Hall v Aware Super Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hall v Aware Super Services Pty Ltd [2024] NSWPIC 651
APPLICANT:	Elise Amy Hall
RESPONDENT:	Aware Super Services Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	26 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for weekly compensation and medical expenses in respect of a psychological injury; whether injury wholly or predominantly due to reasonable action with respect to employment benefits; ACR v Grace Worldwide Pty Ltd and Rock Logistics Pty Ltd v Chelin considered; application of section 73 of the 1998 Act; Held – the respondent established a defence pursuant to section 11A(1) of the 1987 Act; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The Internal Investigation Report, dated 5 May 2023, by Azuhr is not admissible in the proceedings pursuant to s 73(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998. 2. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Ms Elise Amy Hall (the applicant) was employed as a financial planner by Aware Super Services Pty Ltd (the respondent). It is agreed between the parties that the applicant sustained a psychological injury in the course of or arising out of her employment with the respondent.
The applicant’s claim for compensation was, however, disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 3 March 2023, 4 July 2023 and, following internal review, on 24 June 2024. The respondent’s insurer relied, amongst other things, on a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) to dispute liability.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission on 29 July 2024. The applicant seeks weekly compensation and compensation pursuant to s 60 of the 1987 Act for incurred medical and related treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 17 October 2024. The applicant was represented by Mr Dewashish Adhikary, of counsel, instructed by Ms Jessica Campbell. The respondent was represented by Mr Andrew Combe of counsel, instructed by Mr Jesse Webb. A representative from the insurer was also present.
During the conciliation conference, the applicant raised an objection to the admission of an investigation report attached to the Reply by reference to s 73 of the 1998 Act and cl 41 of the Workers Compensation Regulation 2016 (the Regulation). As the respondent pressed for the document’s admission, the parties were invited to make formal submissions on the matter during the arbitration hearing.
The respondent informed the Commission that it no longer relied upon action with respect to “performance appraisal” for the purposes of its s 11A(1) defence.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the investigation report, dated 5 May 2023, attached to the Reply at p 107 is admissible having regard to s 73 of the 1998 Act and cl 41 of the Regulation;
(b) whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to provision of employment benefits pursuant to s 11A(1) of the 1987 Act;
(c)    the extent and quantification of incapacity resulting from a compensable injury in the period from 13 March 2023 to date and continuing, and
(d)    whether the medical and related treatment expenses claimed were reasonably necessary as a result of a compensable injury pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 22 August 2024;
(d)    documents attached to an Application to Admit Late Documents lodged by the applicant on 10 October 2024, and
(e)    documents attached to an Application to Admit Late Documents lodged by the respondent on 11 October 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Section 73 objection

The applicant objects to the admission of an Internal Investigation Report dated 5 May 2023 prepared for the respondent employer by Azuhr.
The report indicates that it was procured by the respondent employer following a complaint from the applicant alleging workplace discrimination and bullying. Azuhr was appointed by the respondent employer to conduct an independent investigation.
Section 73 of the 1998 Act requires insurers to provide certain reports, as specified in the Regulation, to injured workers. The relevant provision of the Regulation is cl 41, which specifies the following reports for the purposes of s 73 of the 1998 Act:
“41 Access to certain medical reports and other reports obtained by insurer
(1) This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession—
(a) medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act,
(b) certificates of capacity,
(c) clinical notes,
(d) investigators’ reports,
(e) workplace rehabilitation providers’ reports,
(f) health service providers’ reports,
(g) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made.”
Clause 41 further provides that if a decision is made to dispute liability or discontinue or reduce the amount of weekly payments, the insurer must provide a copy of any relevant report as an attachment to the relevant dispute notice except where the report has already been supplied to the worker and that report is identified in a statement under clause 38(1)(d) of the Regulation.
The obligation to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.
In opposing the admission of the investigation report, the applicant submitted that it was relevant to the claim, none of the exceptions in cl 41 applied, the report was in the respondent’s possession at the time of the dispute notices and was not attached to the dispute notices.
The applicant referred the Commission to the decisions of Flemming DP in Chown v Tony Madden Refrigeration Transport Limited[1] and Roche DP in RSL (QLD) War Veterans Homes Ltd v Watkins[2] and submitted that the Commission had no discretion to dispense with the consequences of these provisions.
[1] [2005] NSWWCCPD 159.
[2] [2013] NSWWCCPD 44.
The respondent conceded that the report was not previously provided to the applicant although a summary of the report was. The respondent made no further submissions in relation to this issue.
The report in question is clearly an “investigator’s report”, although it was procured by the employer rather than the insurer. The report appears to have been in the possession of the respondent employer at the time of the dispute notices issued by the respondent’s insurer on 4 July 2023 and following internal review on 24 June 2024. Given the nature of the claim, the contents of the report were relevant to the decision to dispute liability.
In these circumstances, the insurer was obliged to provide a copy of the report as an attachment to the dispute notices unless the report had already been supplied to the applicant and the report had been identified in a statement under clause 38(1)(d) of the Regulation.
The respondent has not been able to demonstrate that a copy of the report had been provided to the applicant, either with the dispute notices or at an earlier point in time.
The effect of a failure to comply with s 73 and cl 41 is set out in s 73(3) and includes, pursuant to s 73(3)(b) that “the report is not admissible in proceedings on such a dispute before the Commission”.
I accept the applicant’s submission that the Commission has no discretion to dispense with the consequences of the provisions set out above.
I find that that the Internal Investigation Report dated 5 May 2023 is not admissible in these proceedings and I have not taken it into account in making this determination.

Applicant’s evidence

The applicant’s evidence is set out in written statements made on 10 March 2023 and 15 May 2024.
In her first statement, the applicant said she was completing a Masters degree in Commerce and a Graduate Diploma in Financial Planning, both through Charles Sturt University.
The applicant denied any pre-existing injuries or medical conditions prior to the commencement of her employment with the respondent.
The applicant commenced employment with the respondent in 2011 in an administrative role. Within three months, she was promoted to client service officer. In 2015, the applicant resigned for a period of three months. Upon her return to employment, the applicant was promoted to a client service advisor, before becoming an associate planner in 2015. In 2019, the applicant became a financial planner.
The applicant said she worked from the respondent’s Wagga Wagga office. There were three planners in the office and the applicant was the only female planner. When the applicant started in the Wagga Wagga office there were seven planners.
Since the COVID pandemic, the applicant had been able to complete some work from home. During 2022, she worked two days a week from the office with the remaining three days per week from home.
As the applicant’s daughter was due to start kindergarten in 2023, the applicant requested to finish work in the office by 3.00pm in order to pick up her daughter from school. The applicant’s daughter had been at school for only two weeks when she ceased work.
The applicant said she was supervised by Mr Cain Laoumtzis. The applicant would have a weekly check-in with Mr Laoumtzis to see where she was at and how much work she had on. The applicant said she was injured at work on 7 February 2023 at 1.00pm after her regular weekly check-in meeting with Mr Laoumtzis.
In the lead up to this meeting, the applicant had been fighting for her salary to be increased since 2019. All planners were paid at different levels. The applicant felt disadvantaged as within the first 18 months of being an associate planner she fell pregnant. The applicant had been told that she would be promoted to a financial planner before she went on maternity leave but this did not happen. Usually, associate planners were promoted to financial planners within 12 months.
While the applicant was on maternity leave, another planner who had been employed 12 months after the applicant was promoted to financial planner. The applicant asked what she needed to do to move up but did not get any direction.
Around that time, three financial planners retired and their positions were advertised. The applicant was discouraged from applying as she was told she would be promoted in the new year. One of the men hired as a financial planner had applied for an associate planner role at the same time as the applicant but missed out on the job. He had less experience and qualifications but was hired on a much higher salary than the applicant. The applicant was promoted to financial planner but her salary was lower.
The applicant emailed a complaint to Human Resources in 2019. The applicant noted that after the three planners retired there was a dramatic increase in workload. The applicant had raised this with her manager but no changes were made. The applicant was also asked to take over the clients of a planner who had left the Albury office. The applicant expressed that she felt discriminated against as all the men were getting pay rises although they were performing the same roles.
The applicant had been told that if she took on the Albury clients, her target revenue amount would be reduced to account for a difference in incentives paid for those clients. The applicant was not given any training or contacts and could not access the records for those clients for weeks. When it came to her pay review, the reduction in revenue amount agreed had not been applied. This meant that the applicant missed out on a pay rise and full incentive.
Following the complaint, the applicant was given a $6,000 pay rise but the males in the office were being paid about $30,000 per year more than her in the same role.
In March 2022, there was an office restructure. The applicant spoke to her new manager, Handre Vlok, about her pay and previous discussions with management. In August 2022, Mr Vlok put forward a business case as to why the applicant and another planner should have a pay rise. The other planner got his pay rise but the applicant was told her case had moved to Mr Vlok’s manager for approval. The applicant was then told that steps were being taken to align the pay of all financial planners and so the review might take a bit longer. Mr Vlok resigned in October 2022.
The applicant continued to ask about her pay rise at each weekly catch up with Mr Laoumtzis. He said he would check but never did.
On 6 February 2023, the applicant covered the appointments for another planner who had called in sick. The applicant was given an internal recognition award for doing this.
At the meeting with Mr Laoumtzis on 7 February 2023, the applicant was told that she would not be getting a pay rise because of her performance. The applicant was told that she needed to increase revenue before her pay would be reviewed. Mr Laoumtzis told the applicant that she would need to apply for a flexible work arrangement to show how she would make up the 10 hours per week she was not in the office due to picking up her daughter from school.
The applicant said she had previously had conversations with Mr Laoumtzis about working hours and he had said he did not care what hours the applicant worked as long as her work was done.
The applicant said she left the meeting in tears and called in sick the next day.
The applicant described a number of issues with Human Resources after going off on sick leave.
On 28 February 2023, the applicant made a formal complaint to the Chief Executive Officer (CEO), Deanne Stewart. The applicant said she felt disadvantaged as she remained an Associate Planner for four years instead of 12 months and because her salary did not align with colleagues performing the same role.
The applicant expressed the view that Mr Laoumtzis’ manager, Andrew Donachie, had a particular issue with her and had prevented her from receiving a pay rise.
The applicant sought medical treatment from Dr Azam at Glenrock Country Practice on 8 February 2023 and thereafter from her usual general practitioner, Dr Kirolus at Junee Medical Centre. The applicant was diagnosed with depression and anxiety and had trialled Zoloft.
In her supplementary statement, the applicant provided further detail around the events described in her first statement.
The applicant said that one-on-one meetings with Mr Laoumtzis were conducted with all planners and never had an official agenda. The meetings were informal and they would discuss workload issues and time management, as well as personal matters. The applicant said her performance had never been questioned in 12 years of employment with the respondent. The applicant had only ever been the subject of positive feedback about her performance.
The meeting on 7 February 2023 was the first time that any issue was raised about her performance or time management skills. The applicant had no prior warning that such issues would be discussed at the meeting. The applicant said she felt ambushed. The applicant was not given an opportunity to have a support person present, either before or during the meeting.
The applicant said that she was very upset during the meeting and started crying. The applicant felt she was disadvantaged, taken advantage of not being rewarded for her hard work. After unsuccessfully seeking equal pay for six years, this was “another kick in the guts”.
The applicant responded to written statements prepared by the respondent’s witnesses.

Email correspondence

An email complaint sent from the applicant to the Head of Performance and Reward, Mr Aidan Read, on 13 September 2019 addressed her remuneration and incentive for the previous financial year.
The applicant noted that she had been promoted to financial planner in March 2019 after being in an associate planning role for four years. Since being promoted, the applicant had taken on a senior role in the office due to three senior planners retiring within months of each other. The applicant’s client book had tripled in size and her workload had increased significantly.
In view of these facts, the applicant asked that her salary be reviewed and put in line with other planners in the office. The applicant said it was common knowledge within the office that the two newest planners were on a higher salary and had less than half the client base and half of the applicant’s experience. The applicant expressed the view that she had been left feeling very underappreciated as someone who had been with the company for many years.
The applicant said that her incentive pay had been significantly less than she expected. The applicant had been told by her manager that this was because she did not meet the full revenue target. The applicant’s target was unfair as she had not been given enough clients to meet the target. The applicant had taken on “ORS” clients who paid a lower advice fee, making it more difficult to achieve a target.
The applicant stated,
“The period before last I did not receive an incentive because I was told I didn’t meet my revenue target, but that I met all other gateways and in fact got a 4 for compliance and behaviours. I am aware there were other planners in the office who didn’t meet a benchmark yet they still received a discretionary incentive as they met all other gateways. I don’t understand how two people can meet the same targets yet only one gets an incentive.”
Further:
“With the above information and facts I feel that I am being disadvantaged because I am the only female planner in our office and that I am not being offered the same considerations as others. I also note I went on maternity leave 2 years ago and after I had returned from Maternity leave a planner who had commenced employment 12 months after me had been promoted to a full planner role. This allowed that person the opportunities to increase his client base so that he could meet his targets that were way out of reach for me. Prior to returning from Maternity leave I had never felt that gender had played a role in any of managements decisions regarding my position in the past 9 years that I have been with this company. With the above example I chose not to say anything due to fear of upsetting management and being labelled a complainer. However, with this current issue of reduced incentive and no salary increase directly to the increase in my client base and revenue I am of the suspicion that its possible my position in this office would be different if I wasn’t female.”

Correspondence from the applicant addressed to Deanne Stewart, dated 26 February 2023 is in evidence. In that correspondence, the applicant recorded a history consistent with her statement evidence noting the 2019 complaint. The applicant said:
“I am on this leave due to depression and anxiety that has been caused as a direct result of executive/senior staff’s actions within Aware Super. As equally upsetting and disappointing is the treatment or ‘service’ being ‘provided’ by specialist staff within the company, which I can only feel and perceive as an attempt to continuously and repeatedly bully me to return to work, even suggesting I go against my general practitioner’s medical advice.”
The applicant referred to the company’s policy of commitment to gender pay a quality which encouraged staff to express concerns regarding pay relative to other employees with a different gender identity.
Ms Stewart responded to the applicant’s correspondence on 8 March 2023 indicating that she took her concerns seriously and would appoint an independent investigator to investigate her allegations and identify any areas of risk and remediation action required.

Incident report form

An incident report form was initiated on 17 February 2023 and completed on 20 February 2023.
The incident description from the applicant recorded that the applicant was informed, only a day after receiving formal positive feedback and a Star award from her manager, that she was not receiving a pay rise that had been submitted and approved by her previous manager in October 2022 to align with the rest of the financial planners in the office. The applicant indicated that she had been significantly underpaid for almost all of her time as a financial planner as Mr Donachie felt her performance was not good enough. The applicant had never been performance managed or spoken to about her performance. As a result of the incident the applicant had been under an enormous amount of stress, anxiety and depression to the point of seeking medical assistance.

Applicant’s witness evidence

In addition to her own statements, the applicant relies on written statements prepared by her husband, Mr Timothy Hall, and a former colleague, Mr Graham Cotter.
Mr Cotter gave evidence that the applicant’s salary was below his own when he was employed with the respondent as a financial planner. Mr Cotter ceased employment with the respondent in June 2021.
Mr Hall provided evidence as to his own observations of the applicant’s experiences in the course of her employment with the respondent.

Mr Laoumtzis’ evidence

The respondent relies on a written statement prepared by Mr Cain Laoumtzis on 10 March 2023.
Mr Laoumtzis said he had managed the applicant for 12 months prior to March 2022 and then again after 26 October 2022. In the intervening period, the applicant had been managed by the Canberra office.
Mr Laoumtzis said the applicant had a lot of time off work and had minimal sick leave entitlements despite working for the company for nearly 10 years.
Mr Laoumtzis described the applicant as a technically competent planner who was good with members. In the last six months, the applicant had made mistakes resulting in losses to clients. Mr Laoumtzis said that he had spoken with the applicant about taking more care with files. The applicant had failed a compliance audit in June 2022 and had to go back on pre-vetting. The applicant passed a December 2022 audit.
Mr Laoumtzis said he had one-on-one meetings with the applicant each week to talk about workflow and what was going on in her life. Recently they had spoken about some old practices that needed to be improved.
Mr Laoumtzis gave evidence that a business planning meeting was held with the applicant in January 2023 to discuss key performance indicator (KPIs) and what was expected. The applicant indicated that her husband was about to go back to work and her youngest child was about to commence school. The applicant told Mr Laoumtzis that she could only be in the office from 9.00am to 3.00pm and had set herself up to be at home for virtual appointments on Mondays and an admin day at home on Fridays.
Mr Laoumtzis noted that the applicant had previously been on a flexible work arrangement working 0.8 of a full-time equivalent role.
After the applicant advised him of her change in circumstances, Mr Laoumtzis said he had spoken with Human Resources, raising concerns about the applicant’s results and seeking guidance on how to handle the situation. Human Resources advised that a flexible work arrangement would need to be put in place.
Mr Laoumtzis said he started monitoring the applicant’s performance more closely to see if the change in personal circumstances had any impact on the applicant’s performance. He noted a reduced level of performance.
Mr Laoumtzis said he was aware that the applicant had a full life with her child starting prep, building a house and her husband going back to full-time employment after being unable to work for four years. The applicant was also being financially supported by the respondent up to $20,000 to complete university study and was provided with paid study days. The applicant indicated during the meeting on 7 February 2023 that she would be taking two subjects the following semester. Mr Laoumtzis said he had expressed his concern that the applicant was trying to do too much.
Mr Laoumtzis said he let the applicant know that they needed her to be available to members in the afternoons and that more members were requesting face-to-face meetings. Mr Laoumtzis said:
“I had noted that from her figures and output she could not be working the expected 38 hours per week. I questioned this with her. I questioned when she was making up the extra time she was not working in the office each day. Elise said she struggled to work late at night as she gets up early for exercise. I was unable to get Elise to commit to a time when she would be making up the hours. She just said she would do them spasmodically. I asked Elise if she could do member appointments at 6pm even from home virtually and Elise said it would not work with her family. I asked Elise to work in the office Monday and she said she couldn’t, she would only agree to do one virtual appointment on Monday and do the other appointment on Wednesday face to face.
I went through Elise’s last four weeks of work with her and challenged her on the lack of work she had done. The fact it was not a full time workload with what she had delivered. At this time Elise got defensive and then asked about her pay rise.
This took me a little off guard; I had been talking about her lack of performance and how we needed to see an uplift in this area and she wanted to talk about a pay rise. It was known that there was a case put forward for an out of cycle pay rise for Elise and others and it had been with the Remuneration Committee to approve. I let Elise know that her requests for a pay rise was not approved based on current performance. If she could commit to giving me a good solid month, I will go and support her with another conversation with my manager.”

Employer records

Mr Laoumtzis made a file note of his check-in meeting with the applicant on 7 February 2023, which he emailed to himself at 3.25pm on the same date. The notes were forwarded to a people consultant on 9 February 2023.
Mr Laoumtzis recorded:
“Spoke to Elise around work arrangements, said we are supportive of her and will work with her to see if she can balance her commitments, however I said that we expect her to work her 38hrs p.w.
She is set up virtual Monday and then tues- thurs in office, we agreed to change her diary to one virtual on Monday and then to pick up the appointment on Weds F2F (so 1,2,2,2) to make up her 7. I said its not fair on members they can not get an appointment past 1 pm with you and would you consider evening appointments, say 6 pm, she said no it does not work for her family.
She has lot going on, building a house, doing one subject at uni (soon to be 2 - next period) Tim has just gone back to work FT and she has to take her daughter and pick her up from school every day, therefore she is only in the office (or working) 9 - 9.15 to 2.45 - 3pm. I asked how she was and she said busy and that I am concerned she may be doing too much - she said she was fine and can manage.
I asked if she had set time to make up her hours and she said not still working out a routine but I can't work late at night as I get up early for exercise classes.
I offered her the option of reducing her hours as if she is full time we expect a full time work load - then I went through her stats from last half ( 61 docs at an ave of
4.59 appw) and then the first 4 weeks of this half. ( 20 appts - 3 days off) - 2x soa pres, 10 EFB - none converted and 8 reviews. And she only had 1 ROA and 3 review SOA's out ( with 2 ROA's and 2 SOA's outstanding)
With working 2 hrs less per day - home life is creeping into work time so if she wants to keep FT hours, work time must creep into home life. I suggested we formalize her working arrangement with a flexible work arrangement so we can have her commitment on the hrs she will work, she will talk to tim and get back to us.
She bought up pay again, I said I need her to perform and based on last years performance and the start of this year, her output is not where its required. I asked her for a solid month of figures and I will go in an bat for her, but she has to perform, she got a bit upset over her pay, said it wasn't fair Paul was on a lot more and she does more than him, =however I highlighted his output was higher by 20% - 7 advice docs, 6.19 appts p.w.”

Mr Donachie’s evidence

Mr Laoumtzis’ manager, Mr Andrew Donachie, provided a written statement dated 16 March 2023.
Mr Donachie said he had overseen the Wagga region from May 2018 to March 2022, then again from November 2022 onwards.
Mr Donachie said that when he started in the Wagga office, the applicant put forward a request to be elevated from an associate planner to a financial planner. The pathway to the promotion was through demonstrated commitment to education, proficiency around all aspects of the financial planner role and meeting expectations on client feedback and professional standards for two periods. A plan was put in place to support the applicant to be elevated to a financial planner role by June 2019, assuming the key milestones were met.
The applicant met the milestones in April 2019 and was elevated accordingly. The applicant’s pay was increased from $82,000 to $100,000, reflecting her promotion.
Mr Donachie said that arrangements have been put in place to allow the applicant to balance her work and home priorities. The applicant had been working 0.8 full time equivalent (FTE) before returning to full-time hours approximately 18 months earlier.
Mr Donachie said that the applicant had made solid progression in her career and had been supported by the respondent to do so. The applicant did, however, face some challenges through the quality assurance process in June 2020, June 2021 and June 2022. This meant that the applicant had not passed 50% of her audits over the past three years.
Mr Donachie set out his understanding of meeting between the applicant and Mr Laoumtzis to 7 February 2023. The meeting was a regular one-on-one weekly meeting. Mr Laoumtzis identified issues around the volume of work the applicant was getting through and highlighted that her activity levels were below average. He advised the applicant that the informal flexible working arrangement that the applicant had introduced to allow her to pick her daughter from school had to be formalised in a flexible work arrangement.
Towards the end of the conversation, the applicant asked about her salary. The applicant had requested a raise prior to Mr Laoumtzis taking over as her manager. Mr Laoumtzis indicated that they had just had a discussion about the applicant’s low work performance and work arrangements and said they had to focus on her performance.
Mr Donachie said:
“We do complete an annual review process and review our Planner salaries across the board. We do ensure the salaries are in line with the market rate based on individual education levels, experience, skills and performance. These are reviewed using internal and external data.
Elise’s current remuneration is within the range for her position. It is at the lower end of the remuneration range. Her salary is based on her skills, experience and performance and not based on being compared to those she works directly with. She is not a constant high performer. She has had a very similar career progression with another of the Planners in the Wagga Wagga office however they have had differing salary reviews each year as current performance is an input.
Looking at Elise s history it is noted that she had a salary increase on 1 March 2019 when she was promoted to a financial planner. Her salary was increased from $82,000 to $100,000. In July 2019 her salary was reviewed and she was given an increase from $100,000 to $107,000. In July 2020 there was a salary freeze at Aware Super, no employees received an increase. On 1 July 2021 Elise received another increase from $107,000 to $114,000. Then on 1 July 2022 Elise received the 3% increase with all other staff placing her on $117,952.”
Mr Donachie noted that the applicant had made an out of cycle request for a salary review in September 2022. The applicant was being paid within the target range, however, at the lower end. Based on her performance, the applicant was not eligible for an out of cycle salary increase.
Mr Donachie noted:
“The annual Salary Review Process is completed by a remuneration committee. It is not at the immediate Manager discretion to approve out of cycle salary increase. Elise request for an out of cycle salary review and the outcome of this happened through the late December 2022 to January 2023 period. Elise enquired again about the salary review in the 7 February 2023 meeting at which time Cain informed Elise that she [was not] eligible for an out of cycle increase, however with continued improved performance this is something we can look at in the future. And that as per normal process salary will be reviewed again at July 2023.”
Mr Donachie indicated that the applicant had been given quite a degree of flexibility in her role which had possibly impacted on her overall performance. Mr Donachie stated:
“Her performance in the last 30 months has been consistent, she has not achieved incentive eligibility however has been progressing solidly once she had progressed to a Financial Planner role. Her performance in the previous six months (July 2022 to December 2022) was below the activity and output outcomes on meeting expectations in the role.
Elise can also achieve an incentive payment each year however she has also not been achieving these. I do not believe she has received an incentive for over two and a half years based on her not reaching her KPIs.”

Ms Hackett’s evidence

The respondent additionally relies on a record of conversation with the applicant’s colleague, Ms Skye Hackett, prepared and signed by an investigator.

Mr Vlok’s evidence

Mr Handre Vlok provided a brief written statement on 10 October 2024. Mr Vlok confirmed that he had previously been responsible for managing the Wagga regional team. During that time, he submitted an out of cycle remuneration review for the region. Mr Vlok stated:
“During the brief period I managed the team, I formally submitted a proposal to senior management for remuneration uplifts for several team members, in line with our remuneration policy. This proposal included the required past performance scorecards.
At no point during any of my one-on-one conversations with Elise Hall or any other Financial Planners mentioned in the submission did I provide any guarantees, as I was not the delegated decision-maker. Moreover, my understanding of past performance was limited due to the short period in which I was responsible for the region.
My discussions with Elise Hall regarding her remuneration were always transparent. I communicated to her: ‘Elise, I will make the submission based on your past performance metrics, but I cannot guarantee it will be approved.’ I had already resigned before any decision was made or communicated to Elise and the other affected individuals.”

Treating evidence

Clinical records from Glenrock Country Practice contain no reference to reports of psychological symptoms or issues at work in consultations recorded on 8 February 2023, 15 February 2023 and 9 March 2023, although tiredness and weight gain were discussed on 8 February 2023.
Dr Said Kirolus recorded a consultation with the applicant on 13 February 2023 in which she reported work-related stress, poor sleep, depressed mood, low self-esteem and anxiety. The applicant was given a general medical certificate.
At a further consultation with Dr Kirolus on 15 February 2023, the applicant was given a State Insurance Regulatory Authority (SIRA) certificate with a diagnosis of depression, anxiety and work-related stress due to gender discrimination. Psychological symptoms continued to be recorded at reviews with Dr Kirolus thereafter.
The applicant was referred for psychological counselling on 21 February 2023 and 6 March 2023.
In a letter responding to questions from the insurer dated 15 March 2023, Dr Kirolus said the applicant was suffering from depression, anxiety and stress due to being underestimated and gender discrimination. Dr Kirolus said the applicant had been commenced on Zoloft and referred for counselling.
The applicant continued to receive SIRA certificates of capacity certifying her as having no current work capacity.

Dr Nagesh

The applicant relies on medico-legal reports prepared by consultant psychiatrist, Dr Abhishek Nagesh, dated 17 May 2023 and 28 May 2024.
In his first report, Dr Nagesh recorded a history that was broadly consistent with the applicant’s statement evidence. Dr Nagesh recorded that the applicant alleged that she was treated differently to her colleagues, missed out on opportunities, bullied and discriminated against. Because of this mistreatment, the applicant had been feeling anxious for years. The meeting with Mr Laoumtzis in February 2023 was the “final tipping point”.
Dr Nagesh stated,
“Because of the alleged meeting where she was declined to pay rise and was told she had to make up for the extra 10 hours and had to get more business to the company before there is a pay rise, Elise became extremely stressed, anxious and subsequently she has developed the following symptoms which include depressed mood, anxiety, insomnia, poor appetite, has lost weight, she has become socially withdrawn, has stopped exercising, his ability to concentrate has diminished, she feels tired, has no energy or motivation and has lost interest in her hobbies and feels worthless and hopeless.”
In giving an opinion and diagnosis, Dr Nagesh noted that the applicant had been deprived of a pay rise and alleged that she had been discriminated, targeted, bullied and harassed with no support from management or human resources. It was in the context of those stressors that she developed symptoms. Dr Nagesh expressed the view that the symptoms met the criteria for a major depressive disorder of moderate degree with anxious distress.
Dr Nagesh said that on the balance of probabilities in the absence of any other factors, employment was the main contributing factor to the applicant’s psychological injury, noting that the applicant had been “bullied, harassed, targeted, ignored and verbally abused by her manager in a meeting”.
Dr Nagesh gave the opinion that the applicant was totally incapacitated for pre-injury duties or suitable duties on the open labour market.
In his supplementary report, Dr Nagesh reviewed the further statement from the applicant, Mr Hall’s statement and the general practitioners’ notes. Dr Nagesh reiterated his previously expressed view that the applicant sustained an injury at work to which employment was the main contributing factor.

Dr Doris

The respondent relies on medico-legal reports prepared by consultant psychiatrist, Dr Alan Doris, dated 19 May 2023 and 28 August 2024.
Dr Doris also took a history that was broadly consistent with the applicant’s evidence. The applicant described feeling generally under stress at the start of 2023 with work pressures being significant although she felt her mental health was generally good. The applicant described matters “abruptly changing” following a performance appraisal meeting with her manager on 7 February 2023.
The applicant said that from the meeting she felt like she was being treated very differently from other people. The only difference was that they were men and she was the only female. The applicant described feeling that she had been unfairly treated compared to her colleagues for a long time and that promises had been made about positive changes in the workplace and opportunities for her which never eventuated.
The applicant said that she became very emotionally upset and left the office in tears and was tearful over the following few days. The applicant consulted with her general practitioner and had not returned to work due to her health since that time.
The applicant described her symptoms and a mental state examination was performed.
Asked to provide a diagnosis of the injury, Dr Doris stated:
“Ms Hall describes an abrupt change in her mental health following the meeting with her manager on seven February. She has developed a number of anxiety and mood -related symptoms and a level of function is impaired. Therefore, I believe she has developed an adjustment disorder with mixed anxiety and depressed mood as a result of the performance appraisal meeting which occurred on seventh of February 2023.”
Dr Doris expressed the view that the applicant had strong unresolved feelings with regard to being treated unfairly in the workplace over a number of years and that the meeting on 7 February 2023 brought those feelings to the forefront of her mind.
In response to a question about the applicant’s capacity, Dr Doris said that while the applicant had unresolved feelings with regard to her employer it was unlikely she would successfully return to her workplace. It was possible that she could perform some form of suitable duties, initially at reduced hours, at another location.
In his supplementary report, Dr Doris was specifically asked whether the meeting on 7 February 2023 was “the whole and predominant” cause of the applicant’s psychological condition. Dr Doris answered that question in the affirmative, explaining:
“Ms Hall described to me being in good mental health in early 2023 until the time of the meeting with her manager on 7th February. There is no evidence that she had a significant mental disorder before the meeting either from Ms Hall at interview or in provided documents.
Evidence from Ms Hall at interview with me on 19th May 2023, as well as provided to the factual investigator, Patrick Henderson, indicates an abrupt change in her mental state due to the meeting with her manager, Mr Laoumtzis. At this meeting Ms Hall became emotionally upset and left in tears. She consulted with her GP the following day and was provided with a medical certificate. On the 15th February 2023 Ms Hall consulted with her usual GP, Dr S Kirolus, who made a diagnosis of ‘Depression, Anxiety, Stress Work related’ and certified Ms Hall as unfit for any work. The most appropriate diagnosis for the development of emotional symptoms in response to an identifiable stressor, such as the workplace meeting, is an adjustment disorder.”
Dr Doris noted that an investigation conducted by the employer indicated that the applicant’s allegations of discrimination based on gender and bullying had not been substantiated. There was no identifiable alternative cause for the condition.

Applicant’s submissions

The applicant observed that her injury arose due to the respondent’s actions with regard to the payment of wages. The applicant submitted the provision of wages as reward for work done could not properly be characterised as the “provision of employment benefits”. The applicant referred the Commission to the decisions of Wood DP in ACR v Grace Worldwide Pty Ltd[3] (ACR) and the decision of Senior Member Haddock in Sweet Art Special Events Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors[4] (Sweet Art) as authority for the proposition that payment of wages does not constitute an “employment benefit”. As a result, it was submitted that a defence under s 11A(1) of the 1987 Act did not arise.
[3] [2021] NSWPICPD 44.
[4] [2023] NSWPIC 525.
In the alternative, the applicant submitted that the respondent’s actions were not reasonable. The applicant referred to the decisions in Northern NSW Local Health Network v Heggie[5] and Irwin v Director-General of School Education[6] and submitted that the test was an objective one. In this matter, the respondent’s actions were not objectively fair. The reasons or justification for the respondent’s actions ought to have been made known to the applicant.
[5] [2013] NSWCA 255.
[6] (unreported 18 June 1998).
The applicant referred to her statement evidence describing her heavy workload. Although Dr Doris assumed that the whole or predominant cause of her injury was what occurred on 7 February 2023, those events were in fact the last straw in a long series of issues commencing in 2019 and continuing until 2023.
Leading up to that meeting, the applicant had been fighting for a pay rise. The applicant was not promoted as soon as she ought to have been. Another planner was promoted whilst the applicant was on maternity leave. The applicant perceived discrimination and a lack of assistance provided to her by respondent when she sought it. A new hire was paid a higher salary than the applicant.
The applicant referred to the complaint she made to Human Resources in which she complained about her workload increasing. No changes were made. The applicant felt she was being discriminated against as her male colleagues were receiving higher pay increases.
These matters were not addressed in the respondent’s witness statements. The applicant submitted that a Jones v Dunkel inference ought to be drawn. There was no objective reason for the discrepancy between the applicant’s pay rate and those of her male colleagues. No feedback or advice was given to the applicant to explain the discrepancy.
The respondent had been aware of the applicant’s concerns for quite some time. The respondent had not told the applicant that it had concerns around her performance and revenue. The applicant was ambushed in the meeting and had no opportunity to defend herself against the allegations. The applicant was not given any opportunity to address the respondent’s concerns. In the circumstances, the respondent’s actions were not reasonable.
The applicant submitted that the meeting on 7 February 2023 was not the whole or predominant cause of the injury. Even if it was, the respondent’s actions in that meeting were not reasonable.
The applicant was told that the meeting with Mr Laoumitz was informal. The applicant had no reason to expect that performance issues would be raised and was not given the opportunity to arrange the presence of a support person. The applicant was not provided with an agenda.
In his statement evidence, Mr Laoumitz sought to justify the respondent’s actions by reference to matters of which the applicant was not aware. In the circumstances, it could not be said that the respondent’s actions were objectively reasonable.
The applicant submitted that the history obtained by Dr Nagesh was consistent with her own evidence. Dr Nagesh agreed that the meeting on 7 February 2023 was the tipping point but the various stressors in the lead up to that meeting were the cause of the applicant’s injury.
The evidence from the applicant’s general practitioner also supported a conclusion that reasonable action from the respondent was not the whole or predominant cause of the injury.
Dr Doris did not provide an opinion consistent with the lay evidence. Dr Doris focused on the event that led to the applicant going off work without considering the effect of the years of issues reported contemporaneously and set out in the applicant’s statement evidence.
The applicant submitted that there was no dispute regarding the correct pre-injury average weekly earnings (PIAWE) rate. The applicant’s certificates of capacity certified her as having total incapacity. The only evidence to the contrary was Dr Doris’ view that it might be possible to perform suitable duties at an alternative location. There was no indication of whether there were any real jobs that satisfied Dr Doris’ criteria. Dr Doris did not grapple with the certificates of capacity or Dr Nagesh’s opinion on capacity. In the circumstances, the Commission would not accept that the applicant had any capacity to perform suitable work.

Respondent’s submissions

With regard to the applicant’s submissions about the meaning of “employment benefits”, the respondent submitted that ACR could be distinguished. The respondent further submitted that the decision in Sweet Art should not be followed. No authority was cited for the proposition that employment benefits did not include being paid for work done. The suggestion that a benefit had to be “additional” to fall within the scope of “employment benefits” was plainly in error and ought not be followed.
The respondent submitted that the Commission would not be assisted by the authorities to which the applicant referred. It was submitted that the provision of pay increases did constitute employment benefits.
The respondent submitted that the evidence was consistent with an injury arising out of the events on 7 February 2023. There was no evidence of any incapacity prior to that date.
The applicant initiated an enquiry regarding a pay increase. The employer’s response could not constitute an ambush.
The respondent’s evidence showed the applicant’s salary was within the range for her position. She had received a number of pay increases along with other staff. There was no evidence of gender discrimination.
The applicant sought an out of cycle, extraordinary salary review and was informed that she was not eligible. The applicant was told that with improved performance an increase could be considered in the future. Nothing in the respondent’s conduct was unreasonable.
The respondent’s evidence demonstrated that the applicant was not meeting performance expectations and was not working the required hours. The applicant asked for and was given flexible working arrangements. The applicant was receiving paid study days to assist her in her further studies. There was no evidence of any mistreatment. Rather, the employer went out of its way to accommodate her personal circumstances.
The allegation of gender bias was addressed by Mr Laoumtzis. Compared to her colleagues, the applicant was underperforming. The assertion that the applicant was treated differently was a concoction. It was clear that she received the same pay rises as everyone else.
The respondent submitted that there was no indication that a support person may be required for the meeting on 7 February 2023. The applicant raised the request for an out of cycle pay rise herself.
The respondent submitted that Dr Doris acknowledged that the applicant was under stress at the start of 2023. There was an abrupt change in her condition after the meeting on 7 February 2023. Dr Doris’ opinion was consistent with the medical certifications. The applicant’s general practitioner agreed that the main or predominant cause of the injury was the meeting. The clinical notes gave no indication of psychological symptoms prior to the meeting.
The respondent submitted that a s 11A(1) defence was made out.
The respondent acknowledged that the certificates of capacity indicated that the applicant had no current work capacity but submitted that the views of Dr Doris on this issue ought to be taken into account.

Applicant’s submissions in reply

In relation to the distinction between wages and employment benefits, the applicant referred the Commission to a further decision of Wood DP in Rock Logistics Pty Ltd v Chelin[7] (Chelin).
[7] [2024] NSWPICPD 39.
The applicant submitted that although she received pay increases, there was still an imbalance between what she was being paid and what her colleagues were being paid. The applicant believed her pay was an inadequate reflection of her work.

Respondent’s further submissions in reply

The respondent submitted that the decision in Chelin was not on point. There was no threat to the applicant’s income. The use of the word “additional” did not appear anywhere in the legislation.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4     Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
A psychological injury which meets the statutory definitions will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:
“(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.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[8]
[8] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
The test of reasonableness in s 11A(1) is an objective one.[9] In Commissioner of Police v Minahan[10] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[11]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[9] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[10] [2003] NSWCA 239.
[11] (unreported 18 June 1998).
In the decision of Van Vliet v Landscape Enterprises Pty Ltd,[12] Phillips P observed:
“The concept of reasonableness in s 11A(1) does not, with respect, require a counsel of perfection. It requires, consistent with the authorities (Heggie, Irwin), that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.
…
The Member found that the termination was imperfect, but in the circumstances reasonable.^[132] In terms of the Member’s fact finding, there is no error in this approach. The Member correctly considered all of the circumstances of the case, as the authorities require, in reaching a view about the reasonableness of the process adopted by the respondent. The member quite correctly noted the flexibility of the content of the obligation pertaining to procedural fairness,^[133] which stood in contradistinction to the inflexible approach urged upon the member by the appellant. In so doing the Member was involved in no error.”
[12] [2022] NSWPICPD 49.
There is no dispute between the parties that the applicant sustained a psychological injury arising out of or in the course of her employment with the respondent. The primary dispute between the parties is whether that injury is compensable under the 1987 Act having regard to s 11A(1) of the 1987 Act.
For the respondent to succeed in establishing its s 11A(1) defence, it is necessary for it to establish that reasonable action with respect to the provision of employment benefits was the whole or predominant cause of the applicant’s injury.
In Hamad v Q Catering Ltd,[13] Snell DP noted the significance of medical evidence in determining the whole or predominant cause of an injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[13] [2017] NSWWCCPD 6.
The respondent submits that the events at the meeting on 7 February 2023 were the whole or predominant cause of the applicant’s injury.
Consistently with the respondent’s submission, the medical evidence in this case confirms that the events at the meeting between the applicant and Mr Laoumztis on 7 February 2023 contributed significantly to the development of a diagnosable psychological condition.
In his most recent report, the respondent’s medicolegal expert, Dr Doris, provided a clear opinion that the events at that meeting were the whole and predominant cause of the psychological injury. In reaching that conclusion, Dr Doris noted that prior to the meeting there was no evidence that the applicant had a mental disorder. Indeed, the applicant had described being in good mental health until the time of the meeting on 7 February 2023. Critically, the applicant described an abrupt change in her mental state due to the meeting, which had now persisted.
The applicant’s medico-legal expert, Dr Nagesh, expressed a similar view. Dr Nagesh found that the meeting where the applicant was denied a pay rise and told that she had to make up the 10 hours of work lost due to picking up her daughter had caused the applicant to develop the symptoms which were characteristic of the psychological condition diagnosed by him.
Dr Nagesh was not asked and did not provide a clear opinion on the “whole or predominant cause” of the applicant’s injury.

Both Dr Doris and Dr Nagesh appear to have understood that events over a number of years had also contributed to the applicant’s psychological condition.
Dr Nagesh recorded a history of alleged mistreatment causing the applicant to feel anxious for many years. He recorded that the meeting in February 2023 was “the final tipping point”.
Dr Doris acknowledged that work pressures had contributed to the applicant feeling generally under stress at the start of 2023 although the applicant’s mental health was generally good at that time. Dr Doris noted that the applicant described strong feelings that she had been unfairly treated compared to her colleagues “for a long time” and that promises had been made about changes and opportunities for her which never eventuated. Dr Doris recorded the applicant’s perception that her gender accounted for the different treatment. The meeting on 7 February 2023 brought those feelings to the forefront of the applicant’s mind, leading to the decompensation.
There is no doubt that the applicant felt aggrieved over a long period of time by what she perceived to be discriminatory or unfair treatment, particularly in relation to the delay in her being promoted to the role of financial planner, discrepancies between her own pay and those of her male colleagues performing the same role, her workload, targets and the measures by which she was judged to be entitled or disentitled to incentive payments.
This is confirmed by the contemporaneous evidence including the email correspondence to Mr Read in September 2019 and the complaint to Ms Stewart in February 2023. The applicant’s husband has given evidence that he observed the applicant becoming frustrated, quieter and disillusioned with the way she was being treated at work. The applicant would often come home and say she felt undervalued, was not being taken seriously and was not being rewarded for her efforts and results. Mr Hall observed the applicant to be upset, disappointed, deflated and angry. At times, the applicant would come home stressed and anxious about her workload.
The applicant’s perception of those matters clearly contributed to the decompensation on 7 February 2023. Without that background, the decompensation on 7 February 2023 may not have occurred. There is, however, no evidence to suggest that prior to the meeting on that date the applicant was suffering from the symptoms of a psychological injury. The applicant has not asserted and there is no evidence that she sought medical treatment for work-related psychological symptoms prior to 7 February 2023. There is no medical opinion to suggest that the feelings described by the applicant and observed by Mr Hall prior to the meeting were indicative of a diagnosable psychological condition.
The lay evidence uniformly establishes that there was an acute psychological response to the meeting with Mr Laoumtzis in February 2023. The applicant has described her own response to the issues raised by Mr Laoumtzis in that meeting and in her statement evidence said the meeting was the cause of her injury.
Mr Hall described the applicant coming home from the meeting crying and inconsolable. The file note from the meeting and Mr Laoumtzis’ own evidence was that the applicant became upset in the meeting. The incident report form indicated that the meeting had caused the applicant an enormous amount of stress, anxiety and depression to the point of requiring medical assistance.
The treating evidence confirms that the applicant first sought medical assistance for psychological symptoms after the 7 February 2023 meeting. The treating evidence is not, however, helpful in determining the hierarchy of causative events. The evidence from the applicant’s general practitioners simply indicates that “gender discrimination” and “being underestimated” at work were the cause of the applicant’s symptoms.
It is well established that a work injury can have multiple causes. In Manly Pacific International Hotel v Doyle,[14] Fitzgerald JA (Mason P agreeing) said that:
“... the whole or predominant cause of [the worker’s] psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced [the worker’s] condition.”
[14] [1999] NSWCA 465.
Having considered all of the lay and medical evidence to which I have been referred by the parties, I am satisfied that events at the meeting on 7 February 2023 were the “predominant” cause of the applicant’s psychological injury albeit not the “whole” cause.
I am satisfied that Dr Doris’ view as to the significance of the meeting is consistent with the factual evidence. A clear and reasoned explanation for his opinion has been provided. In contrast, Dr Nagesh, while identifying events prior to the meeting as causative has not elaborated on the extent to which those events contributed to the injury relative to the meeting itself. As indicated above, the treating evidence provides little insight on this issue.
The hierarchy of causative events is a question I am tasked with determining for the purposes of s 11A(1) of the 1987 Act. Although the applicant has submitted that the meeting was simply “the last straw” in a long series of events commencing in 2019 or earlier, I am not satisfied that the medical evidence permits me to draw the conclusion advocated by the applicant. I am also not satisfied that this is a case where the lay evidence permits me to determine the extent of the causal contribution from matters prior to the meeting. The question of causation in this case is complex. Dr Doris has provided a clear and persuasive opinion on that question. Dr Nagesh has not. I prefer Dr Doris’ opinion.
The next question which arises is whether the respondent’s actions at the meeting are appropriately characterised as action with respect to the provision of employment benefits to workers.
The particular events at the meeting which have been identified in the evidence as causative of the applicant’s injury were the discussion around the need for a formal flexibility agreement to ensure that the applicant was working her contracted hours and Mr Laoumtzis’ advice that the applicant was not eligible for an out of cycle pay increase due to performance issues.
The applicant has submitted that the relevant actions in this case are not appropriately characterised as action with respect to “employment benefits”, relying on the cases of Chelin, ACR and Sweet Art.
In ACR, the worker was found to have sustained a psychological injury due to the employer’s actions in standing the worker down from work during the COVID pandemic so as to avoid retrenchment and given the availability of government benefits in the form of the JobKeeper payment. The member found that the employer’s actions fell within the ambit of retrenchment and the provision of employment benefits. The Deputy President agreed, commenting:
“It is common knowledge that the JobKeeper scheme was implemented by the Australian Government to help support businesses and keep workers in employment during the COVID-19 crisis. That is, it was a benefit provided to employers which was passed on to their employees and was intrinsically linked to ensuring that the workers remained in employment. The benefit was not payable outside of an employment relationship and was not reward for work done. The scheme was of limited application. In my view, it cannot be argued that the JobKeeper payment did not constitute an employment benefit.”
The case of Sweet Art concerned a dispute between a worker and his employer regarding the manner and correct rate of payment of wages. Senior Member Haddock commented,
“It seems to me that the payment of Mr Michaels’ wages was ‘reward for work done’ and was not the provision of an employment benefit. A contract of employment necessarily involves the exchange of a worker’s labour for payment by the beneficiary of that labour. The payment of his or her wages does not somehow represent some additional benefit bestowed by the employer.”
The decision in Sweet Art was confirmed on appeal, however, the appeal was not concerned with Senior Member Haddock’s comments with regard to the expression, “employment benefits”.
In the case of Chelin, the worker claimed to have suffered a psychological injury as a result of conversations with his employer about his intentions in respect of receiving a COVID-19 vaccination. The worker felt his employment was being threatened by the employer. The member did not accept that the employer had established that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline or the provision of employment benefits.
On appeal, Wood DP noted that the member had observed that there was no evidence that would assist her to classify the employer’s action as the provision of employment benefits. Deputy President Wood agreed and commented,
“In any event, the threat to the respondent’s employment, which would result in the respondent having no income, cannot constitute the provision of an ‘employment benefit’. In my view, the concept denotes some form of additional entitlement over and above simple reward for work done, such as the employer’s discretion to allow the ability to work from home, or, as I determined in ACRv Grace Worldwide Pty Ltd,^[62] the provision of Government Job Keeper payments to employed workers.”
The psychological injury in this case did not occur as a result of the respondent’s actions with respect to the simple payment of wages. Rather it was predominantly caused by actions with respect to a request for an out of cycle pay increase and a proposal for a flexible work arrangement. I accept that an out of cycle pay increase and a flexible work arrangement are both appropriately characterised as employment benefits. Furthermore, I am satisfied that the conversation that Mr Laoumtzis had with the applicant in the meeting on 7 February 2023 about those matters constituted “action with respect to” the provision of employment benefits.
The question that remains is whether those actions were “reasonable”. The applicant submits that they were not.
The applicant referred to the respondent’s justification for its actions with respect to the pay increase and the flexible work agreement as set out in the evidence from Mr Laoumtzis and Mr Donachie and submitted that those matters were not within the applicant’s knowledge. On this basis, the respondent’s actions were said to be objectively unfair.
The applicant’s evidence and submissions suggested that she had no knowledge of the respondent’s concerns around her performance or productivity. The applicant referred to the recognition and positive feedback given to her only the day prior to the meeting after taking on the work of a colleague. The applicant said she had only ever been the subject of positive feedback about her performance and her performance had never been questioned in 12 years of employment with the respondent.
The applicant’s evidence in this regard is difficult to reconcile with the respondent’s evidence that the applicant was found to have failed quality assurance audits in June 2020, June 2021 and June 2022. The applicant’s email to Mr Read in September 2019 acknowledged that she had not received incentive payments due to not meeting revenue targets and performance benchmarks, although the applicant explained why she considered that assessment to be unfair.
Mr Laoumtzis gave evidence that in the six months prior to the meeting, he had discussions with the applicant about taking more care with files after she had made mistakes resulting in losses to clients. Mr Laoumtzis said he had spoken to the applicant about some old practices that needed to improve. Considering the evidence as a whole, I am not satisfied that the applicant’s assertion that she had only ever received positive feedback about her performance is reliable.
The applicant has submitted that the conduct of the meeting was unreasonable because she was ambushed, had no opportunity to defend herself, had no reason to expect that performance issues would be raised, had not been provided with an agenda and was not given the opportunity to arrange the presence of a support person.
The evidence uniformly establishes, however, that the meeting was one in a longstanding pattern of weekly informal meetings between the applicant and Mr Laoumtzis. The purpose of those meetings was to discuss work issues, including workload. The meeting was not a formal performance appraisal or disciplinary meeting. No action with respect to formal performance appraisal or discipline was proposed in the meeting.
Mr Laoumtzis’ detailed file note and his accompanying statement evidence both indicate that during the meeting, he expressed support for the applicant in balancing her commitments but expressed that she was expected to work her contracted 38 hours per week. Mr Laoumtzis explained business requirements and canvassed several options to assist the applicant in meeting her obligations. The applicant was asked for her views in relation to those matters. It was noted that under the pattern of work proposed by the applicant to allow her to collect her daughter from school, she was working two less hours per day. Her workload statistics were discussed and noted to be below expectations. A suggestion was made to formalise a flexible work arrangement in order to assist the applicant to meet her obligations. The applicant indicated that she would speak to her husband and get back to Mr Laoumtzis.
I am satisfied on the evidence that the contents of the meeting up until this point were entirely consistent with the type of discussion the applicant ought to have expected given the nature of the regular meetings she had previously attended with Mr Laoumtzis and the recent changes to her pattern of work. The evidence indicates that Mr Laoumtzis discussed these matters with the applicant in a supportive and open way. The applicant’s input and feedback were sought. The applicant was given time to consider the matters discussed. No final decision was made in or prior to the meeting. I am satisfied that the issues were broached in a fair and reasonable way during the meeting.
While the applicant says she was taken aback by the discussion, and I accept that to be the case, I am not satisfied, that anything in the manner in which this issue was raised and discussed was objectively unreasonable. I am not satisfied that it was necessary for the applicant to be provided with an agenda or the opportunity to arrange a support person. I am not satisfied that the applicant was not given an opportunity “to defend herself”.
It was at this point in the meeting that the applicant raised the question of the pay rise. I am satisfied on the evidence before me that the meeting was not convened for the purposes of communicating to the applicant the outcome of her request for a pay rise. Rather, Mr Laoumtzis was required to respond to the issue on the spot as it was raised by the applicant.
Mr Laoumtzis’ evidence indicates that he responded to the applicant’s enquiry by indicating that her performance was not where it needed to be and that if she was able to produce a solid month of figures he would go into bat for her. The applicant was noted to have expressed that this was not fair because a co-worker was earning more than her yet she did more work. Mr Laoumtzis said he had explained that the co-worker’s output was 20% higher than the applicant’s own.
Mr Laoumtzis’ approach to the issue appears to be consistent with the evidence from Mr Donachie and Mr Vlok. Significantly, Mr Vlok said that at no point did he provide any guarantees or indicate that he had power to approve a pay increase. Mr Vlok said he made it clear that a pay increase would be based on past performance metrics.
Mr Donachie gave evidence that there was an annual review of salaries across the board. The applicant had received increases to her salary over the years and her remuneration was within the range for her position. Different staff in the Wagga Wagga office had different salaries due to differences in performance. There had been a request for a salary increase outside the normal annual review process but, based on performance, the applicant was not eligible for an increase.
In her statements, the September 2019 email and her correspondence to Ms Stewart, the applicant has given a detailed account of why she considered the respondent’s assessment of her performance and her rate of remuneration had, in the past, been unfair or unreasonable. In particular, the applicant has noted that the characteristics of her book of clients had made it difficult for her to achieve the performance targets set. The applicant has suggested that errors were made in relation to her targets. The applicant has expressed concern around her career progression in comparison to her male colleagues.
It is not, however, necessary for me to determine in these proceedings whether the applicant’s remuneration was in fact fair and equitable or whether the applicant ought to have been promoted sooner than she was. Rather, the question I am tasked with determining is whether the content and conduct of the meeting on 7 February 2023, which I have found to be the predominant cause of the psychological injury, was objectively reasonable.
I accept that the discussion around the pay rise at the meeting was prompted by the applicant. In those circumstances, there was nothing the respondent could have done to “forewarn” the applicant that the issue was to be discussed. I do not accept that the applicant was “ambushed”. I do not accept that fairness dictated that she be provided with the opportunity to arrange a support person.
The applicant received a response to her enquiry which was not what she had hoped for, however, I accept that the response was consistent with discussions she had had with her managers previously around performance and pay. Mr Laoumtzis addressed the applicant’s concern that a colleague was being paid more. The possibility of a pay rise with improved productivity was explained.
After careful consideration of all of the evidence, I am satisfied that Mr Laoumtzis acted reasonably in discussing both the request for a pay rise and the flexible work arrangement at the meeting on 7 February 2023.
I do not accept, as suggested by Dr Nagesh, that the applicant was verbally abused, bullied or harassed in the meeting.
I find that the applicant’s psychological injury was predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent employer with respect to the provision of employment benefits. The defence in s 11A(1) of the 1987 Act is made out and the injury is not compensable.
As a result, there will be an award for the respondent.

[2024] NSWPIC 651

26 November 2024