Head v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Head v Secretary, Department of Education [2023] NSWPIC 621
APPLICANT:	Debbie Head
RESPONDENT:	Secretary, Department of Education
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	20 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum claim; psychological injury; main dispute is the application of section 11A; Held – respondent has not established a defence under section 11A; claim is remitted to the President for referral to a Medical Assessor to assess the permanent impairment for psychological injury.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987. 2. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess the permanent impairment for psychological injury with the deemed date of injury of 1 June 2021. 3. The documents to be referred to the Medical Assessor are to include the Application to Resolve a Dispute, Reply and a copy of this Certificate of Determination/Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

Ms Debbie Head (the applicant) was employed with the respondent, Secretary, Department of Education, in different schools and various capacities from 1981. On 2 November 2018 she became the permanent principal at Dubbo College Delroy Campus.
In these proceedings she alleges she has sustained a work related psychological injury. She seeks lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) relying on a deemed date of injury of 1 June 2021.
The respondent relies upon a defence under s 11A of the 1987 Act, that Ms Head’s injury has arisen because of reasonable actions by the respondent in relation to discipline and performance appraisal.
The respondent’s counsel confirmed that this is the only issue in dispute.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a conciliation/arbitration hearing on 7 August 2023. Mr de Greenlaw of counsel appeared for Ms Head instructed by Mr Adams, solicitor. Mr Gaitanis of counsel appeared for the respondent instructed by Mr Tan, solicitor, and Ms O’Toole, from the insurer.

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 (ARD) and attached documents and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence. Oral submissions were made by the parties. A written transcript (T) of the parties’ submissions has been made from the sound recording and is available to the parties.

FINDINGS AND REASONS

Legal principles

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.”

“Wholly or predominantly caused”

In Ponnan v George Weston Foods Ltd it was accepted that the meaning of “predominantly caused” is “mainly or principally caused”.[1]
[1] [2007] NSWWCCPD 92, Poonan at [24].
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[2] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”.
[2] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
In St Georges Leagues Club v Wretowska[3] Roche DP stated at [110]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]). That is especially so in cases concerning a psychological injury where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011, and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[3] [2013] NSWWCCPD 64, Wretowska.
In Hamad v Q Catering Limited[4] at [88] Deputy President Snell in found:
“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 s11A(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.”
[4] [2017] NSWWCCPD 6, Hamad.

Reasonableness

There have been many cases dealing with the principles to be considered when determining if an employer’s conduct was reasonable.
Geraghty J in Irwin v Director-General of Education[5] found:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[5] NSWCC 14068/97, 18 June 1998, Irwin.
In Ivanisevic v Laudet Pty Ltd [6] Truss CCJ stated, “when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[6] NSWCC unreported, 24 November 1998 Ivanisevic.
In Department of Education v Sinclair[7] also stated that the entire process needs to be considered to see if it was reasonable action.
[7] [2005] NSWCA 465, Sinclair.
More recently, in Northern NSW Local Health Network v Heggie[8] Justice Sackville observed that the determination has to be made by the facts known to the employer at the time. He also expressed the following principles:
[8] [2013] NSWCA 255, Heggie.
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A(1) of the WC Act:
(i)    A broad view is to be taken of the expression "action with respect to discipline". It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)    Nonetheless, for s 11A(1) to apply, the psychological injury must wholly or predominantly caused by reasonable action.
(iii)   An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)   The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)    Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)   The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii)     If an Arbitrator does not apply a wrong test, his or her decision that n with respect to discipline is or is not reasonable is one of
fact.” (at [59])
Also, many cases have confirmed that the concept of reasonableness in s 11A does not require the employer to have acted flawlessly or to a standard of perfection as demonstrated in Van Vliet v Landscape Enterprises Pty Ltd[9] at [180ff].
[9] [2022] NSWPICPD 49 Van Vliet.
The respondent has the onus of proof to establish the elements in s 11A.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[10] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[10] [2008] NSWCA 246, Nguyen.

Evidence

In order to understand counsels’ submissions I have summarised the main evidence below.

Incident report

The incident report states that the incident occurred on 1 June 2021 at 12.00pm and was reported at 4.08pm that day. The description of the incident is set out below:
“Principal Debbie reports well being concerns following a meeting with the DEL.
Debbie attended a meeting with the DEL (Adelia) and she had Shane (Support person) present with her. As a result of this meeting she was stood down and asked to hand the keys back.
She did not go back to school following the meeting and has instead gone home.
Debbie advises of an ongoing witch hunt and constant complaints lodged against her.
Adelia and the ED's Charles and Andrew are constantly finding faults in everything she does.
Things are being constantly reported to PES, things that can be resolved by having a simple conversation.
She feels that Charles wants her out of the role and finds little things to complain about.
She feels constant harassment and bullying tactics from them.
Charles reports to PES on a regular basis. If Debbie does not report to the Hotline within 48 hours she gets reported to PES.
She feels that the issues being reported are unreasonable.
Debbie is at school early every morning and leaves late every afternoon and she feels that she is unsupported and just chastised for the smallest thing.
Debbie is extremely upset and feels that she has been targeted and treated unfairly. She feels as though she has done everything correctly and fought so hard for the school community.
Debbie will be seeking medical treatment and EAP support has been offered.
Debbie will not be returning to work at this stage.”[11]
[11] ARD p 300.
The incident report refers to Ms Head having an existing psychological claim for an adjustment disorder with mixed anxiety and depression.

Ms Head’s statements

Ms Head has provided a lengthy statement with a number of annexures. She explains that the Dubbo College has three campuses being the Senior Campus for years 11 to 12 which has an administrative centre where Mr Gauci as College Executive Principal (and before him Mr Johns) was based. There was also the South Campus for years 7 to 10 located in South Dubbo and the Delroy Campus for years 7 to 10 located in West Dubbo. She explains that the Dubbo schools are part of the Macquarie Network led by the Director, Educational Leadership, Adelia Fuller and this Network is part of Regional North and West Division overseen by the Executive Director, School Performance, Lisa Muir.
Ms Head was the Principal of the Delroy campus, which she describes as having a highly vulnerable, low socio-economic cohort. She says she was faced with several harrowing extraordinary issues which contributed to an unsafe work environment over time.
She sets out a number of incidents where she felt Ms Fuller was prejudiced against her, with micromanagement and treating her that she could do nothing right which eroded her self-worth and self-esteem. Ms Head gives details about events surrounding the hiring of
Ms Head’s daughter to work at Delroy College and Ms Fuller requiring her to fire her. She says that Ms Fuller did not listen to the full circumstances about her daughter being hired and insisted that Ms Head do a course on code of conduct and Ms Head said she was made to feel like a felon. She was also made to go on an informal support programme.
Ms Head says over the next 18 months she worked with the Secondary Principals Council (SPC) in this programme and then she asked the SPC officer, Mr Peter Morgan, to come and observe her work as Principal. At [38] of her statement she sets out his positive comments reported by him of her work.
Ms Head says that in term 1 2020 Ms Fuller did not revisit this improvement program and it was abandoned. She says after this time Ms Fuller continued to scrutinise meticulously and methodically everything she did which Ms Head says went beyond what was normal supervision. She also says that Mr Jones and Mr Gauci sought to criticise and find fault with her work and she felt she was walking on eggshells.
She refers to Mr Jones revoking her administration rights to upload pictures and videos to the College Facebook page and that he did not inform her he was going to revoke her rights or give her a reason why he did so. At [43] she also refers to Mr Jones in April 2020 refusing to let her upload information videos in relation to learning from home. She says she was frustrated by this and felt devalued. She says at the same time the relieving Principal of the senior campus was allowed to upload to their Instagram page without having the content censored by Mr Jones.
At [44] she says a colleague told her that she overheard a conversation between Mr Jones and Ms Weekes at the College Administration Centre, laughing about Ms Head’s videos and making fun of her. She said she felt humiliated and depressed and she stopped making videos.
She relates details about 30 August 2019 when a student posting online a hate campaign about her in response to the school’s mobile phone policy. At [47] she says Mr Fuller and Mr Jones said they were away and would deal with it the following Monday but the post is still there and she feels let down and her mental health suffered. She says the student was allowed to return to school with no apology or sanctions. She says neither Mr Jones nor Ms Fuller offered her any real emotional support and she felt completely empty.
She also describes a local paper running articles about her and the school for six days and Mr Jones was not forthcoming in relation to the steps he was taking to address this issue. She described this time as horrendous. She says she was offered no real emotional support and the stressful situation was engulfing her. She says she felt left alone in the process and it was devastating to her.
At [52] to [55] Ms Head describes the stressful time when a civil claim was brought in NCAT by the Rileys about the school not continuing to use them to run a program in the school when the funding for the program had ended. She says that civil claim was unsuccessful but it was a gruelling time for her during 2018 and 2019. She says Ms Fuller left her to collect and collate mountains of evidence and respond to numerous requests for information and did not offer her any guidance or support. She says she was left alone to try to navigate this while running a school.
On 8 March 2018 a parent and his friends organised a hostile take-over of the P & C at the annual general meeting. Ms Head said she was caught unawares and left feeling shocked that such tactics could be used. She said during the new P & C President’s tenure he was aggressive to her, excessively demanding and tried to dictate what Ms Head did in the school. Ms Head said she asked Mr Gauci for support but she felt he already sided with the President. The President then submitted a formal complaint to Mr Gauci about her and the President sent out a motion to all P & C members to discredit her. Ms Head said she contacted the Principal Legal Officer of the respondent for advice and she left it in the hands of Mr Gauci. She says at [58] that Mr Gauci then did speak to the President, who then issued a statement to the P & C that his previous communications were confidential but Ms Head says by then the damage was done. Ms Head says she does not believe that Mr Gauci supported her during this process. She said the P & C President also directed his hostility to her Deputy Principal and the former P & C President. Ms Head states at [59] that she asked Mr Gauci to follow up with the P &C President, but in an email dated 21 May 2021 he merely pushed that back onto her instead of supporting her.
Ms Head also asserts that Ms Fuller did not support her when she had a physical injury in February 2020. She also states that she has had to endure regular verbal abuse and physical threats from angry parents and students which has made her feels unsafe and concerned for her physical and mental wellbeing. She says on many occasions she contacted the WHS incident hotline but she has never been personally spoken to by
Ms Fuller, Mr Jones or Mr Gauci.
Ms Head relates the circumstances of a violent student incident on about 4 September 2020 when she had to put the school in lockdown and call the police and she said this incident significantly impacted her mental health. She says Mr Jones emailed her afterwards in which he stated, “Very big day. Well done to all involved.” She also related a text from Ms Fuller. Ms Head said she was left shaken by this violent encounter and she was not specifically asked if she was ok nor did they talk to her in person.
At [73] Ms Head says Ms Fuller’s expectations were always over and above that required by the Department of Education. For instance, she says the time for reporting attendance in the Department’s attendance app was 11am but Ms Fuller required it to be done by 10am. She says the Principal at Dubbo South Public School stated in a zoom meeting that she never did the app before 10am and Ms Fuller said nothing to her. Ms Head also asserts extra paperwork was required by Ms Fuller about any suspensions. At [75] she says Ms Fuller micromanaged individual students at her school which undermined her as Principal. She says having to justify every decision was exhausting and belittling. At [76] she says she had to answer to three line managers which she felt was unreasonable.
Ms Head describes an incident with a parent who was the Chairperson of the Three Rivers Regional Assembly on 11 and 12 November 2020, who was aggressive and tried to stand over her. She says he mentioned the civil court case and this caused her instant and extreme anxiety. She relates other aspects of this interaction and says she reported this to the WHS hotline and she had a breakdown when describing the incident. She says she emailed Ms Fuller and Mr Gauci that she considered this a very serious breach of the Three Rivers agreement with the Department as well as a personal threat to her well-being and safety. She says however, she found out that Mr Gauci and Ms Fuller were working with this man and the complainant in the civil case on another project for the school without her knowledge. She says this caused her to feel undermined and devastated.

Ms Head gives another example of difficult parent behaviour from [89] to [95] and says that Mr Jones did not investigate this properly and showed no intention to support her in the context of her being the Principal of a very difficult school.
She said when her managers did email her offering support she felt it was disingenuous and only done to tick a box. She also expresses her view at [103] that certain staff members were encouraged to report on her to Mr Jones and Mr Gauci.
Ms Head relates arranging a meeting with the Executive Director Lisa Muir on 1 April 2021 and informing her of the bullying and harassment she had been experiencing and about her current mental state. She said Ms Muir spoke to Ms Fuller and they all developed a plan for moving forward together and it was at this meeting in Term 2 2021 that Ms Fuller finally acknowledged the stress place on Ms Head by the civil court action.
From [105] Ms Head sets out the events on 1 June 2021. She says in that meeting
Ms Fuller said she had the results of the Professional and Ethical Standards unit (PES) investigation. Ms Head said she knew of two PES investigations that had not been resolved and she thought that is what would be discussed. She says, however, the letter she was given had six allegations against her and she was to be stood down and not to return to her school. She says it was like she had been stabbed and she was incredulous. She says she believed that the six allegations could have been resolved with conversations with her because there was nothing in her actions that had placed a child at risk of significant harm.
She says she had responded to the PES allegations one and two on 17 December 2020 and she had not received a response.
She says all six allegations were over four months and began when Mr Gauci came to Dubbo College in term 4 in 2020. She says she has worked for the respondent for 37 years and five and a half years as a Principal and the frequency which Mr Gauci has reported her actions to PES, without any opportunity for correction, suggests to her she was being targeted and they want her out as Principal. Ms Head states the following:
“110. In raising these allegations with PES, the context of the school and high workload demands of a principal were not considered. The school runs at an extremely hectic pace. When an issue occurs, my job is always to look after the children's immediate safety, triage and then investigate, so I can provide the reporting hotlines with accurate information, At no stage, by my actions or omissions, was a child's wellbeing compromised nor did I act with wilful intent to not report.
111. Charles has interfered with some of the incident investigations by reporting things to the Incident & Reporting Hotline and Child Wellbeing Unit, about which I had no knowledge and about which he did not have full details as in allegations 3 & 4. Annexure 11
112. I believe Charles may have used his connections with EPAC/PES in his previous role at district office and through his role at SPC to have allegations against me escalated to an investigation status.
113. The threshold for reporting incidents to the Incident Hotline are very unclear, the processes PES uses to make decisions as to what is or isn’t investigated, the role of DELs in this process are all very unclear.
114. I have extensively addressed these allegations, which now sit with PES.
115. I believe the PES decision to remove me from the school on 1st June 2021 at no notice, was not only extremely embarrassing, but it was also a gross overreach and unnecessarily harsh. I have been principal for 5 ½ years and never once been cautioned that this could happen to me.
116. On that day, I had to return my keys to Adelia, she asked about my laptop which I did not have with me. I felt embarrassed and humiliated. Adelia wanted the phone returned as well, however, I did not have another phone to use and after much effort I was able to keep the same phone number in new phone and return the existing phone. However, that took 21 days and many calls and emails from me, because the school failed to follow up to make it happen. That in essence, cut me off from my school colleagues as I wasn’t initially able to use my phone freely since it was still being monitored by the school.
117. To add further injury, I was not allowed back onto the school grounds to collect my personal belongings or other files that might have assisted me in addressing the allegations. I sent a request to PES for such items to be collected and the response was so harsh it caused a massive decline in my mental state, so I just gave up. I felt that the letter sent by PES regarding no access to the school, my belongings and paperwork was excessively harsh and unreasonable. I feel humiliated that I am forced to beg PES to have someone pack up my personal belongings.”
I have read but will not summarise the various annexures to Ms Head’s statement.

Dr Lunney

The medical certificates of Dr Paul Lunney refer to Ms Head having an adjustment disorder with mixed anxiety and depression from date of injury 1 June 2021 and that she had a “previous adjustment disorder with mixed anxiety and depression symptoms- previous WorkCover x 2 April 2019 – May 2021.” The description of how the injury occurred is that it occurred at work when she was stood down from her current duties as the school principal pending further investigation of a number of breaches of conduct, being workplace incidences.
Dr Lunney provided a report dated 9 November 2021 in which he states Ms Head’s diagnosis is major depressive disorder and she is being treated with regular appointments with him, regular psychologist counselling sessions and Citalopram 20mg daily and Mirtazapine 15mg nightly.[12] Dr Lunney relates that he first treated Ms Head on 12 April 2019 in relation to racial vilification allegations brought against her and the school in 2016 involving a civil tribunal proceeding. At that time he diagnosed she was suffering from an adjustment disorder with mixed anxiety and depression. He states she had treatment over four months including with a psychologist and her symptoms substantially improved. She had relapses in October 2019 for two months and November 2020 for three months he says in the context of perceived victimisation, bullying and lack of support in her workplace.
[12] ARD p 260.
He says reports of this workplace culture were elaborated on over time, especially from
April 2021 onwards. He notes that Ms Head informed him that reports about her had been made to the PES alleging what she perceived were trivial breaches. She was of the view that these reports were made to expediate her departure from her role as school Principal.
Dr Tunney states she reported being stood down from her current duties as Principal on
1 June 2021 pending the PES investigation. He states she reported significant distress and this culminated in the diagnosis of major depressive disorder in August 2021.

Philip Borrack, psychologist

Mr Borrack, psychologist, has provided a report dated 6 April 2021.[13] He has the history that Ms Head experienced verbal abuse and physically threatening behaviours from a business owner who had previous dealings with the school. The business owner commenced court proceedings when his services were no longer needed by the school. Mr Borrack records that when the court proceedings were not successful the business owner reacted violently towards Ms Head. He notes she felt she was not supported by the Department of Education in relation to this case and in relation to the inherent difficulties of the school and community. She also told Mr Borrack that the administrative duties can often take up 100% of her time and she has faced constant scrutiny and fault finding. She feels distressed the administrative duties are a priority of the Department and she said it appears the override the needs of school teachers, students and the Principal’s ongoing engagement with them.
[13] ARD p 213.
Mr Borrack set out Ms Head’s current symptoms which included very low mood, strong sense of hopelessness and fatigue, leading to thoughts of deliberate self-harm and brief suicide ideation. Her sleep and appetite are affected. He notes that Ms Head feels she is competent to manage her principal role in general but the cumulative effect of the school/community issues combined with extra demands and pressure placed on her by the department have brought on increasing periods of acute stress with teary-ness, feelings of being over whelmed and having no support and hopelessness.
He gave Ms Head the DASS-21 test with severe range for depression and stress and normal range for anxiety.
On 11 May 2021 Mr Borrack had a counselling session with Ms Head in which she discussed issues at the school including with the P & C President.[14] On 20 May 2021 another session took place at which time Mr Borrack recorded that there had been a vote of no confidence and Adelia and Charles have been supportive. (I infer this is a reference to Adelia Fuller and Charles Gauci and the vote of no confidence was being proposed by the P&C). It is also noted that the legal team responded to the P&C advising them not to proceed with their intended action and that the school and staff were advised not to attend. Also a journalist wrote a negative article about the school and this was delegated up to Adelia and Charles. It is noted in Mr Borrack’s notes “Formal grievance procedure. Tedious and time consuming processes”.[15]
[14] ARD p 223.
[15] ARD p 229.
Another consultation took place on 3 June 2021 at which time the meeting on 1 June 2021 was discussed together with the contents of the letter containing the allegations against
[16] ARD p 233.
Ms Head.[16]
In Mr Borrack’s report dated 13 April 2022 he deals with the treatment he has given
Ms Head.[17] He says in the period 9 March 2021 to 3 September 2021 he had 14 sessions with Ms Head. In relation to the event of 1 June 2021 he states:
“Since being asked to stand down and leave the school grounds Ms Head has developed significant anxiety related to engaging with her local community. Ms Head resides in a small rural town in which she is well known amongst the community. Ms Head explained experiencing high levels of distress at the prospect of members of the school community enquiring about her role as Principal. Ms Head explained that the request to stand down and mandatory isolation from colleagues and school property seemed strongly out of proportion with the identified conduct issues and contributed significantly to increasing and perpetuating Ms Head’s psychological condition.”

[17] ARD p 263.

Dr Teoh

Dr Teoh, psychiatrist, has provided a medico-legal report for Ms Head dated
28 March 2022.[18] The doctor has the history that a new Director took over and started to bully and harass Ms Head and there was a deliberate attempt to get rid of her. He records that she said that the situation got worse when the assistant principal constantly referred to minor administration errors. He notes that Ms Head felt she was “walking on eggshells” and she had to “endure” with her job. He adds:
“On 1 June 2021, she was called to the office by the Director and she was ordered to go on alternate duties. She was not allowed to go back or retrieve her belongings. She said that it was “harsh, abrupt, and unexpected”. She felt like she was a terrorist. She was not given alternative duties.
She said that she had never been treated in that manner in her 40-year career as a teacher. She said that there were six allegations of misconduct raised against her. There was an issue in relation to her not reporting incidents on time. She said that there was no previous discussion about professional issues.”
[18] ARD p 291.
Dr Teoh says Ms Head could not understand why she was banned from the school and that there was no risk to the students.
The doctor diagnosed a major depressive disorder and assessed her with 15% whole person impairment.
In Dr Teoh’s report dated 10 March 2023 he said Ms Head reported significant symptoms before 1 June 2021. He expressed the opinion that her psychiatric condition is caused by the nature of her employment rather than a frank injury on 1 June 2021.[19]
[19] ARD p 298.

Dr Kumar

Dr Kumar, psychiatrist, provided a medico-legal report for the insurer dated 4 August 2021.[20] Dr Kumar has a history that problems started for Ms Head when Ms Fuller became the Director of Education in 2018. Ms Head informed Dr Kumar that Ms Fuller finds fault in everything she does and is supported by the Executive Principal, Mr Charles Gauci. Other instances are related. The history in relation to the meeting in June is that in the meeting she was given a letter with six allegations about her. She advised Dr Kumar she was told to remove herself from the school immediately and she could not get her personal belongings from the school. She related that she felt very humiliated and burst out crying in the meeting. She says since then other teachers have told her that Mr Gauci spoke to all the staff and told them she had taken leave for an extended period and no one is to contact her. He also apparently told the staff that if Ms Head contacted them this was to be redirected to the relieving principal. Ms Head told Dr Kumar that she had a big social group at the school and no one is talking to her. She said she feels like she had committed a crime. She stated to
[20] Reply p 28.
Dr Kumar that all the allegations against her are fabricated and exaggerated. Since then she said she has been very upset and does not go out.
Dr Kumar diagnosed an adjustment disorder. He found that work related factors are the main contributing factors to her psychological condition. He states the work related causes are
Ms Head’s perception that she was bullied on a background of issues raised by Mr Gauci and Ms Fuller about Ms Head’s performance and allegations against her in the letter from PES.

Letter from Daryl Currie

The letter from Mr Currie is not dated but appears to be the letter given to Ms Head on
1 June 2021.[21] Mr Currie is the Executive Director, Professional and Ethical Standards. In the letter he advises that allegations that Ms Head may have engaged in misconduct have been received by the PES and an investigation has commenced. Mr Currie says he is now providing the complete allegations and invites Ms Head to respond. The allegations are reproduced below:
[21] ARD p 327.
“1.     Failed to report the following allegations of reportable conduct to Professional and Ethical Standards (PES) in a timely manner:
a) the alleged physical assault of student, Marcus Carr, by George Dickson, a Clontarf staff member on 11 November 2020 and
b) an alleged threat of physical harm against student, Zane Carr, by Adam Gaydon, a Clontarf staff member on 11 November 2020.
2.     Failed to report a serious physical injury (broken leg) sustained by Year 9 student, Alex McGlashan, during an excursion to Revolution Park, a trampolining venue in Newcastle on Tuesday 17 November 2020, to the Incident Report & Support Hotline in a timely manner.
3.     In relation to the alleged sexual assault of a female student by a male student (which occurred on a school excursion sometime between 23-27 November 2020) you:
a) Failed to report the incident, after it was reported to you on Friday 27 November 2020, to the Incident Report & Support Hotline and Child Wellbeing Unit (CWU) in a timely manner.
b) In an email to Charles Gauci at 11:44am on Friday 4 December 2020, were untruthful when you advised him that you had not reported this matter to the relevant agencies because the incident had not been reported to you.
4.      Failed to report a serious physical injury to a female Year 7 student, Taiesha Tattersall, sustained about 10:30am on Wednesday 2 December 2020, during an excursion to the Dubbo Aquatic Centre, to the Incident Report & Support Hotline in a timely manner.
5.      Between late July 2020 and early March 2021, you:
(a) Provided your Personal Assistant (PA), Megan Buttsworth, with your personal log-on details, including your Departmental username and password and
(b) Instructed Miss Buttsworth to access your computer to complete a number of tasks on your behalf as evidenced by when:
(i) On Tuesday 23 February 2021 at 9:33am, Ms Buttsworth sent an email to all Delroy staff from your email address
(ii) On Friday 5 March 2021 at 12:39pm, Ms Buttsworth accessed and modified your ‘dhead2’ drive by using your Departmental login details.
6.      On or about 24 March 2021, used your position as Principal to elicit information from Farhana Pareed, Technology Support Officer, so that you could identify who reported an allegation of misconduct against you.”
Mr Currie sets out details of the investigative process and the next steps. He sets out a number of directions as follows:
“No decision about the truth or accuracy of the allegations has been reached. However, to manage risk I now direct that:
· you undertake alternative duties at Dubbo Education Office.
· you immediately return any keys, property and/or equipment you may have which belong to Dubbo College Delroy Campus.
· you do not discuss the circumstances surrounding the matters currently under investigation with any person except your nominated support person, union or legal representative.”
He sets out the alternative duties arrangements and says he has directed her to perform alternate duties “to manage risk to any witnesses that have provided evidence in this investigation and any risk of further allegations being made against you.” Mr Currie also advised that Ms Head was not permitted to enter the grounds of Dubbo College Delroy Campus for any reasons or purpose unless she has written approval from him. Mr Currie also sets out the steps to be taken to seek re-consideration of alternative duties and finally he advises of the Employee Assistance Program (EAP).
The allegations in this letter had been communicated to Ms Head in a letter dated
[22] Reply p 1.
18 May 2021 from Adam Campano, principal investigator.[22]

Statement of Charles Gauci

Mr Gauci is the Executive Principal of Dubbo College. He has made a statement dated
[23] ARD p 315.
9 July 2021.[23] He was not present at the meeting on 1 June 2021. I have referred to parts of his statement later in these reasons.

Statement of Adelia Fuller

Ms Fuller is the Director of Educational Leadership. She has made a statement dated
[24] ARD p 320.
9 July 2021.[24] She confirms that she met with Ms Head on 1 June 2021 and her accompanying support person, Mr Shane Groen. Ms Fuller says she outlined to Ms Head the structure of the letter from the PES and outlined the support available to her. She says that when Ms Head became aware that she was being placed on alternate duties at the Dubbo Education Office she said she would probably be going on sick leave and would not be working at the office. Ms Fuller says Ms Head was upset after receiving the letter and she asked Mr Groen to remain with Ms Head because she was upset.
Ms Fuller refutes any allegations of bullying by her. She does refer to a notification made by Ms Head in mid-March 2021 relating to a conversation Ms Head had with her supervisor,
Ms Muir. Ms Fuller states apparently Ms Head described feeling unsupported by herself and Mr Gauci but Ms Head did not want to pursue a formal complaint process. Ms Fuller says she met with Ms Head to further unpack Ms Head’s perspective about how they could better communicate together moving forward and to clarify any ongoing issues Ms Head wished to raise. Ms Fuller does not mention the upshot of this meeting.

Respondent’s submissions

The respondent submitted that there is a medical dispute regarding the competing causes for the psychological injury. Counsel submitted that the report relied upon by Ms Head from
Dr Teoh is deficient and insufficient because he provides a very bare explanation, or indeed no explanation as to the cause of her injury. It was submitted that Dr Kumar, by contrast, deals with the cause of the psychological injury explicitly.

Mr Gaitanis submitted that Ms Head did have some grievances with the respondent going back to 2019 and 2020 however, it was argued that she was able to return to work as a Principal of the school after that time. Counsel quoted from [104] of Ms Head’s statement where she refers to the events of 1 June 2021, attending an organised training session which involved her giving an acknowledgement of country. In her statement Mr Gaitanis referred to her assertion that after the training she was thanked by numerous people for the work the school had done to support Aboriginal males and she was complimented in how she carried out her role as Principal. It was submitted that despite her earlier grievances with the respondent these passages of her statement demonstrate that she was able to undertake her duties as Principal.
He submits the psychological injury commenced on 1 June 2021 and on that day at 9.30am the Director of Educational Learning, Adelia Fuller, rang her to ask her to attend a meeting and stating she could bring a support person. In support of this submission as to the timing of the onset of the psychological injury, attention was drawn to the report from Mr Borrack, who wrote:
“since being asked to stand down and leave the school grounds Ms Head has developed significant anxiety relating to engaging with the local community … the mandatory isolation from her colleagues and the school grounds seemed to her to be out of proportion with the identified conduct issues and contributed significantly to increasing and perpetuating Ms Head’s psychological condition.”
Mr Gaitanis submitted that even though Ms Head had seen Mr Borrack and Dr Lunney prior to 1 June 2021 her psychological injury was wholly or predominantly caused by the events surrounding 1 June 2021.
Hamad was cited by Mr Gaitanis and he submitted that where there are potentially a number of competing causative factors one needs to look at the statement of the worker and the histories of the medical examiners to ascertain the basis of an applicant’s claim for psychological injury.
Mr Gaitanis argued the following evidence supports the psychological injury occurred on
1 June 2021:
(a)    the incident report supports that she was able to keep working until 1 June 2021 until the meeting with Ms Fuller;
(b)    the medical certificates of Dr Lunney confirm he saw Ms Head on 2 June 2021 and Ms Head cited the date of injury as 1 June 2021;
(c)    the description of injury in the medical certificates state that she was stood down from her role as school principal pending further investigation of a number of alleged breaches of conduct;
(d)    the letter from Mr Currie which commences by stating “I can now provide the complete allegations against you and I invite you to respond”, [25] and
(e)    Mr Borrack in report dated 6 April 2021 says she is working normal hours in her position and frequently during the holidays, evenings and weekends to ensure she stays up to date.
[25] ARD p 327 and reply p1.
He also submitted that the allegations against Ms Head are matters that needed to be addressed, they are taken seriously by the Department and so there is an expectation that these types of things need to be dealt with.
Mr Gaitanis submitted weight should be given to the contemporaneous material as to the causes of Ms Head’s psychological condition as opposed to reports well after that time such as Mr Borrack’s report dated 13 April 2022. Counsel referred to Ms Head’s statement at [106] where she says when she received the letter in the meeting of 1 June 2021 setting out the six allegations against her, she said “it was like I had been stabbed and I was incredulous”. He submits that this evidence supports his argument that it was this incident on 1 June 2021 that caused Ms Head’s psychological injury. He added that Ms Head told Mr Borrack that it was the event on 1 June 2021 that broke her. Mr Gaitanis also referred to Ms Head’s statement at [123] that following the injury on 1 June 2021 she felt humiliated and embarrassed and she has not been able to go out with her friends. Mr Gaitanis submits this is a significant pointer towards the psychological injury having been caused on 1 June 2021. He also relies on her statement in paragraphs [128] and [130] wherein she says she keeps replaying the incident on 1 June 2021 in her mind and he argues it was being relieved of her duties on 1 June 2021, not the earlier incidents in 2019 and 2020, that has caused her psychological injury. Therefore, he submitted the whole or predominant cause of her psychological injury was the event on 1 June 2021.
Mr Gaitanis submitted that Dr Teoh has an opportunity to deal with the issue of causation because he was asked to provide a supplementary report and counsel argued the doctor has not provided any explanation or reasoning. Attention was drawn to Dr Teoh’s opinion that
Ms Head reported significant symptoms prior to 1 June 2021 and that he believed her psychiatric condition was caused by the nature of her employment rather than a frank injury on 1 June 2021. Mr Gaitanis urged the Commission to place no weight on Dr Teoh’s opinion.
Mr Gaitanis submitted that Dr Kumar’s opinion is that the work-related causes are the perception that she was bullied on a background of issues raised by Ms Fuller and Mr Gauci about Ms Head’s performance and the allegations in the letter from the PES.
In relation to the issue of whether the employer’s actions were reasonable, Mr Gaitanis relied on Mr Gauci’s evidence that it is normal in the circumstances to collect a person’s keys and other school equipment and for the person under investigation to be instructed not to be on the school premises without the explicit approval of the Director of Education Learning. He added that a support person was present with Ms Head and the meeting was conducted respectfully and in line with the Department’s directions.
Mr Gaitanis also referred to portions of Ms Fuller’s statement in which she asserted that she always provided support to Ms Head and that she adopts a coaching approach to unpack matters, looks for ways to improve and enhance practice in accordance with the Department’s policies and expectations.
Mr Gaitanis further submitted that the test of reasonableness involves a decision whether to a reasonable observer the conduct of the respondent was fair. He submitted that Ms Head was asked to bring a support person to the meeting and the meeting was dealt with sensitively. He also argued that fairness had to also be considered in relation to the employer. He relied on the cases of Irwin, Ivanisevic, and Van Vliet for the principle that the test of reasonableness does not require the employer’s conduct to be flawless.

Ms Head’s submissions

Mr de Greenlaw submitted that Ms Head was injured as a consequence of the meeting on
1 June 2021 but he characterised that event as the “straw that broke the camel’s back”. He referred to the medical certificates provided by Dr Lunney which include reference to
Ms Head suffering a previous adjustment disorder with mixed anxiety and depression symptoms. He submits that this is the diagnosis that the doctor makes when he first sees
Ms Head after 1 June 2021.
Counsel submitted that the previous psychological condition is referred to in the certificate dated 15 November 2019 in relation to the date of injury 14 October 2019 which says “relapse in adjustment disorder with depressed mood and anxiety, related to a serious [sic] of perceived victimisation/bullying incidents that have occurred in the workplace over the past five week”.[26] Mr de Greenlaw submitted that Ms Head in her statement had set out these prior incidents as including dealings with a contractor to the school, Robert Riley, being the subject to verbal aggression from Paul Carr on 11 and 12 November 2020 and an incident with a parent and grandparent about study of Wiradjuri language in 2020 as well as
[26] ARD p 119.
Ms Head’s belief there was a lack of support from Mr Andrew Jones, Mr Gauci and Ms Fuller.
Mr de Greenlaw submitted that the causes for Ms Head’s present psychological injury are clearly multifactorial. He further argued that whether Mr Jones and then Mr Gauci as Executive Principals and Ms Fuller, as the Director, actually bullied Ms Head, it was her perception that they did. She felt they micromanaged her and did not allow her to do her job. Counsel argued the micromanaging was a real event. He relied on Baker v Southern Metropolitan Cemeteries Trust [27] wherein Roche DP confirmed the principles he set out in Attorney General’s Department v K[28] which discussed State Transit Authority of New South Wales v Chemler[29] that “a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment”.
[27] [2015] NSWWCCPD 56, Baker.
[28] [2010] NSWWCCPD 76, K.
[29] [2007] NSWCA 249, Chemler.
It was also submitted that Dr Kumar does not restrict the cause of Ms Head’s psychological injury to the letter with the allegations and the meeting on 1 June 2021 because he also refers to “performance issues and her perception that she was bullied at work”. He also submitted that Mr Borrack, three months before 1 June 2021, found on the DASS assessment Ms Head had severe depression and stress. He added that just because a person is working full time, as Ms Head was, does not preclude that she was suffering from a psychological injury.
He also argued that Dr Kumar is incorrect if he thought Ms Head had no psychological condition before 1 June 2021. He submitted that Dr Kumar does not provide an opinion as to the whole or predominant cause of Ms Head’s psychological condition. He submitted that
Dr Kumar did not take into account Ms Head’s statement, the medical certificates of
Dr Lunney and Mr Borrack’s opinion. Mr de Greenlaw conceded that Dr Teoh’s opinion is not extensive, but he said that Dr Teoh did record that Ms Head had reported significant symptoms before 1 June 2021.
In addressing reasonableness, Mr de Greenlaw relies on Ms Head’s evidence that the allegations raised against her were minor and should have been dealt with in-house. She also alleged the matter was only escalated to PES because Mr Gauci had connections there. He submitted that the respondent has the onus of proof, yet it has not put into evidence the guidelines for reporting matters to the PES. He also submits that the evidence about the outcome of the process is deficient and an inference should be drawn that such evidence would not benefit the respondent. He also submitted that there is no evidence from the respondent as to what investigation was done. He argues that it is not possible to assess what the respondent did was reasonable without knowing this information about the process.
Mr de Greenlaw submitted that in terms of the allegations there was no basis for Ms Head to be investigated about them and there is no outcome to know what the department determined. He gave as an example the alleged sexual assault and submitted that Ms Head had already dealt with the parents who advised there was no sexual assault that there was a consensual relationship between two 16 year olds and the parents did not make a complaint. He also submitted that allegation which involved the accusation that Ms Head had not reported a matter within 48 hours but that Mr Gauci had reported it.
It was also submitted that the action of the respondent in requiring Ms Head to immediately leave the premises on 1 June 2021 was not reasonable. It was submitted that Ms Head was a person of standing having been employed by the respondent for 37 years, who had spent a substantial amount of time setting up the Dubbo campus and being the Principal of the Delroy campus. It was also submitted that being a resident of a small country town meant more sensitivity needed to be shown to Ms Head.

Respondent’s submissions in reply

Mr Gaitanis made submissions about the nature of the respondent’s onus of proof in relation to s 11A of the 1987 Act. He submitted that the respondent does not have to prove everything and it is a misconception that the applicant has nothing to prove when a s 11A defence has been mounted. He submitted that the applicant needs to satisfy the tribunal as to the cause of the psychological injury and he submitted Dr Teoh’s report is deficient. However, in Hamad the question of onus of proof was discussed and it was observed that the tribunal needs to be careful not to reverse the onus of proof. In Ms Head’s case the respondent has accepted she has a psychological injury from work related issues. I reject the submission by the respondent that she nonetheless has the onus to satisfy the tribunal as to the cause of that injury. In circumstances where the respondent has not placed in dispute s 4 of the 1987 Act, and raises a defence under s 11A, then the respondent has the onus of proof as to whether the psychological injury is wholly or predominantly caused by one of the factors set out in s 11A.
It was also submitted in reply that Mr de Greenlaw’s submission that the event on
1 June 2021 was the straw that broke the camel’s back cannot be accepted as there is no medical evidence of that from Dr Teoh.

Determination

In this matter the injury pleaded in the ARD is a disease injury with a deemed date of injury of 1 June 2021. The description of injury states:
“DEEMED DATE
Bullying and harassment
As a result: She has insomnia and lacking motivation. She has become socially withdrawn. She has lost her confidence, and she has been irritable. She has intrusive memories of the stress at work. She has Major Depressive Disorder.”
As is evident from the respective counsels’ submissions, there is a significant issue as to the cause of Ms Head’s psychological injury. The respondent has not placed in issue liability under s 4 of the 1987 Act. However, the respondent asserts Ms Head’s injury is wholly or predominantly caused by the events on 1 June 2021 whereas Ms Head’s case is broader than this. She agrees the events on 1 June 2021 form part of the cause of her injury but she also alleges that earlier events are also part of the cause of her injury.
In Hamad Snell DP referred to the situation where there are a number of potentially causative factors raised in the appellant’s statement and the medical histories and found that in such a case medical evidence is required to determine which of those factors are causative, and therefore, whether the causative factors fall within s 11A.
In Ms Head’s case in her statement she refers a number of potentially causative factors. There is no real factual dispute that the events related by Ms Head occurred. The respondent witnesses deny they bullied Ms Head, but she perceived their interactions with her did micromanage her, treat her differently to other principals and she relates other real events that occurred such as with students, the P & C and surrounding the NCAT case.
For the respondent to discharge its onus of proof to establish a defence under s 11A of the 1987 Act, it needs to have medical evidence to establish that it was the event on 1 June 2021 that was the whole or predominant cause of the psychological injury as opposed to these other factors in combination with the events on 1 June 2021.
However, the s 78 notice issued by the respondent dated 13 August 2021 does not deal with all of these factors raised by Ms Head. It is focused on the event of 1 June 2021.[30] In the section “reasons for decision” it says, “on 1 June 2021 you gave notice to your employer that you had sustained a psychological injury on 1 June 2021 by reason of the circumstances described in the Incident Report Form of that date”. I have summarised the incident report above and while it does refer to the meeting on 1 June 2021, Ms Head’s complaints are not confined to only what happened on 1 June 2021, as reference is made to the following matters:
(a)    “an ongoing witch hunt and constant complaints lodged against her”;
(b)    “Adelia and the ED's Charles and Andrew are constantly finding faults in everything she does”;
(c)    “Things are being constantly reported to PES, things that can be resolved by having a simple conversation”;
(d)    “She feels that Charles wants her out of the role and finds little things to complain about”.
(e)    “She feels constant harassment and bullying tactics from them”;
(i)“Charles reports to PES on a regular basis. If Debbie does not report to the Hotline within 48 hours she gets reported to PES”; and
(ii)“Debbie is at school early every morning and leaves late every afternoon and she feels that she is unsupported and just chastised for the smallest thing”.
[30] ARD p 112.
I find that even though the incident report was submitted on, and refers to the meeting on
1 June 2021, it does encompass a broader array of factors that Ms Head perceived as causing her psychological condition.
The respondent’s counsel has argued the fact that Ms Head was working up to the meeting on 1 June 2021 is evidence that she did not have a psychological injury before then. While that is a relevant fact for me to consider, I do not accept this conclusion. When one looks at the evidence from Mr Borrack and Dr Lunney I find it is apparent that Ms Head was suffering from psychological symptoms before 1 June 2021. In Mr Borrack’s report dated 6 April 2021, so just two months before the 1 June 2021 meeting he stated Ms Head:
“feels she is competent to manage her principal role in general but the cumulative effect of the school/community issues combined with extra demands and pressure placed on her by the department have brought on increasing periods of acute stress with teary-ness, feelings of being over whelmed and having no support and hopelessness.”
Ms Head’s counsel submitted that it was relevant that at this time Mr Borrack administered the DASS test and found she was suffering from severe depression and stress. I accept this submission and find this evidence undermines the respondent’s argument, that Ms Head could not have been suffering a psychological injury before 1 June 2021 because she was able to perform her duties as a Principal before that time.
Psychological injuries are difficult to compartmentalise in such a way. At [85] in Hamad, Snell DP stated,
“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”[31]
[31] [2016] NSWWCCPD 63 at [33]-[45], Hewston.
Mr Borrack opined that the request to stand down made on 1 June 2021 “contributed significantly to increasing and perpetuating Ms Head’s psychological condition”. I find it is clear from this opinion that Mr Borrack was including the earlier events as being causative as well as those of 1 June 2021. In this circumstance and taking into account Ms Head’s statement, I find for the respondent to discharge its onus of proof it needed to rely on medical evidence to delineate the cause(s) of Ms Head’s psychological injury.
I find Dr Kumar’s report does not support the respondent’s case. He notes Ms Head had been taking Citalopram for two or three years. He takes the history that “the problems started” when Ms Fuller commenced as the Director of Education in 2018 and Mr Gauci in 2020. He notes that Ms Head said she had been told by a colleague that Mr Gauci had been put in place to get rid of her and that he has connections with PES, and Mr Gauci was trying to find problems with everything she did. She said other principals told her they were not required to submit the level of paperwork that was required of her by Mr Gauci and Ms Fuller. Dr Kumar sets out other examples given by Ms Head of her being undermined[32] and that she “eventually ceased work as it was too much to bear”. Dr Kumar relates the history about the meeting on 1 June 2021. Therefore, the history considered by Dr Kumar was not confined to just the event of 1 June 2021. He does not go on to state that her psychological injury was wholly or predominantly caused by that event.
[32] Reply p 30.

Dr Kumar’s rationale for his diagnosis is that Ms Head’s symptoms are in a response to the allegations raised against her. (Mr de Greenlaw fairly conceded this was reference to the allegations in the letter of 1 June 2021). But Dr Kumar goes on to opine “as well as performance issues and her perception that she has been bullied at work”. In my view, this aspect of his opinion suggests that it was not only the allegations in the letter that were causative. In addition, Dr Kumar is asked about whole or predominant cause of her injury and he includes the perception she was bullied on a background of issues raised by
Mr Gauci and Ms Fuller about her performance and the allegations in the letter from PES.
I find this evidence from Dr Kumar is not sufficient to enable the respondent to discharge its onus regarding the whole or predominant component of s 11A. Dr Kumar does not deal with Mr Borrack’s evidence or that of Dr Lunney, which I find he needed to do to provide a soundly based opinion about the whole or predominant cause. I accept the respondent’s submission that Dr Teoh’s opinion lacks reasoning, but the onus is on the respondent to establish the s 11A defence and in my view Dr Kumar’s evidence does not support the respondent’s arguments.
Given the respondent ran its case on the basis that it was the event on 1 June 2021 that was the whole or predominant cause of Ms Head’s psychological injury, and I have found it has not discharged its onus of proof, it is not necessary for me to deal with the aspect of s 11A that it also needs to establish, that the employer’s conduct was reasonable.
However, in the event that I am in error, I will make some brief findings about reasonableness. I find that it was not reasonable to require Ms Head to leave the school immediately. She was the Principal and a long-standing employee of the respondent and I find these are relevant facts to take into account when determining reasonableness. This requirement needs to be viewed objectively in the context of the allegations against her.
The allegations levelled at her in the letter given to her in the meeting on 1 June 2021 had been communicated to Ms Head in a letter dated 18 May 2021 from Adam Campano, principal investigator.[33] Clearly they were not of a nature that required her to cease work as the Principal at that time and the allegations 1-4 date back to November and December 2020. If it was considered that an investigation of these types of allegations warranted her being barred from the school and placed on alternate duties, I find it is remarkable that such a decision was not made earlier.
[33] Reply p 1.
In addition, there is a lack of evidence about the investigation of such matters and why it was felt necessary to raise them over six months later. The allegations 1-4 mainly deal with the alleged failure to report matters “in a timely fashion” and I find it is not reasonable to require immediate removal from her role as Principal for such administrative issues. Similarly, in relation to allegation 5 about providing her assistant with computer log-in details and permitting her to send an email on Ms Head’s behalf, I find those matters are not conduct of a nature to warrant immediate removal from her role as Principal. She could have been given a direction that this was not to occur again, if her actions were against departmental policy. I accept Mr de Greenlaw’s submission that for the respondent to establish its conduct was reasonable a copy of its policy about when it was appropriate to refer matters to the PES and the policy when to require an employee to immediately leave school premises should have been made available as evidence in this matter. Without such evidence it is difficult to determine the reasonableness of the respondent’s conduct.
That leaves allegation 6, that Ms Head elicited information from Farhana Pareed to identify who reported an allegation of misconduct about Ms Head. There is no statement before the Commission from Ms Pareed or from any witness about this allegation.
In Heggie the Court found it is the reasonableness of the causative action of the employer which needs to be objectively considered. It was also stated that the determination has to be made by the facts known to the employer at the time. If the whole or predominant cause was the meeting on 1 June 2021, including the contents of the letter given to Ms Head which required her to immediately perform alternate duties at a different site, then to judge if that conduct was reasonable it is necessary to consider the facts known to the employer as at
1 June 2021.
The letter from Mr Currie given to Ms Head on 1 June 2021 says her previous submissions have been considered and will be included in the final investigation report. Those previous submissions are not identified and it is unclear if they are before the Commission. At page 345 of the ARD is a document addressed to PES with a number of attachments. At page 436 is a response to allegation 6, that refutes the allegation and gives the name of a witness Jemima Hall. However, this is stated to be a draft. In her statement Ms Head said she had given a statement to PES on 17 December 2020 and not heard anything further.
The respondent relies on statements only from Mr Gauci and Ms Fuller. In answer to question 6 Mr Gauci makes it clear he was not at the meeting on 1 June 2021. However, he states in that answer that Ms Head was placed on alternate duties due to the number and nature of the allegations and the risks of her remaining as Principal were not acceptable. As I have discussed, the number of the allegations and nature of them in my view were not such to warrant her removal from the role of Principal. The risks of her remaining in her role are not identified. Mr Gauci refers to the Code of Conduct however, that document is not before the Commission. In answer to question 13 Mr Gauci says conduct issues are always addressed at the school level, only being referred to PES when they have met the appropriate threshold for misconduct. I do not know from the documents provided what that threshold is.
I accept Mr de Greenlaw’s submission that the respondent has not established its conduct was reasonable given the lack of documentation before the Commission about its policies and also in relation to the Code of Conduct. Referencing the principle cited above from Nguyen, I cannot “feel an actual persuasion of the existence of that fact”, that the respondent’s conduct was reasonable due to the lack of this documentation.
Mr de Greenlaw submitted that if the respondent does not establish its s 11A defence then I should just make an award in relation to the lump sum compensation of 15% because the respondent has not put on medical evidence to contradict this assessment. There was discussion with both counsel at the hearing and I acknowledged with the repeal of s 65(3) of the 1987 Act a Member can determine a lump sum claim without a referral to a Medical Assessor. Indeed I have adopted this course in Thompson v Bernipave Pty Ltd[34] and Boga v Carpet Call (Vic) Pty Ltd t/as Carpet Call.[35] Mr Gaitanis opposed this course of action in his submissions in reply. I consider that as this is a psychological injury case the assessment could vary considerably for better or worse since Dr Teoh’s assessment of permanent impairment which was made some time ago on 14 March 2022. In such a case I find it is preferable to remit the matter to the President for referral to a Medical Assessor to assess the permanent impairment of Ms Head.
[34] [2020] NSWWCC169, Thompson.
[35] [2019] NSWWCC 127, Boga.
Accordingly, I find the respondent has not established a defence under s 11A of the 1987 Act and I make the following orders:
(a) the lump sum claim is remitted to the President for referral to a Medical Assessor to assess the permanent impairment from psychological injury with a deemed date of injury of 1 June 2021, and
(b) the documents to be referred to the Medical Assessor are to include those attached to the ARD and Reply and a copy of these reasons.

[2023] NSWPIC 621

20 November 2023