospitality role in the bar and restaurant area of Golden Swan Investments Pty Ltd trading as the Holiday Inn (the appellant) in October 2015. The respondent rose to the position of team leader in or about December 2015. He resigned from his employment on 25 June 2016.
The respondent alleges that over the period of his employment he was harassed and bullied by his managers and colleagues, who he felt were expecting more from him than he could deliver. He alleges that, as a result of that conduct, he suffered a major depressive disorder.
The respondent lodged a notice of injury workers compensation claim form dated 8 February 2017,[1] alleging he was bullied and harassed by his manager and the human resources director between 7 November 2015 and 24 June 2016.
[1] Application to Resolve a Dispute (ARD), pp 239–242.
The appellant denied liability in a notice dated 17 March 2017, issued pursuant to the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[2]
[2] ARD, pp 243–246.
The respondent commenced proceedings in the Commission on 30 August 2018. He claimed continuing weekly payments of compensation, treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), and a lump sum pursuant to s 66 of the 1987 Act in respect of 22% whole person impairment (WPI).
The matter came to conciliation and arbitration on 13 November 2018. It did not resolve and proceeded to an arbitration hearing.
The issues in dispute that the Arbitrator was required to determine were whether:
(a) the respondent suffered an injury arising out of or in the course of his employment (s 4 of the 1987 Act);
(b) the respondent’s employment was a substantial contributing factor to any injury the respondent may have sustained;
(c) any injury suffered was wholly or predominantly caused by reasonable action taken by or on behalf of the employer in respect of all of the actions identified in s 11A(1) of the 1987 Act, and
(d) the respondent suffered any incapacity for work.
The Arbitrator handed down a written decision with reasons on 31 January 2019, finding in favour of the respondent in respect of injury, substantial contributing factor and whether the injury resulted from the appellant’s reasonable action within the matters identified in s 11A of the 1987 Act. The Arbitrator also partly found in favour of the respondent in respect of the claim for weekly payments, awarding weekly compensation for the period from 8 August 2016 to 7 November 2016 and from 2 February 2017 to 29 March 2018.
The appellant appeals the decision.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties agree that the appeal can be determined on the papers.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The Arbitrator determined the issues that he was required to decide and remitted the matter to the Registrar for referral to an AMS for assessment of the whole person impairment pursuant to s 66 of the 1987 Act.
Section 352(3A) of the 1998 Act does not permit an appeal from an interlocutory decision, except with leave of the Commission. As the matter has not been finalised, a determination is required as to whether the Arbitrator’s decision is final or interlocutory in nature.
The determination of whether an order is final or interlocutory requires a consideration of whether the determination finally determines the rights of the parties in respect of a principal cause pending between them. The question is answered by determining whether the legal, rather than the practical, effect of the judgment is final.[3]
[3] Despot v Registrar General of New South Wales [2016] NSWCA 5 per Gleeson JA (Leeming JA and Sackville AJA agreeing), [93].
The Arbitrator has determined the substantive issues before him, that is the issues of injury, whether the employment was a substantial contributing factor to the injury, whether the injury was wholly or predominantly caused by reasonable action taken by or on behalf of the employer in accordance with s 11A(1) of the 1987 Act, and any entitlement to weekly compensation. The principal issues between the parties have been finally dealt with and on that basis the Arbitrator’s determination is final, rather than interlocutory. Leave to appeal is not required.
THE EVIDENCE
The respondent’s statement and oral evidence
The respondent provided a statement dated 8 March 2018.[4]
[4] ARD, pp 258–263.
He stated he commenced work for the appellant in October 2015. He said that at the interview, he was asked questions about his personal life, including whether he was married, which he did not answer. He said he was told that he would be promoted very quickly because the team leader was about to leave.
The respondent said that he worked generally from 6.00 am to 12.00 pm, had a break, and then worked from 6.00 pm to 12.00 am or sometimes 2.00 am. He said he worked every day, as he was a casual and it was busy in the lead up to Christmas.
The respondent reported that the team leader left about two weeks after the respondent started, and the respondent then took on those duties. He said that as he was only acting in the position, he was not provided with a team leader’s uniform and so his team did not show him respect or appreciate his management skills. He said they questioned him, which made him embarrassed, worried and anxious. The respondent asserted that the staff expected him to be given the promotion because of how hard he worked, but he was not officially appointed to the position until December 2015, which was shortly after he had advised another employee, Seleila Tuhetukoa, that he would leave if he was not promoted.
The respondent advised that his hours then changed to the morning shift, working from 6.00 am to 2.00 pm as a full time, rather than a casual, employee. The respondent asserted he worked very hard, and was pushed to work beyond his capacity by his employer. He said there were renovations underway, more rooms were added, more customers came and there were a lot of families with children. The respondent complained that he became very stressed and anxious. He said that as a result of being stressed and overworked, he lost weight.
The respondent contended that his manager did not respect him, he was not given any support, staff were calling in sick and work became more intense. Consequently, he skipped meal breaks, lost self-confidence, and felt weak and helpless.
The respondent asserted that the staff would only work productively when the manager was present, and when he was not, they would “slack off”, which reflected badly on him and made his work more difficult.
The respondent stated that the manager would always speak to him in a condescending way, and rebuke him in front of the other staff.
The respondent said that this treatment and behaviour continued until about February or March 2016, when he was called into a meeting with his manager. His manager advised him that the staff did not want to work with the respondent, and that there had been complaints from the staff and the customers about him. The manager advised him he was being transferred to the night shift. The respondent said he felt shocked and targeted.
The respondent complained that the chefs on the night shift were difficult to work with and often shouted at him. On 21 June 2016, the respondent was involved in an altercation with a chef by the name of Misch Nucum. The respondent explained that earlier that day, two customers asked him to heat up some food, so he asked Mr Nucum if he could heat the food for them. The chef replied that the microwave was being used, so the respondent arranged for the food to be heated up in another microwave at the back of the kitchen. Shortly afterwards, another guest asked for his food to be heated up, so the respondent approached Mr Nucum, but Mr Nucum again said the microwave was in use. The respondent said he noticed that the microwave was not in fact in being used.
The respondent stated that afterwards, he refused to eat the food the chefs prepared for the staff, and brought his meal from outside of the hotel, returning about five minutes late from his meal break.
The respondent described his room service staff as being very busy, and the demand for room service was unpredictable. The respondent contended that his staff were unable to keep up with the excessive orders for room service. This appears to have been on 21 June 2016, as the respondent alleged that after he returned from his break, the food was being sent to the wrong rooms. The respondent indicated that he rectified the situation by apologising to the guests who had received the wrong food, and ensured that the correct food was delivered to their rooms. He said he brought room service “up to speed” and it was under control. The respondent said that despite this, Mr Nucum shouted and raised his voice to the food and beverage staff who worked under the respondent.
The respondent said he was not happy about that because the food and beverage staff worked very hard, and it felt as though Mr Nucum did not appreciate their work. The respondent asserted that he felt the chefs were bullies. He said that while Mr Nucum was shouting, the respondent raised his voice, and they both got into an argument. The respondent admitted that he did say to Mr Nucum (who was a very large man) that he would send him to hospital, but that he said that because he was angry and did not mean it, particularly given Nucum’s size.
The respondent said that he was then rostered off for two days and was due to return to work on 25 June 2016. On the day he returned to work, he received a text message from the human resources officer, Ms Linda Scully, to come in a little early. When he arrived, he was called in to a meeting with her. Ms Scully raised the altercation between the respondent and Mr Nucum. Ms Scully showed him a statement prepared by staff members, including some of his own staff, that supported Mr Nucum in relation to the altercation.
The respondent indicated that he was very upset because he had done nothing wrong and the whole reason for the altercation was because he was defending his staff who were working very hard. The respondent said that he felt as though nobody was on his side, that the staff had “ganged up on him” over the two days he was rostered off. He stated he felt abandoned, alone and betrayed.
The respondent said he advised Ms Scully that he had simply been defending his staff. Ms Scully asked him to put his explanation in writing, which the respondent felt was unfair because he was given twenty minutes to write his account, when the other staff had had two days. The respondent said he was angry and could not think straight, felt horrible and wanted to give up.
The respondent alleged he was always mistreated and felt unwanted, and during the twenty minutes he was given to write the statement, he in fact wrote his resignation and handed it to Ms Scully. He said that Ms Scully escorted him to change out of his uniform, and walked him out of the premises, which made him feel even worse.
The respondent asserted that the appellant took a week’s pay in lieu of notice from his annual leave, so he lodged an unfair dismissal claim, which resolved for payment of approximately one week of his wages.
The respondent said that he felt depressed and upset at how he had been treated and, on the advice of a friend, lodged the claim for workers compensation. The respondent explained the delay in lodging the claim form was because he was initially unaware of workers compensation and he has difficulty in filling out forms in English.
The respondent said that after leaving his employment, he lost all self-confidence and trust in people. He stated that he had worked hard and felt there was no future for him, and at times lost the will to live because things seemed to be so hopeless.
The respondent described the medical treatment he received, which included medication and psychological counselling.
The respondent advised that he had not obtained further employment, and his doctor had certified him as unable to work. He further advised that his sister paid for him to return to Algeria to visit his mother, who was ill, which he had done in the months shortly before making his statement.
The respondent had also made an earlier statement for the purposes of the claim in the Fair Work Commission. The date of that document is unclear but it appears that it was signed and dated on 11 April 2017.[5]
[5] Reply to Application to Resolve a Dispute (Reply), pp 142–144.
The statement is in similar terms to the statement dated 8 March 2018, except that there was a reference to an incident when the chefs threatened the respondent, and told him they would put him in hospital.[6] In that earlier statement, the respondent complained that at the meeting in June 2016, Ms Scully raised issues that “other staff had about me and the guest complaints.”[7] The respondent further complained that when he handed Ms Scully his resignation, she smiled and seemed happy.[8]
[6] Reply, p 143 [16].
[7] Reply, p 144, [18].
[8] Reply, p 144, [19].
At the arbitration, the respondent was cross examined by the appellant in relation to his financial records for the period from 1 December 2016 to 31 January 2017.[9]
[9] Transcript of proceedings (T), Yahiaoui v Golden Swan Investments (Australia) Pty Ltd t/as Holiday Inn [2019] NSWWCC 54, T 5.25–18.34.
During cross examination, the respondent admitted to having worked and received money as a male prostitute, initially saying that he did so for six months,[10] and then said he worked as such only on two occasions and that was the only income he had received since leaving the appellant’s employ. The respondent agreed that despite only receiving Centrelink payments, he frequently purchased cheap watches, necklaces and other jewellery from a site called “Ali Express”.[11] The respondent conceded that a number of outgoing payments during that period were payments to a male escort agency in which he was advertising his services. The respondent explained that the remaining deposits came from family or friends who were assisting him financially.
[10] T 9.10–21.
[11] T 18.30–32.
The respondent’s resignation letter was attached to the Reply.[12] It read as follows:
“Dear Eddie,
I am writing to inform you that I am resignin [sic] from my position as food and beverage team leader from today 24 June 2016.
Thank you for the opportunities that I have received at the Holiday Inn during the last 08 months. I have enjoyed working for the Holiday Inn. And appreciate the professional development I have received.
I would be glad to help with the transition
Your sincerely”.
[12] Reply, p 27.
Ms Scully’s evidence
An investigation into the claim was conducted by the appellant and the investigation report annexed an unsigned statement by Ms Scully.[13]
[13] Reply, pp 43–51.
Ms Scully confirmed that the respondent commenced employment with the appellant on 26 October 2015 as a food and beverage attendant. Ms Scully advised that the respondent performed his duties well, and for that reason was promoted to the position of team leader on 7 December 2015. Ms Scully said that after the respondent became a team leader, his attitude changed and he had to be spoken to by his manager in relation to complaints that he had spoken rudely to customers.
Ms Scully indicated that the only issue that arose was the altercation between the respondent and Mr Nucum about which Mr Nucum lodged a formal complaint, alleging the respondent had threatened to put Mr Nucum in hospital. Ms Scully said that the respondent was rostered off for two days, during which time she obtained a statement from a witness to the event, Mr Hai Minh Nguyen.
Ms Scully stated that she arranged to meet with the respondent and Mr Eddie Chu, the respondent’s manager, on 24 June 2016, the day the respondent returned to work after his rostered days off. Ms Scully alleges that she explained to the respondent the purpose of the meeting, which was to investigate the complaint. She said that the respondent became angry and flustered and began to talk about unrelated matters pertaining to the microwave being unavailable. Ms Scully asserted that she asked the respondent to calm down, and gave him the opportunity to take his time and write down his version of the events.
Ms Scully said that she and Mr Chu returned to the training room after about twenty minutes to check on how the respondent was progressing with his version of events, and the respondent was not writing, but was looking at his mobile telephone. Ms Scully said she asked the respondent if he had finished writing. The respondent did not reply, and reached into his back pack, pulling out a letter, which he handed to Mr Chu. Mr Chu handed the letter to Ms Scully, which Ms Scully said was a letter of resignation.
Ms Scully said that the respondent then advised that he was “done here” and wanted to “get out of the place.”[14] Ms Scully replied that they were giving him an opportunity to provide his side of the story, but the respondent said that he wanted to leave immediately. Ms Scully said she advised him that he was required to give one week’s notice, but if he had accrued leave he could utilise that so that he could leave immediately.
[14] Ms Scully’s statement, Reply, p 46, [14].
Ms Scully said she then went to the accounts department, and was told that the respondent had sufficient accrued leave entitlements. Ms Scully said she then passed that information on to the respondent, and asked him to complete his exit clearance with Mr Chu. Ms Scully stated that she wished the respondent well, and that he should contact her if he required a reference or future assistance. Ms Scully said that the respondent thanked her, shook her hand and left the room with Mr Chu.
Ms Scully advised that subsequently, at a Fair Work mediation on 25 July 2016, a resolution had been reached that the appellant would pay the respondent one week’s pay but the respondent changed his mind and demanded $20,000.00. The respondent then lodged an Unfair Dismissal claim, which was out of time. Ms Scully said that the respondent sought an extension of time to bring the claim, and at the hearing on 11 November 2016, claimed he was not aware of the procedure, which had been clearly outlined to him in a letter from the Fair Work Ombudsman. Ms Scully said that the respondent then advised that he was suffering from depression, which was the first indication he had given that he suffered from a psychological condition. Ms Scully said that the matter resolved at the suggestion of a Senior Deputy President of the Fair Work Commission for payment of one week’s wages.
Ms Scully indicated that the respondent’s manager was Alston Joseph, who had resigned on 4 June 2016 and relocated to either Dubai or Bahrain. Mr Chu then became the respondent’s manager. Ms Scully stated that she was not aware of any issues between the former manager and the respondent, and no issues or complaints had been reported to her. Ms Scully said that Mr Chu had also since resigned and returned to Hong Kong because of his mother’s illness.
Ms Scully denied:
(a) asking the respondent personal questions, including his marital status, at the respondent’s employment interview;
(b) guaranteeing to the respondent he would be promoted, which could only occur through appropriate recruitment procedures;
(c) being told by Seleila Tuhetukoa that the respondent would leave if he was not promoted;
(d) making inappropriate remarks or gestures to the respondent, and
(e) that there was any period during which the respondent was unofficially working in the role of team leader.
A file note dated 24 June 2016, completed and signed by Ms Scully, was also in evidence.[15] The file note contained a detailed account of the meeting on 24 June 2016, and accorded with what was recorded in Ms Scully’s unsigned statement.
[15] Reply, pp 65–66.
Ms Scully also provided a statement for the purposes of the Fair Work Commission proceedings, dated 3 November 2016.[16] In so far as the statement refers to the matters relevant to these proceedings, Ms Scully reported that the appellant told her he was leaving because he had “had enough of the job,” had no social life and had lost all his friends.[17]
[16] Reply, pp 82–88.
[17] Reply, p 84.
Other lay evidence
A copy of the written complaint dated 22 June 2016 made by Mr Nucum in relation to the incident on 21 June 2016 was in evidence,[18] together with a copy of an unsigned statement from Mr Nguyen, who witnessed the incident.[19]
[18] Reply, p 56.
[19] Reply, p 57.
Mr Nucum described that at the time the incident occurred, the restaurant was very busy, and there was no food and beverage staff to serve the guests. He said that the chef in charge “Chetan” was calling out to the staff to pick up and serve the food, which was getting cold. Mr Nucum said that the respondent returned from his break, and suddenly the respondent shouted loudly, yelling “Shut up!” Mr Nucum said that he was near the respondent, so suggested to the respondent that he should “shut up” and pick up the food. Mr Nucum stated that the respondent then began to shout at him, telling him he would send him to hospital. Mr Nucum advised that Mr Nguyen and the chef “Chetan” pulled him and the respondent apart. Mr Nucum said he walked away and tried to calm himself. He felt threatened for his safety and reported the incident to the front office duty manager, Amanda, and requested management to investigate the incident.
Mr Nguyen’s recollection of the incident was consistent with Mr Nucum’s version of events.
The medical evidence of the treatment providers
It is not necessary for the purposes of this appeal to record the full extent of the clinical notes. In order to address the complaints raised by the appellant on this appeal, it is, however, necessary to consider some of the evidence from the treatment providers that is contemporaneous to the respondent ceasing work, and the histories provided by the respondent to the medico-legal experts qualified by both parties. The references contained in the treating providers’ notes extracted below are not necessarily exhaustive of the references referred to by the appellant in its submissions to the Arbitrator, but will suffice for the purposes of consideration of the appeal grounds brought by the appellant.
The respondent attended the Main Surgery in Darlinghurst from 2 April 2014. The consultation notes from that clinic cover the period from 2 April 2014 to 16 May 2017. Relevantly, the respondent attended the surgery, consulting various doctors on the following dates with the following complaints:[20]
[20] ARD, pp 17–20.
(a) On 4 April 2016, the respondent was seen by Dr Neil Bodsworth, general practitioner, in respect of neck complaints. The respondent requested a week off work, and advised he was going to “quit anyway.” The respondent also sought a referral to a psychologist, and when Dr Bodsworth advised one was not immediately available, the respondent said that he did not want to come back and that the doctor was the “worse doctor he ever seen” for not acceding to his request.[21]
[21] ARD, pp 18–19.
(b) On 5 April 2016, the respondent was seen by Dr Rob Burton, general practitioner, again complaining of neck complaints. The respondent reported that he was under a lot of stress pertaining to work and life. Dr Burton noted:
“long chat re low mood and anxiety - longstanding, denies suicidal ideation
no happy with work and where he is going
requests med cert
agreed to contact uplift in the meantime
psychomotor retardation; eye contact ok at times, slow speech, monotone,
psychologist review
consider SSRI”.[22]
[22] ARD, pp 19–20.
(c) On 30 May 2015, the respondent returned to Dr Burton seeking a further referral to a psychologist and complained that he was not sure the current psychologist understood “gay” issues.
(d) On 8 August 2016, Dr Rachel Burdon, general practitioner, recorded that at the consultation with her on that date, the respondent complained about the following matters:
“Feeling v depressed
Resigned from work 3 weeks ago- acrimonious, bullied, went to HR manager- she was inappropriate
Putting in claim for unfair dismissal
Worried about finances
Feeling quite depressed and anxious - a few suicidal thoughts
Been depressed in past - back not as extreme as this
Had some assistance from seeing psychologist at Uplift - however 10 sessions all used
DASS - very high 19,19,18
Not sleeping much, not eating -lost 6-7 kg over several months (now 67 kg)
Seems v agitated and distracted - perseverating over work issues
Used all sessions on MHCP
…
Reason for visit:
Depression/Anxiety”.[23]
[23] ARD, p 20.
Dr Burdon also wrote a report dated 2 June 2017. She advised as follows:
“I first saw Athmane on 8/8/2016 at a consult where he reported feeling extremely depressed. He reported that he had lost his job 3 weeks previously and that it was very acrimonious and under difficult circumstances. He had been bullied extensively at work and when he reported this bullying to the HR manager she responded inappropriately and was not supported. He had some issues with depression in the past but not as severe as this - he reported some suicidal ideation … He had lost a lot of weight and wasn't sleeping and seemed very agitated at this session … He did see the psychiatrist and psychologist and received ongoing psychological care although I do not have a formal report for this. He was subsequently referred to the DBT group at St Vincents Hospital. A workcover certificate was lodged on 18/10/17 when he revealed that he wanted to lodge a claim …
As mentioned above I have not received any formal documentation from Athmane's treating psychiatrist and psychologist however my preliminary diagnosis is an exacerbation of depression and anxiety. He remains on Lexapro and has continued to attend the DBT group. Prognosis is uncertain …
Athmane has a complicated mental health condition however any additional stress such as that caused by work place bullying and harassment would be likely to exacerbate his underlying condition.”[24]
[24] ARD, p 227.
On 9 October 2018, Dr Burdon wrote to the respondent’s legal representatives in response to an assertion made by the appellant’s forensic medical specialist and advised that the respondent did not suffer from an HIV infection. Dr Burdon advised that the respondent had last been tested in August 2018, and was tested negative to the infection.[25]
[25] Respondent’s Application to Admit Late Documents (AALD) dated 11 October 2018, p 3.
The respondent was referred by both Dr Burton and Dr Burdon to Uplift Psychological Services.
Mr Justin Zi Zhu, psychologist from Uplift Psychological Services, reported on the respondent’s progress to Dr Burton on 12 April 2016[26] and 17 May 2016.[27] That correspondence did not contain details of the subject matter of any discussions between the respondent and Mr Zhu. Mr Zhu further reported to Dr Burton on 9 August 2016 that the respondent was making “considerable progress”, and was “deciding what option he would take in relation to his work place issues.”[28]
[26] ARD, p 95.
[27] ARD, p 96.
[28] ARD, p 101.
Mr Zhu also provided a letter dated 18 October 2016 addressed “To Whom It May Concern”. He listed 11 attendances by the respondent between 12 April 2016 and 18 October 2016 and advised that the “majority of the sessions have included discussion around issues pertaining to his employment such as interpersonal conflict and bullying.”[29]
[29] ARD, p 225.
On 18 August 2016, Mr Anthony Richardson, also from Uplift Psychological Services, noted the following:
(a) the respondent was using methylamphetamine;
(b) the respondent’s ability to enjoy life had collapsed, which had occurred on other occasions;
(c) the respondent was under stress in his living situation and had work issues, and
(d) the underlying issues appeared longstanding, and related to family origins and “passive coping mechanism”.[30]
[30] ARD, p 100.
The respondent presented to St Vincent’s Hospital Emergency Department, Darlinghurst, on 20 April 2017. He presented with suicidal thoughts, and complained of recent job loss and homelessness, and reported that he had used methylamphetamine intravenously that morning.[31] The history recorded in the emergency department notes was of low mood over the last few years, deteriorating about 10 months prior to presentation. The respondent reported that he was suffering from several psychosocial stressors, including resigning from his last job because of workplace bullying about his homosexuality, and the end of an eight-year relationship in 2015. The notes recorded “extensive polypharmacy use.” The notes further recorded that the respondent was a frequent user of cannabis, and had most recently used cannabis two days previously. Further, the respondent used ice, and had recently started to use it intravenously, and occasionally used ketamine and cocaine.[32]
[31] ARD, p 128.
[32] ARD, pp 129–130.
The mental health assessment carried out on that day recorded the respondent had a difficult childhood, had separated from his partner in 2015 because of his partner’s infidelity, and in 2016 began to use “CMA” (crystal methylamphetamine). The notes recorded that the respondent “[a]t this point underwent substantial socio-occupational decline. Lost job, lost private accommodation …”.[33] The assessor also referred to the respondent using “CMA” daily, and working as a sex worker, mainly in exchange for drugs.[34]
[33] ARD, p 136.
[34] ARD, p 137.
A further note recorded by the mental health team the following morning recorded that the respondent’s chronic stressors included “social isolation, financial pressure, and pressure from his family … He previously worked in hospitality but after commencing CMA use approximately 18 months ago he has had a significant socio-occupational decline.”[35]
[35] ARD, p 174.
The forensic medical reports
The appellant relied on the opinion of Dr Graham George, consultant psychiatrist, who provided a number of reports at the request of the appellant.
The first report is dated 21 November 2017,[36] and was prepared on the basis of a psychological examination and assessment of the respondent, and material from the appellant’s file.
[36] Reply, pp 1–9.
Dr George recorded a history that two months prior to leaving the employment with the appellant, the respondent’s manager, who he described as reasonable, left. The respondent told Dr George that the new manager barely communicated with him and pushed him to the point where he thought she was against him. The respondent complained that on one occasion, the new manager pinched him on the cheek when she was talking to him, and that when he resigned, the manager could not understand why he did so. Dr George recorded that the respondent claimed that just prior to his resignation, he had a meeting with this manager, and she was critical of his performance. The respondent reported that he felt “targeted” and left the meeting.
Dr George took a history that the respondent smoked cannabis at times and used methylamphetamine approximately six months previously. The respondent refused to answer any further questions about substance abuse. Dr George recorded that the respondent denied any past psychiatric history.
Dr George observed that the respondent relayed in a vague, disconnected manner and illogically at times. Dr George said the respondent could not give a particularly coherent account with respect to the reasons he had left the employment with the appellant.
Dr George observed that the respondent did not appear depressed on the day of assessment, and did not appear responsive to perceptual stimuli.
Dr George formed the view that he was unable to provide a psychiatric diagnosis in relation to the respondent leaving work in 2016. Further, he was unable to state that employment was a substantial contributing factor to the respondent’s condition.
Dr George considered that, given the history of substance abuse, such abuse could have an effect of work performance. Dr George commented that there was no factual report, and the respondent did not provide a coherent report of bullying and harassment in the workplace. Further, the respondent’s ability to negotiate his way on an international trip over a period of ten weeks was not consistent with a major depressive disorder.
Dr George provided a further supplementary report dated 4 December 2017,[37] following two factual investigation reports being forwarded to him for his comments. Dr George noted that the information did not support the respondent’s account of events. Dr George confirmed his earlier opinion, but added that if the respondent did present with a psychiatric disorder, it could not be substantially regarded as relating to workplace events.
[37] Reply, pp 125–126.
Dr George referred to the opinion of Dr Teoh, and observed that Dr Teoh arrived at his diagnostic conclusion based on the respondent’s self-reporting. He confirmed that he did not believe that the respondent’s reported symptoms met the criteria for a major depressive disorder.
The appellant requested Dr George to re-examine the respondent and provide a further report. In his report dated 26 September 2018, Dr George assessed the respondent’s progress since last examined, and the presence or absence of a psychiatric disorder.[38]
[38] Appellant’s AALD dated 4 October 2018, pp 1–7.
Dr George reported that the respondent made three attempts to provide his residential address, eventually nominating an address which he said had been his residential address for several months. The respondent told Dr George that his only income was Centrelink benefits. Dr George recorded that the respondent:
(a) denied having attended the Fair Work Commission;
(b) said that up until two months prior to the consultation, he had been homeless;
(c) refused to answer questions about whether he was being treated for HIV;
(d) admitted to having used cannabis a few months ago;
(e) denied using harder drugs, and
(f) queried what that condition was when asked if he suffered from anxiety.
Dr George performed a mental state examination in which the respondent was unable to provide a coherent history, his thought sequences were not logical, and there was, at times, an element of disassociation. The respondent was not oriented as to time and place. Dr George formed the view that the respondent’s short-term memory was impaired, his attention and concentration were flawed, the respondent was unable to think abstractly and did not have a great deal of insight into his state of health.
Dr George diagnosed a mild neurocognitive disorder which was more than likely secondary to an HIV infection. Dr George referred to the extensive treating clinical material made available to him, which led him to that conclusion.
Dr George confirmed his earlier view that on the basis that there was no factual support for the respondent’s account of events, the respondent’s employment was not in any way a substantial contributing factor to the respondent’s resignation. Dr George further confirmed his opinion that the respondent did not have a psychiatric condition related to his employment.
Dr George disagreed with the conclusions reached by Dr Teoh. He said that a detailed report from Dr Burton [sic] would confirm that the respondent suffered from HIV infection, and it was quite probable that as a consequence the respondent suffered from a neurocognitive disorder, which could be corroborated by neuropsychological and forensic testing. Dr George reiterated that the factual report did not support the respondent’s version of events in the workplace, and observed that Dr Teoh did not comment on the respondent’s relevant medical history.
Dr George provided a further supplementary report upon receipt of the correspondence from Dr Burdon dated 9 October 2018 advising that the respondent did not suffer from an HIV infection.[39] Dr George observed that Dr Burdon had not provided a detailed report, and did not indicate whether the respondent had ever tested positive for HIV1. Dr George explained that his diagnosis was a provisional one, based on his clinical assessment and the available information available to him.
[39] Appellant’s AALD dated 6 November 2018, pp 1–3.
Dr George noted that the respondent had been prescribed an antiretroviral medication (referred to as PrEP) or Truvada).
Dr George referred to the test results annexed to Dr Burdon’s letter, which advised that the possibility of exposure to or infection with HIV should not be excluded, and that “the impact of antiretroviral treatment is unknown.” Dr George also referred to medical literature that indicated that PrEP is prescribed to persons that “merit a high index of suspicion of possible infection.”[40]
[40] Dr George’s report, appellant’s AALD dated 6 November 2018, p 2.
Dr George observed:
“Dr Burdon appears to have totally discarded the results of cognitive testing as set out in my report. These clinical findings are sufficient to justify a full investigation for a neurocognitive disorder, inclusive of haematological, biochemical and immunological screening, a brain MRI and neuropsychological testing.”[41]
[41] Dr George’s report, appellant’s AALD dated 6 November 2018, p 3.
Dr George thought it also appropriate, in the respondent’s case, to administer forensic psychological testing because it was “impossible to assess the validity of his presentation.”[42]
[42] Dr George’s report, appellant’s AALD dated 6 November 2018, p 3.
The respondent relied on two medico-legal reports provided by Dr Ben Teoh, psychiatrist.
In his first report dated 30 June 2017,[43] Dr Teoh recorded the history as provided to him by the respondent.
[43] ARD, pp 1–6.
Doctor Teoh reported that the respondent had been dismissed from his employment with the appellant, and was not aware of the reason for the dismissal until two months later. Dr Teoh recorded that the respondent had been badly treated by his manager, “Joseph”, and was pushed to the limit and asked to work additional hours without pay. Dr Teoh noted that the respondent had been unfairly criticised, not respected or supported, and was excluded and ostracised.
Dr Teoh further noted that the respondent reported these matters to Ms Scully in human resources. Ms Scully was critical of the respondent and gave him no feedback. Dr Teoh recorded that “Joseph” resigned in May 2016.
Dr Teoh reported that the respondent had used cannabis occasionally, and used illicit substances until four years previously.
Dr Teoh noted that the respondent had not been able to work and, in his opinion, was not fit to work at all.
Dr Teoh was of the opinion that the respondent suffered from major depression, the respondent’s employment was the main contributing factor to his condition, and that the respondent reported significant psychological trauma and stress at work before he was dismissed.
Dr Teoh provided a further report dated 17 May 2018.[44] On this occasion, Dr Teoh was provided with reports from Dr Burdon, Taylor Square Private Clinic, Uplift Psychological Services, Danielle Curnoe (a social worker who had assisted the respondent), the reports of Dr George and the clinical notes of St Vincent’s Hospital.
[44] ARD, pp 7–11.
Dr Teoh reviewed the reports of Dr George. He referred to Dr George’s observation that the respondent’s presentation was somewhat incoherent and illogical, and Dr George’s conclusion that he was unable to make a psychiatric diagnosis. He further referred to Dr George’s observations that the respondent’s ten week overseas trip was inconsistent with a diagnosis of major depression, and commented that Dr George did not take a history of significant depressive symptoms. In Dr Teoh’s view, such an overseas trip was not inconsistent with a person suffering from major depression.
Dr Teoh commented that Dr George’s conclusion was based on his reservations about the case, and the lack of factual information to support the respondent’s allegations.
Dr Teoh referred to the history taken by Dr Rachel Burdon in her reports dated 8 August 2016 and 2 June 2017, and the extensive treatment provided by the St Vincent’s Hospital clinic.
Dr Teoh said that he did not agree with Dr George and it was his opinion that the respondent reported significant depressive symptoms that were consistent with a diagnosis of major depression. He concluded that the work related stress had aggravated the respondent’s underlying psychological issues.
THE ARBITRATOR’S REASONS
The Arbitrator provided a brief overview of the case before him. He identified the issues that he was required to determine, and noted that it was agreed between the parties that those issues remained in dispute. The Arbitrator noted that the appellant had made an application to cross examine the respondent in respect of the respondent’s post-employment bank records and in relation to the question of substance abuse. The Arbitrator rejected the application to cross examine the respondent in relation to substance abuse, but allowed cross examination pertaining to the bank records.
The Arbitrator reviewed the evidence before him. He provided a summary of the respondent’s statement and oral evidence, Ms Scully’s statement evidence, and the reports of Dr Teoh and Dr George.
The Arbitrator recorded the contents of the respondent’s resignation letter, reproduced the contents of the letter from Mr Zhu dated 18 October 2016, the clinical entry made by Dr Burton on 5 April 2016, and the contents of the report of Ms Curnoe dated 1 March 2018. The Arbitrator also summarised Dr Burdon’s evidence contained in the letter of referral dated 8 August 2016, the WorkCover certificate dated 18 October 2016, the Centrelink certificate dated 2 February 2017, and Dr Burdon’s report dated 2 June 2017.
The Arbitrator further summarised the submissions of both parties. It is relevant to note the matters raised by the appellant, as they were recorded by the Arbitrator, which were that:
(a) there were great difficulties accepting the evidence of the respondent, whose answers were evasive and obfuscating;
(b) little weight should be afforded to the opinion of Dr Teoh, as:
(i)the factual history provided was not made out on the evidence;
(ii)Dr Teoh recorded an incorrect history in respect of drug use;
(iii)Dr Teoh did not provide a proper diagnosis, but merely gave a description of symptoms, and
(iv)Dr Teoh gave no adequate explanation for his diagnosis;
(c) the clinical notes revealed a long history of psychological problems;
(d) the clinical note dated 4 April 2016 indicated the respondent was going to resign from work;
(e) it was not until after the respondent had ceased work that any complaint was made of bullying and harassment in the workplace;
(f) the description of “work and life stress” in the clinical note dated 5 April 2016 was not enough, of itself, to establish, on balance that the respondent had a work related psychological injury;
(g) the appellant’s evidence as to the version of events contradicted that of the respondent, as did the respondent’s own statement to the Fair Work Commission;
(h) the respondent had not disclosed that he was using methamphetamine on a daily basis, and the Commission should not accept the respondent’s version as to what was said to him by Ms Scully and the respondent’s managers, or as to what occurred in the workplace;
(i) in the event there was an injury:
(i)the appellant took reasonable action in respect of investigating the incident between Mr Nucum and the respondent sufficient to satisfy s 11A of the 1987 Act, and
(ii)there was insufficient evidence to find the respondent incapacitated, given the medical certificates were inconsistent with each other, and the Facebook activity disclosed that the respondent was enjoying his overseas trip and did not appear depressed.
The Arbitrator referred to and quoted s 4 of the 1987 Act (definition of “injury”), ss 9A(1) and 9A(2) of the 1987 Act (whether employment is a substantial contributing factor to an injury), and ss 11A(1) and 11A(3) of the 1987 Act (whether the injury is wholly or predominantly caused by reasonable action in respect of the various matters identified in s 11A(3)).
The Arbitrator observed that “injury” includes a psychological disorder, and that in order to establish that a person has suffered a personal injury, it is not enough that the worker suffers frustration or/and upset, but it is necessary to show that there has been a physiological effect upon the worker, rather than merely an emotional response. The Arbitrator cited the authorities upon which he relied to make those observations.
The Arbitrator referred to the Presidential decision in Attorney General’s Department v K,[45] in which Deputy President Roche discussed the various authorities and the circumstances in which a psychological injury can be established when the facts are reliant upon the worker’s perception of events. The Arbitrator extracted the following passage from that decision (citations omitted):
“The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle;
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment;
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established;
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind;
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’, and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”[46]
[45] [2010] NSWWCCPD 76; 8 DDCR 120 (Attorney General’s Department v K).
[46] Attorney General’s Department v K, [52].
The Arbitrator observed that whether employment is a substantial contributing factor to an injury is a question of fact, and is a matter of impression and degree which is to be decided after a consideration of all of the evidence. The Arbitrator said that it was important to note that the employment must be a substantial contributing factor to the injury, not the incapacity, need for treatment, or the permanent loss. The Arbitrator said that it was also important to note that there can be more than one substantial contributing factor to the injury, and the employment need not be “the” substantial contributing factor.
The Arbitrator identified the relevant authorities for the above propositions.
The Arbitrator proceeded to determine the questions of “injury” pursuant to s 4 and “substantial contributing factor” pursuant to s 9A of the 1987 Act.
The Arbitrator gave the following reasons for determining in favour of the respondent:
“In this matter, I am satisfied the applicant has demonstrated that he suffered an injury in the course of his employment, to which his employment was a substantial contributing factor. Notwithstanding the very real concerns which the respondent raised, I have taken into account the evidence of the treating medical experts, who noted the applicant complaining of workplace bullying as early as April 2016, and requiring treatment for a psychological injury at that time, and to which his workplace issues were a substantial contributing factor. Accepting the comments of Roche DP in Attorney General v K, I accept the applicant had a real perception, as early as April 2016, of a hostile work environment which was a substantial contributing factor to him developing a psychological injury.
I have made this finding after carefully considering the lay and medical evidence in this matter. I accept the diagnosis of the applicant’s treating general practitioner and psychologist, together with the findings of Dr Teoh concerning the fact of injury. I do not prefer the findings of Dr George who eventually came to the conclusion the applicant was suffering from an injury, however, his basis for asserting that the injury was not work related differed over time, and was not supported by the preponderance of the evidence.
The Commission therefore finds the applicant suffered a psychological injury in the course of his employment with the respondent as a result of workplace bullying and harassment, with a deemed date of injury of 24 June 2016.”[47]
[47] Yahiaoui v Golden Swans Investments (Australia) Pty Ltd t/as Holiday Inn [2019] NSWWCC 54 (reasons), [108]–[110].
The Arbitrator proceeded to deal with the questions of whether the injury resulted from reasonable action taken by the employer pursuant to s 11A of the 1987 Act, and the question of incapacity. For the reasons set out below, it is not necessary for me to record the Arbitrator’s reasons and conclusions in respect of those aspects of the claim.
The Arbitrator also ordered the appellant to pay the respondent’s treatment expenses pursuant to s 60 of the 1987 Act, which flowed from his finding that the respondent had suffered injury as alleged. It is not necessary for me to consider the Arbitrator’s reasoning process in relation to this aspect of the claim.
The Certificate of Determination issued on 31 January 2019 records:
“The Commission determines:
1. The applicant suffered a psychological/psychiatric injury in the course of his employment with the respondent, with a deemed date of injury of 24 June 2016.
2. The applicant’s employment with the respondent was a substantial contributing factor to the injury referred to in (1) above.
3. The injury referred to in (1) above was not wholly or predominantly caused by the reasonable actions of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
4. The respondent will pay the applicant weekly compensation as follows:
(a)pursuant to section 36 of the 1987 Act, $862.95 per week from 8 August 2016 to 7 November 2016, and
(b)pursuant to section 37 of the 1987 Act, $726.69 per week from 2 February 2017 to 29 March 2018.
5. Award for the respondent with respect to the balance of the claim for weekly compensation.
6. The respondent will pay the applicant’s reasonable medical and treatment expenses in relation to the injury.
7. The claim for lump sum compensation will be remitted to the Registrar for referral to an Approved Medical Specialist (AMS) to determine the degree of whole person impairment arising from the injury referred to in (1) above.
8. The documents to be referred to the AMS with the referral are:
(a)This Certificate of Determination;
(b)The Application to Resolve a Dispute (Application) and attachments;
(c)The Reply and attachments;
(d)The applicant’s Applications to Admit Late Documents (AALD) (x2) and attachments;
(e)The respondent’s AALDs (x2) and attachments.”
GROUNDS OF APPEAL
The appellant brings three grounds of appeal, expressed as follows:
(a) Ground one: “In finding that the [respondent] suffered an injury in the course of his employment, the Arbitrator failed to provide adequate reasons for doing so”;
(b) Ground two: “The Arbitrator erred in accepting the medical evidence of the [respondent], in that the opinions therein were not supported by the preponderance of the evidence”, and
(c) Ground three: “The Arbitrator erred in finding that the [respondent] had discharged his onus of establishing incapacity for the periods 8 August 2016 to 7 November 2016, and 2 February 2017 to 29 March 2018.”
SUBMISSIONS IN RESPECT OF GROUND ONE: THAT THE ARBITRATOR FAILED TO GIVE ADEQUATE REASONS FOR FINDING THAT THE RESPONDENT SUFFERED AN INJURY IN THE COURSE OF HIS EMPLOYMENT
The appellant’s submissions
The appellant submits that the Arbitrator failed to give adequate reasons for finding the respondent suffered injury as alleged.
The appellant relies on the observations of Deputy President Roche in Raulston v Toll Pty Ltd,[48] wherein the Deputy President said that:
“the appellant must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application.”[49]
[48] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[49] Raulston, [44].
The appellant also relies on an extract quoted by Roche DP in Raulston from the judgment of McHugh JA (as his Honour then was) in Soulemezis v Dudley (Holdings) Pty Ltd,[50] in which McHugh JA said;
“In many cases the reasons for preferring one conclusion to another also need to be given.”[51]
[50] (1987) 10 NSWLR 247(Soulemezis).
[51] Soulemezis, 280.
The appellant further relies on Acting Deputy President King SC’s observations in NSW Police Force v Hahn[52] that:
“[T]he important thing is that the reasons should give assistance to any appellate court called upon to consider them by indicating how the case was decided, and should explain to the parties, especially the losing party, how the result was arrived at and why the losing party lost. If they meet that standard, they need not be lengthy, elaborate or exhaustive and they need not deal with every feature of the case.”[53]
[52] [2017] NSWWCCPD 51 (Hahn).
[53] Hahn, [61].
The appellant refers to the Arbitrator’s reasons, which are reproduced at [114] above. The appellant asserts that it is important that the Arbitrator referred to the ‘very real concerns’ raised by the appellant, but then simply stated that after considering the evidence, the Arbitrator accepted the allegation of injury had been made out.
The appellant submits that the reasons disclose no indication of why its version was not preferred. The appellant contends that the credit of the respondent was squarely put in issue, and the decision is completely silent on that issue.
The appellant says that the Arbitrator gave no indication as to how the case was decided, nor why he did not accept the appellant’s arguments. Further, the Arbitrator did not engage with the lay evidence (including the oral evidence), or with the medical evidence. The appellant says that the Arbitrator simply stated that he had “taken into account the evidence of the treating medical experts” and that he had “made this finding after carefully considering the lay and medical evidence in this matter.”
The appellant further submits that the Arbitrator did not provide reasons for finding that the entry in the clinical note (which the appellant presumes must have been the entry made on 5 April 2016) was sufficient to establish that complaints of workplace bullying and the need for psychological treatment stemmed from a workplace injury, when the clinical note only states “long chat re low mood and anxiety – longstanding” and “no happy with work and where he is going”. The appellant says that it submitted on this point to the Arbitrator.
The appellant points to the absence of any reference to bullying and harassment in the clinical note, and that the clinical note of that date was the subject of submissions at the arbitration. The appellant submits that the Arbitrator ought to have provided reasons for finding that the injury and the need for psychological treatment arose from workplace bullying.
The appellant concludes that the above submissions demonstrate that the Arbitrator failed to give adequate reasons for his findings.
The respondent’s submissions
The respondent also refers to Acting Deputy President King SC’s decision in Hahn, and points out that the extract relied on by the appellant includes the Acting Deputy President’s observation that the reasons “need not be lengthy, elaborate or exhaustive and they need not deal with every feature of the case.”
The respondent submits that the Arbitrator’s reasons were lengthy, and set out all of the medical evidence and both parties’ submissions. The respondent points out that the Arbitrator recounted the lay evidence and noted that it was common ground that the respondent was rostered off work after the altercation between the respondent and Mr Nucum. The respondent says that the Arbitrator also recounted the evidence from Dr Teoh’s reports, which included the second report, where Dr Teoh was aware of the respondent’s prior history of psychological symptoms.
The respondent contends that the Arbitrator also took into account:
(a) the letter from Dr Burdon to St Vincent’s Mental Health Service dated 8 August 2016, which included reference to symptoms arising from workplace conflict and bullying;
(b) the WorkCover Certificate dated 18 October 2016, which recorded that the first date of consultation and the nominated date of injury was 5 April 2016, and
(c) the correspondence from Mr Zhu of Uplift Psychological Services, which also referred to conflict and bullying.
The respondent says that the lay evidence established that there was an altercation between the respondent and Mr Nucum on 21 June 2015, the respondent was called to a meeting on his return to work on 24 June 2015, and at that meeting, he tendered his resignation.
The respondent submits that ultimately, the question of injury depended upon whether the Arbitrator accepted the opinions of Dr Teoh and Dr Burdon that the respondent’s condition resulted from the workplace incidents. The respondent says that the opinions of Dr George conflicted with the opinions of both Dr Teoh and Dr Burdon. The respondent provides lengthy submissions on appeal as to the alleged shortcomings in Dr George’s evidence. As this appeal is not review or re-hearing,[54] it is not necessary to record those submissions, save to say that the respondent submits that the Arbitrator formed the view that the factual investigation summary (which Dr George had available to him when writing his second report) “did not significantly disagree with the [r]espondent’s account of events leading up to the development of his injury.” [55]
[54] Section 352(5) of the 1998 Act.
[55] Respondent’s submissions, [7].
The respondent contends that the Arbitrator provided an explanation as to why he did not accept Dr George’s opinion, and quoted the following passage from the Arbitrator’s reasons in support of that contention, where the Arbitrator said:
“I do not prefer the findings of Dr George who eventually came to the conclusion the applicant was suffering from an injury, however, his basis for asserting that the injury was not work related differed over time, and was not supported by the preponderance of the evidence.”[56]
[56] Reasons, [109].
The respondent submits that, when that passage is read with the Arbitrator’s summary of Dr George’s evidence, it is clear why Dr George’s evidence was not accepted. That is, that Dr George’s opinion had changed over time, without a proper basis for the change, and involved an assertion that was inconsistent with objective testing.
The respondent maintains that the Arbitrator’s ultimate reasoning was clear and succinct. The respondent says the Arbitrator took into account the unequivocal evidence of the treating medical experts (namely Dr Burdon and Mr Zhu) who recorded complaints of workplace bullying and conflict as early as April 2016. The respondent submits that when the decision is read as a whole, there is no doubt about the basis upon which the Arbitrator determined the issue. The respondent maintains that the Arbitrator’s conclusion does not depend solely on the single entry in the clinical notes in April 2016. It is also based on the evidence of Dr Burdon and Mr Zhu, which is evidence that is clearly more reliable than a brief clinical note which is open to misinterpretation.
The respondent contends that the appellant’s argument is “fundamentally misfounded,”[57] and the ground of appeal is not made out.
[57] Respondent’s submissions, [11].
Appellant’s further submissions and submissions in reply
The appellant filed further submissions upon receipt of the transcript, helpfully providing pinpoint references in the transcript to the matters it says were the subject of its submissions to the Arbitrator.
The appellant indicates parts of the transcript which, in its view, show that in cross examination, the respondent was evasive and non-responsive and also made various concessions.[58] The appellant submits that the Arbitrator ought to have provided some reasoning relevant to the issue of the respondent’s credit.
[58] T 15.23–17.31.
The appellant also filed submissions in reply to the respondent’s submissions.
The appellant refers to the submissions made by the respondent and asserts that they are merely a critique of the evidence in support of his case. The appellant submits that this ground of appeal is not about why the evidence ought to be accepted. The complaint is that the Arbitrator, after a consideration of the evidence, failed to give reasons for accepting that evidence.
THE LEGISLATION RELEVANT TO THE REQUIREMENT TO GIVE REASONS
Section 294 of the 1998 Act provides:
“294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
Rule 15.6 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
DISCUSSION
A significant part of the appellant’s case, upon which the appellant submitted at length, was that the respondent was not a witness of truth.
The Arbitrator’s summary of the respondent’s submissions made at the Arbitration is largely consistent with the transcript of those submissions. The appellant drew the Arbitrator’s attention to the following matters:
(a) the manner in which the respondent gave his oral evidence, which the appellant described to the Arbitrator as “obfuscatory and evasive”;[59]
(b) the respondent’s credit was impugned because he provided a false history to Dr Teoh;[60]
(c) the clinical note dated 4 April 2016 recorded in the Main Surgery notes did not record any complaint of bullying or harassment, nor complaint of the conditions at work being unfavourable, or any derogatory treatment from colleagues;[61]
(d) the clinical entry dated 30 May 2016 from the same notes made no note of any work-related complaint;[62]
(e) the first report of any bullying and harassment was not until 8 August 2016, some six weeks after the respondent ceased work;[63]
(f) Dr Burdon’s notation in a letter of referral to St Vincent’s Mental Health Service was that the respondent was forced to resign his employment;[64]
(g) the absence of complaints of work place issues in the documents from Uplift Psychological Services produced by Mr Zhu dated 12 April 2016, 17 May 2016 and 9 August 2016, and no reference to workplace stresses in the document dated 18 August 2016 produced by Mr Richardson;[65]
(h) the hand-written documents from St Vincent’s Mental Health Clinic referred to the decline in the respondent’s socio-occupational ability after beginning to use crystal methylamphetamine in 2016, that the respondent was a sex worker, working mainly for drugs, had a borderline personality disorder, and experienced previous depressive disorders and high substance abuse;[66]
(i) the contents of the resignation letter were inconsistent with a person who was bullied and harassed during his employment,[67] and
(j) Mr Nucum’s version of the altercation on 21 June 2016 contradicted the respondent’s version as to who was the aggressor, as did Ms Scully’s evidence about what happened at the meeting on 24 June 2016.[68]
[59] T 30.13–24.
[60] T 31.5–32.10.
[61] T 34.20–35.34.
[62] T 36.1–9.
[63] T 36.10–27.
[64] T 37.11–18.
[65] T 38.11–39.19.
[66] T 39.20–41.34.
[67] T 47.16–34.
[68] T.50.10–54.5.
Relying on the principles laid down in Makita (Australia) Pty Ltd v Sprowles,[69] the appellant also challenged the probative value of the reports provided by Dr Teoh, because:
(a) the history recorded by Dr Teoh was inaccurate,
(b) the diagnosis was not an acceptable diagnosis but simply a description of symptoms, and
(c) Dr Teoh, in his report dated 17 May 2018, failed to address the contrary history recorded in the further documentary material provided to him.[70]
[69] [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita).
[70] T 30.33–34.17.
Section 294 of the 1998 Act imposes a statutory obligation on an arbitrator to provide reasons for his or her decision. Rule 15.6 of the 2011 Rules sets out the requirements which are to be included in an arbitrator’s statement of reasons.
An analysis of whether there has been a failure to provide adequate reasons requires a number of considerations to be taken into account.
A useful summary of the principles enunciated in various authorities was provided by McColl JA (with Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd,[71] in which her Honour said as follows (citations omitted):
“The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them. However a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’.
The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice.
The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another’.”[72]
[71] [2009] NSWCA 110 (Pollard).
[72] Pollard, [56]–[59].
Relevantly, in the decision of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq),[73] Kirby J observed that where there is evidence in support of a party’s case, that evidence must be considered in the reasoning process in a satisfactory way.[74]
[73] [1999] HCA 3; 160 ALR 588; 73 ALJR 306 (Earthline Constructions).
[74] Earthline Constructions, [94].
Equally relevant to this case, Ipp JA (with Mason P agreeing) in the Court of Appeal decision in Goodrich Aerospace Pty Limited v Arsic said:
“It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.”[75]
[75] [2006] NSWCA 187; 66 NSWLR 186, [28].
In particular, where there are credit issues to be dealt with (as was clearly apparent in this case), it is necessary to explain why one party’s evidence is to be accepted over the other.[76] Put simply, the reasons provided must establish the steps taken in arriving at the primary decision maker’s ultimate conclusion.
[76] Palmer v Clarke (1989) 19 NSWLR 158, 170 per Kirby P (Samuels JA agreeing).
While the Arbitrator in this case did record a summation of some (but not all) of the appellant’s evidence, his reasons do not disclose the steps he took to arrive at his decision that the respondent was injured as alleged, and that the respondent’s employment was a substantial contributing factor to the injury. The Arbitrator provided no explanation as to why he accepted the respondent’s evidence provided by Dr Burdon and Mr Zhu was sufficient to establish the fact of workplace bullying and harassment. Dr Burdon did not treat the respondent until August 2016, the earlier clinical notes recorded by other general practitioners did not refer to any such allegations, and other than a broad reference to the respondent having complained of workplace bullying in the majority of sessions, Mr Zhu did not identify when it was that the respondent first complained of workplace bullying. These matters were the subject of submissions made by the appellant to the Arbitrator and were matters that required the Arbitrator’s consideration. The Arbitrator failed to engage with the substantial evidence relied upon by the appellant.
Although the Arbitrator gave brief reasons for rejecting the opinion of Dr George, those reasons were not sufficient. The Arbitrator paid no attention to the appellant’s submission as to why Dr George changed his views, which was said to be on the basis of further documentation that disclosed that the history the respondent provided was inaccurate. In preferring the evidence of Dr Teoh, the Arbitrator ignored the plethora of evidence, to which he was taken by the appellant, which described a history and lifestyle that called into question the reliability of the respondent’s evidence and the history provided to Dr Teoh.
Importantly, the Arbitrator made no assessment of the respondent’s credibility, which was raised as a serious allegation by the appellant during the course of the arbitration. In particular, the Arbitrator failed to give consideration to the manner in which the respondent gave his oral evidence, his statement evidence, the weight to be afforded to the conflicting evidence, the content of the respondent’s resignation letter, and the evidence of the appellant’s lay witnesses.
It is not apparent from the decision as to what steps the Arbitrator took to arrive at his ultimate conclusion that the respondent was injured as alleged.
I might also add that the Arbitrator’s acceptance that the respondent had a “real perception … of a hostile work environment,”[77] such that the respondent was injured, is not the legal test referred to in Attorney General v K. The test is, as described by Basten JA in State Transit Authority of New South Wales v Fritzi Chemler, whether the worker perceived the workplace as creating an offensive or hostile working environment.[78]
[77] Reasons, [108].
[78] [2007] NSWCA 249; 5 DDCR 286, [69].
It is clear that the Arbitrator’s process of fact finding miscarried. I am satisfied that ground one of the appeal is successful and that is sufficient to dispose of the appeal. In the circumstances it is not necessary, nor is it appropriate, to determine the remaining grounds of appeal or to re-determine the matter on appeal.
The Arbitrator’s Certificate of Determination dated 31 January 2019 is revoked. The matter is to be remitted for re-determination of all issues to another Arbitrator.
DECISION
The Arbitrator’s Certificate of Determination dated 31 January 2019 is revoked.
The matter is remitted for re-determination of all issues by another Arbitrator.
Elizabeth Wood
DEPUTY PRESIDENT
29 July 2019
11
0