Goodwin v Bunnings Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Goodwin v Bunnings Group Ltd [2024] NSWPIC 603
APPLICANT:	Roslyn Patricia Goodwin
RESPONDENT:	Bunnings Group Limited
MEMBER:	Kathryn Camp
DATE OF DECISION:	28 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; section 11A(1); whether the applicant’s accepted psychological injury was wholly or predominantly caused by reasonable action with respect to transfer; claim for weekly compensation and medical expenses payable; assessment of the reliability of evidence; consideration and application of Manly Pacific International Hotel Pty Ltd v Doyle; Held – the applicant’s injury is not wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer; the applicant has an entitlement to weekly payments of compensation and reasonably necessary medical treatment and expenses pursuant to sections 37 and 60.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant weekly compensation for the period 22 February 2024 to date and ongoing, based on a pre-injury average weekly earnings figure of $1,161.60. The parties are to lodge consent orders within seven days of the date of this decision with respect to the quantification of the applicant’s entitlement to weekly payments, in accordance with this decision. 3. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses on production of accounts, receipts and/or Medicare Notice of Charge, pursuant to s 60 of the Workers Compensation Act 1987. 4. Liberty to apply in respect of the quantum of weekly payments in order [2].

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a claim for weekly payments of compensation and medical expenses in respect of an accepted psychological injury. In particular, it concerns whether the psychological injury was wholly or predominately caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer under s 11A of the Workers Compensation Act 1987 (1987 Act)
For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

From 2006, the applicant worker, Roslyn Patricia Goodwin, commenced employment with the respondent, Bunnings Group Limited. She commenced work as a register operator and door greeter, then a Community Involvement and Activities Organiser within 18 months, then a Receptionist and Administration Assistant from 2014.
On 28 August 2023, the applicant made a claim for permanent impairment compensation in respect of a psychological injury. The applicant was paid compensation in respect of this injury.
On 22 February 2024, the respondent insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining the applicant’s claim for compensation on the basis of a defence under s 11A of the 1987 Act.
On 19 June 2024, the respondent insurer issued a notice pursuant to ss 287A and 78 of the 1998 Act confirming the declinature of the applicant’s claim.
On 9 July 2024, the applicant lodged an Application to Resolve a Dispute (Application) in respect of a claim for lump sum compensation where liability was in dispute.
On 30 July 2024, the respondent lodged a Reply.
On 27 August 2024, the respondent lodged an Application to Admit Late Documents (AALD).
On 5 September 2024, the applicant lodged an AALD.

ISSUE FOR DETERMINATION

The parties agree that the only issue for determination is:
(a) whether the respondent has a defence under s 11A of the 1987 Act, in respect of the action of “transfer”.
The following matters are not in dispute:
(a) the applicant sustained a primary psychological injury on 28 August 2023;
(b) the applicant’s pre-injury average weekly earnings (PIAWE) were $1,161.60 as indexed;
(c) the applicant has no capacity for work and has an entitlement to weekly payments of compensation for the period claimed, where the respondent’s defence under s 11A of the 1987 Act fails, and
(d) the applicant has an entitlement to the claimed medical expenses, if the respondent’s defence under s 11A of the 1987 Act fails.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 6 August 2024, the parties attended a preliminary conference.
On 15 September 2024, the parties attended a conciliation conference and arbitration hearing. Mr Ty Hickey, of counsel, appeared for the applicant. Dr Ada Lim, of counsel, appeared for the respondent.
During the conciliation phase, by consent, the following AALD and attachments lodged by the parties were admitted into the proceedings:
(a) AALD lodged the respondent on 27 August 2024 (excluding the document on page one of the AALD titled “Statement of Issues”), and
(b) AALD lodged by the applicant on 5 September 2024.
Following a period of conciliation and part-hearing, it was apparent that due to time constraints the respondent would not be able to provide oral submissions in reply. Accordingly, I issued a Direction, by consent, for the respondent to lodge and serve written submissions in reply to the applicant’s oral submissions by 19 September 2024.
On 19 September 2024, the respondent lodged and served written submissions in reply.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application, dated 9 July 2024, and attached documents;
(b)    Reply to the Application, dated 30 July 2024, and attached documents;
(c)    Direction, dated 6 August 2024;
(d)    AALD, lodged by the respondent, dated 27 August 2024, and attachments (excluding the document on page one of the AALD titled “Statement of Issues”);
(e)    AALD, lodged by the applicant, dated 5 September 2024, and attachments;
(f)    Direction, dated 12 September 2024, and
(g)    respondent’s written submissions dated 19 September 2024.

Application

The Application provides a description of the psychological injury deemed to have occurred on 28 August 2023. That description is as follows:
“As a result of the Applicant being moved from her long standing role as a receptionist and administration assistant to different positions without any reasonable notice or consultation with her or her Union and on the false premise that her old position no longer existed, being verbally abused and what she perceived was being treated unfairly and unreasonably by her managers, then having her rostered hours changed without any reasonable notice or consultation and being isolated and marginalized in her new positions, she suffered a primary psychological injury.”

Lay evidence

Applicant’s statements

In evidence are two statements made by the applicant, dated 5 July 2024 and 2 September 2024.
In the statement of 5 July 2024, the applicant refers to her work history and specific incidents in her workplace with the respondent. Several parts of the applicant’s statement are in direct quotes when referring to past conversations. However, she states that “[w]here I refer to the conversations in this statement, I refer to words to the effect used in those conversations as best as I can recall”.
The applicant states that she commenced working at the respondent on 9 January 2006 until 21 February 2024. After 18 months she started in the role of Community Involvement and Activities Organiser (Grade 3). In 2014 she started a full time role of receptionist and administration assistant. She describes her duties to include answering and transferring phone calls, dealing with enquiries at reception, banking and trade administration duties, Bsafe (work health and safety) administration. Her usual work hours were 8.00am until 4.00pm, five days per week, Monday to Friday.
The applicant describes that in late 2022 Craig Tapping, the respondent’s stores operation manager, said she needed to train Cindy Blanch in the reception and administration role so someone else knows the role when she goes on holidays. The applicant states that she did not have any “significant holidays planned” but started training Ms Blanch.
The applicant states that on or about 7 February 2023, Mr Tapping approached her and Ms Blanch to go to the manager’s office. They walked into the office and Mr Tapping said that there were some changes and that the applicant would be “doing the activities role on a temporary basis until we get a new team member for this role” and Ms Blanch would be “doing the reception safety role”. The applicant said she did not want to do this and did not want the role. Mr Tapping said that this “is what is happening there is no discussion. Cindy, you will have to move into the reception office”. The applicant states that she had not been given any prior notice nor had there been any consultation with her or her union regarding the significant change in her role which she had undertaken for the past nine years. She states that she was “quite shocked and taken aback by what Craig said” and “found it extremely stressful”. She adds that Mr Tapping was not interested in anything she wanted to say at the time and the decision had “already been made without any input from me or my union.”
The applicant states that she started in the activities and community involvement organiser role, and she found it very stressful. However, she still had to “man the reception desk of a morning until Cindy came in around 9 am or if she was on leave or on a break.”
The applicant also states that on 14 March 2023, Mr Tapping said to her and Ms Blanch “[y]ou two in here”. They went into an office where Mr Tapping then stated that she would be “doing the activities role, banking and invoice payments”. The applicant said that she did not want to do the activities role and Mr Tapping said that “it isn’t up for discussion, it is happening, I want you to swap places with Cindy as she is now in the receptionist and safety role”. The applicant states that she was again surprised and taken aback by this as she had training in the safety role but Ms Blanch did not at that stage.
The applicant states that she felt “completely powerless to challenge” what Mr Tapping said and felt that the way the decision was made was not in accordance with the respondent’s Enterprise Agreement obligations. There was no consultation. She said she felt “really isolated” and targeted. She did not know what she had done wrong and was worried about her future with the respondent.
The applicant states that Ms Blanch started to involve herself in her tasks, such as banking and activities. She spoke to Mr Tapping about this on 12 April 2023. She felt that Ms Blanch was undermining her and checking on her job.
The applicant had her annual appraisal with Mr Tapping on 8 June 2023. She felt blindsided by what Mr Tapping raised regarding her performance, for example, that she was too loud and taking too much time on the phone and spending too much time on the floor. She disagreed with the issues raised but felt powerless to challenge what was said given she had been ignored when her role was changed. Mr Tapping also said that the applicant’s role needed to be defined in two weeks and the roster would be changed. He did not provide any further details and she felt ambushed.
The applicant asked Ms Blanch about her appraisal and she said replied “[g]reat I nailed it”. The applicant told Ms Blanch what had happened and she replied that “if you need to leave don’t stay for me”. She felt very anxious and did not understand why she was being targeted.
On 9 June 2023, the applicant spoke to Mr Tapping about what had been happening at work. She asked if she had done something wrong with her work and Mr Tapping replied that the “admin position doesn’t exist anymore. The company is changing and the role has been taken away”. However, Ms Blanch was doing the job and after further enquiry Mr Tapping said that “Steph wants Cindy”. She felt very hurt and disheartened.
The applicant stated that she was previously the chairperson and secretary (at various times over many years) of the BSafe committee. However, on 15 June 2023, she went to attend the BSafe meeting and Ms Blanch said that she did not need to attend as they needed someone in reception. The applicant was taken aback as she was the secretary and took the minutes of the meeting. Ms Blanch returned after the meeting and told the applicant that she was no longer required to attend the safety meetings or be on the committee. The applicant later became aware that Ms Blanch had been elected as secretary at the meeting and she was not notified that this was going to be decided. There was no explanation as to why this occurred. She felt targeted and removed from roles she had been in for a long time without explanation or justification.
The applicant spoke to Mr Tapping about her concerns. He advised the applicant that she can “still do hazard reports when needed around the store.” But that she did not “need to be on the committee to do this.”
On 29 June 2023, the applicant states that she was directed to help another colleague undertake Ms Blanch’s role while she was on leave. Later that morning, the applicant had a further conversation with Mr Tapping about why she is the “last to know anything” and that she felt that every time she turned around someone was else was doing her job. Mr Tapping said this was to help her with the activities role and make things less stressful. She said she did not want the role but Mr Tapping said that she was the most experienced in the role and that it was best for the business. Following this, the applicant continued to work in the activities role which continued to be very stressful.
On 3 August 2023, a person was offered the administration and price integrity role. The applicant asked Ms Blanch why this person was not offered the activities role, because she wanted her old job back. Ms Blanch responded that you can either do the price integrity or community or the door and that they were advertising for the administration role.
On 24 August 2023, the applicant attended a medical appointment and while sitting in reception she checked the new roster notification. Her roster had changed from 8.00am – 4.00pm to 10.00am – 6.00pm, without consultation and agreement. She was angry and felt that she no longer mattered.
The applicant states that she went to work the next day, but Mr Tapping was on leave. The following Monday, she went to speak to Mr Tapping but he was not there. She asked Ms Blanch the following Monday when the rosters had changed. Ms Blanch said that she (the applicant) would need to speak with Mr Tapping. The applicant was very upset and overwhelmed, she began to cry. She said to Ms Blanch that she was leaving and went home. When she got to the car park Mr Tapping was at her car and he told her that he was “really sorry, I fucked up, I changed the rosters without telling you.” He said it had been changed three weeks ago but he had forgot to talk to her about it. She then left to go home.
The applicant then attended on her general practitioner and took leave from work. She continued to feel extremely anxious and depressed. She felt helpless. She attended on the local hospital on 2 September 2023 experiencing chest and left arm pain.
On 7 September 2023, the applicant talked to Mr Tapping about returning to work on 11 September 2023. Mr Tapping said that the activities role is no longer available and that she would be doing banking but only the paperwork, price integrity and auditing, and door greeter. Mr Tapping asked her when she was leaving, and she said that she was not leaving. She was “freaked out” by what Mr Tapping said and she had an anxiety attack.
On 9 September 2023, the applicant returned to work. Mr Tapping told her that she was to “do the file for banking and sort the paperwork”, print promotion tickets and put them up in the store, price integrity work, and door greeter for breaks. She felt bullied and targeted. She felt she was being forced out of the administration team.
The applicant states she could not cope any longer. She had a further period of leave, after she saw her general practitioner on 14 September 2023.
The applicant states that she returned to work on 2 October 2023. Mr Tapping said to her that the company is changing and the reception role no longer exists. They discussed the events that took place and Mr Tapping said if her attitude does not change she will be “brought up to the office and be spoken to and it won’t be a good outcome”. The applicant was extremely paranoid and anxious. That night she had a severe panic attack.
On 20 September 2023, she attended the emergency department at her local hospital.
The applicant states that on her return to work she was put on aisle work. She felt depressed and extremely sad and unsupported.
On 29 September 2023, she attended a further meeting with Mr Tapping and Ms McLennan, together with her daughter as support person. There was a discussion about the incidents but no real answers provided.
The applicant attempted to return to work but had a period of leave. She later returned to work at a reduced capacity.
In her supplementary statement, dated 2 September 2024, the applicant responds to the respondent’s lay witness secondary statements.
The applicant states she disagrees that she was not coping in her job or making a number of mistakes. That the alleged mistakes were never raised by Mr Tapping or Ms McLennan as part of any performance review. The one mistake or error that has been identified, regarding a double booking of the BBQ was not an error. Two rotary clubs sought to book in the BBQ. The first club never provided the required paperwork which was emailed and this was despite follow-up emails. As a result, the BBQ date was given to the other club which provided all the required paperwork. The other club accepted its error and was given another BBQ date, which went ahead.
The applicant states that she was voted out of the Bsafe secretary role in or about May 2023.
The applicant also states that Mr Tapping asked her to train Ms Blanch in reception and administration, as she had never done that role before.

Craig Tapping

In evidence are two statements from Mr Tapping, dated 21 November 2023 and 24 August 2024. In the first statement, he refers to specific conversations he had with the applicant.
In respect of the change of roster hours, Mr Tapping states:
(a)    he had a conversation with the applicant about change of hours and change of rostered days, in the weeks before “UKG starting”;
(b)    on or about 31 July (presumably 2023), he spoke to the applicant and Ms Blanch about changing their rosters to cover seven days of trade from 7.00am to 6.00pm. He states that they both said this was fine and neither had a preference;
(c)    on or about 14 August (presumably 2023), he spoke to the applicant and Ms Blanch again that they would not need to work on Saturday or Sunday and whether either of them would prefer early or late shift during the week. They did not have a preference. He said that the change would be in the next few weeks.
In respect of the change in role without discussion, Mr Tapping states:
(a) the applicant and Ms Blanch shared the “Admin/Community roles after the activities organiser left the business in September 2022 to end of December 2022” and in January 2023 the roles were split. The applicant was focused on community and Ms Blanch on administration, until the applicant said she did not want to do community any more around 24 October (presumably 2023), and
(b) that there were weekly meeting between September 2022 to October 2023 with the applicant to “go over events and other tasks related to admin or community as well regular planning meeting…and regular catchups with the complex manager.”

In respect of issues raised by team members, Mr Tapping states that he had a “care conversation” with the applicant on 16 October 2023. He states that they discussed what roster would suit the applicant moving forward and that she wanted to work 6.00am to 2.00pm, but he said she could not do that as she did not want to work in the community role anymore and wanted to stay in the admin area of the business. He added that he could move some price integrity functions to the applicant but there was not eight hours of work and that he would need to come back to her with a daily plan that they could work on.
In his supplementary statement, Mr Tapping states that Ms Blanch was transferred from a role on the warehouse floor to the position of administrative supervisor. He adds that he asked the applicant to “acquaint [Ms Blanch] with aspects of [her] role with which [Ms Blanch] might be less familiar”. Mr Tapping said he did “not believe that” he would have asked the applicant to train Ms Blanch in reception and administration as she had completed online training.
Mr Tapping said that the applicant was experiencing personal issues and made a number of mistakes, including double booking barbeque activities and making mistakes in relation to insurances. He states that rather than “discipline” the applicant in relation to those errors he thought that a better opportunity would be to give her ownership of the community activities. He thought that this would mean mistakes were less likely and the applicant was well suited to this role as she knew a great deal about it. He adds that the applicant did not say that she did not want to do this role and refutes that he said that this was not up for discussion.
Mr Tapping said that the applicant was “fixated on the idea that the role of reception was hers, and hers alone.” The problem was that the role had evolved and it was not necessary to have a full time receptionist. He denies that he said Ms McLennan wanted Ms Blanch in the role.
Mr Tapping also states that there was a discussion about the change in rostered hours and that it took place on several occasions. On each occasion the applicant and Ms Blanch said they were able to work either the earlier shift or later shift, and neither expressed a clear preference. He denies stating in the car park that he had “fucked up” in relation to the change in rosters.

Cindy Blanch

In evidence are two statements from Ms Blanch, dated 21 November 2023 and 27 August 2024. In the first statement, Ms Blanch records the events of 28 August 2023. Ms Blanch said the applicant entered the office and enquired about her roster change. Ms Blanch said the applicant said “[s]o when were you going to talk to me about my roster change?” and she replied that she had nothing to do with it and that she needed to see a “Leader”. The applicant said “what a load of rubbish, you are playing games” and walked out of the office.
Ms Blanch said she could hardly get a word in once the applicant had raised her voice.
Ms Blanch said that her roster had been changed. She states that these changes had been previously discussed with the Operations Manager, the applicant and her “a few times with no defiant [sic] date”. She added that “we both agreed that we would work as/when needed as we always have had a flexible roster”.
In her supplementary statement, Ms Blanch states that on her return from leave in February 2023 there was a “decision made in relation to the division of labour”. Ms Blanch states that it was appropriate that the applicant was asked to perform the communities activities duties, as she (Ms Blanch) had never done this before. She states that the division of labour occurred in February and there might have been a “later meeting to clarify” this but that she could not recall. She adds that the applicant was not happy in the activities role but did not say so in the meeting “whenever that meeting or those meetings took place”.
Ms Blanch denies that she said that she “nailed” her performance review.
Ms Blanch said the applicant said she was not happy and was looking for another job. In the context of that conversation, Ms Blanch said “don’t stay for me”.
Ms Blanch confirms that she asked the applicant to stay on reception when the BSafe committee meeting was being held, because no one else was available. However, she denies stating that the applicant was no longer required or was no longer to be on the BSafe committee. She also notes that the applicant attended a BSafe meeting in July as secretary.
Ms Blanch also confirms that she gave the applicant the choice of price integrity or community or the door, as her previous role did not exist.
Ms Blanch states that the applicant had double-booked BBQs and made “lots of different mistakes” which she understood was due to stressors in her personal life.

Stephanie McLennan

In evidence are two statements from Stephanie McLennan, dated 14 February 2024 and 27 August 2024. In the first statement, Ms McLennan states that the Activity Organiser left the business in September 2022 and it was decided that Ms Blanch and the applicant would share those responsibilities.
In January 2023, it was realised that two members sharing the community role was not working as well as they had hoped. Ms McLennan states that in early February 2023, there was a meeting with her, Mr Tapping, Ms Blanch and the applicant to discuss the break-up of Bsafe, admin and community roles. The consensus was that because the applicant had previous experience she would be the preferred choice to take the community role. The applicant agreed and was happy to take this role, until we were able to recruit for a new member.
Ms McLennan states, from memory, there were at least three meetings involving the applicant discussing rosters, expectation of the activity organiser role, and additional tasks she would own in the admin space. The activities role would only need 25-30 hours per week.
On 23 August 2023, the applicant travelled with Ms McLennan on a work trip. During that trip there was no indication that she did not want to undertake the activities role, but that “[i]n fact it was the opposite”.
On 28 August 2023, “roster changes kicked in with the UKG roster patterns”. Ms McLennan states that these roster patterns had already been discussed with the applicant and “she knew that we had to get a roster pattern into the new system”. She added that “we had planned to sit down with [the applicant] on Monday to discuss what her role looked like moving forward but we did not get the chance to do this as [the applicant] came in at 10 am (as per her roster) and then abruptly left”.
Ms McLennan states that when “we got the chance to sit down with [the applicant] to discuss how we could help her, she told us that she wanted to keep starting early in the morning 6.30 am, Monday to Friday”. Ms McLennan explained that the “receptionist hours had been moved to the floor” and there was business decision to put additional hours into other areas of work and the balance of the applicant’s full time hours were to help the front end support team.
Ms McLennan also states that the applicant is still part of the “SIT Team” and that her photo is still up on the “SIT board”. She adds that the applicant had not attended a “SIT meeting” for some time, and the meetings are usually on a Thursday which is when the applicant is on “W/C leave”. The meetings have been on a Thursday since October 2022.
In her supplementary statement, Ms McLennan states that it was apparent that the applicant was not coping with the administrative role and was making “a great number of mistakes” which she understood was due to “various personal difficulties” that the applicant was experiencing. She adds that the “proposal to reduce the amount of things that [the applicant] was doing was to prevent her making so many mistakes, but was also for her benefit.” She further adds that they were conscious of trying to take stress away from the applicant and make her job easier.
Ms McLennan states that it became apparent that the applicant only wanted to be on reception and answer the phone. However, due to developments in the business and technology there was no longer a full time role that could be limited to reception. She further states that it was necessary for the applicant to perform “other tasks and, in the short term at least, this involved performing the community activities”.
Ms McLennan concludes that everything that was done was “to try and make arrangements for the [applicant] so that she was happy coming to work and not making mistakes that could affect the business”.

File note summary

In evidence is a file note summary prepared by Sean Houston, of the respondent, on 28 August 2023. In that file note summary, Mr Houston records a history of complaints and events consistent with the applicant’s statement evidence. He records that the applicant said that “[e]verything just being stripped away without any conversations as to why”.

Evidence from treating practitioners

In evidence are several documents from various treating practitioners, including Dr Priyanka Wijayalath, general practitioner, Dr Sally Partington, general practitioner, and clinical notes from Fiona Shvemer, treating health psychologist.
The applicant’s general practitioners certified the applicant to have some capacity for work between seven to eight hours per day three days per week, from 22 February 2024 until 19 March 2024. However, from 22 March 2024 the applicant is certified with no current capacity for any work.
In Ms Shvemer’s report, of 15 May 2024, she records that the applicant was referred to her in late November 2023. In that report, Ms Shvemer records a series of events as causative of the applicant’s injury, including events from 2022, the change in work duties without notice, removal from the safety committee, and change in usual hours of work without notice. She records that the change in work hours was the “final precipitating event” to the applicant leaving work upset and attending her general practitioner for review.

Evidence from independent medical experts

Dr David Kumagaya

In evidence is a report from Dr David Kumagaya, psychiatrist qualified by the respondent, dated 18 January 2024. In that report Dr Kumagaya provides a history which is consistent with the applicant’s statement evidence. He diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, as a result of her workplace stressors while employed by the respondent.
Dr Kumagaya found that the specific causative work-related events that contributed to the applicant’s psychiatric injury are:
(a)    “Abrupt change in Ms Goodwin’s work role during January 2023 without forewarning or prior discussion. When Ms Goodwin expressed concerns in relation to a transition to her new work role, she recalled being told that the work role changes were not up for discussion.”
(b)    “Ms Goodwin’s reallocation to her new work role during February 2023, despite her objections towards such.”
(c)    “Being advised that new work role would be a temporary secondment, although Ms Goodwin was required to continue to work in this role up until her subject workplace injury, with no indication from her employer that she would be shifted back to her old role.”
(d)    “The relinquishing of Ms Goodwin’s work duties as part of the “safety committee” without forewarning or discussion.”
(e)    “Unannounced change in Ms Goodwin’s work hours on 28 August 2023.”
Dr Kumagaya added that the psychological injury was caused by the accumulation of work-related events and a general pattern of “imposed changes to her work role, duties, and roster, without forewarning or discussion”. He further added that the applicant’s employment with the respondent was the main contributing factor to her injury. He finds that the applicant’s psychological injury was not wholly or predominately caused by the actions taken or proposed to be taken on behalf of the respondent on 28 August 2023. While the events of 28 August 2023 contributed to the applicant’s injury, they were not the whole or predominant cause.
Dr Kumagaya said that the applicant was currently working and likely had capacity for her pre-injury duties, although this was best explored in a setting distinct from her pre-injury workplace. He said that the applicant has capacity “towards working at her pre-injury duties for three days per week seven hours per day, with the view towards increasing her work hours thereafter in a graded fashion.”
Dr Kumagaya recommended that the applicant continue to have access to counselling and therapy, together with psychotropic medication for a further three months.

Dr Ashwinder Anand

In evidence is a report of Dr Ashwinder Anand, neuropsychiatrist, dated 5 June 2024. In that report Dr Anand records a history of the workplace stressors, consistent with the applicant’s statement evidence.
Dr Anand refers to the report and findings of Dr Kumagaya, dated 18 January 2024. He said that he “agreed with these findings and his conclusion, as these are in line with my own”. He then reproduced the five causative factors from Dr Kumagaya’s report. Consistent with those findings Dr Anand also states that the applicant’s problems began when she was abruptly resigned to a role she did not want, and later when she was removed from her role as secretary of the safety committee without explanation, and told her role of receptionist and administration no longer existed. He records that the applicant’s roles were “gradually stripped away” leading to her feelings of isolation and marginalisation. She felt betrayed by colleagues and distressed by the sudden change in work schedule without notice.
Dr Anand diagnoses the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Anand said that the applicant’s symptoms occurred prior to the actions taken by the respondent on 28 August 2023, with unannounced imposed changes in her work role and duties without forewarning or discussion. He added that while the events of 28 August 2023 contributed to the applicant’s injury they were not the whole or predominate cause.
Dr Anand said that the applicant had “nil capacity” for work. He also said that she would need ongoing treatment, including therapy and medication.

Respondent workplace agreements

In evidence are the respondent’s Bunnings Warehouse/Small Format Stores Agreement 2013 and the Bunnings Retails Enterprise Agreement 2023. Those agreements have been considered and will only be referred to where relevant.

SUBMISSIONS

The parties provided oral submissions, and the respondent provided written submissions in reply. I have reproduced a significant portion of those submissions, adopting the language of counsel, to provide greater clarity to the issues in dispute in the proceedings and the arguments made.
A significant portion of the respondent’s submissions turned on the five factors which Dr Kumagaya recorded as the specific causative work-related events that contributed to the applicant’s psychological injury. Those five specific factors are:
(a)    “Abrupt change in Ms Goodwin’s work role during January 2023 without forewarning or prior discussion. When Ms Goodwin expressed concerns in relation to a transition to her new work role, she recalled being told that the work role changes were not up for discussion.”
(b)    “Ms Goodwin’s reallocation to her new work role during February 2023, despite her objections towards such.”
(c)    “Being advised that new work role would be a temporary secondment, although Ms Goodwin was required to continue to work in this role up until her subject workplace injury, with no indication from her employer that she would be shifted back to her old role.”
(d)    “The relinquishing of Ms Goodwin’s work duties as part of the “safety committee” without forewarning or discussion.”
(e)    “Unannounced change in Ms Goodwin’s work hours on 28 August 2023.”

Respondent’s submissions

The respondent commenced submissions seeking to raise the reliability of the applicant, specifically with respect to the applicant’s statement evidence in relation to recalling specific conversations in direct speech.
The respondent then raises dispute as to the occurrence of specific events. The respondent refers to the relevant statement evidence and the 2013 enterprise bargaining agreement.
Following a request to clearly articulate the factual basis on which it intends to rely on transfer in support of the s 11A defence, the respondent submits that the action items relied on are:
(a) the “reallocation towards the activity officer role in February 2023 and this is the first action of transfer”, and
(b) the second item of transfer is the allocation to shift hours of 10.00am to 6.00pm.
The following exchange then took place:
“20:56 Member: Ok, and that is the only two factual bases that the respondent seeks to rely on for the action item of transfer?
21:11 Ms Lim: Yes, yes, member.
21:13 Member: Thank you.”
The respondent then refers to the evidence of Dr Kumagaya, where five factors are listed for causation. The respondent then submits that the defence is “with respect to those of the five items which are proven, we say that certain of these are factually not proven.” The respondent further submits that the relinquishing of the applicant’s work duties as part of the safety committee without forewarning or discussion is not proven. The respondent submits that the facts the respondent admits did occur are the predominant cause of injury.
The respondent further submits that if the applicant was not taken off the safety committee “then the facts which are proved to the extent that those five things caused [the applicant’s] injury, are the predominant causes or the whole causes”. Then there is a question of weight to which items are predominant if some are proven and some are not. The things which did happen – the applicant was transferred. There is a dispute as to whether it was abrupt or not and whether she was advised that it was a secondment or not.
The respondent submits that of the five factors the first three relate to transfer. However, the predominate cause is factors two and five of Dr Kumagaya’s report; the reallocation to a new work role despite objections and unannounced change in work hours. The respondent submits that the change in work hours was not unannounced.
The respondent then submits that the factual dispute primarily relates to whether the applicant’s work duties were relinquished without forewarning or discussion. If the work duties were not relinquished they cannot subtract from the whole of the causative factors to stop the proven factors from being predominate. The “dominant” factors are the reallocation. Factor one and three is about the way in which the reallocation was communicated. The respondent submits that factor “four did not occur and we say that dot point five the unannounced did not occur. And that the change in work hours was a transfer.” These proven factors were the predominate factors and were reasonable in the circumstances.
The respondent refers to Ms McLennan’s statement evidence and submits that the decision is made in January 2023 that only one member is to be in the community role/activities officer role but there is no decision as to who goes into the community officer role. On 7 February 2023, according to the applicant, there is a meeting to discuss the responsibility breakup of Bsafe safety committee, admin and community roles. Ms McLennan states that there was a consensus decision that the applicant take the community role. The applicant sates that she did not want the role but states there was no discussion. The reasonable action was that the applicant, who had eight years’ experience in the role is a better candidate to fulfil the role than Ms Blanch who had been on the floor and previously only had minimal experience in the role. It would be a demotion for Ms Blanch to do the activities officer role, demotion from a Grade 4 to Grade 3 role for the 25-30 hours of week needed for the activities officer role. The factual dispute is whether the work role changes were up for discussion or not. The actual transfer decision was reasonable.

The communication of that transfer was reasonable. The respondent refers to the applicant’s statement evidence where she states she could not believe how she was being treated and felt bullied and targeted. The respondent submits that this is the lens through which the applicant’s reallocation at the 7 February 2023 meeting should be construed. It is not a reflection of what actually happened at the meeting which was reasonable conduct with respect to transfer. The respondent refers to Ms McLennan and Ms Tapping’s evidence and submits that there is no suggestion that the change in role was abrupt without forewarning or prior discussion.
The respondent submits that it “does not cavil” with the facts which suggest that the new work role would be “a temporary secondment” until someone is potentially hired to fulfil that role. However, what the applicant seems upset about is not going back to her old role and to the extent that Ms Blanch takes over the Grade 3 aspects of the role in fulfilling her Grade 4 duties. There is a question about whether or not there was a Grade 3 role for the applicant to return to.
The respondent contends that there are two components of the s 11A defence, the action being reasonable and the communication being reasonable. The factual determination is how it was communicated. The respondent submits that the applicant’s perceptions of the event are solely in retrospect,
“…they are viewed through her anger, they’re view through her paranoia and to the extent that an account has to be given as to the manner in which the meeting occurred and was communicated to her, the Commission should prefer the account of Ms Tapping who says that Roz seemed happy…”
and there was nothing to suggest there was any outward expression of distress at the time.
The respondent submits that the causative work related events which contributed to the applicant’s psychiatric injury were being transferred to the activities officer role that she did not enjoy. The applicant was transferred into the new work role because that was the operational needs of the business. They needed someone less than full time on reception and on the phones and as an admin assistant. There was no abrupt change without forewarning or prior discussion and the applicant was not told that the work role changes were not up for discussion or that she was “not told that it was merely a temporary secondment”. The “dominant” causative factor was that the applicant was put into a job that she did not enjoy and having the portions of her role that she may have preferred to do be reallocated to Ms Blanch, and that that decision in the context of the business was reasonable.
The respondent submits that Ms Blanch and Ms McLennan’s evidence should be preferred to the applicant’s perception as to whether or not she was removed from the safety committee. The respondent submits that this perception comes from the “paranoid lens” that she was being marginalised. The respondent submits that the applicant was not removed from the safety committee and this cannot be “a contributing cause to her adjustment disorder.”
The respondent refers to the Enterprise Bargaining Agreement (EBA) which was to come into effect after 1 September 2023. The respondent notes that “UKG started on 28 August”. The respondent then refers to the evidence of Mr Tapping. The respondent submits that it is not clear from the evidence whether or not the “UKG rostering pattern” involved a different way that rosters were communicated to employees. The applicant states that she saw the new roster on 24 August for the first time. The respondent then refers to the applicable enterprise bargaining agreement that the obligations there are of 14 day period of notice, as far as possible, set by mutual agreement between the respondent and team members. Mr Tapping states that from 31 July, four weeks in advance, he discussed the preference of an early or late shift and that they did not have a preference, and that they would see the change in the next few weeks. The respondent submits that there should be an inference drawn that there was consultation, that there was mutual agreement.
The respondent adds that it is not clear whether the applicant did not see the roster changes until 24 August as opposed to the roster changes not having been made. The respondent then submits that:
“…to the extent that the roster changes are a transfer they say that they were discussed, they were announced in accordance [sic] the presumption must be member that a company such as Bunnings will have a system for notifying its employees of rosters in accordance with the award.”
No inference can be drawn that the change in roster can be unannounced and Mr Tapping’s evidence that the discussions about roster change is unchallenged. That is clearly reasonable action. That it “may have been perceived” as unannounced change is not founded. The respondent contends that “to the extent that the causative factor is the change rather than the lack of announcement then it is reasonable.”
The respondent submits in summary:
“Of the five factors that Dr Kumagaya identifies the two that we say are proven are [the applicant’s] move to the [sic] communities activities role and the change in [the applicant’s work hours. Those are proven from the objective evidence. What is not proven is being told that the work changes were not up for discussion, being taken off the safety committee, [the applicant’s] change in working being abrupt or being told that it was merely a temporary secondment and that she would be shifted back to her old role…
The predominant cause of [the applicant’s] adjustment disorder is being changed in her work role on different hours and as such s 11A should apply.”

Applicant’s submissions

In response to the respondent’s submission about the applicant’s reliability, the applicant submits that in her statement evidence she says “where I refer to conversations in this statement, I refer to words the effect used in those conversations as best I can recall.”
The applicant submits that injury is admitted on the basis of medical evidence. The medical evidence sets out the basis on which there is an injury. The dispute is whether the underling facts relied on by the doctors in determining injury, which is accepted are within the provisions of s 11A in respect of transfer. The respondent’s submission that there are facts on which injury is accepted which is not proven, undermines the opinion as to injury which has been admitted. The respondent may only run a defence on the basis that the facts giving rise to the psychological injury, as admitted, are all within transfer and those actions taken were reasonable.
The respondent is entitled to raise a s 11A defence and is entitled to have a factual dispute about what occurred around those events. However, it is not entitled to then take a further step and say that the medical opinions should be dismissed because there is a factual dispute about the existence of certain events. To the extent the submission is made that the specific findings of the doctors cannot be accepted in terms of how it results in injury, cannot occur.
The respondent’s onus is to establish that s 11A applies in the circumstances of this case and that the whole or predominant cause of the injury was transfer, and as it is being put by the respondent the predominant cause was the “transfer to the activities position”. In terms of the hours, the respondent submits that the extent that is there that is not the dominant cause. However, the applicant submits, a change in hours is not transfer.
The starting point is that there is an accepted psychological injury. The respondent’s submissions to perception is not relevant in accordance with Attorney General’s Department v K.[1] Secondly, the extent that the submission is made that there is some medical basis that should question the veracity of the applicant’s evidence by reason of the subsequent psychiatric diagnosis that is not made good on the evidence. That’s a medical issue and there is no evidence in support.
[1] [2010] NSWWCCPD 76.
The applicant has given consistent evidence to treating doctors and what she told the respondent when she first reported the incident. The applicant refers to her statement evidence, about her work history. The applicant was given a full time position as receptionist and administrative assistant in about 2014. That was the position she was in when the issues in the workplace arose. She worked in that role for nine years until January 2023, working 8.00am to 4.00pm, four to five days per week. Mr Tapping asked the applicant to train Ms Blanch in the role of receptionist for when she goes on holidays. The applicant thought this was odd as she did not have any holidays planned. She trains Ms Blanch. This is not disputed.
The applicant asserts that on 7 February 2023 she was approached by Mr Tapping about the changes in work roles. There is a factual dispute about the content of the conversation.
The applicant asserts that this meeting occurred without any notice and she was told there was going to be a complete change in her work role from what she had been doing for the last nine years.
There is a further meeting on 14 March 2023, which confirms the full time changes and a further change to the applicant’s role. The applicant will be doing the activities, banking and invoice payments and Ms Blanch would be doing the reception and safety role. The applicant did not want to do this and felt that there was no discussion about how it was to be implemented. The “EBA” confirms consultation requirements cl 41.2 and cl 5 were not complied with. There was an EBA from 2014, although altered later, which notes the importance of these types of changes. That there needs to be a notification, consultation, written communication and the respondent has not complied with its own EBA.
The applicant submits that there is no statement evidence from the respondent or contemporaneous meeting notes, document notes, internal memoranda about the applicant or structural changes occurring or that if there was consideration that it was put to the applicant. The applicant refers to the respondent’s statement evidence, which she submits are brief and relatively general in nature, and do not engage with the fact that the applicant was providing training to Ms Blanch in 2022. There is “next to nothing in terms of information” and this is needed to determine reasonableness of the actions being taken. It is not enough to simply put forward some generic statement that makes motherhood statements without any real evidentiary basis or at least discussion about what is happening at a managerial level that explains the steps that had to be taken with respect to the applicant.
The applicant refers to the respondent’s supplementary lay statements, and submits that the issues are focused on performance. Mr Tapping says the applicant was transferred to the administrative role on the warehouse floor as she has all the answers and to acquaint Ms Blanch. He confirms that there was training. He then discusses mistakes the applicant had made regarding double booking barbeque activities and in relation to insurances. He says that rather than discipline the applicant in relation to these errors he thought it was better to give her ownership of the community activities. The transfer was actually disciplinary in nature. Rather than dealing with these issues at any point prior, Mr Tapping says he did not want to discipline her so he thought she could take ownership of the community activities, it had nothing to do with availability of resources or changing the business. It was, according to Mr Tapping, because she was not performing. Rather than disciplining her, he was going to transfer her somewhere else which is “still discipline” just not a nice way of doing it.
The applicant adds that the evidence is so far short of what is needed to establish the respondent’s onus in relation to these events. These events have occurred. That the applicant perceived them in a certain way is her perception. They are real events, factually, they occurred.
The applicant contends that even if it was action with respect to transfer that could not have been reasonable because of the basis of doing so. There are conflicting versions between the respondents’ witnesses as to why it was occurring. Ms McLellan states that the applicant was not coping with the administrative role and making a number of mistakes and had various personal difficulties. There was a proposal to reduce the amount of things the applicant was doing to prevent her from making so many mistakes and for her benefit. The applicant asserts that there is no evidence of the applicant making mistakes, there is nothing.
The applicant adds that it is the respondent’s evidence that she was transferred in February. The respondent submitted that it did not “cavil” with there being a temporary secondment and then latter submissions were made in the opposite.
The applicant asserts that there is a factual background to the transfer of her role over to Ms Blanch. The applicant had been training Ms Blanch the entire time. The respondent says the transfer was structural and reorganisational and that Ms Blanch was better placed in the applicant’s former role.
The applicant takes issue with the communication, the transfer and ongoing presence of the workplace thereafter.
The applicant states that the respondent has made submissions in relation to UKG and a change in rostering and what that means. However, the applicant submits that “we do not know what UKG is”. There is no explanation. The respondent seeks to infer that the roster was available two weeks beforehand because that is what the EBA requires. The applicant submits that the opposite should be inferred because the respondent did not comply previously. In any event, the provision of hours of work is not transfer. The change of hours was a substantial factor in respect of the injury and the respondent’s evidence on wholly or predominantly must fail, relying on Hamad v Q Catering Limited.[2]
[2] [2017] NSWWCCPD 6.
The applicant refers to the decision in Manly Pacific International Hotel v Doyle (Doyle).[3] The applicant submits that transfer encompasses a move from one position to another, whether or not there is any change in location. The applicant adds that in determining whether there has been a transfer a change in the nature and responsibilities of the work performed may be more important than the change in the place of work that it is carried out.
[3] [1999] NSWCA 465; 19 NSWCCR 181.
The applicant submits that it is the nature of the duties, not the hours that she performed. The substance of her role is the same. There is a change in the hours she is required to perform. This is not transfer. The applicant then refers to Wilson v Qantas Airways Limited,[4] which deals with the concept of transfer. That decision, the applicant submits, provides that the response to employment conditions after a transfer does not fall within transfer. There is the transfer itself and then there is what follows.
[4] [2009] NSWWCCPD 121 at [56].
The applicant then refers to the decision in Smith v Roads and Traffic Authority of NSW,[5] where there is discussion regarding transfer and change in days per week. The applicant submits that this decision provides doubt that days per week fall within transfer.
[5] [2008] NSWWCCPPD 130 at [77].
The applicant contends that the transfer in Doyle cannot be extended to include a later change in the hours in which the duties themselves are performed. It is the nature of the responsibilities of the work being performed. That is the issue when it comes to transfer.
The whole and predominate cause is not the original transfer which the respondent seeks to rely on which occurred in February or March. There are a host of factors including the change of hours, the transfer, and her position in the employment post the transfer. On that basis alone the respondent’s case must fail.
The applicant refers to the clinical notes, which she submits are consistent with her statement evidence regarding the range of complaint.
The applicant also refers to the respondent’s submission that the respondent’s witnesses should be preferred because they do not have an interest in the proceedings. The applicant says that they do have an interest as their conduct is at play; it is central to why the applicant suffered her condition and s 11A, and they remain employed by the respondent. That evidence must be tempered against that. There is also concern about what the subsequent statements which raised matters as to conduct and performance and other matters that were not previously discussed and seemingly has to do with the way in which these changes were to be implemented. On the other hand, the applicant submits that her evidence is entirely consistent.
The applicant then refers to Dr Kumagaya’s evidence. The applicant understood that she was to be in a temporary role and she remained in that role until issues arose with the change in hours in August 2023. There is no attempt to explain what was going to occur or how she was going to be changed or what steps were going to be taken to try and facilitate a more permanent role. It is a temporary arrangement that she gets put into the role and stays there. There is no doubt that there is a transfer but thereafter it is something else.
In respect to the respondent’s submission regarding the applicant’s involvement in the safety committee, the applicant submits that there are no documents with respect to her attendance or otherwise. The applicant states that she was voted out of the position and advised that she was no longer needed to attend. Her perception that she was no longer needed to go was that the role was gone. That is not transfer.
There are multiple causative factors at play which transfer is a “minor one”. Events from late 2022 up to 28 August 2023, and thereafter. The change in hours is not transfer.
The applicant then refers to the evidence of Dr Anand, where it is recorded that her roles gradually stripped away leaving her feeling of isolation and marginalisation. There is a long period over which things were taken away, and the applicant begins to feel marginalised and isolated, then given a change in hours. Dr Anand agrees with the Dr Kumagaya. A fair reading tells you the background history obtained is the version of events from 2022.
On the basis of the evidence, transfer is not the whole or predominate cause. A variety of the actions were not reasonable. The respondent has not made out a defence under s 11A.

Respondent’s submissions in reply

The respondent submits that the applicant’s position is that of the five causative factors,
1-3 comprise of a single action with respect to transfer, 4 did not occur and 5 was an action of transfer or “was non-causative (such that (1)-(3)) were wholly or predominately causative of the acknowledged psychological condition.”
The respondent refers to the decision in Department of Education and Training v Sinclair[6] where Spigelman CJ said the formulation in s 11A extends to the entire process involved. While his Honour considered “discipline” it is apt to apply, by analogy, to each of the categories in s 11A(1), as was applied in Canterbury Bankstown Council v Gazi.[7] It should be found that the entire process in 1-3 was transfer.
[6] [2005] NSWCA 465; 4 DDCR 206.
[7] [2019] NSWWCCPD 14.
The respondent asserts that its case is simple: the predominant cause was the transfer, and the entirety of the course of the transfer is to be considered.
The respondent refers to the decision in Knezevic v Precision Valve AustraliaPty Ltd,[8] which was a temporary change in roster (from early to afternoon shift) and role, in support of the applicant’s change in roster falling within “transfer”.
[8] [2021] NSWPIC 405.
The respondent submits that only factors 1-3 are relevant to causation. While events after May 2023 may have been “aggravatory, they are not causative of the injury being the adjustment disorder.” The sole or predominant causative factor was the transfer and the events around the transfer. The nature of the diagnosed psychiatric injury is such that the later events must be intrinsically non causative – the causative events must be strictly limited to a three month period. The respondent relies on the evidence of Ms Shvemer’s report.

With respect to factor 3, the respondent refers to Dr Kumagaya’s report that the applicant was advised her community activities role would only be a temporary secondment although there were no signs thereafter of a shift back to her old role. The applicant does not give evidence about this representation in her statement.
With respect to factor 4, this did not occur. It is analogous to the unsuccessful request to go home in Hamad. In the alternative, it was non causative and even “non-aggravating”. There is no evidence that the applicant’s symptoms became worse after 25 June 2023.
With respect to factor 5, this was non-causative. In the alternative, it should be regarded as a reasonable action with respect to transfer.
The respondent then provides submissions on the applicant’s evidence and reliability, relying on what it submits is well established principles regarding the fallibility of human memory. The respondent refers to the decision in Coote v Kelly.[9]
[9] [2016] NSWSC 14472 at [99].
The respondent contends that the applicant’s assertion that she gave consistent contemporaneous version of events should be rejected. The applicant does not give any contemporaneous recounting of events, prior to 26 August 2023. The medical notes in September and October 2023 record a complaint of bullying and intimidation. It is hardly surprising that post facto accounts are consistent. The applicant’s evidence must be viewed with an eye on hindsight bias.
The respondent asserts that its three witnesses have no financial interest in the outcome of this litigation, as opposed to the applicant. At its highest, their interest is one of defensiveness. The accounts of the respondent’s witnesses should be preferred. There are two components to the transfer action: the act of transfer, and the process of transfer. The act of transfer was reasonable. The applicant criticised those aspects of the evidence which related to purported discipline or mistakes and the lack of formal documentation and detail in the witness statements, but those go to the reasonableness of the transfer of the applicant to the activities coordinator role, rather than transferring Ms Blanch to the role, or continuing to have the role split between the applicant and Ms Blanch. There is no suggestion or submission that any such mistakes warranted performance review or discipline; the submission is simply that, when a decision was made to decide which of Ms Blanch and the applicant was to do activities and which was to do complex administration (as opposed to reception), the recent performance of each in the role was a factor in that entirely reasonable decision.
In respect to process, the respondent refers to the pleadings where it is recorded “being moved from her long standing role as a receptionist and administrative assistant to different positions without any reasonable notice or consultation with her or her Union and on the false premise that her old position no longer existed”.
The respondent then provides submissions regarding the EBA, regarding the requirements of the respondent in relation to major change. It would not be any management action which had a significant effect, such as the termination of a team member. In any event, the applicant did not have a copy of the EBA and was presumably not aware of the extent of her legal rights; the failure to comply with an incorrect EBA is clearly not unreasonable action when set against the objective standard necessary. The respondent relies on the decision in Gazi.
The perception that there was an obligation to have a significant consultation or union involvement to the transfer does not make the process of the transfer unreasonable. There was no obligation of procedural fairness or requirement to consult the applicant with respect to the transfer in the same way that there might be for a disciplinary hearing. To the extent that any aspect of the process of transfer was not entirely satisfactory that is nothing more than a blemish as described in Sinclair.
Similar considerations apply with respect to the rostering. The respondent submits that Mr Tapping’s evidence that there was an informal discussion and no preference expressed by the applicant, should be accepted. To the extent notification was not published prior to two weeks, again that is a mere blemish.

FINDINGS AND REASONS

Relevant law

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer in accordance with the 1987 Act.
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent bears the onus of proof, to establish a defence under s 11A of the 1987 Act on the balance of probabilities.[10] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd,[11] where he said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[12]
[10] Department of Education and Training v Sinclair [2005] NSWCA 465; Pirie v Franklins Ltd (2001) NSWCCR 346; Commissioner of Police v Minahan [2003] NSWCA 239 at [25]; Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134; Northern NSW Local Health Network v Heggie [2013] NSWCA 255.
[11] [2008] NSWCA 246.
[12] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] (per McDougall J (McColl and Bell JJA agreeing)).
Under s 11A of the 1987 Act, the respondent must establish:
(a)    the relevant injury to which the defence is said to apply;
(b)    that the injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent employer with respect to “transfer”, and
(c)    that the action taken or proposed to be taken was (objectively) reasonable.[13]
[13] State of NSW v Simms [2015] NSWWCCPD 62 at [11]; Canterbury Bankstown Council v Gazi [2009] NSWWCCPD 14 at [143].
In Attorney General's Department v K,[14] Roche DP considered the relevance of a worker’s perception of workplace events in determining the causation of a “psychological injury”:
“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 (Spigelman CJ in Chemler at [40]);
(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 (Spigelman CJ in Chemler at [54]);
(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 (Basten JA in Chemler at [69]);
(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 (President Hall in Sheridan);
(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’ (Von Doussa J in Wiegand at [31]), 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.”[15] (Footnotes omitted.)
[14] [2010] NSWWCCPD 76.
[15] Attorney General v K [2010] NSWWCCPD 76 at [52].
Deputy President Roche further stated:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances.” [16]
[16] Attorney General v K [2010] NSWWCCPD 76 at [54].
The terms “wholly” and “predominantly” under s 11A of the 1987 Act are separate concepts and a finding of one or the other needs to be considered.[17] The phrase “predominantly caused” has been held to mean “mainly or principally caused”.[18]
[17] Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
[18] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92.
Whether the “action taken or proposed to be taken” is reasonable is a question of fact, having regard to all of the relevant factors.[19] The test of reasonableness was considered in the decision of Irwin v Director-General of Education[20] where Geraghty J said:
“That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.” [21]
[19] Irwin v Director-General of Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068/97).
[20] Irwin v Director-General of Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068/97).
[21] Irwin v Director-General of Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068/97).
In determining the reasonableness of the employer’s actions there must be an objective analysis of the facts which were known to the employer at the time of the action or the facts which could have been ascertained by reasonably diligent inquiries.[22] There must also be regard to “not only the end result but the manner in which it was effected”.[23] It is essential that the entire process is considered to determine whether the action was reasonable, including the circumstances surrounding the action (before and after the action).[24]
[22] Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [61] and [11].
[23] Ivanisevic v Laudet Pty Ltd (unreported, Compensation Court of NSW, Truss CCJ, 24 November 1998).
[24] Department of Education & Training v Sinclair [2005] NSWCA 465 at [69] and [97].
The action of “transfer” was considered in Doyle.[25] The term “transfer” was held to include a move from one position to another, whether or not there is any change in location. His Honour Fitzgerald JA said that a worker is entitled to be compensated for a psychological injury wholly caused or predominately caused by the communication of a decision or proposal to transfer where the decision or proposal or the manner in which the decision or proposal is communicated was unreasonable.[26]
[25] [1999] NSWCA 465; (1999) 19 NSWCCR 181.
[26] Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [6] (per Fitzgerald JA).
In Doyle, Fitzgerald JA stated:
“In my opinion, the act of transfer of a worker by an employer, i.e., the communication of a decision to transfer (or a proposal to transfer) the worker, is an ‘action taken or proposed to be taken by or on behalf of the employer with respect to transfer ...’ of the worker within the meaning of subs 11A(1). The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.
Davies AJA has stated (at [28]) that the Compensation Court ‘held that the circumstances under which Mr Doyle worked [after his transfer] were the predominant cause of his breakdown’ and expressed the opinion (at [27]) that, for the purpose of s 11A(1), the consequences of actions ‘taken or proposed to be taken by or on behalf of the employer with respect to transfer’ do not include ‘the worker's response to employment conditions encountered after a transfer ...’. In my opinion, that proposition is too broadly stated.
It was an action taken by the appellant with respect to the transfer of Mr Doyle, namely, the transfer of him from one position to another, which caused him to work in ‘the circumstances ... which ... were the predominant cause of his breakdown’. That being so, the appellant's material action, the transfer of Mr Doyle, cannot be automatically excluded as the whole or predominant cause of Mr Doyle's psychological injury. Whether or not the appellant's transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle's condition.”[27]
[27] Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [6]-[8] (per Fitzgerald JA, Mason P agreeing).
Consistent with the decisions in Northern New South Wales Local Health Network v Heggie[28] Canterbury Bankstown Council v Gazi,[29] the action of transfer may include circumstances post the actual transfer event.[30]

[28] [2013] NSWCA 255.

[29] [2019] NSWWCCPD 14 at [175].

[30] See also Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 at [175].

Discussion

The issue to be determined is whether the actions taken by the respondent in respect of “transfer” were the whole or predominate cause of the applicant’s psychological injury, and, if, so, whether those actions were reasonable.
The submissions, at times, conflated the issues of “wholly or predominantly” and reasonableness under s 11A of the 1987 Act. These issues require separate considerations and the application of different tests. This has made the task of dealing with the two limbs of s 11A more difficult. It is also the reason why I reproduced a significant portion of the submission, adopting the language used by counsel.
It is accepted that the applicant sustained a psychological injury in the course of her employment with the respondent.
Dr Kumagaya, the respondent’s independent medical expert, identifies five specific causative factors that gave rise to the applicant’s psychological injury (see [94] above). The applicant’s independent medical expert Dr Anand agrees with Dr Kumagaya’s opinion. Both Dr Kumagaya and Dr Anand also consider broader issues of workplace change over time as causative of the psychological injury. The respondent concedes that its defence is with respect to those five specific factors which are “proven”. The respondent sought to argue that factors one to three relate to transfer and were causative, factor four did not occur and factor five was “non-causative”. While the applicant agreed that the five factors were causative, she also sought to argue that the factors were not merely limited to those five specific causative factors.
The respondent largely argued that the “dominant” causative factor was the “reallocation”. However, the applicant argued that the causative factors were multifaceted and that transfer (or the reallocation) was one of several factors.
The respondent also sought to raise issue with the reliability of the applicant’s evidence.
Before dealing with the respondent’s defence under s 11A of the 1987 Act, it is necessary to deal with the issue of reliability and the factual dispute on causation. This is necessary to inform whether the psychological injury was wholly or predominately caused by reasonable action taken with respect to transfer.

Reliability of the applicant

The respondent put in issue the reliability of the applicant’s evidence. This was largely raised on two bases, firstly, regarding the applicant’s use of direct speech in her statement evidence, and, secondly, that her evidence should be viewed in the “paranoid lens” that she was being marginalised.
I do not accept the respondent’s submissions.
I accept that the applicant records her recollection of a large proportion of past conversations in direct speech. However, as the applicant submits, the applicant’s statement evidence must be considered against her statement that records “where I refer to conversations in this statement, I refer to words the effect used in those conversations as best I can recall.”
I also accept the fallibility of the human memory, which increases with the passage of time.[31] This general principle applies to statement evidence which includes “direct speech” and general summary of events that took place in the past. While caution and care must be given to all lay statement evidence which provide recollection of past events, particularly in the absence of contemporaneous evidence, I do not accept that the applicant’s use of direct speech gives me cause to find she is not a reliable witness or that her evidence should be given less weight.
[31] Watson v Foxman (1995) 49 NSWLR 315.
Further, the record in contemporaneous clinical notes of workplace bullying and intimidation rather than the actual events that occurred in the workplace does not alter my view. That is because it is well accepted that busy doctors sometimes misunderstand or misrecord histories of incidents, and this is understandable when their focus is primarily to observe and administer medical treatment.[32]
[32] Nominal Defendant v Clancy [2007] NSWCA 349 at [54]-[55] per Santow JA; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35] (per Mason P, Beazley and Tobias JJA agreeing).
I do not accept that I should view the applicant’s statement evidence through the “paranoid lens” as suggested by the respondent. To the extent this was relied on as a basis to argue that the applicant was not a reliable witness it was not developed in any clear detail. Indeed, as the applicant submits, the respondent does not rely on any medical evidence to support the contention that the applicant’s evidence should be viewed in the “paranoid lens” that she was being marginalised. Nor is there any medical evidence that suggests that the applicant’s statement evidence should be given less weight for any particular reason (medical or otherwise).
Most lay statement evidence would have been prepared with some intention or purpose and almost all post-dating the events to which the statement concerns. The extent to which that is relevant will be a matter of the weight to be attached to the evidence relied on by a particular party. This of course must also be considered against well accepted principles in psychological injury cases that perception of real events is relevant to the determination of factual disputes regarding injury and causation.[33]
[33] Attorney General v K [2010] NSWWCCPD 76 at [52].
I do not accept that the issues raised by the respondent give me cause to find the applicant is not a reliable witness or any less reliable than the respondent’s lay witnesses. I also note that the respondent did not seek to cross-examine the applicant or seek an adverse credit finding.
I will deal with the factual disputes about the occurrence of specific disputed events below.

The safety committee role

I do not accept the respondent’s submission that the applicant was not removed from the safety committee.
The applicant states that on or about 7 February 2023 that Mr Tapping advised her and Ms Blanch of the change in roles and that Ms Blanch would be doing the reception and safety role. She stated that Mr Tapping said this was not up for discussion. Ms McLennan confirms that there was a meeting in early February 2023 to discuss the break-up of roles, including Bsafe.

The applicant states that she was chair of the Bsafe committee but that on 15 June 2023 she went to attend the meeting and she was told by Ms Blanch that she did not need to attend as they needed someone in reception. This is confirmed by Ms Blanch, who states that she asked the applicant to stay on reception as no one else was available.
The applicant was confused because she was the Bsafe committee secretary and took the minutes of the meetings. After the meeting in June 2023 the applicant states that Ms Blanch told her she was no longer needed to attend the safety meetings or be on the committee. The applicant also states that Ms Blanch had been elected as secretary on or about “May 2023” without any warning. Ms Blanch denies this and states that the applicant attended a Bsafe meeting in July as secretary. The applicant states that after reporting her concerns to Mr Tapping he said that she could still do “hazard reports” but did not need to be on the safety committee to do this. Mr Tapping’s evidence is silent on this assertion.
There appears to be a distinction between safety role and Bsafe committee duties, which seems to be explained by the applicant’s undisputed evidence where she explains that Mr Tapping said she could still do “hazard reports” but that this did not require her to be on the safety committee. While Ms McLennan states that Bsafe duties were discussed at the February 2023 meeting, this appears inconsistent with all other evidence which suggests that it did not form part of the transfer and that the applicant continued to be involved in the Bsafe committee together with Ms Blanch at least until mid-June 2023 several months after the “transfer”.
I accept the applicant’s submission, to the extent she submits that the respondent has failed to discharge its onus that the applicant was not taken off the safety committee. To this end, there is no evidence regarding the applicant’s attendance on the safety committee on or after the June 2023 or evidence indicating that she remained the secretary such as minutes or notice of attendance.
The applicant’s evidence is that she was no longer needed on the Bsafe committee and voted out of the role of secretary. The medical evidence consistently indicates that the applicant’s perception that her duties in the Bsafe committee were relinquished without forewarning or discussion was a causative factor in her psychological injury. Her perception that she was no longer needed in that role was based on the circumstances surrounding a direction by Ms Blanch that she did not need to attend the June 2023 meeting. That was a “real event”.[34] The applicant’s removal from the Bsafe committee (whether actual or perceived) was an action based on real events, which was a factor causative of her psychological injury.
[34] Attorney General v K [2010] NSWWCCPD 76 at [52].
Whether or not the applicant was removed from the Bsafe committee role has not been established by the respondent on the available evidence. It follows that the respondent’s position that the applicant was not removed from the Bsafe committee (or that her duties were not relinquished) cannot be relied on as forming part of the s 11A defence.

Change in work hours

The respondent submits that the change in hours of work on 28 August 2023 was not unannounced, and therefore cannot be relied on as a causative factor giving rise to the psychological injury. The respondent also submits that events after May 2023 were non-causative.
The evidence clearly supports that the applicant’s hours of work changed on 28 August 2023. This was a real event that, on the medical evidence, was a factor that caused the applicant’s psychological injury. The extent to which the change in work hours on 28 August 2023 was unannounced (until on or about 24 August 2023) goes to the issue of reasonableness under s 11A of the 1987 Act, which is dealt with further below. For the reasons discussed below, I do not accept that the respondent has discharged its onus of proof that the change in work hours was not unannounced.
The respondent submits that the events after May 2023 (which includes the change in work hours) may have been “aggravatory” but were not causative. The respondent relies on the report of Ms Shvemer in support of this submission but does not identify what aspect of that report it relies on. The respondent’s submission is contradictory and untenable. It is also contrary to the overwhelming medical evidence that says that the change in hours was a causative factor of the applicant’s psychological injury. That includes the evidence of Dr Kumagaya whose opinion is supported by Dr Anand. Further, Ms Schvemer records that the change in work hours was the “final precipitating event” that caused the applicant to attend on her general practitioner for psychological review. That is compelling evidence to indicate that the change in hours was a significant causative factor to the development of the applicant’s psychological injury.
Further, there is no evidence to support the respondent’s bare assertion that the applicant’s psychological injury should be strictly limited to events prior to May 2023.
It follows that the respondent’s submissions regarding the change in work hours cannot be accepted.

Whole or predominant cause – transfer

The respondent needs to establish that the applicant’s psychological injury was wholly or predominantly caused by the respondent’s actions with respect to “transfer”.
In Doyle, Fitzgerald JA considered the category of transfer in s 11A of the 1987 Act, to extend to the applicant’s response to employment conditions after the actual transfer. However, held that it is a question of fact and degree as to whether the employer’s actions with respect to transfer were the whole or predominant cause of the psychological injury.
It is clear that the cause of the applicant’s psychological injury was multifaceted. It did not result from a single action or incident. There was acceptance between the parties that the five specific causative factors described by Dr Kumagaya resulted in the applicant’s psychological injury. Although, the applicant sought to submit that the causative factors were not strictly limited to those specific events. The extent to which these factors were the whole or predominant cause and whether they constitute “transfer” was disputed.
The applicant submitted that there were multiple causative factors of which transfer is “minor”. These factors, the applicant explained, included events occurring from late 2022 to post 28 August 2023 which involved the “stripping” away of her roles and work duties.

Stripping away of roles and imposed work changes

I accept that there may be a sequence of events which can have a cumulative effect and may be causative of a psychiatric injury.[35] Dr Anand states that the applicant’s roles were gradually stripped away which made her feel isolated and marginalised (see above at [89]). Similarly, Dr Kumagaya states that the applicant’s psychological injury was caused by the accumulation of work-related events and general pattern of imposed changes to her work role, duties, and roster, without forewarning or discussion (see above at [85]). This is consistent with the applicant’s statement evidence which supports that the applicant’s roles and duties were gradually stripped away or changed, and not removed in a single act of “transfer”. This is also consistent with the contemporaneous record of Mr Houston on 28 October 2023 where he records that the applicant said that everything was being “stripped” away. This evidence is unchallenged.
[35] Hamad v Q Catering Ltd [2017] NSWWCCPD 6 at [85].
Consistent with the applicant’s submissions, and the medical evidence, the “stripping away” and general imposed changes to the applicant’s duties and roles over time without forewarning or discussion was significant. To this end, the evidence indicates that in late 2022 the applicant’s duties changed to support the departure of the Activities Organiser, in February 2023 when she was directed to undertake the activities and community role, in March 2023 when she was given an expanded scope of duties, in June 2023 when she was removed from the Bsafe committee, and in August 2023 when her hours of work were change. The stripping away or general imposed changes was a significant overarching causative factor in applicant’s psychological injury. This factor must be considered together with the five specific causative factors identified by Dr Kumagaya.
The respondent did not provide submissions on whether the “stripping” away or imposed changes of duties and roles fell within the category of transfer, despite the applicant raising this as a factor causative of the psychological injury. In any event, I do not find that this factor relates to the process of transfer, the act of transfer or the work conditions undertaken after the transfer. To the extent that it relates to the actual transfer (in February or March), it only forms part of the larger umbrella of concern about the removal of duties and change in work which lead to a feeling of being marginalised.

Transfer

There appears to be no dispute that factors 1-3 of Dr Kumagaya’s specific causative factors, relate to the category of “transfer”. Indeed, each of those factors concern the actual transfer of the applicant to the new role and/or the process of that transfer or the way the transfer was communicated.

Safety committee – Bsafe

In respect of Dr Kumagaya’s fourth specific causative factor, relinquishing the applicant’s work duties as part of the “safety committee”, I do not consider this falls within the category of transfer.
The respondent did not explain how this factor relates to the action of transfer. The respondent’s submissions proceeded on the basis that this factor did not occur. For the reasons discussed above, I have found that the respondent has failed to establish that this did not occur.
The evidence indicates that the applicant was the secretary of the safety committee, that she was directed not to attend a meeting and that she perceived that she was no longer needed.
There is no evidence that demonstrates that the applicant’s role on the “safety committee” has any bearing on her substantive role or the duties of the position to which she was transferred (see also from [188] above). Indeed, it is difficult to reconcile how this factor can relate to “transfer” when the respondent’s position is that the applicant’s duties as part of the safety committee were not relinquished. It follows that it could not possibly, on the respondent’s submissions, be a part of “transfer”.
The respondent has not discharged its onus of proof that the employer’s action in relinquishing the applicant’s role on the safety committee (whether temporary for one meeting or permanently) falls within the category of actions with respect to transfer.

Unannounced change in hours

In respect of Dr Kumagaya’s fifth specific causative factor, the unannounced changed in the applicant’s work hours on 28 August 2023, I accept the applicant’s submission that it does not relate to transfer.
Contrary to the applicant’s submission, the decisions in Wilson v Qantas Airways Limited[36] and Smith v Roads and Traffic Authority of NSW[37] are not authority for the principle that a change in hours of work does not fall within the category of “transfer”. Deputy President O’Grady in Wilson v Qantas Airways Limited[38] said that the action with respect to transfer includes those employment conditions which prevail as a consequence of that transfer. The Deputy President held that the provision of the new roster formed part of the action with respect to transfer. Similarly, then Acting Deputy President Snell said in the decision in Smith v Roads and Traffic Authority of NSW[39] that a change in work days per week was a “potential element of ‘transfer’”.[40] It was the meeting, which discussed the potential change in work days amongst other things, that the Acting Deputy President cast doubt on as an action which could be taken by the employer with respect to transfer.
[36] [2009] NSWWCCPD 121 at [56].
[37] [2008] NSWWCCPPD 130 at [77].
[38] [2009] NSWWCCPD 121 at [56].
[39] [2008] NSWWCCPPD 130 at [77].
[40] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPPD 130 at [77].
It is clear that transfer may encompass not only the action of the transfer, but the process of the transfer and the work conditions post the transfer. This is what was found in the decision in Doyle, and has been the principle applied in subsequent appellate decisions.[41] However, I accept the applicant’s submission that the present transfer cannot extend to a subsequent change in hours in which duties are being performed.
[41] Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [7]-[8]; Canterbury Bankstown Council v Gazi [2009] NSWWCCPD 14 at [143].
The applicant’s change in work hours commenced on or about 28 August 2023. The change was not an immediate consequence following the transfer (in February or March 2023). It occurred over six months post the transfer. Neither party took me to any evidence to suggest the purpose of the change in hours.
The undisputed evidence is that the applicant worked her usual hours 8.00am to 4.00pm Monday to Friday, until the roster change on or about 28 August 2023. The change in roster hours coincided with a change in the rostering system (and a UKG roster system commencing). Mr Tapping explains that the change in roster was to cover business trade from 7.00 am to 6.00pm. Ms McLennan explained that the receptionist hours were moved to the floor and there was a business decision to put additional hours into other areas of work. I do not accept that the evidence sufficiently explains that the change in hours of work was a direct result of the transfer. At most, the change in hours is for reason of general business or operational needs which does not relate to an action with respect to the “transfer”.
While it may be accepted that a change in work hours falls within the category of transfer, it is difficult to accept on the available evidence that the change in the circumstances of this case relates to the transfer that occurred over six months earlier. It follows, that the respondent’s action to change the applicant’s work hours does not fall within transfer.

Whole or predominant cause

Having regard to the above, transfer was only one of several factors that caused the applicant’s psychological injury. It follows that the employer’s actions with respect to transfer were not the whole cause of the applicant’s psychological injury. I am also not satisfied that the respondent has established that its actions with respect to transfer were the predominant cause of the applicant’s psychological injury.
The respondent specifically relied on factors two and five of the specific causative factors set out in Dr Kumagaya’s report, namely the reallocation to a new work role in February 2023 and the change in work hours in August 2023, as the predominant cause of the applicant’s psychological injury and on the basis that factor five did not occur (see [101] above). To the extent that the respondent’s submissions changed to expand the scope of the specific actions it sought to rely on as the predominant (or dominant) cause, with its written submissions in response, it has arguably raised an argument that was not previously raised in submissions in chief and it would be procedurally unfair to the applicant to entertain that submission.
Notwithstanding the above, I am not satisfied that the respondent has discharged its onus that the entirety of the actions with respect to transfer were the predominant cause of the applicant’s psychological injury. As noted above, there were multiple causative factors which included the transfer, the process of the transfer, change in work hours, the relinquishing of duties in Bsafe committee, and the overarching feeling of being marginalised as her roles and duties were gradually changed and stripped away. Not all of the causative factors relate to transfer. The change in hours was a significant “precipitating event” that caused the applicant to seek psychological treatment. The overarching change in work condition and stripping away of her roles was a significant cause of her psychological injury, which consistently appears in the medical evidence and applicant’s lay evidence. This equally applies to the relinquishing of the applicant’s duties in the Bsafe committee. While the transfer was a significant cause of the applicant’s psychological injury, it was not the main or principle cause.
I am not satisfied that the respondent has established that its actions with respect to transfer were the whole or predominant cause of the applicant’s accepted psychological injury.

Reasonableness

If I am wrong in my above findings that the respondent’s actions with respect to transfer were not the whole or predominant cause of the applicant’s psychological injury, I do not consider that that action was reasonable.

Act of transfer

I do not accept that the respondent has established that the transfer itself was reasonable.
The objective of the respondent in transferring the applicant is unclear. On the one hand, it appears to be related to operational and organisational needs but on the other hand due to the applicant’s performance and personal issues. To the extent that the objective of the respondent was for operational and organisational needs, I accept the act of transfer was reasonable. In this regard, there is evidence to suggest that the respondent wanted to find the best existing staff member for the community and activities role, following the departure of the activities organiser and a reduction in workload in specific administration tasks. This is largely not disputed and supported by the evidence of Mr Tapping and Ms McLennan.
However, the supplementary statement evidence of Mr Tapping, Ms Blanch and Ms McLennan suggest that the objective of the respondent was not due to operational and organisational needs. These supplementary statements each explain that the change in the applicant’s role and duties was to prevent her from making “mistakes” and to support her while she was experiencing personal issues. Notwithstanding the absence of evidence to suggest the applicant made any mistakes in her former role, this supplementary statement evidence suggests that the applicant was transferred principally to address these errors and as a form of “discipline”. To the extent that this occurred, it was unreasonable. There was no evidence of enquiries as to what the applicant might need in terms of support or indeed if there were mistakes, what investigations or actions were taken to address that alleged performance issue before implementing any change. Indeed, there is no evidence to suggest the applicant was consulted on these issues or proposed change in response.
Having regard to the above, I am not satisfied that the respondent has discharged its onus of proof that the act of transfer was for operational and organisational needs or that it was reasonable.

Transfer process

The applicant was in the role of receptionist and administrative assistant for about nine years, working 8.00am to 4.00pm during the week, before her role changed.
The applicant claims that in late 2022 Mr Tapping asked her to train Ms Blanch in her role for when she goes on holidays. The applicant states that she trained Ms Blanch. Mr Tapping states that he did not believe he would have asked the applicant to train Ms Blanch, but confirms that he asked the applicant to “acquaint” Ms Blanch to the role. Ms Blanch does not deny or confirm this occurred.
The applicant and Ms Blanch shared the admin/community roles in September 2022 to December 2022, after the activities organiser left the respondent.
It is accepted that a decision was made in January 2023 that only one member was to be in the community role/activities officer role, but (as the respondent submits) it was not decided who would be in that role. This is supported by Ms McLennan’s statement evidence.

However, it was not until on or about 7 February 2023 that the applicant had a meeting with Mr Tapping about the changes in the work roles. Whether or not there was a consensus there and then that the applicant undertake the community role/activities officer role because she was the better candidate or that it was a business need, does not mean that the action in transferring her to that role was reasonable.
The applicant claims that she was not given any notice of this change prior to February 2023 and not given the opportunity to respond. On the respondent’s own submissions, the decision was made that the applicant would undertake the new role at that meeting on 7 February 2023 because she was better suited than Ms Blanch. This is supported by Ms Blanch’s evidence where she states that on her return from leave in February, a decision was made in relation to the division of labour and that there might have been a “later” meeting to clarify this but she could not recall.
There is no evidence to suggest the applicant was given notice of the meeting, that she might be considered more suitable for the role prior to that meeting or indeed given an opportunity to respond prior to or following the decision being made. The evidence is the applicant did not want to undertake the role, she was not given an opportunity to respond, and if, she was, her objections were not heard. While Mr Tapping and Ms McLennan suggest that the applicant did not appear distressed or unhappy in the role, she clearly was and diligent enquiries would have ascertained that if the applicant had not raised an objection (which is not established) she felt “powerless to challenge” the decision made.
It is accepted that there was a subsequent meeting on 14 March 2023 which confirms the changes in the applicant’s role, together with additional changes to the scope of her duties. Again, there is no evidence to suggest that the applicant was given any notice of this subsequent meeting, the further change or an opportunity to respond.
I note that the respondent relies on compliance with the EBA. I also note that there appears to have been a change in the terms of the EBA across the period of events the subject of the transfer. I accept the applicant’s submission that the respondent failed to comply with the EBA, in providing notification, consultation, written communication of the work change. However, I do not base my findings on reasonableness solely on this ground. Even if I am wrong and there was compliance that is not enough, as the protocols (or EBA requirements) must be objectively reasonable.[42] Whether or not the EBA was complied with (or to some extent), it was not reasonable that the applicant was not given proper notice of the transfer and involved in discussions about the transfer before a decision was made to transfer. This is in circumstances where aspects of the applicant’s former role were transferred to another staff member and where she had been in that role for over nine years immediately prior.
[42] Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139.
The evidence of the respondent is that a decision was made that applicant’s role was to change in January 2023 and that in the February 2023 meeting a decision was made that the applicant would transfer her new role of activities and community, and in the March 2023 meeting she was informed of a decision that her duties were further changed. The evidence is clear that a series of decisions were made regarding the applicant’s role, either in the applicant’s absence or at the time of the notification of the change. The method in which this was communicated to the applicant was not reasonable. It did not give the applicant time to respond or prepare for any change, particularly where it was clear that she did not want the new role.
Further, the respondent’s failure to explain the actual reason for the transfer in circumstances where the evidence suggests that it was for business needs but also potentially due to performance issues was not reasonable. This again denied the applicant an opportunity to respond and prepare for any change.
I accept that the circumstances and content of these meetings is disputed. However, the respondent bears the onus to demonstrate that its actions were reasonable. In the absence of contemporaneous evidence of the meetings or notice of the meetings and changes, and having regard to the above, I am unable to accept that the respondent’s actions in communicating the transfer were reasonable.

Temporary arrangement

The respondent initially concedes that the transfer was a temporary secondment until someone was hired to fill that role. This is understandable on the background that the activity organiser had left the business in late 2022. Ms McLennan states that it was necessary for the applicant to perform other tasks such as community activities “in the short term at least” and that this was until they were able to “recruit” for a new member. However, the respondent later submits that the applicant was not told that it was merely a temporary secondment and that she does not provide any evidence on this point.
Contrary to the respondent’s submission, it is clear that the applicant considered the transfer to be temporary. The applicant states that Mr Tapping informed her in the February 2023 meeting that the change in role would be “temporary”. Dr Kumagaya takes a history that the applicant said that the new role was to be temporary but that there was no indication of when she would move back to her former role. The evidence indicates that the applicant was in the temporary role from as early February 2023 and for a period of at least six months without any notice or discussion of whether or when she would return to her former role or whether this arrangement would be permanent. It is not until around June 2023 when the evidence suggests that the applicant was informed that her role no longer existed, having regard to Dr Anand’s report. However, the evidence does not indicate that the new role would be permanent. While there may have been a business need for the applicant to be in this new role, the failure to communicate with the applicant about the certainty of her role was unreasonable.
It is clear that the applicant did not want to undertake the new role and that this caused her to feel upset, stressed, marginalised and worried about her future. The respondent, in its submissions, conceded that the applicant did not enjoy the role and that portions of her role were transferred to Ms Blanch. While Mr Tapping and Ms McLennan’s evidence suggest the applicant expressed no dissatisfaction with the role, this is contrary to the evidence of Ms Blanch and the applicant. It is also contrary to the evidence of Mr Houston, which is fairly contemporaneous on 28 August 2023, which records the applicant’s complaints regarding the change in roles and “stripping” away of duties. On this background, the respondent failed to take all reasonable steps to support the applicant in the transfer and provide her with certainty in her role.

Change in hours

To the extent that the change in the work hours was action with respect to transfer, which I have not found, it was not reasonable. That is because the process of communication of that change was unreasonable.
While Mr Tapping indicates that he had at least two conversations with the applicant in July and August 2023 about changing rosters and that the applicant did not have a preference on hours, he does not state that he informed the applicant of the content of the actual change other than that the change would occur in the next few weeks. The occurrence of these meetings was confirmed by Ms Blanch, who said that there was no definite date when the changes would commence.
The objective evidence demonstrates that it was clear that notification and the change to hours of work came as a surprise to the applicant. The applicant states that she was surprised when she viewed the changed roster on the new system on 24 August 2024. Ms Blanch confirms the applicant’s statement evidence that the applicant enquired about why she had changed her roster on 28 August 2024. Further, Ms McLennan explains that they had “planned to sit down” with the applicant on Monday (28 August 2024, the date the new roster was implemented) to discuss what her role looked like but they did not get the chance.
The change in the hours of work may have been for a legitimate business need, which appears to be supported on the evidence. However, the objective evidence also demonstrates that the actual change in the applicant’s work hours was unannounced and that was not fair.
It follows that the respondent has not established that the method in which the change in hours was communicated was reasonable.

Totality of factors

I do not accept that the respondent has established that the act of transfer or the process of the transfer was reasonable.
Whether or not the objective of the respondent was reasonable must be weighed against the rights of the applicant. While the respondent may have acted in good faith in undertaking the actions with respect to “transfer” this alone is not sufficient. The entire process of the transfer must be considered, which includes the actual transfer and manner in which the action/s were undertaken.
I accept the applicant’s evidence that there was a failure to provide adequate notice and properly consult before a decision was made to transfer. This denied the applicant an opportunity to respond to the change, be heard on her concerns and prepare for any change.
The applicant was in her role for nine years, until late 2022 when she shared additional duties with Ms Blanch following the departure of the activities organiser but still maintained aspects of her substantive role. Her role changed again in February 2023 at the time of the “transfer”, in March 2023 with additional duties, in June 2023 where she was directed not to attend the Bsafe committee meeting, and her work hours were changed in August 2023. The evidence is that the role changes were only temporary but the applicant was not given an indication when she would return to her substantive role or a different role. The evidence is also that there was limited (if no) consultation, notice and opportunity to respond to all these significant work changes.
Having regard to the circumstances surrounding the transfer and the process as a whole, I find that the respondent has failed to discharge its onus that its conduct was reasonable pursuant to s 11A of the 1987 Act. Notwithstanding any blemishes by the respondent in its actions with respect to “transfer”, the process and outcome of the transfer was not fair.[43]
[43] Irwin v Director-General of Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068/97); Ivanisevic v Laudet Pty Ltd (unreported, Compensation Court of NSW, Truss CCJ, 24 November 1998); Department of Education and Training v Sinclair [2005] NSWCA 465.
It follows that, even if the whole or predominant cause of the applicant’s psychological injury was with respect to “transfer”, I find that the respondent has failed in its s 11A defence.

Extent and quantification of incapacity

The respondent accepted the applicant’s claim for weekly payments of compensation, where it was found that it had no defence under s 11A of the 1987 Act. In this regard, the parties agreed that the applicant had no current work capacity for the period claimed.
However, the evidence before the Commission demonstrates that the applicant’s work capacity has varied from time to time. The medical certificates indicate that from 22 February 2024 until 19 March 2024 the applicant had current work capacity for at least seven hours, three days per week. Thereafter, the applicant had no current work capacity. This is supported by Dr Anand’s evidence, where he reports on 5 June 2024 that the applicant had nil capacity for work.
In circumstances where the parties did not provide submissions on the applicant’s capacity and the calculation of her entitlement to weekly payments of compensation pursuant to s 37 of the 1987 Act, it is not appropriate that I determine the quantification of her entitlement to weekly payments.
Accordingly, the parties are to lodge consent orders within seven days of the date of this decision on the quantification of the applicant’s entitlement to weekly payments, pursuant to s 37 of the 1987 Act for the period 22 February 2024 and ongoing based on the reasons above.

Entitlement to medical treatment

The respondent accepted the applicant’s claim for medical expenses, where it was found that it had no defence under s 11A of the 1987 Act.
The evidence before the Commission demonstrates that the applicant’s past treatment in relation to her psychological injury has been reasonably necessary as result of her injury. It also demonstrates that there is an ongoing need for medical treatment for her psychological injury, including in the nature of counselling and medication. This is supported by the evidence of Dr Kumagaya and Dr Anand.
It follows that the applicant is entitled to the past medical expenses claimed and there will be a general order for the reasonably necessary incurred medical expenses, pursuant to s 60 of the 1987 Act.

SUMMARY

The respondent has failed to discharge its onus of establishing a defence under s 11A(1) of the 1987 Act.
From 22 February 2024 to date and continuing, the applicant has had either no current work capacity or limited current work capacity. Accordingly, as set out in the certificate above, the respondent is to pay the applicant weekly compensation pursuant to s 37 of the 1987 Act.
The respondent is to pay the applicant any reasonably necessary medical and treatment expenses on production of accounts, receipts and/or valid Medicare notice of charge, pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 603

28 October 2024