Hilder v Aware Super Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hilder v Aware Super Services Pty Ltd [2025] NSWPIC 463
APPLICANT:	Michael Hilder
RESPONDENT:	Aware Super Services Pty Limited
MEMBER:	Cameron Burge
DATE OF DECISION:	8 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly compensation and medical expenses claim in respect of a psychological injury; whether the applicant’s injury was wholly or predominantly caused by the respondent’s reasonable action with respect to retrenchment; applicant suffered a psychological injury in the course of his employment with the respondent; liability was denied on the basis the respondent’s reasonable actions with regards to retrenchment were the whole or predominant cause of the injury; Held – applicant carries the onus of establishing the requirements for ongoing payments beyond 130 weeks under section 38 have been met; the evidence does on balance establish total incapacity up to the expiration of the second entitlement period under section 37; respondent ordered to pay weekly compensation to the applicant in the amount claimed for total incapacity for the totality of the sections 36 and 37 period; award for the respondent on the claim for compensation pursuant to section 38; respondent to pay the applicant’s section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 8 February 2021. 2. At the date of injury, the applicant’s pre-injury average weekly earnings were $2,974.33, a figure in excess of the statutory maximum rate of payments pursuant to s 34 of the Workers Compensation Act 1987. 3. The applicant’s injury was not wholly or predominantly caused by the reasonable actions of the respondent with respect to retrenchment. 4. As a result of his injury, the applicant was totally incapacitated for employment from 9 February 2021 to 30 June 2023. 5. The respondent is to pay the applicant weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 as follows: (a) from 9 February 2021 to 31 March 2021 at the rate of $2,130.28 per week, and (b) from 1 April 2021 to 10 May 2021 at the rate of $2,141.87 per week. 6. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) from 11 May 2021 to 30 September 2021 at the rate of $1,803.68; (b) from 1 October 2021 to 31 March 2022 at the rate of $1,826.32; (c) from 1 April 2022 to 30 September 2022 at the rate of $1,854.40; (d) from 1 October 2022 to 31 March 2023 at the rate of $1,873.36, and (e) from 1 April 2023 to 7 August 2023 at the rate of $1,916.24. 7. Award for the respondent on the claim for weekly compensation from 8 August 2023 to date and continuing. 8. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Michael Hilder (the applicant) worked as a senior partnership manager for the respondent, Aware Super Services Pty Ltd and suffered a psychological injury in the course of his employment, on a deemed date of 8 February 2021.
The fact of the applicant’s psychological injury is not in issue. However, the respondent alleges the injury was wholly or predominantly caused by its reasonable actions with respect to retrenchment.
The applicant claims weekly compensation from 9 February 2021 to date and continuing, pursuant to ss 36, 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act). There is no issue the applicant’s pre-injury average weekly earnings (PIAWE) were $2,974.33, thereby exceeding the statutory maximum for payment of weekly benefits set out in s 34 of the 1987 Act, as indexed from time to time.
The respondent also places in issue the extent, if any, of the applicant’s incapacity and his entitlement to claim weekly compensation, if successful, beyond the 130-week period mandated by s 37 of the 1987 Act, which it is agreed ended on 7 August 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant’s injury was wholly or predominantly caused by the respondent’s reasonable actions in connection with retrenchment;
(b) if the answer to (a) above is in the affirmative, the extent of the applicant’s incapacity for employment, and
(c) whether the applicant has any entitlement to claim benefits pursuant to s 38 of the 1987 Act.

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 and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 4 August 2025. Ms Warren of counsel instructed by Ms Delaney appeared for the applicant. Mr Hart of counsel instructed by Mr Webb appeared for the respondent.
At the conclusion of the hearing, directions were made for the filing by the parties of written submissions on the question of the applicant’s applicable PIAWE within seven days of the hearing.
On 7 August 2025, the parties informed the Personal Injury Commission (Commission), the applicant’s PIAWE was agreed to total $2,974.33, a figure which exceeded the statutory maximum payable under s 34 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachments;
(b)    Reply and attached documents;
(c)    applicant’s Application to Lodge Additional Documents (ALAD) dated
28 July 2025 and attachments, and
(d)    respondent’s ALAD dated 30 July 2025 and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

The Defence under s 11A

The applicant’s evidence surrounding his employment with the respondent and the circumstances leading up to his injury is set out in two statements attached to the application, the first having been provided to an investigator retained by the respondent’s insurer. In that document, the applicant set out the following relevant evidence:
“9.     I started with the [the respondent] in 2018 in the role I am in today. I originally just went to look after the police portfolio and then shortly after a small restructure, I took over all other emergency services and a number of other portfolios. When I started, I was not required to undertake any medical exams. When I started, I underwent a self-led induction into the business. The then state manager, David Pawson, gave me a list of names to introduce myself, which I did. David was terminated about a          month after I started, as I understand prior to completing his probation period in that role. He gave me about 20 policies to read on their intranet and sometime afterwards, I also went on the WHNS committee. I also signed a number of confidentiality agreements...
10.    In my role, I manage relationships and senior stakeholders in the police and emergency services sector. I have very strong relationships with the NSW Minister for Police and Emergency Services, NSW Police Commissioner, NSW Fire and Rescue Commissioner, NSW State Emergency Services Commissioner, NSW Rural      Fire Services Commissioner and Commissioner Resilience NSW. I also arranged training and information services for members, through my report, Peter Smith. I have never been performance managed and I was always rated on the upper scale of my KPIs. I know my portfolio was performing well because I had a number of conversations with Joe Agius in new business acquisition and he said they were using my portfolio to tender for police and nursing bank in Western Australia because of the way it was performing.
12.    I have not had any major medical treatments or injuries, but in the past, I have had      my appendix out and some tooth extracted and oral implants. I have not been in hospital for any other reason. I have had high blood pressure for many years which is hereditary and so I take daily medication for this. I also take Somac for reflux which is also hereditary. I have had no mental health issues prior. There are also no mental health issues in my family except for my brother who suicided 1996 due to military service and personal issues...
14.    On Monday 8 February 2021 late in the afternoon, Helen Wood, a state manager of BDNSW, asked me to have a meeting with her and Matt Willis, national manager, early the following day. Helen asked me verbally and sent me a meeting invite, which CC’d Joe Sonido, the HR manager, so I realised he would be there as well. I was not informed that I could bring a support person or in fact that I may need support or assistance. Helen simply told me that Matt Willis (national manager at BD) wanted to make some announcements at the national meeting the following day, a few hours after my meeting and wanted to talk to some people from the BD team beforehand.
14.    … on Tuesday, 9 February 2021, I met with Helen, Matt and Joe. Matt basically went through a PowerPoint presentation of a restructure of business development. I had to stop him and say ‘Matt, am I being made redundant?’. Matt said ‘yep, your position is being made redundant’. Matt continued to go through the slides and talk about the restructure and that they were merging four senior partner management positions into two senior relationship management positions and they were adamant they had significantly changed the position description for those positions. I asked if I could apply for one of the other positions in the restructure and I said to them or something like ‘what I am not hearing is this is not about my performance or anything at all. Or that I had already done a great job in managing some of our tier one portfolios’. There was no encouraging comments for me to apply for this or any of the other positions. Matt was sitting back in his chair and said ‘well, you have to decide if you want to apply for the new positions. You have been very honest with us saying that you intended to only work for another couple of years, and this is a three to five year plan’. At the time of this interview, I had about two and a half years to go until I was 65 and I could have worked for three to five years, it did not mean I had to stop work on my 65^th birthday. I had always been completely honest and transparent with management, and each new manager or executive as they onboarded, about my plan of working to the age of retirement and I feel they have used my honesty and age discriminated against me. I then said ‘so you have already selected the two people you are replacing us with?’ and he said ‘no’. I asked if I would be able to be paid a pro rata performance bonus for this year (2020-21) and Joe became aggressive and went on a tirade until Matt interrupted him and said that was not the question I had asked. Matt agreed that yes, I would be entitled to any pro rata performance bonus from my portfolio, which I understood would be paid around October 2021. The meeting went on for a while which was basically Matt going through the rest of the PowerPoint presentation. I did not ask many other questions, as it became pretty obvious to me that I was not going to remain employed by Aware Super. Matt and Joe then advised I had three days of consultation to provide feedback on the new structure but it was obvious to me nothing was going to change. I could now see that things that Helen had been doing in the months leading up to this were coming to fruition, and there was no place for me at Aware Super. Matt asked me to go home and said that I was stood down and on leave from now on and could use the time to consider my options. I had naively thought this meeting was about our education team as myself and others had been complaining about their performance and activities. I felt betrayed this was not the case as my complaints have been falling on deaf ears. I was shocked and felt betrayed, underappreciated and that my efforts looking after members were disregarded and that they had openly discriminated against my age. My plan to work for the next few years had gone down the gurgle. I was also disappointed in myself that they got under my skin and underestimated that this affected me the way it did, partly because of my history with police and police association dealing with very serious incidents that had not affected me. It was a massive blindside to me and none of them showed an ounce of empathy.
15.    That evening, Joe emailed me paperwork which included the PowerPoint presentation that had gone through, a letter saying I was being made redundant and an estimate for my redundancies and a brochure for a recruitment agency.
16. For the first couple of days following, I was not that bad but then it just hit me. I could not sleep and I was ruminating on things and joining the dots on what had happened over the past few months. I started drinking more than I should, two bottles of wine per night and sometimes during the day. I was not eating and feeling lethargic. My personal hygiene lacked and I realised I was not showering some days. I felt empty from work and lost my identity and could not believe they had done this to me. I then started to fear for my future employment given my age, the COVID work market, prospects within other super funds given the number of mergers that had been going on. If my other much more experienced work colleagues were worried about getting work, then I surmised I would have no hope.”
In his second statement, the applicant briefly noted he was made redundant on 9 February 2021. He also stated that from January to February 2021, he believed his managers undermined his role within the company as they had already made the decision to make him redundant. According to the applicant:
“24.   Following my redundancy, I reflected upon instances that had occurred in the previous six months and it became obvious that my manager, Ms Wood, was trying to remove me from my position with the Aware Super. I developed a psychological injury as a result of the treatment I received at work leading up to the redundancy and how I was treated throughout the redundancy process.
25.    In the months leading up to the redundancy, strange things started happening at work and I was not aware that I was going to be made redundant.
26.    I recall that I was putting together a team development plan and I received no support from Ms Wood. This process started in late 2020 for implementation in 2021. I asked Ms Wood on several occasions about training courses to participate in to assist me with the plan but she was just dismissive about the project.
27.    I recall that in the development plan I was preparing, I had included a few opportunities for both myself and Peter Smith, who directly reported to me, including for Peter to have experience reporting to another team to learn a different perspective away from emergency services and for specific training for Peter to develop his personal presentation skills. There was some urgency to have this plan completed and reviewed for the start of 2021 but I received little support from Ms Wood in doing so.
28.    One of the duties in my role was to prepare CEO briefing documents.
29.    In early 2021, Ms Wood asked me to include detailed personal information including their full names and photographs about the senior stakeholders in the briefing documents.
30.    I recall that I asked Ms Wood why she needed so much detailed information on the documents when I knew firsthand that Deanne Stewart, the CEO of Aware Super, had met and knew all of the people that she apparently needed to meet with again with the briefing documents. Ms Wood dismissed my questions on this issue. It was my role to build and maintain connections with the stakeholders and I was the person who liaised with them and so I was concerned that if I started troubling them for trivial details that it could negatively impact my relationships with them over these minor details (which I did not see as necessary in any event).
31.    At that time, I also asked Ms Wood why Ms Stewart was meeting with the senior stakeholders and what the meetings were about. Ms Wood did not answer my enquiries. I believe that the meetings with Ms Stewart did not actually take place and that we were set up so that they obtain all information from us.
32.    I now understand that there had been a plan in place by Aware Super for months to make us redundant. It now makes sense about why my development plan and objectives meant so little to Ms Wood when discussing opportunities for myself and Peter, because the decision had already been made to get rid of us.
33.    I have not had any issues raised with me about my performance before the meeting on 9 February 2021…
34.    I also recall that our new business team used my portfolio of work as an example to capture new business in Western Australia, given the successful way it was performing for me.
35.    In January 2021, a new employee, Michelle, started working for Aware Super. I believe that she was appointed to a new position made by Helen Wood. I am not sure of her specific title. I recall that Ms Wood asked me to confirm all of the details in the contact list so that they were up to date before Michelle had access to the system.
36.    At about this time, Ms Wood directed me to meet with Michelle and go through the data, which was a system that Michelle did not have access to. It became very clear that it was the intention of Ms Wood and Michelle to take our knowledge and personal contacts for the benefit of whoever took over our roles after the redundancy. At the time, it seemed like Ms Wood was anxious to ensure that Michelle got all of our information quickly.
37.    Following my redundancy, it became clear that my employer had already made the decision to make me redundant and that they were trying to have me update all of the contact details in the system before the redundancy was affected.”
When discussing the meeting of 8 February 2021 in his second statement, the applicant noted he was not informed he should bring a support person to the meeting and that he had no inkling at all he would need a support person.
According to the applicant:
“45. I was not offered any alternate roles and I understood from the discussion in the meeting that I would not be supported and was actually made to feel discouraged from applying for any new role. As I understand it, the new roles were not yet available for application until the end of the response period in April 2022, hence the urgency for them to have my redundancy cleared quickly.
46. I believe that closer to the redundancy to the application time, some of the relationship manager roles had actually been removed from the list.
47. I was not given any paperwork in the initial meeting on 9 February 2021. I did ask for information during the meeting and I was given some material to have a look at but I was told that I had to hand it all back before I left the meeting. To the best of my recollection, I did not receive my information back until 5:00 pm that same day and was not given anything during the meeting.”
In his second statement, the applicant indicated he was formally terminated from his employment on 8 April 2021 and has not worked since owing to his ongoing psychological condition, which had caused him a complete loss of self-confidence and in his ability to manage businesses and operate in workplaces.

The respondent provided statements from Ms Wood, Mr Sonido and Mr Willis. Ms Wood denied the allegations raised by the applicant concerning the conduct in the lead up to his being made redundant.
Each of the respondent’s witnesses were present at the meeting on 9 February 2021. Ms Wood states the applicant indicated at the meeting he needed to think about his own circumstances given he only had a couple of years to retire, and this was the only time the applicant’s intention to retire was discussed during the meeting.
The applicant alleged in his first statement that having been given only three days to consider the corporate restructure and redundancy, he contacted his union leading them to send a letter to the respondent on 17 February 2021, following which involvement the respondent extended the consultation period concerning the restructure and redundancies to 4 March 2021. In her statement, Ms Wood said:
“In mid-February 2021, we received communication from the union (CPSU) requesting an extension of the consultation period for the restructure. Prior to receiving the letter, we had already communicated an extension of the consultation period to the team by one week. There were a number of letters from CPSU to our HR department, initially around the consultation period then around the new roles and questioning whether this is a true redundancy which at that point it was not as it was a consultation around a restructure. [the applicant] did not provide any feedback to us around the restructure. The only communication that was had with [the applicant] subsequent to 9 February 2021 was one telephone call I had with him and a number of emails where he provided medical certificates. I had called [the applicant] the day after the consultation meeting to check in and see how he was going. He called me back later that day or the next day and he expressed that he was feeling anxious and struggling to articulate at that point, but he will revert with any questions at a later time.”
Each of Ms Wood, Mr Sonido and Mr Willis confirmed that the agenda for the meeting with their staff, including the applicant’s surrounding the corporate restructure, followed a script provided by the head office.
In his statement, Mr Sonido indicated he did not recall the applicant asking whether he was being made redundant. However, he stated it was explained to the applicant there were some new roles which would be available for application if the decision was made to make his role redundant. Mr Sonido stated he was not aware of the applicant intending to retire in a couple of years and there was no discussion in the meeting about the applicant retiring.
Mr Sonido confirmed several employees requested the consultation period concerning potential redundancies and the corporate restructure be extended to 19 February from its initial period of three days. Mr Sonido also confirmed that after correspondence from the CPSU, the consultation period was extended to 2 March 2021.
Mr Willis, head of business development also provided a statement. He confirmed he attended the meeting with the applicant, Mr Sonido and Ms Wood on 9 February 2021. Mr Willis stated there was no discussion at the meeting concerning the applicant’s intention to retire.
The respondent carries the onus of proving a defence under s 11A is made out. Section 11A(1) relevantly 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… retrenchment or dismissal of workers…”
“Wholly” and “predominantly” are separate concepts and a finding of one or the other must be considered. In Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130 (Smith), an arbitrator made a finding that a subject injury was “wholly or predominantly” caused by action taken by the respondent employer. Snell ADP (as he then was) said at [62] that the concepts are different, and if findings were to be made, “it needed to be one or the other”.
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”. The test of causation to be applied is that of a commonsense evaluation of the causal chain, as set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
In Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad), the respondent employer was unable, on the available evidence and in the absence of any medical opinion dealing appropriately with the topic, to discharge its onus in proving the worker’s psychological injury resulted wholly or predominantly from its reasonable action to be taken or proposed to be taken with respect to discipline.
The decision in Hamad means reliance on factual material alone will not always be sufficient to make out a s 11A defence. Where factual evidence is adequate, it is often in cases where there is an allegation of a single event which has given rise to psychological injury.
In accordance with Deputy President Snell’s decision in Hamad, medical evidence in a case such as the present one is required which addresses potentially relative causative contributions before a finding as to whether the reasonable actions of a respondent “wholly or predominantly” caused the injury at issue.
In this matter, I have a little difficulty accepting it was the respondent’s actions with respect to or proposed to be taken with respect to redundancy which caused the applicant’s injury. The applicant’s own Independent Medical Examiner (IME) Dr Gertler in his report dated 20 March 2023 stated:
“He enjoyed his work with State Super, had no difficulty in coping and was quite productive. On 8 February 2021, Mr Hilda attended a meeting with senior management. It was during this meeting that he was made aware that his position was to be made redundant. Moreover, he was made aware that in a proposed restructure, it was unlikely that he would be able to continue working because he would likely not satisfy the terms of any future employment, because of his age and his decision to retire after several years.
Mr Hilda can recall feeling ‘gutted’. He went home having been told his work had ended and he should decide what he wanted to do; he then became ‘a dribbling mess’. He saw his general practitioner, commenced counselling with a psychologist initially through the EAP programme, but subsequently privately, and was eventually referred to a psychiatrist.”
Dr Gertler has not provided a definitive causal diagnosis. However, the circumstances surrounding the applicant being advised he was to be made redundant are the only matters referred to in his report, and it is apparent from the face of that document that he considers those to be the cause of his injury.
For its part, the respondent in its Reply notionally reserved the documents attached to the Application, and in doing so must be taken to rely on them. This includes the report of
Dr Gertler.
Although the applicant in his second statement indicates a number of preceding events which he now believes were put into context by the meeting at issue, his evidence does not satisfy me that those circumstances were causative of his injury. This finding is not made by way of criticism of the applicant, as it is a natural human trait to recall events and attempt to place them into context after one has suffered an injury, be it physical or psychological.
Rather, the applicant’s evidence in my view demonstrates he was happy in the workplace, and it was the events of 8 and 9 February 2021 surrounding his being made redundant which were the whole cause of his psychological injury.
However, in order to successfully raise a defence under s 11A, the respondent must not only show the requisite causal connection between its actions and the applicant’s injury. The respondent must also satisfy the Commission that its actions were reasonable.
In considering the meaning of reasonableness, Geraghty j in Irwin v Director General of Education NSWCC 14068/97 18 June 1998 (Irwin) said:
“… 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.”
In Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) Trust CCJ said:
“In my view, 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 affected.”
In Ritchie v Department of Community Services [1998] 16 NSWCCR 727, Armitage J said:
“It is apparent that the test in this case is an objective one where one must weigh the consequences of the respondent’s conduct against the reasons given for it. It follows, of course, from the objective nature of the test that the evidence given by the applicant as to the perceived unreasonableness of the respondent’s conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
Reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action: Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454. In Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45, Armitage J stated:
“Only if the employer’s action in all the circumstances was fair could it be said to be reasonable.”
In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie), it was held the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time the action is taken.
The respondent noted and relied on the fact its witnesses followed a scripted procedure when informing the applicant of the proposed restructure and his redundancy. However, the fact there is a procedure in place does not mean a respondent following it is necessarily acting reasonably.
As Mr Hart noted, there is clearly a perception by the applicant in this matter that the respondent had engineered a solution in order to phase him out of his employment. I accept Mr Hart’s submission. There is no material at all sufficient to support that finding. Rather, as he noted, the circumstances of this matter were akin to a “garden variety” redundancy.
Mr Hart criticised the applicant’s reliance on an absence of a support person in attending the meeting, noting there were no aspects of discipline or performance appraisal involved. Rather, it was purely a commercial decision made to make him redundant in the course of restructuring the business. The respondent submitted, in the context of such a meeting, there was no need for a support person to be provided.
Ms Warren for the applicant disputed this being the case and noted the seriousness of the proposed ramifications for the applicant concerning his employment mean it was reasonable for the respondent to have advised him to bring a support person to the meeting.
There is some merit to that submission. As Ms Warren noted, this was not a widespread redundancy involving a vast number of employees. Rather, it was a restructure which affected the positions of only a few employees, each of them senior. The fact the applicant was in a senior role does not obviate from the requirement to provide sufficient support to him which would otherwise be given to another employee.
I have carefully considered the lay evidence surrounding the circumstances of the day before and the day of the meeting of 9 February 2021. I note the evidence of the three witnesses relied on by the respondent and I have no difficulty in accepting they have done their best in recalling the circumstances of the meeting. On balance, I find the issue of the applicant’s potential retirement was raised at the meeting. However, I do not find that this in and of itself is suggestive of unreasonableness on the part of the respondent. On balance, I find the applicant raised the question of his potential retirement. However, I do not criticise him in his recollection being potentially unreliable on this point, noting the meeting was plainly a fraught circumstance for him at which he realised his livelihood was being terminated.
In my view, the circumstances of this matter where a senior employee held in high regard was being advised his position was being made redundant or reasonably have necessitated the opportunity of providing a support person at the meeting.
More importantly, the time frame given to the applicant to respond to the proposed restructure must also be taken into account, and forms part of the factual matrix under consideration when determining questions of reasonableness. On balance, I find the respondent gave too little time to the applicant between advising him of the meeting and also to consult with it after the meeting. That much is made apparent by the respondent itself extending the time for consultation with employees not once, but twice, the second time by a matter of several weeks after involvement by the CPSU.
The conduct of the respondent was not, in my view, therefore procedurally reasonable. If the respondent was going to give the applicant so little time to respond to the potential restructure, then it would have been appropriate to allow him the opportunity to have a support person with him. However, on balance, I find the provision of so little time to the applicant was, which form part of the respondent’s actions relied on in relation to the redundancy, were unreasonable.
On balance, I am not satisfied the applicant’s alternative claim pleaded in the application that he was bullied or treated unfairly over the months preceding his redundancy is made out. There is no lay or medical evidence sufficient to ground it. In my view, an injured worker requires more than a simple assertion that the redundancy set out at the meeting on 9 February 2021 “explained everything for the preceding six months”. Moreover, the applicant’s own IME, Dr Gertler, does not support such a finding.

The applicant’s capacity for employment

The applicant claims total incapacity from the date of the meeting on 9 February 2021 to date and continuing. His PIAWE is agreed to exceed the statutory maximum payable pursuant to s 34 of the 1987 Act, as are both the calculated ss 36, 37 and 38 figures said to be applicable from time to time, subject to periodic indexation.
The applicant relies on Certificates of Capacity and other medical certificates provided by his treating practitioners to support his claim for total incapacity.
Dealing first with the question of any entitlement pursuant to s 38 of the 1987 Act beyond the 130 week period, Mr Hart submitted the Commission did not have jurisdiction in circumstances where the applicant had not been assessed as suffering from a whole person impairment of greater than 20%, nor would the Commission be satisfied there was evidence sufficient to establish the applicant has been totally incapacitated for the entire period claimed and that the total incapacity was likely to be ongoing.
For her part, Ms Warren submitted there was sufficient evidence to establish such ongoing total incapacity, which was likely to be permanent.
On balance, having regard to the totality of the medical evidence in the matter and also taking into account the applicant’s statement evidence, I am not satisfied he has discharged his onus of proving he remains and is likely to remain totally incapacitated for employment.
In particular, at page 98 of the Application is a Certificate of Capacity provided by the applicant’s GP, Dr Bhat dated 9 January 2025 which purports to indicate the applicant has had no work capacity for any employment from 15 February 2021 to 24 August 2024. I accept, absent further Certificates of Capacity or indeed general medical certificates outlining the applicant’s total incapacity on a contemporaneous basis, that this document is not sufficient to satisfy me or to actually persuade me of the fact of ongoing total incapacity.
This is particularly the case when the clinical records of the applicant’s GP contained within the material before the Commission only extend from 31 March 2021 to 28 October 2021.
Mr Hart submitted that absent compelling evidence to the contrary, the Commission would not be minded to make an order for payment of weekly compensation beyond the s 37 period at the latest, and more appropriately, much earlier, namely mid-2022.
Ms Warren submitted there were a number of medical certificates attached to the Application which covered the period up to 22 July 2022. I accept that submission and note each of the medical certificates refer to the applicant having no capacity for employment for the same period, namely between 15 February 2021 and 8 April 2021. However, it is apparent Dr Bhat has completed a number of medical certificates up to 22 July 2022 and that up to this point, was plainly of the view the applicant was totally incapacitated for employment.
Notwithstanding Mr Hart’s initially compelling submission that the claim for total incapacity ought to end on or around 22 July 2022, I note the respondent also notionally relies on the report of Dr Gertler, IME for the applicant. This being so, each of the parties must be taken to accept Dr Gertler’s assessment of the applicant as being:
“… unfit for any employment in the present time because of lack of self-confidence and trust in a potential employer. He has also withdrawn socially and is easily irritable, which would affect interpersonal relationships in a workplace setting…
In my opinion, the prognosis remains uncertain. Mr Hilder appears to be stable in terms of his current lifestyle but he is dissatisfied with it and requires psychological assistance as described above to be able to be to move on in his life.”
That report is dated 20 March 2023, and it is apparent from its contents the applicant at that time was and remained totally unfit for any employment.
Dr Gertler assessed the applicant’s impairment in relation to employability as Class 5 on the PIRS scales, the highest level of incapacity. This evidence is uncontested.
The only expert medical opinion in the matter having found such impairment as at March 2023, it is obviously the case the applicant would not simply have regained his capacity given the seriousness of his condition in the immediate aftermath of that report.
Doing the best I can, I am of the view the applicant’s ongoing incapacity for employment would have remained until the expiration of the 130-week period pursuant to s 37 of the 1987 Act, namely 7 August 2023.
I am not, however, satisfied the requirements of s 38 of the 1987 Act have been satisfied. In this regard, Dr Gertler only describes the applicant’s prognosis as uncertain. He notes that with psychological assistance, the applicant may be able to move on in his life, and in circumstances where the applicant would “like to return to the workforce, in a capacity for which he is suited by experience and training, he would benefit from counselling arrangements over a period of up to six months” I am not satisfied the applcaint has satisfied the onus of proof sufficient to enliven the payment of ongoing benefits pursuant to s 38.
Doing the best I can, I am of the view the applicant was totally incapacitated for employment from the date of injury until the expiration of the 130-week period under s 37 of the 1987 Act on 7 August 2023.
As noted, the applicant’s PIAWE is agreed and is subject to periodic indexation. Having found he is entitled only to weekly compensation for total incapacity up to the expiration of the s 37 period, it follows orders will be made for the respondent to pay him weekly compensation accordingly, after which there will be an award in the respondent’s favour for the ongoing claim from 8 August 2023 to date and continuing.

The claim for medical expenses

No substantive submissions were made in relation to the reasonable necessity of the treatment claimed by the respondent. Rather, that claim rises and falls on my findings in relation to liability. Having found in the applicant’s favour on the question of liability, it follows the respondent will be ordered to pay the costs of an incidental to his reasonable treatment and medical expenses as a result of the injury.

SUMMARY

For the above reasons, the Commission will make the findings in order set out on page 1 of the Certificate of Determination

[2025] NSWPIC 463

8 September 2025