Hamad v Q Catering Limited - [2017] NSWWCCPD 6

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hamad v Q Catering Limited [2017] NSWWCCPD 6
APPELLANT:	Samir Hamad
RESPONDENT:	Q Catering Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-3174/16
ARBITRATOR:	Mr T Wardell
DATE OF ARBITRATOR’S DECISION:	6 October 2016
DATE OF APPEAL DECISION:	15 March 2017
SUBJECT MATTER OF DECISION:	Section 11A(1) of the Workers Compensation Act 1987; proof of ‘wholly or predominantly caused’; the test on causation and role of medical evidence; factual error
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Stacks Goudkamp
Respondent:	Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination dated 6 October 2016 is revoked. 2. There is a finding that the respondent’s defence pursuant to s 11A(1) of the 1987 Act is not made out. 3. The matter is remitted to the same Arbitrator, to determine the remaining issues, consistent with these reasons. Liberty to the parties to apply within seven days, if either party seeks to submit that the matter should be remitted to a different Arbitrator.

INTRODUCTION

Samir Hamad (the appellant) suffered a conceded psychological injury, in the course of his employment as a leading hand with Q Catering Limited (the respondent). This appeal involves challenge by the appellant to an award in the respondent’s favour, on the basis that it had established a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

The appellant was employed by the respondent from 12 November 1993. He was a leading hand from 1999. He worked at Mascot, with responsibilities for the “consolidation” of aircraft meals. Prior to 2013, level 5 leading hands in consolidation (such as the appellant) took responsibility for the assembly of aircraft meals, and level 5 leading hands in transport took responsibility for transferring food to aircraft, and the handover to flight crew. From 2013, the respondent amalgamated these responsibilities. This was described as the “Flight Set Consolidation, Delivery & Handover Process”. The appellant, on 1 July 2013, signed an agreement to participate in this process, and to assist in the delivery of the “changes that are to be implemented”.
An issue subsequently developed, involving the Transport Workers Union (TWU) (of which the appellant was a member) and the respondent, regarding whether the leading hands, performing the combined role, were entitled to be paid as Level 6 (rather than Level 5) leading hands. Shortly before Christmas 2014, those who had been transport leading hands refused to go into the kitchen, so that they were not participating in the combined role. From early February 2015, those who had been consolidation leading hands declined to continue performing the transport tasks, so that they too were not participating in the combined role. Those members of these groups, who participated in this industrial action, were only prepared to carry out the role they had been performing initially, before the combined roles were adopted.
The appellant’s refusal to perform the transport tasks resulted in him (along with others) being given a letter of direction to perform the combined role, in the appellant’s case at a meeting on 19 February 2015. He declined to take the letter, consistent with advice he had received from the TWU. It was sent to his home by Express Post. On 20 February 2015 the appellant commenced his shift at 10.30 am. He again declined to carry out the combined role. He was given other tasks involving building Qantas Link boxes. At about 12.36 pm he was called to a meeting with Antonio Garios (the appellant’s immediate manager) and Matt Edwards (the business manager of the respondent). The appellant was accompanied by a support person, Stanley Whippy (from the TWU). He was given a “Letter of Warning” for failure to follow “a reasonable and lawful direction”, together with a copy of the Standards of Conduct, and a Performance Improvement Plan. At about 3.15 pm that day the appellant was paged and required to complete the meals for a flight, QF:001, which was due out in less than two hours. This was apparently necessary as the meals had not been prepared earlier due to oversight. The appellant said of this work:
“This is a task that I normally do but it should have been completed by someone else by the time they called me.” (statement 3 March 2015 at[47])
The appellant ceased work at the end of his shift on 20 February 2015. He came under the care of Dr Tadros, his general practitioner, and Dr Burke, a psychiatrist. He returned to suitable duties with the respondent, from 3 April 2015 to 16 March 2016, when he ceased work again and he has been off work since that time. The weekly claim was one from 20 February 2015 to 9 April 2015, and from 17 March 2016 on a continuing basis. There was also a claim for a general order for the payment of medical and related expenses.
The injury was pleaded as occurring on “20 February 2015 (Deemed date)”. The description of “how injury occurred” read “psychological injury due to the mistreatment, bullying and intimidation he was subjected to by his employer, and agent’s [sic] of his employer”. The matter was listed for arbitration hearing on 11 and 26 August 2016. Mr Andrew Parker of counsel appeared for the appellant, and Mr C Robertson for the respondent. The respondent ultimately conceded the occurrence of a psychological injury, but pleaded a defence to the claim on the basis of s 11A(1) of the 1987 Act, relying on its reasonable action with respect to performance appraisal and discipline. The Arbitrator issued a reserved decision dated
6 October 2016, accompanied by 22 pages of reasons (the reasons). Ultimately ‘discipline’ was the basis on which s 11A(1) was contested, and the basis on which the Arbitrator accepted that the defence was made out. The respondent also, by leave, was allowed to raise the issue of whether there was incapacity as a result of any compensable injury (the Arbitrator’s reasons at [9]).

THE ARBITRAL DECISION

The Arbitrator reviewed a number of authorities relevant to s 11A(1). He noted that the relevant ‘Workplace Determination’ of Fair Work Australia, dated 8 August 2012 (the Workplace Determination) at cl 12.3, provided, in relation to an industrial dispute:
“Until the matter is determined, work will continue as instructed by the Company unless an employee has a reasonable concern about imminent risk to safety and health…No party will be prejudiced as to the final settlement by the continuance of the work in accordance with this clause.”
The Arbitrator reviewed the appellant’s statements, and also the multiple statements attached to the respondent’s factual investigation. He accepted the appellant’s evidence about his “emotional reactions and the onset of his psychological injury on 20 February 2015”. He reviewed the medical evidence from Dr Tadros and Dr Burke. He said there was “no dispute” that the meeting on 20 February 2015, at which the warning letter was given to the appellant, was ‘discipline’ within the meaning of s 11A(1).
The Arbitrator noted a submission by the appellant that it was not open to make a finding that the psychological injury resulted wholly or predominantly from disciplinary action, in the absence of medical evidence dealing specifically with that issue. The appellant referred to Roger WHarrison and Peter L Siepen t/as Harrison and Siepen v Craig [2014] NSWWCCPD 48 (Craig). The Arbitrator said that this decision was not relevant. He referred to EMI (Australia) Ltd v Bes [1970] WCR 114 (Bes) and Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 (Tubemakers) (in the High Court [1976] 50 ALJR 720). The Arbitrator said at [60]:
“Dr Burke has certainly identified the disciplinary action relied upon by the respondent as being one of the causal factors contributing to the applicant’s injury. Whether that injury was wholly or predominantly caused by the action is a question of fact involving a consideration of all the evidence, including the lay evidence, and like all questions of causation is to be approached on the well-established principle that once medical evidence has identified the possibility of a causal nexus, it is open to the tribunal of fact to have regard to the whole of the evidence in determining whether such causal nexus is proved on the balance of probabilities…”
The Arbitrator referred to five other matters which, in the appellant’s submission, arguably contributed to his injury in a causal sense, “whereby it should not be found that the disciplinary action was the predominant cause”. The first of these was the respondent’s failure to accede to the workers’ demands for extra pay. He said there was no evidence, lay or medical, to support this proposition.
The second matter was the respondent asking the appellant to undertake the combined duties, including the transport component, when it knew he would refuse. The Arbitrator said there was no evidence to suggest this was in any way causative, and the respondent gave such directions to the appellant going back to 2 February 2015 (reasons at [63]).
The third matter was the respondent’s failure to let the appellant go home, when he said that he was upset after being given the warning letter. The Arbitrator acknowledged that this history was recorded by Dr Burke. The Arbitrator said that he “did not accept that this in fact occurred” (reasons at [64]). He said the appellant’s statements dated 3 March 2015 (which is more contemporaneous than Dr Burke’s history) and 16 June 2016 contained no such history. In those, the appellant referred to asking for a rest or a break, and going outside to calm down. He did not say that he asked to go home. Additionally, the appellant’s evidence did not suggest that refusal of a request to go home “impacted on his psyche”.
The fourth matter was the direction to perform work that “fell below his usual classification”. The Arbitrator said it was not clear just which work this referred to. In any event, he said there was no evidence that other work the appellant performed “had any adverse impact upon his psyche” (reasons at [65]).
The fifth matter referred to was the “Level 1 work” the appellant was paged for and requested to perform, on the afternoon of 20 February 2015, after being given the warning letter. The Arbitrator referred to Manly Pacific International Hotel v Doyle [1999] NSWCA 465; 19 NSWCCR 181 (Doyle), and Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; 49 NSWLR 262; 19 NSWCCR 385. He said it was clear that the appellant’s distress at this work “arose not out of the work itself, but out of his perception that such direction was punitive, and deliberately intended to ‘specifically target’, ‘ridicule’, ‘embarrass’, ‘demean’ and ‘humiliate him’” (reasons at [72]). He said that this was an “honestly held but flawed perception of actual events in the workplace”. The “direct cause of that misperception was the disciplinary action taken by the respondent in issuing him with a warning letter” (reasons at [73]).
The Arbitrator rejected the evidence of Mr Whippy dealing with the work on the afternoon of 20 February 2015. He said that Mr Whippy, as union delegate, “had a direct involvement” and “a negative and prejudiced perception of the respondent’s actions and motives”. The appellant’s perception was “distorted”. Mr Garios said he did not know the appellant had been paged. Phillip Festa (the airline services co-ordinator) said the appellant was not “singled out”. Mr Edwards said he was unaware the appellant had been paged to do that work. The Arbitrator said he preferred the evidence of Mr Garios on this issue, to that of the appellant and Mr Whippy (reasons at [74]-[75]).
The Arbitrator said that it was “not the Level 1 work itself, but rather the applicant’s psychological reaction to his perception that … it was punitive”, that led to “the adverse impact upon his psyche sufficient to render it a significant causative factor in the receipt of his psychological injury”. The Arbitrator at [76] said:
“Thus, the applicant’s psychological reaction to the level 1 work and the role it played in the causation of his psychological injury are, in fact, manifestations of the causal role played by the respondent’s disciplinary action. In these circumstances, I do not accept the applicant’s submission that the direction to perform Level 1 duties is a separate causal factor to be weighed against the contribution made by the disciplinary action: rather, I consider the former to have been directly caused by the latter.”
There is an issue in this appeal regarding when, on 20 February 2015, the appellant carried out duties lower than Level 5 status.
The Arbitrator, at [78]-[79] of the reasons, referred to the appellant’s evidence, the appellant’s medical histories, and the statement of Mr Festa. He said these were consistent with receipt of the warning letter having a significant effect on the appellant’s psyche. There was no evidence that anything that happened prior to that was “in any way causative” of the injury (reasons at [81]). He said that, to the extent to which the “direction to undertake Level 1 duties was also causative”, this was due to the appellant’s “erroneous” perception, which was “itself directly caused by the respondent’s disciplinary action and the applicant’s psychological reaction to it” (reasons at [82]).
The Arbitrator’s findings of fact on the causation issue (with a slight variation of expression) were at [77] and [82]. At [82] he said:
“… I am satisfied on the balance of probabilities that the applicant’s psychological injury was predominantly caused by the disciplinary action taken by the respondent in meeting with him and handing him a warning letter.”
The Arbitrator referred to a number of authorities going to whether action or proposed action by an employer was ‘reasonable’ within the meaning of s 11A(1) of the 1987 Act ([84]-[85]). He noted the matter was “unusual”, as the appellant’s “breach of the conditions of his employment” was not “specific to, or limited to” the appellant. It was “in the context of an industrial dispute”, involving a number of workers, who “with the encouragement of the TWU, made a conscious, deliberate and wilful decision to refuse to carry out the directions of the respondent” (at [85]).
The Arbitrator at [86] said:
“… the reasonableness of the respondent’s actions must be considered in the context of its action towards all of the workers who had made the decision to wilfully refuse directions and there is no basis for approaching the matter on the basis that the applicant ought to have been treated any differently.”
The Arbitrator said that factors such as:
“… the duration of the workers employment and the extent to which they had otherwise shown themselves to be conscientious and capable employees… are usually factors to be taken into account when weighing the reasonableness of an employer’s actions, these factors carry little or no weight in the circumstances of the present case where the action was not taken against the applicant individually but rather was taken as a consistent action against all those who had refused directions in the context of an industrial dispute.” (at [86])
The Arbitrator at [87] described two questions. The first was whether it was reasonable to issue the warning letters to the appellant and other workers. The second was whether “that action was carried out in a reasonable way”.
The Arbitrator accepted the evidence of Ms Thomas (the respondent’s “HR Manager”) that 17 employees refused “to accept the respondent’s directions” (at [88]). The Arbitrator accepted that this “caused considerable disruption and inconvenience”, and an increase in customer complaints. He said “it seems clear that these adverse consequences to the respondent’s operations were precisely the intended object of the workers in taking the industrial action” (at [89]). The Arbitrator noted that the respondent had tried other means initially, the “posting of notices and handing out letters of direction had failed”. He described the warning letters as “a considered and moderate response”, which “did not directly jeopardise the employment of the workers” (reasons at [92]).
The Arbitrator concluded at [94] of his reasons that it was “reasonable” for the respondent to take disciplinary action by “issuing warning letters to those workers”. The conduct of the workers was “directly contrary to Clause 12 of the instrument which governed the terms and conditions of their employment” (referred to at [7] above).
The Arbitrator said that before taking formal disciplinary action, the respondent issued letters of direction on 19 February 2015. The appellant “refused to accept it or read it (on the, in my view, ill-advised recommendation of the union)”. The Arbitrator said that this:
“… did nothing to detract from the reasonableness of the respondent’s conduct in attempting to explain the situation to him and to provide him with a last chance to avoid disciplinary action.” (reasons at [101])
The Arbitrator referred to the statement of Mr Festa, which described the meeting on 20 February 2015, when the warning letter was handed over. The appellant had a support person, the union delegate Mr Whippy. Mr Edwards explained the respondent’s reasons for the action “at some length”. The Arbitrator said there was no submission that the appellant was not afforded procedural fairness. He concluded that the “disciplinary action was undertaken in a reasonable manner” (reasons at [102]-[105]). At [106]-[117] the Arbitrator dealt with arguments put by the appellant, that the respondent’s actions were not reasonable. He rejected these, in particular an argument that the respondent used the appellant as a “pawn” in negotiating with the union. The respondent’s position towards the workers was not part of its negotiation with the union. The appellant may have acted in accordance with advice from the union, but “his actions were in the context of the contract which existed between himself and the respondent” (reasons at [111]).
Mr Whippy described the appellant as a “strong personality” and “very opinionated”. In a vote on 2 February 2015 the appellant joined in a vote to take the industrial action, and then he persistently refused the respondent’s directions. The Arbitrator did not accept that the appellant “was a ‘pawn’ in the sense of being an unwitting and unwilling participant” (reasons at [112]).
At [118] the Arbitrator concluded that the respondent had discharged its onus of establishing a defence pursuant to s 11A(1) of the 1987 Act. He entered an award for the respondent.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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 Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ISSUES IN DISPUTE

The grounds of appeal raise the following:
(a)     The Arbitrator made a factual error in finding that assignment of the level 1 duties occurred after the warning letter on 20 February 2015 was given (Ground 1).
(b)     The Arbitrator erred in fact and/or law in finding that the injury was ‘wholly or predominantly’ caused by disciplinary action, when there was no such medical evidence (Ground 2).
(c)     The Arbitrator erred in fact, in finding that the respondent’s conduct was reasonable, in that he took into account irrelevant considerations and/or failed to take into account relevant considerations (Ground 3).

THE NATURE OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

THE SECTION

Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

GROUND NO 2 – LEGAL TEST: WHOLLY OR PREDOMINANTLY

Because it is relevant to resolution of Ground No 1, it is convenient to deal initially with Ground No 2. There are two limbs to the appellant’s argument on this ground. These are:
(a) Whether the Arbitrator erred in deciding this issue without expert evidence or against the weight of the evidence.
(b) Whether the Arbitrator misdirected himself as to the relevant test.

The Appellant’s Submissions

It was common ground that the respondent carried the onus to establish the elements of s 11A(1). This included the causation issue, was the injury “wholly or predominantly caused” by the relevant “action taken or proposed to be taken”. The appellant submits that the Arbitrator erred in rejecting his submission “that, without expert evidence, the respondent could not satisfy that onus”. He refers to Craig. He submits “lay evidence cannot establish the test under s 11A”.The appellant submits that the Arbitrator erred in applying “ordinary causation principles”, s 11A is “unique, it involves a higher standard than s 4”. He refers to Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1; 14 DDCR 157 (Shore) as authority for this proposition.
The appellant submits on the weight of the evidence. The general practitioner’s notes refer to complaints about “inferior duties” and a “transfer/downgrade”. Dr Burke’s history is referred to. The appellant submits that various events occurred over 19 and 20 February 2015. Without specific medical evidence on the issue, it was not open to “find that the injury was wholly or predominantly caused by the meeting/letter”.
The appellant submits that he raised a number of potential causes of his injury, “to demonstrate that there was a lack of evidence to satisfy the wholly or predominantly standard”. The Arbitrator then considered whether these potential causes satisfied the test to establish injury under s 4, although ‘injury’ was conceded. This reversed the onus. The appellant submits that the Arbitrator “simply speculated” at times, referring to the reasons at [62], [63], [72], [73] and [76]. He submits that the Arbitrator erred in finding that the injury “was wholly or predominantly caused by the disciplinary action attenuated by the meeting/letter on 20 February 2015”.

The Respondent’s Submissions

The respondent accepts that it bears the onus of establishing the defence, which involves “a question of causation, to be determined applying the test contained in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang)”. “Predominant” means “mainly or principally caused”: Ponnan v George Weston Foods Ltd (2007) NSWWCCPD 92 (Ponnan). The respondent quotes a passage from the judgment of Mahoney JA in Tubemakers at 200C, which includes the following:
“Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside the area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion . But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only where medical evidence denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”
The respondent submits that the Arbitrator was correct to regard Craig as irrelevant. The appellant concedes that the “meeting/warning letter of 20 February 2015” was at least a cause of the psychological condition. Shore does not assist the appellant. The Arbitrator “addressed all possible causative factors, pleaded or otherwise”. His finding on causation was open.

Consideration

The appellant relies on Shore, a case of psychological injury where a defence pursuant to s 11A(1) was raised, and ‘wholly or predominantly caused’ was an issue. In that matter the only medical opinion was from a doctor who attributed the psychological injury to “all of the incidents at work” (at [26]). Roche AP was critical of the Arbitrator’s analysis in that matter, as the Arbitrator restricted the enquiry to “the claim as defined by the Application”, which was an allegation based on a single date, and a meeting on that day (at [41]). Section 11A(1) required that the Arbitrator consider more than just the events on the pleaded date of injury.
The Acting President, in Shore at [42] and [52], said:
“42. The causation issue before the Arbitrator was not causation in the sense dealt with under ss 4 or 9A, but was the causation test in s 11A. That section requires the employer to prove that the relevant psychological injury was ‘wholly or predominantly’ caused by the employer’s reasonable action with respect to, in this case, transfer. That is a different, and more difficult, test to satisfy and it required the Arbitrator to consider more than just the events on 8 July 2010.”
“52. Second, the issue is not whether the other events were causative of the alleged incapacity or need for treatment, which requires an application of the ‘results from’ test in Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452, but whether the transfer was the whole or predominant cause of the admitted psychological injury. On this issue, the Arbitrator failed to consider the nature of the relevant psychological injury and the relevant evidence from Dr Westmore dealing with the cause of that injury. Instead of considering the terms of s 11A, he approached the question from the point of view that ‘the claim as defined by the Application relates to 8 July 2010 and the meeting on that day’.”
The causal test in s 11A(1) is “different, and more difficult”, in that the test does not involve proof of “personal injury arising out of or in the course of employment” (the s 4(a) test), or that employment was a “substantial contributing factor” to the injury (the s 9A test), but rather whether the injury was “wholly or predominantly caused” by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.
In Ponnan Handley ADP at [24] held that the meaning of ‘predominant’ in s 11A(1) is “mainly or principally caused”. This was applied by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd[2008] NSWWCCPD 96 (Temelkov). In the same case Roche DP also dealt with the causation issue on the basis that Kooragang, as “the leading authority on causation in workers compensation claims”, applied – “causation is a question of fact to be determined on the evidence in each case” (at [79]).
The Arbitrator at [60] of his reasons identified the causation issue requiring determination (see [9] above). It involved a consideration of all of the evidence, both lay and medical. The Arbitrator’s statement of the principles to be applied was consistent with the remarks of Herron CJ in Bes at 119, quoted and applied in Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [37]-[38]. The Arbitrator was entitled to rely on his “commonsense evaluation of the sequence of events”: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington) at [90]. He was entitled to make commonsense findings, provided these were “within the realm of common knowledge and experience”: Tubemakers in the High Court per Mason J at 724, applied in Etherington at [91].
There are limits to such commonsense reasoning. It is restricted to matters within the realm of common knowledge and experience. Roche DP in Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1 (Ramaswamy), dealing with a causation issue, at [72] said:
“…the connection between a thoracic strain on 5 February 2002 and the subsequent findings on CT scan on 26 April 2002 is not within ‘the realm of common knowledge and experience’ (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez(1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91])) that would enable an arbitrator or a Presidential member to rely on his or her ‘commonsense’ to conclude that the findings on CT scan resulted from a strain that occurred nearly three months earlier. Nor does ‘commonsense’ indicate, in the absence of appropriate medical evidence, that the incident on 5 February 2002 aggravated, accelerated or exacerbated the symptoms of any disease Mr Ramasamy suffered.”
In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223;85 ALJR 1130 (Jackson) the plurality at [66] said:
“The respondent's proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of ‘commonsense’ or the court's experience of ordinary life. The proposition turns on an inference from the nature of the respondent's injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence.”
The appellant relies on Craig, in which Keating P, applying Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, at [79] said:
“It is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge [Strinic v Singh]). Her Honour added (at [64]) that even if a judge is experienced in adjudicating in medical matters ‘that experience does not replace the requirement to base findings on the evidence’. For a judge to base a decision in such circumstances on his or her personal knowledge involves an error of law. Her Honour added ‘underlying that error is a fundamental breach of procedural fairness’. A party is not afforded procedural fairness where a trial judge makes a finding of fact based on the judge’s own purported knowledge, or understanding of matters that do not form part of the evidence.”
Craig also dealt with the Commission’s status as a specialist tribunal, and the relevance of this to fact finding on an issue of causation. The Arbitrator, in the current matter, did not rely on the Commission’s status as a specialist tribunal. His reasons do not suggest that he approached his fact finding on that basis. In Etherington McColl JA (Mason P and Beazley JA agreeing) at [93] said that a primary judge (or an arbitrator or Presidential member) intending to rely on his or her specialised knowledge, should disclose this to the parties, to give them an opportunity to respond to it. As regards the effect of the Commission’s status as a specialist tribunal, on its fact finding, see also Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355, MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482, Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 and Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37.

The State of the Medical Evidence on Causation

There were short handwritten reports from Dr Tadros, the appellant’s general practitioner. His referral letter to Dr Burke dated 9 March 2015 relevantly read:
“Thank you for seeing Mr Samir Hamad with a situational stress reaction after being downgraded by his employer from Grade 5 to Grade 1 duties. The whole problem started with his employer adding duties to his job that were refused by Mr Hamad’s union.
He has been c/o a mixture of anxiety depressive symptoms and Endep made him feel worse and gave him headache.”
Dr Tadros’ report dated 2 September 2015 relevantly read:
“Mr HAMAD has been receiving treatment for a post traumatic stress disorder since 20/02/2015.
He is currently fit for work that does not include any contact with his co-workers with whom he has an outstanding conflict.
He is currently seeing Dr Brian Burke (psychiatrist) and is on Zoloft tablets and Temazepam tablets.”
Dr Tadros’ initial WorkCover certificate was dated 23 February 2015. It gave the date of injury as 20 February 2015. As regards “How is the injury/disease related to work?”, the doctor wrote:
“SAMIR received a warning letter from his employer regarding a dispute over his duties/job description.”
The handwritten notes of Dr Tadros, from 15 (?) August 2014 to 9 October 2015 were also in evidence. I shall not attempt to recite them, but will refer to the earlier entries following 20 February 2015. The earliest such entry was 23 February 2015. It included reference to “3-4 days insomnia after receiving a letter of warning”, and “some conflicts between workers and union and employer”. It included “was offered inferior duties by his employer. Has been thinking all night about the matter. Had a very difficult weekend.” The entry on 25 February 2015 referred to a possible complaint against the appellant by another employee, and included “worried about his job”. The entry on 2 March 2015 included “worried about being targeted in the future”. On 5 March 2015 the entry read in part:
“Believes he was discriminated against
employer wanted to downgrade him from Level 5 to Level 1
Thinks he was the only one treated in this way by employer (downgrade him)”
The entry for 6 March 2015 included:
“Insomnia.
Keeps thinking about the bad treatment by his supervisor (Tony) (treating him without respect and insulting him in front of other workers)”
There is an entry in the notes in March 2015 (the date is cut off), apparently including the appellant and “Bernadette” (the surname I cannot decipher) from Qantas Catering. It included:
“Bernadette thought that the conflict was related to the industrial action.
I explained to her that his treatment by Tony and the insult he received is the cause of his current certificate.”
The appellant first consulted Dr Burke, the treating psychiatrist, on 16 April 2015, and the doctor reported on 8 October 2015. The history regarding work factors described the following:
“He said that the catering section of Qantas where he was working as a Leading Hand/Airline Services Coordinator was restructured some 18 months to 2 years ago and the duties of the team in which he was employed to prepare meals and like services for aircraft passengers were extended to include working with the aircraft crew to load items in the aircraft but that the union had demanded extra pay for this and that the company had not agreed and a standoff had resulted.
He continued that on this background he was asked by a supervisor on 20/02/2015 if he was willing to load food onto an aircraft.
He said a ‘third party’ from the business improvement plan was watching him at the time and he was told that if he was not willing to cooperate he would be transferred to an area where meal boxes were packed.
He thought this constituted a form of punishment and he refused, after which he was in fact transferred to a section staffed by lower paid employees.
Mr Hamad found this distressing but he accepted it while saying that other staff questioned the employer’s actions and were asking what had happened to cause the management to treat him in this way, which he found embarrassing. He quoted a colleague as saying that it was unfair to him.
He was subsequently told by the manager of Qantas Catering that he would be given a letter of warning for refusing to carry out his duties and he would be faced with disciplinary action, including dismissal. The dispute had been notified by the Office of Fair Trading and he was in fact given a letter of warning but a union delegate told him that many other employees were in the same position as he was. He said it was also brought to his attention that there were extra people on staff who would have been able to do his work.
After the incident referred to he felt ‘distressed’ and ‘unwell’ and he asked the duty manager if he could go home. This was refused and he was asked to do another job which should have been done earlier in the day and he carried this out after which he again asked to go home.
He was then required to fill in a form ‘2000’ which apparently states that the worker was unwell but he was not happy to do this and he finally went home at the end of the shift. He said he felt anxious, he could not sleep that night, he could not forget what had happened and he did not go back to work.
Symptoms he developed after the accident were a depressed mood, insomnia with early morning wakening, loss of concentration, loss of appetite, 7 kilograms weight loss and loss of interest. He said he had also suffered a loss of confidence and self-esteem.
…
He said he had always felt loyal to Qantas and was too embarrassed to discuss this situation with anyone.
…
I consider that instructions he was given at work on this background left him confused and anxious and although he appreciates the assurances he has been given that his work with Qantas has been well regarded, these have not in his mind addressed the matters directly related to the cause of his psychiatric disorder.”
Dr Burke diagnosed “Adjustment Disorder With Mixed Anxiety and Depressed Mood although his symptoms bordered on those of a Major Depression”. He said he “thought that a WorkCover claim was justified”. Dr Burke reported again on 24 August 2016. The second report does not concern itself with causation of the appellant’s psychological injury.
There is a report from Dr Bear, a dermatologist, dated 1 March 2016. Relevant to issues of causation, it says:
“Thank you for asking me to see Hamir who has depression and takes Zoloft.
He has been working with Qantas in catering.
He has had an experience of bullying which has caused him a lot of stress and probably started him on the Zoloft.”
The evidence from Dr Tadros, Dr Burke and Dr Bear was the only medical evidence in the case, relevant to causation. There are also multiple certificates from Dr Tadros. The respondent did not adduce any medical evidence.

The Causation Issue at the Arbitration Hearing

The respondent conceded the occurrence of ‘injury’, so the appellant had no onus of proof to discharge in that regard. The matter was conducted on the basis that it was common ground that the meeting on 20 February 2015 (and handing over of a warning letter at that time) were a cause of the psychological injury, and also constituted action taken with respect to discipline. The respondent carried the onus, on the probabilities, of proving the causation issue raised by s 11A(1) of the 1987 Act.

The appellant submitted before the Arbitrator:
“The respondent, with respect, just cannot satisfy wholly or predominantly. There are a number of causative factors and it is well outside just discipline.” (11.8.16 T34.12-4)
The Appellant’s counsel submitted to the Arbitrator that there were five other specific matters that were contributory (11.8.16 T34.24-46.27). Because of the way this submission was developed, the Arbitrator from time to time enquired about what medical evidence there was to support the causal nature of these other matters (for example at 11.8.16 T35.25-7). However, the appellant did not carry an onus in this regard, the relevant onus was on the respondent. The way in which the Arbitrator dealt with these other matters is summarised at [10]-[17] above. Some were rejected on the basis there was no evidence that they were causative, one (the unsuccessful request to go home) the Arbitrator did not accept occurred. In relation to the first raised matter (the failure to accede to the pay demands) the Arbitrator at [62] of the reasons said:
“While I would accept that an event, or a series of events having a cumulative effect, can be causative of a psychiatric condition which does not become manifest until a later time, I am not satisfied on the evidence that this was the case here.”
The respondent’s submissions on the s 11A(1) defence dwelt predominantly with the issue of whether its actions were reasonable. The respondent addressed the Arbitrator on the appellant’s letter dated 22 February 2015 to Mr Crescenti, a delegate with the TWU (26.8.16 T48.12-49.25). The respondent submitted:
“That’s what he’s complaining about. He’s complaining about the warning, the circumstances surrounding the warning letter. He’s not complaining about anything else… the relevant action which predominantly gave rise to the applicant’s psychological injury was in fact the actions surrounding the disciplinary matter.”
The respondent’s submissions also referred to the history recorded by Dr Tadros on 23 February 2015 and to the initial WorkCover certificate.

Resolution of the Causation Issue

The respondent carried the onus on this issue. The appellant submits that the Arbitrator inverted the onus of proof. The appellant’s counsel, at the arbitration hearing, postulated a number of matters, apart from matters of ‘discipline’, which he suggested may be regarded as causal contributors to the conceded psychological injury (see the reasons at [61]). The Arbitrator, in dealing with these other matters, set them out seriatim, and dealt with them individually on the basis that they were matters “asserted by the applicant” to have made a causal contribution to the injury. After considering the first four of these, at [66] of the reasons the Arbitrator said:
“In short and for the reasons given, I do not accept that any of the four matters and issues to which I have just referred contributed to the causation of the applicant’s psychological injury in any way or, alternatively, to a degree which would be regarded as anything other than minimal, either individually or cumulatively.”
The fifth matter was the direction “to perform Level 1 work” on the afternoon of 20 February 2015, after the disciplinary interview. The Arbitrator said, of the argument that this “was a substantial causative factor”, that “[e]ven if that be accepted”, it does not necessarily follow that disciplinary action was not the predominant cause” (reasons at [67]). He said that the appellant’s distress, at the Level 1 work, resulted from his misperception that he was being specifically targeted. The direct cause of the misperception was the disciplinary action in issuing the warning letter earlier on 20 February 2015. Thus the distress at being directed to perform the Level 1 work, itself resulted from the disciplinary action (reasons at [72]-[76]).
Notwithstanding the above, the Arbitrator went on, at [77]-[82], to deal with other evidence, and concluded that it supported his finding in the respondent’s favour, on the causation issue raised by s 11A(1). At [77] he said that this reasoning and finding were “regardless of the above findings relating to submissions made by the applicant as to other causative factors”. At [79] the Arbitrator reiterated that the respondent carried the onus on the causation issue. At [81] the Arbitrator specifically referred to not “intending to in any way reverse the onus of proof”. The Arbitrator was clearly alert to the risk of inverting the onus, and sought to avoid doing so. Ultimately, the Arbitrator said that he arrived at his finding on causation, regardless of the other matters on which the appellant addressed as being potentially causative.
There are aspects of the reasoning, dealing with the other potentially causative matters, which would be consistent with the appellant bearing an onus on this topic. However, when the reasons are read as a whole (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444), on balance, I am not persuaded that the Arbitrator inverted the onus.
The next issue is whether the Arbitrator could be satisfied that the respondent had discharged its onus on the causation issue, in the circumstances of the case, in the absence of medical evidence addressing the issue.
The Arbitrator’s findings on ‘injury’ were set out in the reasons at [77] and [82] (see [19] above).
The medical evidence tendered by the appellant did not, on a fair reading, support the causation finding. The note of the initial consultation with Dr Tadros, on 23 February 2015, referred to “3-4 days insomnia after receiving a letter of warning”. It also referred to “some conflicts between worker & union & employer”. It referred to being “offered inferior duties by his employer”. The note for 5 March 2015 referred to the appellant’s belief that he was “discriminated against”, and the employer “wanted to downgrade him from level 5 to level 1”. The note from 6 March 2015 referred to the appellant’s “bad treatment by his supervisor Tony”, who treated him without respect, and insulted him “in front of other workers”.
Dr Tadros’ referral letter to Dr Burke dated 9 March 2015 is quoted at [52] above. It specifically referred to a “situational stress reaction after being downgraded by his employer from Grade 5 to Grade 1 duties”.
Dr Burke’s report included a history of multiple things. The interview regarding the warning letter was one such thing. There was a history of the appellant’s duties being “extended to include working with the aircraft crew”, and to Qantas not agreeing to a union demand for “extra pay” for this. There was a history of the appellant being asked, on the morning of 20 February 2015, “if he was willing to load food on to an aircraft”. There was a history that the appellant “was transferred to a section staffed by lower paid employees”, something which he found “distressing” and “embarrassing”. Another matter was the alleged unmet request to go home early on 20 February 2015 as he “felt ‘distressed’ and ‘unwell’”. There was reference to “a supervisor who appeared to have treated him harshly”. There were references also to later attempts at mediation and return to work, although these could not have been causative of the psychological injury deemed to have been suffered on 20 February 2015.
Dr Burke’s opinion did not deal in detail with what parts of the recorded history were causative of the psychological injury. The report did not suggest that he was specifically requested to furnish such an opinion. Clearly the doctor considered there was a causal link between the work matters about which he obtained a history, and the condition he diagnosed, in view of his statement that “a WorkCover claim was justified”. The doctor also referred to “the adverse impact on him of the actions of Qantas in relation to the matter”. He said “instructions he was given at work on this background left him confused and anxious”.
The material from Dr Tadros, and the report from Dr Burke dated 8 October 2015, do not seek to address the issue of the competing causal roles of the various work matters referred to in the history. The appellant, of course, carried no onus in this regard.
The Arbitrator at [62] said that “an event, or a series of events having a cumulative effect, can be causative of a psychiatric condition which does not become manifest until a later time”. This is frequently so. There was a relative paucity of medical evidence in the matter, dealing specifically with what aspects of the history contributed to the conceded psychological injury, and to what extent. The Arbitrator dealt with the causation issue largely by reference to the lay evidence, and his conclusions from that.
The Arbitrator said that there was “no evidence, lay or medical”, for the proposition that working “as a CLA without extra remuneration in any way caused or contributed to his psychological injury”. The Arbitrator accepted that the appellant may have been “angered and upset” by the respondent’s position, but said that these were “normal emotional impulses”, not “suggestive of producing the recognised psychiatric illness necessary to constitute an injury”. Such illness “did not manifest itself until after the applicant was handed the warning letter on 20 February 2015” (reasons at [62]). The reference to “normal emotional impulses” apparently related to the distinction between a mere emotional impulse and psychological injury (see Thazin-Aye v WorkCover Authority (NSW) (1995) 12 NSWCCR 340, Department of Corrective Services v Bowditch [2007] NSWWCCPD 244; 6 DDCR 174).
The Arbitrator at [63] of the reasons referred to the respondent asking the appellant “to undertake the CLA duties when it knew he would refuse them”. He said this may have led to “some emotional impulse of anger”, but that “there is nothing in the evidence which suggests that it was in any way causative of psychological illness”.
The Arbitrator concluded that he was not satisfied that the request to go home early, on 20 February 2015, “in fact occurred”. It was not referred to in the appellant’s statements dated 3 March 2015 and 16 June 2016. The Arbitrator acknowledged that the history was mentioned in Dr Burke’s report dated 8 October 2015. He said he did not accept that any such incident “impacted on [the appellant’s] psyche”, let alone to an extent capable of causally contributing to his psychological injury” (reasons at [64]).
The Arbitrator referred to the work carried out by the applicant “which fell below his usual classification”. He said he was unsure whether this related to the work the appellant was paged to do at 3.15 pm on 20 February 2015, or to “some other work which he was allocated to do” on 19 or 20 February 2015. He said that there was no evidence that performing other duties, “apart from the Level 1 work” had “any adverse impact on [the appellant’s] psyche” (reasons at [65]). The reference to “the Level 1 work” was a reference to the work the appellant was paged and directed to perform at 3.15 pm on 20 February 2015 (reasons at [67]).
The Arbitrator described the argument, that the Level 1 work made a “causal contribution” to the injury, as “at first blush [appearing] to have some force”. He dealt with it at some length, eventually concluding that the appellant’s psychological reaction was to his “perception” that this work was “punitive”. That perception was “erroneous”, and itself resulted from the disciplinary interview earlier the same day.
The factual finding, that the request to go home early on 20 February 2015 did not occur, was not one which I would have made. However, the Arbitrator was under no obligation to accept the appellant’s evidence on the issue, he gave reasons, and the finding was open to him.
There are a number of other findings, relevant to the causation issue, which could not, in my view, be appropriately made in the absence of medical evidence. The Arbitrator was entitled to have regard to the sequence of events; he was entitled to have regard to his common knowledge and experience of ordinary life. However, as the Arbitrator previously observed at [62] of his reasons, a series of events can have a cumulative effect, and may be causative of a psychiatric condition which does not manifest itself until a later time. That does not mean that the earlier events in the series are not causative (see the discussion in Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston [2016] NSWWCCPD 63 at [33]-[45]).
In respect of a number of the specific matters, on which the appellant’s counsel addressed at the arbitration hearing, the Arbitrator concluded that such matters may have caused anger or upset, but the evidence did not suggest they were causative of psychological injury or illness. This proposition is not “self-evident”, to use the language in Jackson.
A number of the matters on which the appellant’s counsel addressed were matters raised in Dr Burke’s report dated 8 October 2015. Whilst Dr Burke’s stated views on causation were not specific, they were consistent with the general proposition that the history he recorded was causative of the psychological condition which he diagnosed. Dr Tadros, in his referral to Dr Burke dated 9 March 2015, referred to a “situational stress reaction after being downgraded by his employer from Grade 5 to Grade 1 duties”. The available medical evidence on causation suggests there were potential causal factors, beyond the warning letter and disciplinary interview on 20 February 2015.
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.
This is particularly so, given that the available medical evidence, from Dr Tadros and Dr Burke, was consistent with causes in addition to matters alleged to constitute ‘discipline’.
Additionally, for reasons given below going to Ground No 1, there was a factual error going to the duties carried out on 20 February 2015. The Arbitrator said that those duties, carried out after 3.15 pm, when the appellant was paged, were below the appellant’s Level 5 classification (they were referred to as “Level 1 duties”). The Arbitrator concluded that the appellant “misperceived” them as “punitive”, due to his psychological reaction to the disciplinary interview and warning letter, earlier that day (reasons at [72]-[76]). It was then reasoned that any psychological effect of the “Level 1 duties” resulted, in the relevant sense, from the disciplinary interview and the warning letter. It appears clear that the lower level duties were assigned to the appellant during the morning of 20 February 2015, before the disciplinary interview. The reasoning going to the misperception of these duties cannot stand, with this varied sequence. The appellant’s perception of the duties, when they were assigned, could not have been due to the psychological effect of the disciplinary interview, which occurred later that day.
The duties assigned to the appellant on 20 February 2015, from 3.15 pm, were Level 5 duties, within the appellant’s usual grading. The appellant said it was “a task that I normally do”. The appellant’s reaction to this work was that he was “told at the beginning of the shift that there is no Level 5 work for me that day”. The appellant said the particular task “should have been done several hours before” the time when he was paged (statement 3 March 2015 at [47]). That is, there was Level 5 work to be done, yet it was not assigned to the appellant. He did other work for much of the day, and then was assigned the Level 5 work late, when for some reason nobody had done it.
It was not submitted that the assignment of duties to the appellant on 20 February 2015, either the “Level 1 duties” in the morning or the Level 5 duties at 3.15 pm, was action or proposed action in respect of ‘discipline’.
The respondent could not, on the available evidence, in the absence of any medical evidence dealing appropriately with the topic, discharge its onus of proving that the appellant’s psychological injury resulted wholly or predominantly from its “reasonable action taken or proposed to be taken” with respect to discipline. Ground No 2 is upheld.

GROUND NO 1 – THE LEVEL 1 DUTIES

The Appellant’s Submissions

The appellant submits that the evidence of the appellant, Mr Garios and Mr Festa was to the effect that the appellant was “assigned level 1 duties (variously referred to in the evidence as inferior duties, downgraded duties etc…) on 20 February 2015”. This was “prior to the warning letter being issued” (emphasis in original). The Arbitrator accepted this when he set out the evidence at [27] of the reasons, but subsequently “confused” the chronology (there is reference to the reasons at [30], [32], [37], [44], [46], [54], [59], [65], [67], [71], [74], [75], [79] and [80]). The duties allocated after the meeting on 20 February 2015 were “level 5 duties”. The appellant’s complaint about these was that they should have been provided earlier in the day.
The appellant submits that this factual error impacts on the ultimate findings. The Arbitrator found that allocation of the lower grade duties was causative of the psychological injury (reasons at [81]-[82]), but only “given the appellant’s misperception arising directly from the warning”. In fact, the lower grade duties were assigned and performed prior to the interview where the appellant was given the warning letter. It follows that there was error in the finding that the injury was “wholly or predominantly caused by the meeting/warning letter on
20 February 2015”.

The Respondent’s Submissions

The respondent refers to the Workplace Determination at cl 14.1. It submits that a Level 5 Airline Services Co-ordinator, such as the appellant, can be directed to perform “non Level 5 duties”, that is, “working down”. The respondent refers to the statement of Mr Garios at [31], that on 19 February 2015 the appellant refused to complete “the end to end task”, and he was “sent to build Q Link boxes”, which is “working down a level doing this task which is allowed in the award as long as they are trained”. The same thing happened on the morning of 20 February 2015. The respondent submits that this was “common ground”. On 20 February 2015 the appellant continued carrying out the task of building Q Link boxes until 12.36 pm, when he was asked to attend the meeting at which the warning letter was given to him. There is no evidence of any psychological injury, prior to this meeting.
The respondent submits that, after the meeting, the appellant returned to work at Q Link. The work was described as Level 2 by Mr Whippy (statement at [17]), and Level 3 by Mr Festa (statement at [19]).
The respondent says “an exigency arose during the afternoon”, such that the appellant was “required to complete the units for flight QF:001” (Mr Garios’ statement at [38]). The respondent accepts that these were “Level 5 duties that did not involve loading the plane”, not “Level 1 duties”. The respondent refers to the reasons at [65]-[82], and submits this misdescription “had no effect on the outcome”. The Arbitrator, at [30] of the reasons, referred to the appellant being “directed to undertake the completion of ‘units’ for a flight, which made him feel angry or emotionally distressed”. The respondent submits that, regardless of the classification, the Arbitrator “understood what work was undertaken”, and considered the appellant’s evidence “as to how he felt about performing those duties”.

The Appellant’s Submissions in Reply

The appellant submits that the respondent concedes error. The appellant was “working down” prior to the disciplinary meeting. The Arbitrator also erred in describing the duties after the meeting as “Level 1 duties” when they were “level 5 duties”. The appellant refers to Sydney Water Corporation v Caruso [2009] NSWCA 391, in which Allsop P at [25] said:
“A decision will be impaired, or spoilt or corrupted or ‘vitiated’ if the error went to a central issue for consideration and the appellate court cannot be persuaded to a relevant degree of satisfaction that the resolution of the central issue has not been affected.”
The appellant submits that the respondent carried the onus on this causation issue. “[T]he sheer number of times the arbitrator wrongly referred to the duties suggests that the transfer was central to his decision”.

Consideration

It is common ground that the work assigned to the appellant, on the morning of 20 February 2015, packing meal boxes in Qantas Link, involved him “working down”. It was not the usual work of a Level 5, although assignment of such work was permitted under the Workplace Determination. The appellant’s statement dated 3 March 2015 described the work as “in Qantas Link… packing meal boxes” (at [39]). He said he was asked to do this work, “so I did. This is still in the food production area.”
In his statement dated 16 June 2016 the appellant said he “had not worked in this section or undertaken the task of packing boxed meals since 1993” (at [4]-[5]). The appellant said he felt “as though I was being punished”, but followed instructions and packed meals. He “felt as though everybody was looking at me”. It was “odd” for someone with his title to be “working on the assembly line in this section”. He “felt extremely embarrassed amongst all the staff”. A staff member approached him and said it was “unfair”, and “she would report it to HR”. He said Mr Whippy approached him and asked why he was doing “level 1/2 work” (at [6]-[8]).
In his statement dated 3 March 2015, the appellant referred to being paged “at about 3.15 to complete the units for flight QF:001 in the Kitchen, with less than 2 hours before departure time, where those units should have been done several hours before” (the QF:001 work). He said he was:
“… in distress, anger, disgust as I felt that I was being humiliated, demeaned. I felt I was specifically targeted. I do not know why the work had not been done.” (at [47]).
In his statement dated 16 June 2016, he described the work he was paged for at 3.15 pm, saying “[t]hese units are generally done 4 hours before flight departure by Leading hand Level 5”. This was after being “advised that there was no level 5 work for me today (which this work constitutes) and that’s why I had to do level 1/2 work”.
Mr Garios recalled that “the units had not been done that day”, he thought “someone forgot to do it” (his statement at [38]).
It is clear from the above that, on the morning of 20 February 2015, the appellant was assigned, and performed, duties packing meal boxes in Qantas Link. His second statement said the duties were “usually assigned to Level 1 or 2”. They may have been Level 3. The appellant said that, carrying out these duties, he felt “punished”, “as though everybody was looking”, and “extremely embarrassed”. The later statement said that, after the disciplinary meeting that day, the appellant “returned to work” (it appears the work packing meal boxes), but “couldn’t concentrate properly” (at [14]).
It is also clear from the above that, after being paged at about 3.15 pm to perform the QF:001 work, the appellant performed that work, when the work was generally done four hours before departure. This was the work of a leading hand Level 5, the appellant’s status at the time. The appellant observed that he had previously been told that “there was no level 5 work” for him that day, and “that’s why I had to do level 1/2 work” (statement 16 June 2016 at [16]).
The Arbitrator’s reasons, at [30], described the work given to the appellant after “he was paged at 3.15 pm, as ‘the completion of ‘units’ for a flight, which he states to have been Level 1 or 2 work, which made him feel ‘angry and emotionally distressed’ and ‘as though I was being specifically targeted and subjected to humiliation’.” The Arbitrator subsequently referred to the QF:001 work, as “Level 1 duties” at [37], and as “the work of a lower classification on the afternoon of 20 February 2016” (at [55]). This constitutes an error of fact. Does it constitute appealable error?
In Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 (Stead) the High Court at [16] said:
“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”
Dealing with the consequences of error in the context of the Commission, in Toll Pty Limited v Morrissey [2008] NSWCA 197; 6 DDCR 561 (Morrissey) Beazley JA (Handley AJA and McDougall J agreeing) at [10] applied the above passage from Stead:
“The Deputy President then stated that notwithstanding the arbitrator’s error, he was not satisfied that the error would have affected the outcome of the matter. That finding was, however, erroneous. By stating the test that way, the Deputy President, in effect, reversed the onus. The correct test was that he should allow the appeal from the arbitrator, unless the error of the arbitrator could not possibly have affected the result: see Stead v State Government Insurance Commission[1986] HCA 54; 161 CLR 141 at 147.”
The Arbitrator, in the reasons at [67]-[76], considered the QF:001 work, and whether it was a cause of the psychological injury. He described the work, saying “at 3.15 pm on 20 February 2015, after having been handed the warning letter, he was paged and directed to perform Level 1 work”. The Arbitrator described the appellant’s argument as being that “this work, which he perceived as punitive and demeaning, was a substantial causative factor in the receipt of his injury”. The Arbitrator’s analysis thereafter proceeded on the basis that this was Level 1 work.
The respondent submits that, although the Arbitrator misdescribed the level of the duties in the QF:001 work, the Arbitrator “understood what work was undertaken, irrespective of its classification”. It submits that the Arbitrator “plainly considered the appellant’s evidence as to how he felt about performing those duties”. For the reasons at [65]-[82], the error “had no effect on the outcome”.
The “Level 1 work” (it may have been Level 2 or 3 work, but it was below the appellant’s grading) was that in Qantas Link packing boxes, assigned on the morning of 20 February 2015. The appellant said that he had not performed such work since 1993. He was extremely embarrassed and felt that everybody was looking at him. He said that he felt “punished”. This work was being carried out prior to the disciplinary interview, although the appellant appears to have returned to it for a time after the interview. The Arbitrator approached it on the basis that Level 1 work was assigned after the disciplinary interview, and the appellant viewed such work through “a distorted perception”, as a result of the psychological effect of the interview.
The Arbitrator approached the QF:001 work on the basis that it was “Level 1 work”, and this was the basis of the appellant’s reaction, perceiving it to be “punitive”, and the respondent to be “negatively disposed towards him” (reasons at [76]). Factually, this misrepresents the appellant’s difficulty with the QF:001 work. The appellant perceived he was “specifically targeted”, because there was Level 5 work available that day, which was not assigned to him at an appropriate time, when it could have been.
It could not be concluded that the factual error “could not possibly have affected the result”. It was appealable error.

CONCLUSION

For reasons given above going to Ground No 2, I have formed the view that the respondent could not, on the available evidence, succeed in proving the necessary causation finding, for its defence under s 11A(1) of the 1987 Act to apply. It is unnecessary, in those circumstances, to deal with Ground No 3, which goes to whether the respondent’s actions were reasonable: Doyle per Fitzgerald JA (Mason P agreeing) at [4]-[5]. The availability of a defence pursuant to s 11A(1) was the only ‘liability’ issue, and it is resolved in the appellant’s favour. The appellant is entitled to succeed.
This leaves the question of the appellant’s weekly entitlement. The appellant submits that the matter should be remitted to the Arbitrator, to determine the weekly entitlement. The appellant does not submit that the matter should be remitted to a different Arbitrator. It will be a matter for the discretion of the Arbitrator, as to whether an arbitration hearing is required, or whether this remaining issue can be dealt with ‘on the papers’. The respondent does not make submissions going to the orders, if the appeal succeeds.
The matter is to be remitted to Arbitrator Wardell, to determine the remaining issue, which is the appellant’s weekly entitlement, and to make an appropriate order in respect of medical and related expenses for treatment. Arbitrator Wardell is familiar with the matter. If either party seeks to submit the remitter should be to a different Arbitrator, there is liberty to apply within seven days.

DECISION

The Arbitrator’s determination dated 6 October 2016 is revoked.
There is a finding that the respondent’s defence pursuant to s 11A(1) of the 1987 Act is not made out.
The matter is remitted to the same Arbitrator, to determine the remaining issues, consistent with these reasons. Liberty to the parties to apply within seven days, if either party seeks to submit that the matter should be remitted to a different Arbitrator.

Michael Snell
Deputy President

15 March 2017