Gray v Busways Gosford EMP Pty Ltd - [2009] NSWWCCPD 124

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Gray v Busways Gosford EMP Pty Limited [2009] NSWWCCPD 124
APPELLANT:		Kelly Gray
RESPONDENT:		Busways Gosford EMP Pty Limited
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-1979/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:		15 June 2009
DATE OF APPEAL DECISION:		6 October 2009
SUBJECT MATTER OF DECISION:		Psychological injury; treatment of evidence and issues; section 11A Workers Compensation Act 1987; section 74 Workplace Injury Management and Workers Compensation Act 1998; failure by insurer to properly identify issues in dispute
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	PK Simpson & Co
Respondent:	Lucas & Staggs Lawyers
ORDERS MADE ON APPEAL:		Paragraphs one and two of the Arbitrator’s determination of 15 June 2009 are revoked and the following orders made: “1. Award for the applicant worker under section 36 in the sum of $341.68 per week from 28 August 2007 until 11 November 2007. 2. The respondent employer is to pay the applicant worker’s section 60 expenses. 3. The respondent employer is to pay the applicant worker’s costs as agreed or assessed.”
The respondent employer is to pay the appellant worker’s costs of the appeal, which are assessed at $2,200 plus GST.

BACKGROUND

The worker, Kelly Gray, started work as a casual bus cleaner for the respondent, Busways Gosford EMP Pty Limited (‘Busways’), at its Kincumber depot in September 2006. Her supervisor was Scott Dyble. She had no problems at work until May 2007 when she noticed a change in attitude of two co-workers, Bill Morrison and Lorraine Harris, also casual cleaners.

Ms Gray’s relationship with her co-workers deteriorated between May and August 2007 resulting in her ceasing work on 28 August 2007.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 16 March 2009, Ms Gray sought weekly compensation from 28 August 2007 to date and continuing. Though her Application alleged four separate injuries, her claim essentially came down to two allegations. First, that she suffered an injury to her back, neck and right arm as a result of performing heavy repetitive duties with Busways as a cleaner between September 2006 and August 2007. Second, that she received a psychiatric injury in the form of depression, anxiety and panic attacks as a result of “work overload, inappropriate behaviour, abuse, humiliation, insults, being picked on, victimised, harassed, threatened, verbally abused, called names, and being belittled in the presence of others on 18 May 2007 and/or between January and November 2007[sic]”.

The section 74 notice served by Busways’ insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), on 11 October 2007 identified only three issues in dispute, namely:

(a)whether Ms Gray had received an injury;

(b)if she had received an injury, whether her employment was a substantial contributing factor to that injury, and

(c)whether any psychological injury received by her was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of Busways with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal and no compensation was payable.

At the arbitration, the Arbitrator identified three additional issues:

(a)incapacity;

(b)reasonable medical expenses, and

(c)costs.

It is not clear if the Arbitrator gave the insurer leave to argue these additional issues, but the parties appear to have conducted the arbitration on the basis that leave was granted. Insurers are again reminded that section 74 notices must be properly prepared and must fully and clearly state in plain language the issues in dispute. The repeated failure of insurers to comply with the clear terms of section 74 is unacceptable. If an insurer seeks to rely upon section 11A(1) of the Workers Compensation Act 1987 (‘the 1987 Act’), full and proper particulars of the specific part of that section must be provided. There are seven different parts to section 11A(1) and a worker is entitled to know precisely which part the insurer relies upon. No proper particulars have ever been provided in the present case and the worker has been left to guess as to which part of section 11A(1) allegedly defeats her claim. That is a totally unsatisfactory situation that should not occur.

The Commission listed the matter for arbitration on 2 June 2009. On that day, counsel for Ms Gray, Mr Petrie, amended the Application to delete any allegation of physical injury and to limit the claim for weekly compensation as a result of the psychiatric injury to the period from 28 August 2007 to 11 November 2007 in the sum of $341.68 per week. After hearing lengthy submissions from both sides, the Arbitrator delivered a reserved decision on 15 June 2009 in which he accepted the evidence of Busways’ psychiatrist, Dr Vickery, that Ms Gray had suffered no psychological injury, and made an award for the respondent. The Commission issued a Certificate of Determination on 15 June 2009 in the following terms:

“The Commission determines:
1. Award for the Respondent.
2. No order as to costs.”

In an appeal filed on 10 July 2009, Ms Gray seeks leave to appeal the Arbitrator’s decision.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

It is not disputed that the monetary threshold in section 352(2) of the 1998 Act is satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE EVIDENCE

Before considering the evidence in detail it may be helpful if I identify the main participants:

(a)Carolyn Gray (Mrs Gray) is the worker’s mother;

(b)Vicki Lynch is the worker’s friend and was a co-worker at Busways at the time of the events under consideration;

(c)Cameron Smith is Busways’ operations manager and is Lorraine Harris’ son-in-law;

(d)Rowlatt Kerr is Busways’ regional workshop manager (referred to in a number of Ms Gray’s statements as ‘Roly’);

(e)Lorraine Harris is a bus cleaner with Busways with whom the worker had regular contact;

(f)Maggie Lloyd is a bus driver employed with Busways and is Lorraine Harris’ daughter;

(g)Scott Dyble was Busways’ workshop manager and the worker’s immediate supervisor until he resigned on 20 July 2007;

(h)Kirsty Street is Busways’ human resources manager;

(i)Bill Morrison (wrongly referred to as Bill Harrison in his statement of 26 September 2007) is a bus cleaner with Busways and another co-worker with whom Ms Gray had regular contact;

(j)Michael Langshaw is a delegate with the Transport Workers Union, and

(k)Grant Rodger is an official with the Transport Workers Union.

Ms Gray

Ms Gray’s evidence is set out in four documents that cover over 100 pages. The first is a statement dated 25 September 2007 taken by an investigator appointed by QBE. The second is a hand written statement 44 pages in length prepared by Ms Gray and dated 6 November 2008. The third is another hand written statement prepared by Ms Gray on 9 March 2009 responding to the evidence tendered on behalf of Busways. The last is a 66-page hand written document prepared by Ms Gray headed “Appendix 1”. It has the date “18 May” on the front page but is otherwise unsigned and undated. It is apparent that Ms Gray’s solicitors have played no part in preparing her evidence.

Whilst I have read and considered all of the evidence in this case, the following summary will only touch on the key parts of the evidence that are relevant to the determinations that have to be made on review.

Ms Gray’s evidence is probably best detailed in her statement of 6 November 2008 and the following summary is taken from that statement. She started work as a casual bus cleaner with Busways in September 2006, initially working 25 hours per week over five hour shifts. Within a week of starting work, Mr Dyble agreed to her reducing her hours to 20 per week, but still over five days. Though a four hour shift did not entitle her to a rest break, he agreed to her having such a break for 15 minutes, provided she worked back to make up for that lost time.

In May 2007, Ms Gray noticed changes in Ms Harris and Mr Morrison’s attitude to her. Ms Harris became abrupt and aggressive and Mr Morrison started making sarcastic comments regarding her work performance. He also made condescending remarks regarding short breaks that Ms Gray took with Ms Lynch while, at the same time, he and Ms Harris took numerous unofficial breaks themselves.

On a date not disclosed, Mr Kerr spoke to Ms Lynch and Ms Gray about their hours of work and the number of unauthorised breaks they took.

On 18 May 2007, Ms Gray noticed that Ms Harris had been sitting in a bus for about 45 minutes. She asked Mr Morrison if Ms Harris was okay and if “rigor mortis” had set in. Mr Morrison responded, in the presence of Ms Lynch:

“Don’t you fucking talk about Lorraine. She would clean 30 buses to your 1, you better watch your fucking mouth you bitch, you better watch yourself.”

Ms Gray was extremely upset by these comments and was in tears. She later spoke with Mr Dyble, who said he would speak with Mr Morrison.

A short time later on 18 May 2007, Ms Harris approached Ms Gray and enquired if she had a problem with her. Ms Gray said no. Ms Harris said that she and Mr Morrison had been with the bus company for a long time and both worked hard. She added that everything had been okay until Ms Gray started with the bus company.

The following Monday, Ms Gray arrived at work and felt intimidated because Mr Morrison and Ms Harris were together and were giving her “threatening looks”. Ms Lloyd smiled and shook her head at Ms Gray, which made her very nervous.

After the incident on 18 May 2007, Ms Lloyd and Ms Harris would be waiting in a bus in clear view when Ms Gray arrived at work every morning. Ms Lloyd would smile and snarl at her while Ms Harris glared at her making her uncomfortable as she walked past them. Ms Gray started receiving nuisance phone calls at her home with callers breathing heavily and then hanging up. On one occasion a woman who Ms Gray recognised as Ms Lloyd rang and asked for an unknown person and then hung up.

On 8 June 2007, Ms Gray was driving home with her mother in the car when she noticed Ms Lloyd and Ms Harris travelling in the opposite direction. As the cars passed, Ms Lloyd made an obscene gesture with her finger to which Ms Gray responded in kind.

On 12 June 2007, Ms Harris approached Ms Gray and told her to keep her finger to herself. Ms Gray responded by saying, “fuck off”. She says that she responded in that way to let Ms Harris know that she was not scared of her, but in reality she was “petrified”. Ms Gray spoke with Mr Dyble who advised her to ignore them. Ms Gray did not feel safe. Mr Dyble added that he would try to sort out the situation, but the close relationship between Ms Harris and Mr Kerr made it difficult. Mr Dyble informed Mr Smith of the problems.

On 19 June 2007, Mr Smith sarcastically asked Ms Gray and Ms Lynch if they were going to “start work some time today”. The next day Ms Lynch and Ms Gray discussed this incident with Mr Dyble, saying that they felt they had been “set up by Cameron in Scott’s absence”. Mr Dyble arranged for a meeting with Mr Kerr later that day, but the meeting did not take place and Ms Gray felt that she was being ignored.

Ms Gray often cleaned school buses in the morning and moved onto ‘service buses’ later in the afternoon. Mr Dyble told her that he had instructed Ms Harris to clean the school buses and that she could have a break from them and work on the service buses. Apparently, Ms Harris complained to Mr Kerr who arranged for her to stay on the service buses, which Ms Gray felt was unfair.

On 21 June 2007, Mr Kerr spoke to Ms Gray about her working hours and directed her to start at 9.00 am and finish at 1.00 pm and not to smoke during working time. She alleges that he was “very angry and hostile” and that, as she tried to defend herself, he kept yelling over the top of her and interrupting her. She felt that Mr Smith was harassing her. She stayed at work until 11.00 am. She felt sick and rang her neighbour and begged her to get her out of there. She felt too scared to move the wrong way.

On 22 June 2007, Ms Gray obtained a doctor’s certificate excusing her from work. She felt “extremely traumatised” and could not bear to deal with the “spiteful nature of the workplace”.

On 26 June 2007, Ms Gray received a telephone call from Kirsty Street from human resources. Ms Gray explained that she was being harassed and marginalised. Ms Street said she would organise a meeting.

Ms Lloyd and Ms Harris continued to “taunt” Ms Gray and approach her in a “menacing manner”. Ms Lloyd would smile or laugh at her and make rude gestures. Ms Gray felt intimidated by both women.

On 28 June 2007, a meeting was held but it did not deal with Ms Gray’s complaints. Instead it dealt with lunch breaks and Ms Gray’s duties. Ms Street said that Ms Gray was not entitled to a break because she was only working a four-hour shift. Ms Gray felt upset and frustrated that she was not permitted to raise the issues that were troubling her. After the meeting, Mr Dyble stated that she could continue to have a short break, but did not have to start early or finish late.

On 6 July 2007, each cleaner was issued with an individual worksheet. Ms Gray was now expected to clean the high ceilings in the buses on a daily basis, but Mr Morrison and Ms Harris were not. Ms Gray told Mr Dyble that she felt it was unfair and that it felt like discrimination. She was never trained how to clean the ceilings and never given any safety equipment for that job.

Arriving at work each day caused Ms Gray severe panic attacks. As she filled her buckets in the morning, Ms Harris would approach and stand close to her while Ms Lloyd watched. Because she was too scared to enter the gates on her own, Ms Gray would often wait in her car for Ms Lynch to arrive.

Because she felt threatened, Ms Gray went to the Gosford Police Station on 6 July 2007 seeking advice about her work situation and the nuisance phone calls she had been receiving.

On 10 July 2007, Mr Dyble told Ms Gray that he had resigned. She told him that she was very scared and that she feared the worst after he left. He advised her to find another job. Mr Morrision and Ms Harris refused to attend a farewell gathering for Mr Dyble on 20 July 2007.

After Mr Dyble left, Ms Harris and Mr Smith were “quite happy with themselves, laughing and clapping”.

On 25 July 2007, Ms Lloyd and Mr Morrison were talking loudly in one of the buses. Ms Lloyd referred to Ms Gray as “trash” and Mr Morrison agreed and laughed. She wondered what her co-workers would do to her. She thought they were plotting a new scheme to try and make her leave or to get her fired.

On 10 August 2007, Mr Kerr explained that Mr Smith would now be in charge of the cleaning department and Mr Morrison would be the head cleaner. Starting from 13 August 2007, Ms Gray was no longer entitled to a lunch break and she was to work her four-hour shift without a break. Ms Gray spoke to Ms Street and expressed her concern that Mr Morrison would be the head cleaner and that she may be further harassed.

On 13 August 2007, Mr Morrison informed Ms Gray that she and Ms Lynch would only be cleaning the ceilings during the next school holidays. Ms Gray found it increasingly difficult to complete her duties. She felt tired and her body ached constantly, she couldn’t concentrate and she was becoming forgetful. Even the easy jobs became harder for her to do.

On 16 August 2007, Ms Gray cleaned the school buses and then moved onto the service buses, as usual. Mr Morrison told her that she was no longer allowed to clean service buses and that Mr Smith wanted her to clean the school buses all day every day. Ms Gray requested new brooms, because the brooms in the school buses were in poor condition and virtually unusable. She made that request on her worksheet, as that was the only way she felt she could communicate. She felt isolated as she was now being made to work in the dirtiest and hottest part of the depot where she would rarely see anybody.

On 21 August 2007, Ms Gray found several new brooms in her “personal space” in the lunchroom.

On 24 August 2007, Ms Gray decided to use the new brooms that, in her view, had obviously been placed in the lunchroom for her use. When she was leaving the lunchroom with the new brooms, Ms Harris appeared and aggressively told her she was not to take them because they were for use in the service buses not the school buses. Ms Gray responded that she did not take orders from Ms Harris. Though Ms Harris scared her, Ms Gray maintains that she handled the situation politely and calmly. She replaced the old brooms with the new brooms. When she returned the old brooms to the lunchroom she was confronted by Mr Smith who explained that the new brooms were intended for the service buses. Ms Gray agrees that she raised her voice with Mr Smith and that she was frustrated. He asked Mr Morrison to collect the new brooms. Ms Gray returned home that afternoon feeling “helpless and exhausted”.

On 27 August 2007, Ms Gray made enquiries of the name and contact number for the union representative, as she felt isolated and victimised.

On 28 August 2007, Mr Smith asked Ms Gray if she was going to return the new brooms to the service buses. She declined to return the brooms, saying that he had instructed Mr Morrison to do so. Ms Gray became upset and was shaking, realising that she had been “set up again”. She then got off the bus she had been cleaning and said words to the effect that “I’m not putting up with this shit” or “I’m sick of this shit, I’m going home”. She then left work.

On 29 August 2007, Ms Gray attended on her local doctor. On that day she received a phone call from Ms Street requesting she attend a meeting at Pymble to discuss the incident that occurred on 28 August. Though she initially agreed, that meeting did not take place.

On 31 August 2007, Ms Gray again attended on her local doctor. Ms Street telephoned again on that day and arrangements were made for a meeting to take place.

On 3 September 2007, a meeting was held between Ms Gray, Peter Griffiths (the new workshop supervisor), Grant Rodger, Cameron Smith, Kirsty Street and Michael Langshaw. Ms Gray felt intimidated and was constantly interrupted by Ms Street. Ms Gray explained Ms Harris’ behaviour regarding the incident about the brooms on 24 August. The incident with Mr Smith on 28 August was also discussed with Ms Gray saying that she had been set up. Ms Street read statements from co-workers and said that they were intimidated and threatened by Ms Gray. Ms Street said that Ms Gray was to be transferred to the Wyong depot, about 45 minutes away. Mr Rodger responded that such a transfer was unfair and was discrimination. After leaving the meeting, Ms Gray sat in the smokers’ area and saw Ms Harris staring at her and smiling.

On 7 September 2007, Ms Gray attended at Busways Kincumber in the company of Mr Langshaw and completed a workers compensation claim form in which she described the incident on 18 May 2007 in the following terms:

“I was cleaning a bus, I was approached by a co worker. I was verbally abused and threatened and called names.”

Ms Gray wrote that her symptoms were “headaches, sick, loss of hair, anxiety, not sleeping, depression.”

In her statement of 6 November 2008, she said that she felt intimidated and threatened daily and that she experienced:

“Anxiety attacks when arriving at work and whilst at work. I was having regular heart palpitations and I feared that I could have a heart attack. My symptoms increasingly worsen [sic] as I continued working in this poisonous environment.”

She added that she suffered bad stomach cramping and nausea, frequent headaches behind her eyes and in her neck, and lost her appetite. Her neck was stiff and her shoulders and arms ached continuously.

In October 2007, she felt that Busways’ employees were following her. She felt threatened and would panic. In November 2007, Ms Gray obtained a casual position as a checkout operator at Coles, Kincumber though she was not ready to re-enter the workforce.

As at November 2008, Ms Gray continued to suffer from depression, withdrawal, exhaustion, poor self-image, low self esteem and lack of confidence.

Carolyn Gray

Mrs Gray prepared a hand written statement on 17 March 2009. She confirms that her daughter returned home from work in May 2007 angry and upset because of a change in her co-workers’ attitudes. On 18 May 2007, Ms Gray came home from work very upset that a co-worker named Bill (Mr Morrison) had abused and threatened her and that Lorraine (Ms Harris) had also yelled at her.

Mrs Gray also recalled an incident on 8 June 2007 when her daughter was driving her home from a medical appointment and another driver travelling the opposite direction made an obscene gesture with her middle finger. Ms Gray told her mother that the people in the other car were Maggie and Lorraine from Busways. Ms Gray retaliated by making a similar gesture.

Mrs Gray states that after the incident on 8 June 2007, her daughter would come home from work in tears and would complain that she felt intimidated by Ms Harris and Ms Lloyd. Her daughter felt harassed and that her workload had increased. Ms Gray also complained to her mother about “the family”, meaning Ms Harris, Ms Lloyd, Mr Smith, Mr Morrison and Mr Kerr.

Mrs Gray noticed her daughter’s health deteriorating and became concerned because her daughter is her carer. She relies on Ms Gray for assistance because she has osteoarthritis and a degenerative bone disease in her lower spine.

Mrs Gray confirms that her daughter’s sleep patterns changed, she did not eat properly, she constantly complained of headaches, back pain and other physical aches and pains. Mrs Gray started getting annoying phone calls at all times of the day and night, which she reported to Telstra.

Vicki Lynch

Ms Lynch has provided four statements. The first three are dated 17 March 2009 and essentially deal with matters relating to her conduct and are of limited relevance to the present claim. The fourth is dated 26 October 2007 and is headed “To whom it may concern”. She states that she found Ms Gray to be “hard working, honest, reliable and courteous.” She confirms that Mr Morrison verbally abused Ms Gray after she (Ms Gray) made a “silly remark in jest”. Ms Lynch was shocked and disgusted by what she heard. She also recalls hearing Ms Harris speak to Ms Gray with a rude and abusive attitude.

She noted that Ms Harris was “very close” to Mr Kerr and had a “hold over him” and got her own way. Mr Smith was Ms Harris’ son in law and, between them, they set out to get rid of Ms Gray.

In respect of the broom incident, Ms Lynch stated that they were “looking for any nitpick excuse to attack and victimise Miss Gray.” She noted that she and Ms Gray had been pulled up for taking extra time in their breaks, yet other cleaners took extra time every day at lunch and sat on buses for long periods, but nothing was said to them.

Ms Lynch claims to have left Busways because of the constant mistreatment of Ms Gray and the unfairness of the situation and the unhealthy effect it had on her and her family.

Scott Dyble

Mr Dyble has not provided a statement, but he did provide Ms Gray with a reference dated 18 July 2007 in which he described her as an honest and reliable person with good work ethics who worked well in a team environment.

Cameron Smith

Mr Smith has provided several documents. The first is headed “Incident – Scott Dyble” 26 June 2007. The second is an undated and unsigned document headed “Good morning Kirsty” (presumably a copy of an email). The third is a signed statement dated 24 August 2007. The fourth is a statement Mr Smith gave to investigators on 26 September 2007 and the fifth is a further statement given to an investigator on 30 October 2007.

In the statement dated 26 June 2007, Mr Smith confirms that Mr Dyble approached him on that day and told him, among other things, that Ms Lynch and Ms Gray were the best cleaners he had. As a result, he had them do “spring cleans”. By contrast, Mr Morrison and Ms Harris were not good cleaners and only did a quick job. Mr Smith conducted an inspection of buses cleaned by Ms Gray and found them to be below standard.

The undated memo headed “Good morning Kirsty” contains several instances of complaints about Ms Gray and Ms Lynch taking excessive meal breaks and generally not performing their duties in an efficient manner. Mr Smith decided that the only “true course of action” was to separate Ms Gray and Ms Lynch so that they would not be on the same shift.

In his statement of 24 August 2007, Mr Smith says that Ms Harris approached him stating that Ms Gray had verbally abused her. He said that Ms Harris was “clearly shaken” and looked upset. He then spoke with Ms Gray and told her that the new brooms were to go in the service buses and the old brooms in the school buses. Ms Gray responded with words to the effect “are you thick or something?” He states that Ms Gray was “very animated and aggressive” and was waving her arms around. He found Ms Gray’s demeanour most “concerning”.

In his statement of 26 September 2007, Mr Smith claims to have become aware of problems with Ms Gray within a few weeks of her starting work when Ms Gray and Ms Lynch were not working when they should have been. He mentioned this to Mr Dyble. He confirmed the contents of his statement of 24 August 2007 concerning the broom incident. He also confirmed that on 28 August 2007 he directed Ms Gray to remove the new brooms from the old buses and put them in the new buses, but she refused. He never observed any signs of anxiety, depression or panic attacks by Ms Gray at any time during her employment with Busways.

In his last statement, Mr Smith referred to the meeting on 3 September 2007 and to the fact that Ms Street felt that because Ms Gray was going home crying after each shift, allegedly as a result of staff mistreating her, Ms Street offered to transfer Ms Gray to another position. Mr Rodger replied that the transfer was unacceptable and that “starting right now she’s on workers compensation”.

Rowlatt Kerr

Mr Kerr has worked with Busways for 15 years and for the last five years has been the regional workshop manager. He supervised Mr Dyble. In his statement of 2 November 2007, Mr Kerr indicated that Mr Dyble seemed to have problems managing and disciplining Ms Gray. It seemed that his association with Ms Gray “may have been more than just co-worker and supervisor”.

Whilst Mr Kerr had very little direct contact with Ms Gray, he got the impression that she was a “troublemaker”. He had cause to speak with Ms Gray and Ms Lynch about their hours of work and the rest breaks they were taking. He did not consider it to be formal counselling. Mr Kerr can’t recall any other direct association with Ms Gray or why she would think that he treated her unfairly or with disrespect.

Maggie Lloyd

Ms Lloyd provided a statement on 30 October 2007 in which she states that she had nothing to do with Ms Gray at work or socially. She recalled an incident that “resulted in words between Kelly, mum and Bill Morrison”. Up until that time, Ms Gray was “alright” [sic] towards her but since then Ms Gray would drive past her and whilst laughing make an abusive gesture with her finger. Ms Lloyd found this quite intimidating and embarrassing and mentioned it to Mr Smith, Mr Morrison, her mother (Ms Harris) and her husband, who also worked with Busways as a driver. Ms Lloyd specifically denies having been the first to make an obscene gesture with her finger towards Ms Gray.

Whilst she was aware of a lot of instances concerning Ms Gray and others, it was “only hearsay” and not for her to comment on. However, she added that Ms Gray was “a troublemaker” who seemed to go out of her way to be abusive and then turned it around to suggest that the other party was abusive or offensive towards her. Every time Ms Lloyd saw her Ms Gray was “always laughing and giggling” and never appeared stressed or anxious.

She considered that Ms Gray was quite close with Mr Dyble and that they spent a lot of time together. She found Mr Dyble to be arrogant, rude and unapproachable.

Lorraine Harris

On 24 August 2007, Ms Harris provided a statement about the broom incident. She explained to Ms Gray that the new brooms were not to be used in the old school buses. Ms Gray responded by yelling at her “you aren’t my boss” and “don’t tell me what to do, you’re nobody go away, don’t talk to me”.

Ms Harris states that she felt intimidated by Ms Gray’s behaviour because she was yelling and very aggressive. Ms Harris then complained to Mr Smith in the presence of Rachel Predebon.

Ms Harris also provided a statement to the investigators on 26 September 2007 in which she confirmed that she has been a cleaner at Busways for over 11 years. She felt that Ms Gray always had “some sort of an attitude problem”, but the first major incident occurred when Ms Gray had words with Mr Morrison.

Ms Harris maintains that she had several unpleasant incidents with Ms Gray when she arrived at work in the mornings. She states that Ms Gray would “swear under her breath” and displayed a hostile attitude, using bad language, screaming and being aggressive. Ms Harris considered that Ms Gray had a “destructive personality” and, if she did not get her way, she was hostile and unpleasant. She found Ms Gray to be moody, and that, most days, she would look right through you. Mr Morrison and Ms Harris would say hello and goodbye to her, but she would not do the same. She had a habit of smirking rather than talking normally to you.

Ms Harris concedes that she may have said to Ms Gray “everything was okay before you came here”, but not in a nasty way.

Bill Morrison

Mr Morrison has also provided two statements. The first is dated 24 August 2007 in which he confirms that an exchange occurred between Ms Gray and Ms Harris about the new brooms. He states that Ms Gray was yelling and was verbally abusive.

In his statement of 26 September 2007, Mr Morrison confirms that he has been a cleaner at Busways for over 12 years. He had no particular problem with Ms Gray until an incident in May 2007. On that occasion Ms Gray referred to Ms Harris having been in a bus for a while and asking if rigor mortis had set in. Mr Morrison concedes that he lost his temper and said:

“Don’t you fucking talk about Lorraine like that. She cleans 10 buses to your 1.”

He added that, though he did not normally swear, especially to women, he may also have said:

“You had better watch your mouth. You fucking bitch. You had better watch yourself, Kelly.”

Mr Morrison states that he never saw any signs of Ms Gray suffering from anxiety, depression or panic attacks, but she did stop having any contact with him after the incident in May 2007 when he swore at her. He was at a loss to understand her behaviour.

Performance Management Meeting - memorandum 28 June 2007

This memorandum states that the meeting on 28 June 2007 was held after Mr Smith observed Ms Gray and Ms Lynch sitting down for a prolonged period on 19 June 2007 when they should have been cleaning. The memo acknowledges that Ms Gray provided documents to Ms Street outlining her complaints.

Ms Street informed Ms Gray that a four-hour shift does not attract a paid break. The standard of Ms Gray’s work was also discussed and it was noted that Ms Gray had never previously been counselled regarding her performance. It was acknowledged that the question of breaks was a matter between the workshop manager (Mr Dyble) and Ms Gray. It was agreed that Ms Gray’s performance would be monitored over the next few months.

Performance Management Meeting - memorandum 3 September 2007

This meeting was to discuss the circumstances in which Ms Gray left work during her shift (presumably on 28 June 2007) and had not returned.

In respect of the broom incident, Ms Gray admitted that she was annoyed with Mr Smith and that she yelled at him out of frustration. She felt “ganged up on”. However, Ms Gray denied ever swearing at Mr Smith.

Ms Street stated that Ms Gray’s mother had confirmed that her daughter came home crying and visually upset every day. Ms Street could not allow Ms Gray to remain in such an environment and Busways had a duty of care to all employees to ensure that the workplace was free from harassment and intimidation. Ms Street read from employee statements that confirmed that they felt harassed and intimidated by Ms Gray and that they did not wish to work with her. Ms Street said that Busways was removing Ms Gray from the Kincumber depot and offering her a similar position at the Wyong depot. Ms Gray became angry and said “NO WAY! I have a sick mum and I can’t travel away, I only work 4 hours a day it won’t be worth it.” Ms Street said that it had been Ms Gray’s choice to reduce her hours from 30 to 20 so she could retain the full carer’s pension. Busways was aware that Ms Gray cared for her mother and supported her choice to reduce her hours.

Mr Rodger then indicated that Ms Gray was now on workers compensation and would go to the Industrial Relations Commission. After a short break the meeting resumed and Mr Rodger indicated that Ms Gray was happy to return to work as normal provided she was issued with a new broom and was answerable only to Peter Griffiths. Ms Street rejected that offer.

Ms Gray’s medical evidence

Ms Gray’s local general practitioner is Dr Tarrant, a doctor she has seen since 1995. In addition to seeing Dr Tarrant, Ms Gray has also seen a Dr Stone at the same practice, and, as a result, it has not always been possible to determine which doctor Ms Gray saw.

Ms Gray attended Dr Tarrant’s surgery on 22 June 2007. Whilst the notes are difficult to read, the following entry is tolerably clear:

“[indecipherable] sick yesterday MC 21/6/07
Being victimised & harassed at work
Busways – as a cleaner
will see Legal Aid Monday
feels victimised by other two cleaners and 1 of bosses”

Dr Tarrant issued Ms Gray with a medical certificate on 22 June 2007 referring to her suffering from a “medical illness” and declaring her unfit from 22 to 25 June 2007. He also issued a certificate to her on the same day stating, “looking after sick mother” and stating she was unfit on 21 June 2007.

Ms Gray attended at Dr Tarrant’s surgery again on 2 August 2007 complaining (it appears) of a “painful stomach”.

On 29 August 2007, the notes record:

“Victimisation at work
escalated yesterday
left work
Employed casual 20 hours/week
now not sleeping/not eating
situation discussed
WC 28/8 – 31/8/07
(medical illness)”

On 1 September 2007, a doctor from the practice issued a certificate declaring Ms Gray to be suffering from a “medical illness” and to be unfit from 28 to 31 August 2007.

Ms Gray attended the practice again on 31 August 2007. The notes are difficult to read though there is a reference to “working at Busways” and to “other staff” and a notation of Ms Gray’s weight, which had declined compared to her weight on 2 August 2007.

Ms Gray attended at Dr Tarrant’s surgery again on 6 September 2007 (submitted by Busways to be 5 September 2007). The following note appears in the clinical records for that day:

“Major problem with work
Õ x1 [sic] meeting Monday 3/9/07
- told that she had a job only [sic] at Wyong
- working as a casual
- Union involved
- Not eating upset all the time nervous
- Not sleeping panic attack & depression [sic] injury
Patient wants to go onto workers compensation
Õ pt aware that she is responsible for the [indecipherable]
anxiety/depression/panic attacks
Õ WC 28/8/07Õ18/9/07
Problem started 18/05/07 treatment by another cleaner”

Also on 6 September 2007, Dr Tarrant issued Ms Gray with a WorkCover medical certificate declaring her unfit from 28 August until 14 September 2007 as a result of acute anxiety, depression and panic attacks as a result of “intimidation, harassment” with a date of injury of 18 June 2007.

Ms Gray attended on Dr Tarrant’s surgery again on 14 September 2007. The notes reveal that she felt no better and that she was very anxious about going into Busways depot at Kincumber and a question mark was raised about whether she was able to return to work at Kincumber. She was not sleeping well and a further WorkCover certificate was issued declaring her unfit for work from 15 September until 28 September 2007.

In addition to issuing the above WorkCover certificate for 14 September 2007, Dr Tarrant also completed a questionnaire on that day giving the following diagnosis:

“PTSD/Acute Anxiety/Depression secondary to problems at work (threatened by another worker)”

Dr Tarrant thought her prognosis for recovery was good, “depending on how seriously she is taken”.

Ms Gray attended at Dr Tarrant’s surgery again on 28 September 2007. The notes for this attendance are even more difficult to decipher, but the following entry appears reasonably clear:

“patient unable to look for another job
unlikely to return to work at Busways”

A further WorkCover certificate was issued on 28 September 2007 declaring Ms Gray unfit for work until 28 October 2007.

Ms Gray attended at Dr Tarrant’s surgery on 22 October 2007 when it was noted that she was due to see a solicitor the following day. He issued a further certificate declaring Ms Gray unfit from 23 October to 22 November 2007.

Ms Gray again attended on Dr Tarrant’s surgery on 28 November 2007 when it was noted that she started a new job on that day at Coles Kincumber. She was seeing a psychologist, but little progress had been made. Ms Gray complained of left lower cervical and upper thoracic and mid thoracic back pain.

At the request of her solicitors, Ms Gray attended on Dr Anderson, consultant psychiatrist, on 15 February 2008. Dr Anderson reported on 24 February 2008 that things started to go wrong for Ms Gray in May 2007 when she had words with a co-worker who was related by blood or marriage to other people working at Busways. This person made her life hell after that day by tormenting her and trying to get her to retaliate. She suffered anxiety to the point of nausea. She tried to keep her head down and proceed with her job, but was provoked in various ways such as being given “the finger” by the associates of the lady concerned. Ms Gray responded in kind and there was a confrontation.

Dr Anderson also recorded that Ms Gray felt intimidated by the interview with Mr Kerr, which made her scared and anxious to the point of feeling physically sick.

A meeting was held to get the matters into the open, but she felt that she had not been allowed to say what the problem was and she left the meeting feeling dissatisfied, confused and with a headache.

Dr Anderson also recorded that Mr Smith, Lorraine’s son-in-law, took over as the boss of the cleaners after Mr Dyble left. Ms Gray was the only one cleaning the school buses, a less desirable job compared to the service buses. She felt that was unfair as the school buses were older and required more cleaning. The school buses were also parked near the bush and had rat faeces in them. He also took a history of the broom incident and that she left work and saw her doctor. A meeting was then arranged at Busways. She said she was spoken down to, as though she was worthless and told she would be transferred to Wyong, a distance of 45 minutes from home. She felt that was unfair treatment because she worked hard at Kincumber and could not be 45 minutes away from her mother because of her mother’s disability. Her job at Kincumber was only five minutes from home.

Ms Gray felt that since leaving Busways she had been followed by people who worked there. As a result, she becomes anxious when travelling. She was referred to a psychologist who she saw on two occasions though she did not find that helpful.

She continued to sleep poorly and to be preoccupied with the workplace events. She dreamt at night about the people she felt were persecuting her by following her and giving her the finger. She went to the police about it but they were not able to help her. She changed her telephone number because of phone calls received from persons in the workplace pretending to be from the insurance company.

Ms Gray started a new job as a checkout person at a supermarket about two months prior to seeing Dr Anderson. She considered herself lucky to have a job. Whilst there had been a couple of episodes where she became distressed by interactions with people at the checkout, she recovered her composure after temporarily leaving the workplace.

Ms Gray continues to help her mother in the normal way with cleaning, cooking, shopping and showering.

Dr Anderson noted that there was no past psychiatric history.

Dr Anderson noted on examination that Ms Gray was tearful and tense. Her mood was anxious and depressed with no levity or responsiveness. He thought her presentation was generally consistent with the complaints she made about symptoms of anxiety.

After referring to Dr Vickery’s report and conclusion, Dr Anderson stated:

“On the history and examination there is a diagnosable psychiatric disorder. In my opinion; the applicable diagnosis is that of Adjustment Disorder with Anxiety and Depression. This diagnosis is made within the DSM System of Classification.
I accept the history as given that her problems arise from events in the workplace at Busways and I would regard work as the substantial contributing factor. There is no history of pre-disposition: there is no history suggesting that other factors contribute to the psychiatric injury.”

Dr Anderson felt Ms Gray was fit to continue work as a checkout operator in a supermarket, but unfit to return to Busways.

He stated that she may require assessment by a psychiatrist. He added that it was difficult to give a prognosis, as there may be a change in her condition with time. He did not consider that she had reached maximum medical improvement.

In October 2008, Ms Gray changed general practitioners to a Dr Pragasam. At her first attendance on that doctor on or about 4 October 2008, the doctor took a history of work related stress and of intimidation and harassment at work on 18 May 2007. Dr Pragasam referred Ms Gray to the Sydney Trauma Clinic for counselling.

Ms Gray first attended at the Sydney Trauma Clinic on 14 November 2008 and was advised to obtain a referral to Dr Butler, consultant psychiatrist at Gosford. In addition, arrangements were made for her psychological functioning to be assessed by Karolin Issavi, consulting psychologist.

At “Intake” at the Trauma Clinic she saw Dr Kaye, trauma consultant. In his report of 26 November 2008, Dr Kaye stated:

“Based on her presentation, the history obtained during the Intake Assessment and psychometric assessment Ms Gray was found to be suffering from Major Depression.”

Ms Issavi reported to QBE on 26 February 2009 that she first saw Ms Gray on 21 November 2008. Ms Gray reported experiencing anxiety/panic attacks and depression following alleged workplace bullying in the form of intimidation and being subjected to inadequate working conditions. She had a positive working relationship with her supervisor, Mr Dyble, however, when he was away, she would be either reprimanded for trivial matters or subjected to false accusations. She was faced with constant intimidation in the workplace. The situation progressively became worse in late May 2007. Ms Issavi also recorded a history of the broom incident and that Ms Gray felt isolated and unsafe.

Ms Gray complained of disturbed sleep, decreased motivation levels and decreased energy, having short term memory difficulties, being socially avoidant and having occasional thoughts of “ending it”. Psychometric assessment revealed the following results: the Beck Depression Inventory indicated Ms Gray’s reported symptoms of depression fell within the severe range; the Beck Anxiety Inventory indicated that her symptoms fell within the severe range; and the Depression Anxiety Stress Scale 42 fell in the extremely severe range.

Ms Issavi concluded:

“Ms Gray’s self report, psychometric assessment and observations of her during the clinical interview revealed that her symptoms are characteristic of Major Depressive Disorder, as defined by the Diagnostic and Statistical Manual of Mental Disorder Fourth Edition. Her psychological symptoms are directly related to the workplace bullying.”

Ms Issavi felt that Ms Gray would benefit from appropriate psychological treatment that would involve a program of cognitive-behavioural therapy to assist her to deal with the issues affecting her psychological functioning. Her prognosis was promising. She recommended 12 weekly sessions of psychological treatment. Though Ms Gray had secured alternative employment at a different worksite, her experience of workplace bullying continued to affect her psychological functioning.

Busways’ medical evidence

At the request of QBE, Dr Vickery, consultant psychiatrist, examined Ms Gray on 27 September 2007. Dr Vickery reported to QBE on 28 September 2007 that Ms Gray complained of the following symptoms:

(a) frequent bouts of anxiety associated with tremulousness and palpitations;
(b) episodes of nausea, particularly prior to leaving her residence;

(c) disturbed sleep patterns “thinking about everything to do with work”;

(d) loss of appetite with minor weight loss;

(e) being “very angry” and moody with some outbursts;

(f) hair loss;

(g) tiredness, and

(h) headaches when she felt stressed.

Ms Gray reported that she did not go out as much, as she was often fatigued and was fearful she might make contact with someone from work.

Ms Gray stated that she had been employed by Busways as a cleaner and had been “victimised and abused and treated like crap” over the past four months. She said that it was in April 2007 that “just one day things changed at work” when she was aware that one of the other workers was not acknowledging her. Her friend and herself were being “picked on” for having extended lunch breaks when other workers continued to do so with impunity.

On 18 May 2007, Ms Gray cleaned all the buses during the lunch break while other cleaners had “slacked off” for the rest of the shift. Ms Gray complained about the situation to another cleaner who was reported to have been abusive.

Dr Vickery also took a history of the incident when the daughter of another cleaner made an offensive gesture with her finger when Ms Gray was in her car. She was also criticised about her work performance, which angered her, as she had never had a complaint about her work.

Dr Vickery also took a history about the broom incident in August 2007 and the meeting with management on 3 September 2007. Dr Vickery recorded that Ms Gray attended on her general practitioner a week or so after the meeting on 3 September 2007 and had been placed on WorkCover leave.

Under “Developmental History”, Dr Vickery recorded that Ms Gray had a happy childhood and was close to her mother though she did not know her father.

Under “Mental State Examination”, Dr Vickery noted that Ms Gray made good eye contact, was spontaneous and co-operative and that her affect range was normal while her behaviour, mood and affect were appropriate. There was no evidence of a diagnosable psychiatric condition or any incapacitating or disabling psychopathology on her assessment and examination. Ms Gray’s employment was not a substantial contributing factor as there was no objective evidence of a psychological condition and her employer had acted reasonably. He considered Ms Gray to be fit for work.

THE ARBITRATOR’S REASONS

In a reserved Statement of Reasons (‘Reasons’) the Arbitrator found:

(a) that Ms Gray was not a witness of credit as regards her alleged physical injuries;
(b) statements supported the view that Ms Gray was a difficult employee (Reasons at [43]);

(c) the decision to use the older brooms on the school buses was a “legitimate business decision” (Reasons at [45]);

(d) it was Ms Gray who was effectively attempting to reverse company policy in a manner that suited her with regard to the use of brooms and she reacted in an unacceptable fashion with regard to the “brooms” incident. This was consistent with her having initiated the incident that occurred on “18 May 2006” [sic 18 May 2007] (Reasons at [46]);

(e) in respect of Ms Gray’s 66 page statement which starts “18 May”, the Arbitrator noted:

(i) Ms Gray confirmed that it was the remark made to Mr Morrison about Ms Harris that created the original difficulty;
(ii) the length of Ms Gray’s observations suggest that she had some sort of legal proceedings in mind (or that she suffered from some psychological stress) as early as 18 May 2007;

(iii) notwithstanding the submissions made on her behalf, Ms Gray concedes that Mr Morrison had been appointed as “head cleaner”, and

(iv) the account from page 44 of Ms Gray’s statement suggests that Busways acted in a reasonable manner in attempting to deal with issues relating to Ms Gray’s performance appraisal and discipline in difficult circumstances (Reasons at [47]).

(f) Ms Gray’s contemporaneous account of the union representative (Mr Rodger) saying that she was being discriminated against strongly suggested that Ms Gray was “considering a different type of legal remedy at the time and that it was based on discrimination rather than any physical or mental injury” (Reasons at [48]);
(g) Busways’ notes of the Performance Management Meeting on 3 September 2007 suggested that Mr Rodger had alternative remedies before the Workers Compensation Commission and Industrial Relations Commission in mind. The minutes were consistent with Busways attempting to overcome the difficulties relating to Ms Gray’s employment and being prepared to assist, but its attempts were met with confrontation rather than co-operation (Reasons at [49]);

(h) after referring to Ms Gray’s complaint to the Anti-Discrimination Board and to the other alternative remedies suggested at the meeting on 3 September 2007, it appeared clear that Ms Gray “had not determined that she had a valid claim for stress at that time” and that reflected, in turn, upon the amount of employment related stress she was or believed that she was under at that time (Reasons at [52]);

(i) in the period from May to August 2007 Ms Gray acted in a manner she regarded as suitable for the purposes of standing up for herself, culminating in her obtaining assistance from the union representative and attempting to dictate the future conditions of her employment with Busways (Reasons at [54]);

(j) the minutes of the performance management meeting on 3 September 2007 do not suggest that Ms Gray was under any stress at the time (Reasons at [55]);

(k) Dr Anderson’s statement that Ms Gray has “no past psychiatric history” and “no history of predisposition” was inconsistent with Dr Tarrant’s notes (Reasons at [56(a)-(b)]);

(l) Dr Anderson considered that Ms Gray’s condition had not stabilised. There was no more up-to-date report which would justify a claim for ongoing section 60 payments after 24 February 2008 (Reasons at [56(c)];

(m) Ms Gray’s present position as a checkout clerk “obviously has more interaction with people than cleaning empty buses and is more likely to involve stress as a line of shoppers built up to pay for their purchases” (Reasons at [56(d)]);

(n) Dr Pragasam’s diagnosis of “reactive depression” is not consistent with Dr Anderson (Reasons at [57]);

(o) Ms Issavi’s history is inaccurate and the report weakened accordingly (Reasons at [59]);

(p) he accepted Dr Vickery’s report in preference to the others and found that Ms Gray did not suffer any psychological injury related to her work or to which her employment was a substantial contributing factor (Reasons at [66]), and

(q) in the alternative, if Ms Gray suffered a psychological injury related to her employment, then such injury was predominantly caused by reasonable action taken on the part of Busways and relating to performance appraisal or discipline (Reasons at [70]).

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a) apportioning blame for the conflict that took place between Ms Gray and her co-workers (‘relevance of blame’);
(b) suggesting that Ms Gray had other legal proceedings in mind (‘relevance of other legal proceedings’);

(c) stating that the minutes of the meeting on 3 September 2007 did not suggest that Ms Gray was under any stress (‘minutes of 3 September 2007’);

(d) stating that, as a member of a specialist tribunal, he was entitled to take notice that work as a checkout clerk in a supermarket was more likely to involve stress than work cleaning empty buses (‘relevance of Ms Gray’s current job’);

(e) stating that Ms Gray had reported “stress” and “anxiety” to Dr Tarrant over a period of years and on a number of occasions from 2002 onwards, and ignoring Dr Tarrant’s notes and certificates (‘Dr Tarrant’s notes and certificates’);

(f) failing to identify why he accepted Dr Vickery’s evidence in preference to the other medical evidence (‘specialist medical evidence’);

(g) the weight of the evidence is that Ms Gray suffers from a primary psychiatric injury (‘weight of evidence’);

(h) the Arbitrator failed to consider the psychometric testing by the Sydney Trauma Clinic (‘weight of evidence’);

(i) failing to accept the bulk of the medical evidence, which suggests that Ms Gray suffers a primary psychiatric injury which results from work (‘weight of evidence’);

(j) whether employment was a substantial contributing factor to the psychological injury (‘section 9A’);

(k) giving no proper reasons in dealing with the section 11A issue (‘section 11A’), and

(l) stating that there was no up to date report to justify a claim for ongoing medical expenses after 24 February 2008 (‘medical expenses’).

The following additional issues must also be considered:

(a) incapacity, and

(b) costs of the arbitration.

SUBMISSIONS, DISCUSSION AND FINDINGS

Introduction

Ms Gray’s claim failed because the Arbitrator found, based on an acceptance of Dr Vickery’s evidence, that she had not suffered a psychological injury that was either related to her employment or to which her employment was a substantial contributing factor. Ms Gray challenges that finding and alleges that the Arbitrator erred in his approach to the matter in general. Given the way the appeal has been presented, it is appropriate that I deal with each issue in turn, though this involves some repetition because several issues overlap.

Relevance of blame

Busways argues that the question of blame for initiating the two significant instances relied on by Ms Gray, namely the events on 18 May 2007 and on 28 August 2007, is important in that it demonstrates that the actions of the Busways’ employees were reactionary and not proactive. This, so it is argued, flies in the face of Ms Gray’s claim that she was intimidated and harassed by her co-workers.

Leaving aside questions of serious and wilful misconduct in sections 10 and 14 of the 1987 Act, the system of compensation established under the 1987 Act and the 1998 Act is a no fault scheme and a worker is entitled to recover compensation if it is established that he or she has received an injury and that employment was a substantial contributing factor to that injury. In respect of a psychological injury, no compensation is payable 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 one or more of seven specific matters (discussed in detail at [186] to [195] below).

Except to the extent that it might be relevant to a section 11A defence, questions of whether Ms Gray may have been a “difficult employee” (Reasons at [43]) or whether the decision about the use of the new brooms was a “legitimate business decision” (Reasons at [45]) are of no consequence. Similarly, the Arbitrator’s conclusion that Ms Gray was “attempting to reverse Company Policy in a manner which suited her” is also irrelevant.

Even if Ms Gray was the “instigator” (as Busways submits) of the events on 18 May 2007 and 28 August 2007, I do not accept Busways’ submission that it is therefore less plausible that she was the subject of victimisation and harassment. This submission ignores Mr Morrison’s evidence that he lost his temper and swore at Ms Gray in grossly offensive and threatening terms. It also ignores the overwhelming evidence of significant conflicts at work between Ms Gray and her co-workers. If that conflict resulted in a cognizable psychological injury then, subject to the application of sections 9A and 11A, compensation is payable.

To the extent that the Arbitrator sought to apportion blame, he erred.

Relevance of other legal proceedings

The Arbitrator also erred in his reference to Ms Gray having other legal proceedings in mind as early as 18 May 2007. Such a question has no bearing on the questions that must be determined in a claim for workers compensation benefits. Ms Gray was entitled to consider her position and take advice in relation to possible proceedings in the Industrial Relations Commission and before the Anti-Discrimination Board, but that fact does not determine the amount of employment related stress to which she was exposed. If anything, the fact that a worker is contemplating taking legal proceedings in another tribunal to vindicate his or she rights tends to confirm that the worker has strong views about the events that occurred and the correctness of his or her position.

Minutes of meeting on 3 September 2007

The Arbitrator states that the minutes of the meeting on 3 September 2007 do not suggest that Ms Gray was under any stress. The minutes were not prepared for the purpose of assessing Ms Gray’s clinical presentation, but to provide a record of the key matters discussed. It is of no consequence that they do not refer to Ms Gray being under stress, or that Ms Gray did not give oral evidence about them. Her statement of 6 November 2008 makes it clear that she felt intimidated and nervous at the meeting, and that Ms Street kept interrupting her, causing her confusion (page 34). In light of this evidence, I accept Ms Gray’s assertion that she was very upset at the meeting (page 36). This is partly corroborated by the minutes, which note that Ms Gray became angry at the suggestion that she be transferred to Wyong.

Relevance of Ms Gray’s current job

The Arbitrator stated that Ms Gray’s new job, as a checkout operator, was “more likely to involve stress”. This statement appears at paragraph [56] of the Arbitrator’s Reasons where he dealt with Ms Gray’s “overall credibility” and the credibility of her accounts given to expert witnesses as to her psychological state. It is not clear what the Arbitrator meant by the statement, or the weight he attached to it. To the extent that the Arbitrator felt that Ms Gray’s current job was more likely to involve stress than her job with Busways and was, therefore, more likely to have caused her psychological condition, the Arbitrator erred because that was not an issue argued before him and, in any event, there is no persuasive evidence to support that conclusion. Busways’ case is that Ms Gray received no psychological injury with it, not that her condition resulted from her new job.

Dr Tarrant’s notes and certificates

Ms Gray submits that the Arbitrator ignored Ms Gray’s contemporaneous complaints to Dr Tarrant and/or Dr Stone (recorded in the clinical notes) and in Dr Tarrant’s medical certificates. Busways argues that regard must be had to the circumstances behind the notes being made and the credibility of the person making the complaint.

The entries in the notes on 22 June 2007, 29 August 2007 and 6 September 2007 (see [94] to [100] above) provide clear corroboration for Ms Gray’s complaints of victimisation and harassment at work and are entitled to significant weight.

Busways claims that the reference to “medical illness” by Dr Stone on 29 August 2007 is quite different to Dr Tarrant’s certification on 6 September 2007.

I do not accept that Dr Stone’s reference to “medical illness” on 29 August 2007 and Dr Tarrant’s reference to “acute anxiety/depression/panic attacks” on 6 September 2007 is of any great significance. Both doctors took a consistent history of problems at work and that, as a result, Ms Gray had problems sleeping and eating. These histories are consistent with Ms Gray’s evidence. I do not accept there was a relevant change of diagnosis, as Busways claims. Dr Stone did not provide a diagnosis on 29 August 2007.

Ms Gray submits that Dr Tarrant had certified her unfit for work due to “acute anxiety/depression/panic attacks (PTSD)” on 29 August 2007. Busways challenges this submission as being incorrect. It points out that Ms Gray saw Dr Stone on 29 August 2007 and the only certification at that time was “WC 28/8 to 31/8/07 (Medical Illness)”. Whilst Busways’ submission is correct, it overlooks the entry Dr Stone made in the notes on 29 August, namely “Victimisation at work – escalated yesterday” and that Ms Gray was not sleeping and not eating. This entry provides a clear and almost contemporaneous link between the events at work and Ms Gray’s symptoms. It also corroborates her complaint that she believed she had been harassed and victimised at work.

Busways submits that it was not until the entry on 6 September 2007 (wrongly referred to in Busways’ submissions as 5 September) that the notes referred to “anxiety/depression/panic attack” and that the medical certificate of 6 September 2007 declared Ms Gray unfit from 28 August until 14 September 2007. Accordingly, so it is argued, any certification of unfitness due to “anxiety/depression/panic attack” was provided after the meeting on 3 September 2007 when Ms Gray knew she could not return to work at Kincumber and the union representative stated that Ms Gray was “on workers comp”. It is argued that the medical certificate referring to “medical illness” is insufficient to ground a claim for workers compensation.

Ms Gray does not base her claim on the “medical illness” certificate. As noted above, the fact that Dr Stone made no diagnosis of “anxiety/depression/panic attack” on 29 August 2007 is not determinative. It is clear beyond doubt that Ms Gray complained to him of victimisation at work and of physiological symptoms resulting from that victimisation. The exact diagnosis of a psychological condition is a matter for expert evidence, not for a union representative or a worker. It is hardly surprising that a busy general practitioner would not initially diagnose anxiety and depression. The notes also record that Ms Gray’s situation was “discussed”, though the content of that discussion is not known. What is known is that, consistent with Ms Gray’s claim before the Commission, Dr Stone recorded a brief history of victimisation at work and of symptoms as a result of that victimisation.

Ms Gray submits (referring to the Arbitrator’s Reasons at [56] to [58]) that the Arbitrator erred in stating that she had reported “stress” and “anxiety” to Dr Tarrant over a period of years and on a number of occasions from 2002 onwards. Busways has correctly observed that the Arbitrator did not refer to “stress” and “anxiety” in those paragraphs in his decision, but referred to Dr Anderson’s history of “no past psychiatric history” and to that history being inaccurate, having regard to Dr Tarrant’s notes.

However, at [21] of his decision, the Arbitrator said:

“I note that Dr Anderson takes a history of ‘no past psychiatric history’ which appears to be inconsistent with Dr Tarrant’s notes indicating that the Applicant had reported ‘stress’ and ‘anxiety’ to him over a period of years and on a number of occasions from 2002 onwards. Dr Anderson diagnoses Adjustment Disorder with Anxiety and Depression.”

Ms Gray submits that there are only four entries dealing with stress or anxiety between May 2002 and March 2005 and they are all in the context of physical symptoms experienced at that time. Busways points out that, over a longer period, there are many references in Dr Tarrant’s notes about stress and anxiety. They are:

(a) on the first page of the notes under “Active Problems”, the word “anxiety” appears;
(b) on 22 January 1996 Ms Gray attended with symptoms of an upper respiratory tract infection. The notes record “still daily headaches” “chest clear” “lifestyle factors” “some stress (doesn’t want to talk about it)”;

(c) 25 February 1998 “Depressed – moved from Sydney 5 years ago – depressed since when 1x overdose age 16 – unhappy at work, no father, doesn’t communicate [with] mother, few friends – 2 year relationship [with] ex friend ended 1 year ago → Kincumber Mental Health Services”;

(d) 4 March 1998 “depressed”;

(e) 6 March 2000 “stress”;

(f) 9 May 2002 “Imp Anxiety – stress [indecipherable] discussed”;

(g) 24 October 2002 “anxiety/palpitations”;

(h) 5 November 2002 “panic attack”;

(i) 17 March 2005 “anxious ++ about procedure” “Palpitations/SOB”.

Reliance is also placed on references in the notes on 24 October 2002 and 5 November 2002 to St John’s Wort, which, it is submitted, is “a prescriptive medication for depression and/or anxiety”. It is my understanding that St John’s Wort is a herbal remedy recommended for mild symptoms of depression and anxiety. However, in the absence of evidence explaining its significance, I place no weight on the reference to St John’s Wort.

The above entries in the clinical notes must be read in their context. The entry on the first page of the notes is clearly a reference to Ms Gray’s current or “active” problems and does not assist the employer. The full entry for 6 March 2000 is difficult to read and I place little weight on it. All the entries referring to anxiety or stress after March 2000 relate to or are associated with a physical complaint or medical procedure. The entry for 5 May 2002, for example, seems to relate to a complaint of pain and “bronchial thickening”. On 24 October 2002 Ms Gray was anxious about the results of an endoscopy. On 17 March 2005, Ms Gray was anxious about the removal of a lump from her neck. These entries are therefore of limited, if any, relevance to the current claim as they neither undermine Ms Gray’s case, nor advance Busways’ case.

The entry on 25 February 1998 is relevant as it suggests an episode of depression at that time. Apart from the entry on 4 March 1998, which is extremely brief and difficult to decipher, there is no relevant follow up in the notes about this episode and no further mention of depression in any of the numerous attendances at Dr Tarrant’s practice until the current problems in 2007. Given that it occurred nine years before the current claim and that Ms Gray functioned normally until mid 2007, I do not believe the entry in 1998 is of great significance and I do not believe Ms Gray’s failure to mention it to Dr Anderson or Ms Issavi undermines their conclusions. Therefore, on analysis, none of the entries in the clinical notes undermines Ms Gray’s case.

Specialist medical evidence

Ms Gray argues that the Arbitrator erred in accepting Dr Vickery’s evidence, not stating the basis for accepting that evidence, and not dealing with the inaccuracies in that report. It is submitted that Dr Vickery completely ignored Ms Gray’s history of symptoms and relied solely on his impression of her at the interview.

Busways submits that Dr Vickery clearly set out the matters he took into account in concluding that Ms Gray has no diagnosable psychiatric condition.

Dr Vickery’s evidence stands on its own and is inconsistent with the evidence from the treating general practitioner (Dr Tarrant), the treating psychologist (Ms Issavi), Dr Kaye, and Ms Gray’s qualified psychiatrist (Dr Anderson). Save for referring to the incomplete histories of Ms Gray’s past attendances on Dr Tarrant for stress, which the Arbitrator felt weakened Ms Gray’s expert evidence, the Arbitrator has not identified any persuasive reason for preferring Dr Vickery’s evidence over the evidence of Drs Anderson, Kaye, Tarrant, and Ms Issavi.

I deal with the incomplete histories at [168] and [169] below. For the reasons given in those paragraphs, the incomplete histories do not undermine the conclusions expressed by the relevant experts, but, more importantly, they do not provide a basis for accepting Dr Vickery’s evidence.

For the following reasons, I do not accept Dr Vickery’s evidence:

(a)at page five he stated that there was “no evidence of clinically significant anxiety” or “major depression”, but at page six he concluded that there was “no evidence of a diagnosable psychiatric condition or of any incapacitating psychopathology”. A person may have a diagnosable psychiatric condition without having “significant anxiety” or “major depression” and Dr Vickery has not ruled out that possibility;

(b)his conclusion on page six does not fit with the results from Ms Issavi’s findings in the psychometric tests she gave Ms Gray, which revealed Ms Gray’s symptoms of depression and anxiety fell within the severe range. Those test results, which I accept, are inconsistent with Dr Vickery’s conclusions and strongly support Dr Anderson’s conclusions, and

(c)he appears to have either ignored or not accepted Ms Gray’s symptoms in circumstances where there was no proper basis for doing so.

Given Ms Gray’s history and symptoms, which I accept, Dr Tarrant’s clinical notes, and the results of the psychometric testing, Dr Vickery’s conclusion is unsustainable and I prefer and accept the evidence of Dr Anderson and Ms Issavi, which is supported by Dr Tarrant’s certificates and notes, and by Ms Issavi’s psychometric testing.

Weight of the evidence

Busways submits that the Arbitrator stated that the weight of Ms Gray’s expert evidence is significantly weakened because the conclusions are based on an incorrect history. It is correct that Dr Anderson recorded that Ms Gray had no past psychiatric history and that Dr Tarrant’s notes suggest otherwise. However, Busways’ submission ignores the fact that Ms Gray worked for Busways for several months without difficulty until the events on 18 May 2007 and that, whilst Ms Gray did most likely suffer from an episode of depression in 1998, the subsequent entries in Dr Tarrant’s notes make it clear that she was not receiving treatment for that condition at any time in the years up to the commencement of her problems in 2007. It also ignores the fact that, at their highest, Dr Tarrant’s notes only provide some support for an argument that Ms Gray might have been more predisposed than other workers to developing a psychiatric condition. That does not assist Busways. Employers take their workers as they find them (per Spigelman CJ in The State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (‘Chemler’) at [40]). In these circumstances, I do not accept that Dr Anderson’s incomplete history is of any consequence. His history provided a fair climate for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510).

For the same reasons, I do not accept that the absence of a history of the 1998 episode from the reports of Dr Kaye and Ms Issavi diminishes the weight to be attached to the conclusions expressed in those reports.

Busways also criticises Ms Issavi’s evidence on the basis that:

(a)Ms Gray’s general propositions carry little weight;

(b)the diagnosis was, in part, based on untruths, namely

(i)that the equipment provided to Ms Gray was faulty;
(ii)that Ms Gray developed a physical incapacity as a result of her employment;
(iii)part of the history Ms Gray provided was inaccurate. For example, she wrongly said that she had requested a transfer to another depot and that request was denied.

I do not accept that Ms Gray’s “general propositions” carry little weight. Her evidence, which I accept, is that she was victimised, harassed, intimidated, and treated unfairly compared to Ms Harris and Mr Morrison. Whilst there are several areas where the facts are in dispute, such as who first made the offensive finger gesture, there are several areas of common ground. It is of particular significance, for example, that Mr Morrison agrees that he lost his temper and swore at Ms Gray in May 2007. His language was not just intemperate, but was grossly inappropriate, offensive and threatening. It is significant that it was about this time that Ms Gray’s relations with her co-workers deteriorated and she felt intimidated by their conduct.

Ms Harris does not dispute the fact that several unpleasant incidents occurred, but suggests that they were all Ms Gray’s fault. Though fault is not relevant, save for the specific circumstances referred to in section 11A(1), I do not accept Ms Harris’ assertion. Ms Harris concedes that first major incident was when Ms Gray had words with Mr Morrison. Mr Morrison’s conduct was aggressive and menacing. Ms Harris also agrees that she said to Ms Gray “everything was okay before you came here”, but not in a nasty way. Given the tensions at work, it is difficult to see how such a comment could be seen as anything but spiteful and malicious. It is understandable that Ms Gray would be offended by such a comment.

I have found Ms Lloyd’s evidence to be generally unsatisfactory and unconvincing. Whilst she claimed she had nothing to do with Ms Gray, she concluded that Ms Gray was a troublemaker. It is difficult to see how Ms Lloyd could reach that conclusion if she had nothing to do with Ms Gray. Based on Ms Gray’s evidence, which I accept, I am satisfied that Ms Lloyd and Ms Gray had regular contact at work and that Ms Lloyd deliberately intimidated Ms Gray with her body language. Ms Lloyd confirms the significance of the 18 May 2007 incident by conceding that up until that time Ms Gray was “alright” [sic] towards her.

I also have reservations about the reliability of Mr Kerr’s evidence. His suggestion that Ms Gray’s association with Mr Dyble may have been more than just a working relationship is of no direct relevance to the case other than as an attempt to smear and undermine Mr Dyble. It is clear that Mr Kerr was very supportive of Ms Harris and critical of Ms Gray (see [29] above) and this provides further support for Ms Gray feeling that she was not being treated fairly. It is not necessary for me to determine why Mr Kerr was so supportive of Ms Harris.

Mr Smith’s assertion that he became aware of problems with Ms Gray within a few weeks of her starting is inconsistent with the evidence from Ms Harris and Ms Lloyd that things were all right until Mr Morrison used offensive language in May 2007 and, as a result, I do not accept it. The validity of his criticism of Ms Gray and Ms Lynch for not working when they should have been is also open to doubt. Mr Dyble certainly did not share that view and he told Mr Smith that he felt Ms Gray and Ms Lynch were his best cleaners (see [68] above). Further, Mr Smith’s criticism of Ms Gray for taking breaks appears to have failed to take into account the fact that Mr Dyble expressly permitted her to take a break during her shift even though it was not technically allowed in a four-hour shift. This evidence adds further weight to Ms Gray’s assertion that she believed she was being victimised. For the above reasons, and noting also his relationship with Ms Harris, I have reservations about the objectivity and reliability of Mr Smith’s evidence.

It is therefore clear beyond doubt that there were significant conflicts at work between Ms Gray and her co-workers. Ms Gray’s description of her work environment as “poisonous” (Ms Gray’s statement 6 November 2008, page 37) was appropriate and I agree with it. Ms Lynch’s evidence, which I accept, generally supports Ms Gray’s allegations of victimisation and unfair treatment compared to the other cleaners.

It is also clear that the workplace conflict significantly affected Ms Gray’s emotional health. This is corroborated by her mother’s evidence, which I accept, that she came home from work crying and by the notes from Dr Tarrant’s practice.

Whether the equipment provided to Ms Gray was faulty is not determinative of the issues in dispute. I accept her evidence that she requested new brooms for use in the school buses and that there was an altercation when she took the new brooms from the lunchroom. In the circumstances I accept her evidence that she perceived that she was being treated unfairly, especially in comparison to other workers. It is not to the point that the allocation of the equipment was a management decision. It was Ms Gray’s perception in all the circumstances that she was being victimised. Even if that perception was erroneous, and I do not think it was, it is now well established that a misperception of events can be causative of an injury so long as it is a misperception of events that actually happened (Chemler). I am comfortably satisfied that the events Ms Gray complains of, in particular the abusive conduct by Mr Morrison, the generally cold, hostile and intimidating conduct of Mr Morrison, Ms Harris and Ms Lloyd, and the broom incident, did happen and that they happened at work in the course of Ms Gray’s employment.

Ms Issavi’s reference to Ms Gray requesting a transfer to another depot is an error, but is it clearly not a critical part of the history and not an error that undermines or diminishes the weight to be attached to Ms Issavi’s conclusion or her psychometric testing.

Busways makes much of the alleged weakness in Ms Gray’s claim for compensation for injury to her back, neck and right arm (‘the physical injuries’) and it highlights, in great detail, the deficiencies in that claim. It points to a complete absence of complaint of physical symptoms in the evidence from Ms Gray and Ms Lynch. This submission is not entirely accurate. Ms Gray mentioned her physical symptoms in her 6 November 2008 statement (see [54] above). Ms Gray’s mother also referred to her daughter experiencing physical symptoms (see [61] above). However, I accept that Ms Gray’s physical symptoms are not a prominent feature in either her evidence or the evidence from Ms Lynch.

Reference is made to the fact that Ms Gray had complained to Dr Tarrant on several occasions of neck and back pain between 1995 and 2006, yet made no mention of these complaints to the doctors she saw for the purpose of the current claim. It is submitted that Ms Gray sought to hide her past history from those doctors and an inference should be drawn that she suffered no physical injury, and that the allegation that Ms Gray suffered a physical injury was “made up”. This, it is argued, affects Ms Gray’s credibility in her claim for compensation for her psychological injury.

Whilst Ms Gray’s claim for compensation for her physical injuries may well have faced certain difficulties, as the Application was amended to delete that claim I make no determination of the kind urged by Busways. The psychological claim must be determined on its merits having regard to the whole of the evidence. Even assuming that the matters urged by Busways do undermine Ms Gray’s credit, a close and critical analysis of the evidence overwhelmingly supports the conclusion that significant conflict existed at work and that Ms Gray suffered a psychological injury as a result of that conflict.

Busways urges that a Jones v Dunkel (1959) 101 CLR 298 inference be drawn against Ms Gray because of her failure to tender any evidence from the psychologist she saw in the period shortly after she ceased work and the chiropractor who treated her during an unidentified period. According to Dr Anderson’s history, Ms Gray saw a psychologist on two occasions but did not find that helpful. Whilst Jones v Dunkel licences the drawing of an inference, it does not demand it (Howell v Macquarie University [2008] NSWCA 26 at [98]). I am not satisfied that any inference should be drawn against Ms Gray from her failure to tender a report from the psychologist she saw in 2007. In any event, the only inference to be drawn is that the psychologist would not have advanced Ms Gray’s case. Given the other evidence in the case, such an inference is of little or no significance (Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 at [100]). As Ms Gray does not press a claim for compensation for any physical injury, I decline to draw any inference from the failure to tender any report from the chiropractor from whom she received treatment.

The weight of the evidence overwhelmingly supports the conclusion that Ms Gray suffered a psychological injury in the form of an Adjustment Disorder with Anxiety and Depression (Dr Anderson) or a Major Depressive Disorder (Ms Issavi) as a result of the events at work with Busways in 2007.

Section 9A

Having regard to the matters listed in section 9A(2) of the 1987 Act, I am comfortably satisfied that Ms Gray’s employment was a substantial contributing factor to her psychological injury. The matters she complains of (apart from the finger gestures and the telephone calls) all occurred at work during work hours. I am satisfied that the finger gestures and telephone calls arose out of the work conflicts and therefore arose out of Ms Gray’s employment. There is no evidence as to the probability of the injury or a similar injury happening anyway at about the same time or at the same stage of Ms Gray’s life. Ms Gray had no significant health problems in the years immediately before 2007 and performed her normal duties without incident until May 2007.

Section 11A

Section 11A(1) of the 1987 Act provides:

“11A No compensation for psychological injury caused by reasonable actions of employer

(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

The onus of establishing that a section 11A defence is established is on the employer (Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206; [2005] NSWCA 465).

In a claim for compensation for psychological injury, the Commission has to decide whether the whole or predominant cause of the psychological injury was the employer’s action or proposed action with respect to one or more of the actions listed in section 11A(1), and, if so, whether the action or proposed action was reasonable (see Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [4]).

As I noted at [6] above, the section 74 notice does not properly identify the action or actions the insurer relies on as having been the whole or predominant cause of the psychological injury. It is stated at page three of the notice that the “employer acted reasonably with respect to the performance management procedures involved in this case.” The section does not talk of “performance management procedures” but of “performance appraisal”.
Notwithstanding the deficiencies in the section 74 notice, the Arbitrator dealt with the section 11A defence on the basis that the employer relied on “performance appraisal” and “discipline” (Reasons at [47(d)], [67] and [70]).

Busways argues that Ms Gray’s condition diagnosed by Dr Tarrant in his certificate of 6 September 2007 arose either from the events on 28 August 2007 or on 3 September 2007 and it is entitled to rely on section 11A(1) as the events on both days fall “within the definition of that subsection”. No attempt is made to identify which one of the seven categories the events fall within.

The section 11A defence cannot succeed because there is no persuasive evidence that Ms Gray’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of Busways with respect to any of the seven categories in subsection (1). Dr Vickery did not deal with that issue. His evidence is that Ms Gray suffered no injury and, as a result, his statement that Busways “acted appropriately” is of no weight in the absence of evidence as to the whole or predominant cause of the injury.

Ms Gray’s injury was caused by multiple events and circumstances at work over a period of months. Mr Morrison’s conduct on 18 May 2007 was obviously a significant event and after that event Ms Gray’s relationship with her co-workers, and her health, deteriorated significantly. I am not satisfied that the events on 28 August 2007 and/or on 3 September 2007 were the whole or predominant cause of Ms Gray’s psychological injury.

In any event, given Ms Gray’s complaints about the allocation of work to her in the school buses, the nature of the equipment given to her to perform that work, and the circumstances in which the new brooms were placed in the lunchroom, I do not accept that Busways’ actions on 28 August 2007 were reasonable. Proper steps could and should have been taken to deal with Ms Gray’s request for new brooms before that day.

Last, even if it is thought that the proposed transfer to Wyong was the whole or predominant cause of Ms Gray’s psychological injury, I do not accept that such a transfer was reasonable. It required Ms Gray to travel an excessive distance (45 minutes each way as opposed to five minutes at Kincumber) in circumstances where she only worked 20 hours per week and had an obligation, as Busways knew, to care for her mother. I accept Ms Gray’s evidence that she felt the proposed transfer was further evidence of discrimination.

Medical expenses

Though medical expenses were not in issue in the section 74 notice, the Arbitrator appears to have allowed that matter to be disputed. That should not have happened without an application for leave under section 289(4) of the 1998 Act. Nevertheless, in the absence of any objection from Ms Gray, I will deal with this issue.

Busways submits that medical expenses should not be awarded if they have been incurred outside the period for which weekly compensation is awarded. I do not accept that submission. It follows from the findings I have made, and from my acceptance of the conclusions of Dr Anderson and Ms Issavi, that the effects of Ms Gray’s injury are continuing. It also follows that Ms Gray is entitled to recover the cost of her reasonable hospital and medical expenses under section 60 of the 1987 Act on an ongoing basis. As the parties have not made submissions as to specific accounts, I propose making a general order for the payment of section 60 expenses relating to her psychological injury.

Incapacity

Though incapacity was not put in issue in the section 74 notice, the Arbitrator identified it as an issue in dispute. That should not have happened without an application for leave under section 289(4) of the 1998 Act. Nevertheless, in the absence of any objection from Ms Gray, I will deal with this issue.

Busways submits that Ms Gray was not incapacitated during the closed period claimed or that such incapacity she suffered was insufficient to entitle her to an award. It relies on Mr Rodger’s statement at the 3 September 2007 meeting that Ms Gray was prepared to return to work on certain conditions as evidence that she considered herself fit for her job.

I do not accept this submission. It fails to acknowledge that the question of fitness for work in a case involving psychiatric injury is not simply a matter of ability to physically perform the duties involved. It requires an assessment of the worker’s ability to cope with all aspects of the work environment. Even Busways acknowledged that it was not appropriate for Ms Gray to return to work at Kincumber. The question of fitness for work must be assessed in the light of all of the evidence, with particular regard to the medical evidence. The evidence from Dr Tarrant, which I accept, is that Ms Gray was totally unfit for work from 28 August 2007 until November 2007.

Next, Busways argues that Ms Gray was only partially incapacitated in the relevant period. Given the nature of Ms Gray’s injury and the certification from Dr Tarrant, I do not accept that submission.

Costs of the arbitration

Busways seeks an order that Ms Gray pay its costs incurred in preparing to meet the abandoned claim for compensation as a result of her alleged physical injuries. The Arbitrator considered and rejected that application at the arbitration. I also reject it as I am not satisfied that Ms Gray’s claim in respect of her alleged physical injuries comes within the terms of section 341(4) of the 1998 Act.

CONCLUSION

Having conducted a review on the merits (per Spigelman CJ in Chemler at [28]), I am satisfied that the true and correct position is that Ms Gray suffered a psychological injury as a result of harassment, victimisation and intimidation in the course of her employment with Busways in 2007 and that the effect of that injury is continuing. Busways has not established a defence under section 11A. Ms Harris was totally unfit for work from 28 August 2007 until she commenced alternative employment in November 2007 and is entitled to compensation accordingly.

DECISION

Paragraphs one and two of the Arbitrator’s determination of 15 June 2009 are revoked and the following orders made:

“1.     Award for the applicant worker under section 36 in the sum of $341.68 per week from 28 August 2007 until 11 November 2007.
4.       The respondent employer is to pay the applicant worker’s section 60 expenses.
5.       The respondent employer is to pay the applicant worker’s costs as agreed or assessed.”

COSTS ON APPEAL

The respondent employer is to pay the appellant worker’s costs of the appeal, which are assessed at $2,200 plus GST.

Bill Roche
Deputy President

6 October 2009

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

Actions

Download as PDF Download as Word Document

Citations

Gray v Busways Gosford EMP Pty Ltd [2009] NSWWCCPD 124

Most Recent Citation

Gharibeh v Secretary, Ministry of Health (NSW Health Pathology) [2021] NSWPIC 343

Cases Citing This Decision

6

Baldwin v Greater Building Society Ltd [2011] NSWWCCPD 18

Irvin v LA Logistics Pty Ltd [2010] NSWWCCPD 40

McCarthy v Department of Corrective Services [2010] NSWWCCPD 27

Cases Cited

6

Statutory Material Cited

0

State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249

Howell v Macquarie University [2008] NSWCA 26

Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29