Insurance Australia Group Services Pty Limited v Outram - [2019] NSWWCCPD 44

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Insurance Australia Group Services Pty Ltd v Outram [2019] NSWWCCPD 44
APPELLANT:	Insurance Australia Group Services Pty Ltd
RESPONDENT:	Matthew Outram
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-6712/18
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	18 March 2019
DATE OF APPEAL DECISION:	23 August 2019
SUBJECT MATTER OF DECISION:	Section 11A(1) of the Workers Compensation Act 1987 – consideration of whether injury predominantly caused by reasonable action taken by the employer with respect to performance appraisal or transfer; Irwin v Director General of School Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, no 14068 of 1997, unreported) applied; adequacy of reasons – Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq) [1999] HCA 3; 160 ALR 588; 73 ALJR 306 considered and applied; causation – ISS Property Services Pty Ltd vMilovanovic [2009] NSWWCCPD 27; error where there is a demonstrable misunderstanding of relevant evidence Montgomery v Lanarkshire Health Board [2015] UKSC 11 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Barker Henley
Respondent:	Law Partners Personal Injury Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 18 March 2019 is revoked. 2. The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

Mr Matthew Outram (the respondent) suffered a psychological injury in the course of his employment with Insurance Australia Group Services Pty Ltd (the appellant). The respondent lodged a claim for payment of his treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) and for compensation pursuant to s 66 of the 1987 Act in respect of 18% whole person impairment (WPI).
The injury, which was said to have a deemed date of injury of 17 August 2017, was not disputed by the appellant, however the appellant denied the claim on the basis of s 11A(1) of the 1987 Act. The appellant alleged that the injury was wholly or predominantly caused by its reasonable action in respect of the respondent’s transfer and the appraisal of his performance, thus the injury was not compensable.
The respondent commenced proceedings in the Commission, alleging that his psychological injury was caused by bullying, harassment and unreasonable conduct by his manager and the appellant throughout the course of his employment from September 2010 to August 2017. The matter proceeded to arbitration on 15 March 2019 and on the same day the Arbitrator delivered oral reasons. He determined that the injury was not wholly or predominantly caused by the transfer of the respondent and the appellant’s action with respect to performance appraisal. He further determined that, in any event, the action with respect to the performance appraisal was not reasonable.
The appellant appeals in respect of both of those determinations.

BACKGROUND

The respondent was employed by the appellant in its Newcastle branch as a Senior Case Manager dealing with workers compensation claims. In October 2015, the respondent was seconded to a higher role, acting in the position of Technical Adviser. Initially, the secondment was for twelve months, but was extended until April 2017. The secondment came to an end because the appellant withdrew from providing workers compensation insurance services. The respondent returned to his former role as a Senior Case Manager.
During the period of the secondment up to December 2016, the respondent reported to Mr Matthew Beer, the Branch Manager. In December 2016, Mr Beer resigned from that position and Ms Bernadette Brennan became Branch Manager, and supervised the respondent until the completion of the secondment. Thereafter, the respondent returned to his former role as a Senior Case Manager and was supervised by Ms Lyne Strang.
In a meeting in July 2017, Ms Strang performed an annual assessment of the respondent’s performance, and, according to the respondent, assessed his performance as “solid.” Subsequent to that meeting Ms Brennan also assessed his performance, which resulted in an overall assessment of “inconsistent performance.”
The respondent took umbrage at that assessment, and requested Ms Brennan provide her reasons. A meeting was arranged for 17 August 2017 to address the respondent’s request, during which the respondent became agitated, spoke aggressively to Ms Brennan and left the meeting. He ceased work and lodged the claim for psychological injury.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties indicate that they are content for the appeal to be determined ‘on the papers.’
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

THE EVIDENCE

The Application to Resolve a Dispute (the ARD) has attached to it 569 pages of annexures. Of those pages, 71 pages consist of documents relating to a different matter, and contain details of personal matters that pertain to that other worker. The inclusion of those documents in these proceedings is entirely inappropriate. The ARD also contains a further 140 pages of annexures that are not at all relevant to the dispute between the parties. Those practitioners who adopt the approach of filing voluminous irrelevant material run the risk of having probative evidence overlooked by the primary decision maker. Such an approach is not best practice, and more care should be taken in the preparation of evidentiary material to be put before the Commission.
I have had regard to the relevant evidence in this matter. Given the scope of the appeal it is not necessary to recite all of that evidence and I constrain my account of the evidence to that which has been the subject of submissions and is relevant to the issues in this appeal.

The respondent’s evidence

The respondent’s statement

The respondent provided a signed statement dated 8 August 2018.[1] A lengthy draft statement was also prepared by Procare Investigations and a copy of that document was included in the ARD, however was not signed or dated. I do not propose to reproduce the content of the unsigned statement, as it has not been adopted by the respondent and is not concerned with any of the issues on this appeal.
[1] ARD, pp 548–557.
In the signed statement, the respondent said that he commenced employment with the appellant in 2010 as a Senior Case Manager and was seconded to the position of Technical Adviser from 2015 until May 2017. The respondent provided a history of prior, non-work related psychological symptoms, for which he continued to take medication.
The respondent asserted that during the period 28 December 2016 until 22 August 2017, he was systematically bullied by Ms Brennan.
The respondent said that in a meeting on 28 December 2016, Ms Brennan was inappropriate and intimidating in respect of his secondment. He said she refused to answer his questions about his future in the seconded role and dismissed his questions sarcastically without affording him due process. The respondent said that Ms Brennan told him to “take an extension of your secondment or go back to being a Senior Manager.”[2] He said he was surprised at her tone and her aggression.
[2] Respondent’s statement, ARD p 549, [18].
The respondent stated that because of the way Ms Brennan had spoken to him and difficulties he had coping, he consulted a general practitioner, Dr Singh. He complained of sweaty hands, heart palpitations, a heavy chest and constant fear. Dr Singh prescribed a change in antidepressants and an increase in dosage.
The respondent recalled that when engaging in what he referred to as “friendly banter” on Facebook with work colleagues in relation to something they had joked about at work, Ms Brennan remarked that his comment was inappropriate, and the Facebook post was taken down.
The respondent referred to ongoing issues in respect of his hip, and said that he asked Ms Brennan for a functional assessment. He said he also wanted an ergonomic desk because Ms Brennan kept changing his desk, so that he would arrive at work and find his belongings on a different desk. Ms Brennan ignored his request for an assessment, so he organised it himself. The respondent’s physiotherapist, Mr Simon Mole, made a written request that the respondent be provided with an ergonomic work station. The respondent said that on 3 March 2017, he spoke briefly with Ms Brennan who was dismissive and defensive. The respondent advised that the request did not reach the rehabilitation provider until 13 March 2017, the ergonomic assessment was done on 27 March 2017 and the chair and desk arrived on 3 April 2017. The respondent asserted that despite a request to Ms Brennan to have the equipment set up, Ms Brennan refused, and the equipment was not put in place until 28 April 2017, when he was due to return to the Senior Case Manager role. The respondent stated that the desk was positioned away from the team he would be working with and next to Mr Jason Bunt’s desk, who was a Team Manager, and was Ms Brennan’s friend. He said he felt isolated, downgraded and on the “outer” and his team often forgot about him. The respondent contended that the experience of trying to get the ergonomic assessment and desk caused him great distress and anxiety.
The respondent said that he met with Ms Brennan on 13 April 2017. Ms Brennan advised him that his secondment would come to an end on 30 April 2017 and he would resume his former role as Senior Case Manager. Ms Brennan assured the respondent it was a business decision and not about his performance, as he had been working well. The respondent said that from earlier conversations and news of the restructure, he had already been aware that this would occur.
The respondent stated that he requested a rostered day off to look after his daughter on 13 April 2017, which Ms Brennan refused because David Lindgren, the other Technical Adviser, was on leave at that time. The respondent then applied to take the leave on 24 April 2017, but Ms Brennan again refused the leave for the same reason. The respondent said that he had never been refused leave before, and the refusal was illogical, because in the re-structure there would be no-one in the position of Technical Adviser in any event. He said he felt that Ms Brennan was “playing games” with him.
The respondent asserted that on 5 May 2017, he received an email from Ms Brennan that stated there were no issues with his performance.
The respondent reported that in July 2017, he met with Ms Strang for his annual performance rating meeting, and Ms Strang assessed his performance as “solid”. The respondent said that Ms Strang was required to “log” the rating and then at his next performance review, he and Ms Strang would discuss his remuneration. The respondent asserted that at the next meeting with Ms Strang, she advised him that Ms Brennan had overwritten his performance as “inconsistent.” The respondent described his reaction as one of shock. He said he had not heard of the rating beforehand, and Ms Brennan’s actions did not comply with correct policy and procedure in relation to performance reviews. The respondent asserted that the protocol in respect of a grievance review required that he be advised formally of performance issues, so that he could prepare a case to present, rather than ambushing him with false allegations. The respondent complained that he had no opportunity to change the review, which affected his remuneration and he felt completely “blind-sided”.
The respondent met with Ms Brennan and a Union representative in relation to the rating. The respondent said that Mr Bunt was also present. The respondent was unhappy about Mr Bunt being present, because he and Ms Brennan had a personal relationship which meant that Mr Bunt would not be impartial. Nonetheless, Mr Bunt stayed in the meeting.
The respondent complained that Ms Brennan orally gave her reasons for the downgrade in his rating and he was not given the reasons in writing. He said this was the first he had heard of any issues with his performance, and he felt “bombarded”. One of the reasons given by Ms Brennan was that he had not delivered a work capacity decision in April 2017, but he claimed that he was not required to issue work capacity decisions in the duties he was performing. There were also no work capacity decisions issued at all in April because of staffing levels and the change in business direction.
The respondent stated that he felt a sense of unease because his financial stability was at risk through no fault of his own. He felt overwhelmed by Ms Brennan’s unreasonableness, and could not function properly. He was upset by the lack of compliance with procedure and the surprising manner in which the review was conducted. The respondent said that if he had been advised by Ms Brennan of the performance issue at the initial performance review, it would have given him the opportunity to discuss it and improve his performance.
The respondent stated that he was anxious and distressed, and consulted his general practitioner, Dr Singh, on 18 August 2017. He consulted a psychologist, Ms Helen Kelson, on 11 September 2017. The respondent described his ongoing symptoms, treatment and restrictions.

The respondent’s grievance letter

The respondent lodged the grievance in relation to his performance rating by email on 4 August 2017. The email was directed to Ms Brennan. Unfortunately, despite the plethora of irrelevant material filed in the proceedings and the six investigation reports, only the first page of that document appears to be in evidence.
The respondent referred to the basis of the poor rating, which he said was because of the poor overall performance of the team. The respondent said that his own performance had been solid.
The respondent contended that the rating should reflect the comments by his previous direct report during the financial year. The respondent added that Ms Brennan did not make any comments or provide feedback in relation to the financial year 2016–2017, had simply adopted Mr Beer’s comments from the previous year, and it appeared that Ms Strang’s comments had been completely disregarded. The respondent said that he refused to accept the rating and was offended that the work he had done received such little recognition.
As the document is incomplete, the remedies sought by the respondent are not apparent.

Ms Brennan’s evidence

Ms Brennan’s statement evidence

Ms Brennan provided a signed statement dated 3 October 2017.[3] That statement was made in response to the allegations contained in the respondent’s unsigned statement. Ms Brennan subsequently left the appellant’s employ, and attempts by the investigator to obtain her response to the respondent’s signed statement were unsuccessful.
[3] Reply to Application to Resolve a Dispute (Reply), pp 200–211.
In the statement provided, Ms Brennan referred to the meeting held in December 2016 between her and the respondent. Ms Brennan said that the meeting was more likely to have occurred on either 15 or 23 December 2016, and not 28 December 2016 as asserted by the respondent. Ms Brennan confirmed that at that meeting, the continuation of the respondent’s secondment was discussed, and the respondent was given the option of either returning to his substantive role or performing in the seconded position, which was to be extended. Ms Brennan said she also repeated the instruction from Mr Beer, who had been the appellant’s Branch Manager, that the respondent was required to put forward a strong business plan if he wanted management to consider whether the respondent’s seconded role should be made permanent. Ms Brennan recalled that she had to repeat herself several times, as the respondent appeared unaccepting of the options presented.
Ms Brennan referred to an allegation made by the respondent that she was “moving the goal posts,” and that he had been meeting and exceeding the requirements of the seconded position. Ms Brennan advised that the feedback provided to her by Mr Beer, in his capacity as the respondent’s former manager, was that the respondent needed to improve his interpersonal skills, his working relationship with his team, and to further develop the case managers’ abilities in making work capacity decisions. Ms Brennan added that the respondent needed to achieve consistency in his approach to internal case conferencing.
Ms Brennan described the discussion as a normal conversation, conducted in a professional manner. Ms Brennan said that the respondent’s tone was initially appropriate, but that it became dismissive. Ms Brennan said she understood the respondent to be disappointed that the secondment role was not to become permanent.
Ms Brennan recalled an informal discussion with the respondent in December 2016 about the respondent considering whether to re-mortgage his home. Ms Brennan said that he appeared to be exploring the prospect of being appointed permanently in the seconded position. Ms Brennan stated that she explained to the respondent that he was being paid at a higher rate because he was in the seconded role, but that he should, as a precaution, make any financial decisions based on his base salary because there was no indication that the secondment role would become permanent. Ms Brennan also offered the respondent access to the employee assistance program, which could provide financial and related counselling.
Ms Brennan stated that she thought it was on 14 March 2017 that she approved the ergonomic assessment requested by the respondent, which was immediately upon receipt of the respondent’s request. She added that the assessment was conducted on 21 March 2017 and as soon as she received the report, she approved it. She said the chair arrived in a couple of days, and the desk soon after that.
Ms Brennan said that there was a delay in setting up the desk due to issues with communication between Procare and IAG Building Facilities, as both groups were affected by a restructure. Ms Brennan said that while this was outside of her control, she instructed her personal assistant to keep the respondent informed and she also touched base with the respondent by telephone and in person to let him know any updates as they came in. Ms Brennan stated that the desk was to be set up by IAG Building Facilities, who were based in Sydney.
Ms Brennan advised that she had a hand over conversation with Ms Strang when the respondent commenced under Ms Strang’s management, during which Ms Strang asked where the respondent’s ergonomic desk should be placed. Ms Brennan told Ms Strang that she should liaise with IAG Building Facilities.
Ms Brennan said that she had no recall of the respondent having raised an issue with her about being excluded from his team, but if he had, she would have addressed the issue.
Ms Brennan recalled that the respondent had indicated to her that he did not expect the desk to be approved, but Ms Brennan told him that regardless of whether the respondent’s hip condition was work related, the appellant had an obligation to ensure his ergonomic welfare at work.

Ms Brennan denied smiling at the respondent and using the word “terminating” at the meeting in April 2017 (which she said actually took place on 7 April 2017) when communicating to the respondent that the secondment was ending. Ms Brennan advised that when she met with the respondent, the respondent indicated that he was dreading the conversation about the end of his secondment, but did not tell Ms Brennan why that was. Ms Brennan said that she proceeded to tell him that the meeting was a courtesy to let him know that the secondment was ending and that he would be returning to his former role, working under Ms Strang, who would discuss with him the work he would be covering.
In relation to the allegation that she refused the respondent’s leave request, Ms Brennan referred to her email dated 5 May 2017. Ms Brennan also referred to that email in relation to the respondent’s complaints about the further extension of the secondment, and to the allegation that she referred to the respondent as “going by the book” (which she denied).
Ms Brennan reported that her relationship with the respondent deteriorated from the time of the meeting on 7 April 2017. Ms Brennan said that the respondent would not interact with her at the same level as before, and would barely respond when she greeted him. Nonetheless, she said, she continued to greet him and attempted to interact with him. Ms Brennan denied having looked away whenever she saw the respondent.
Ms Brennan referred to the performance rating downgrade in July 2017. She explained that Ms Strang had only been the respondent’s direct manager for about 12 weeks of the 52 week period that was to be reviewed, and that as she was the respondent’s previous manager, she had input into his performance review. Ms Brennan said that as part of that process, prior to Ms Strang meeting with the respondent, she met with Ms Strang and discussed the respondent’s performance. Ms Brennan said that her input was then incorporated into the final performance review results, which would be communicated to the respondent by Ms Strang. Ms Brennan described the process of what normally occurred during the performance review. She said that the employee would normally have a meeting with their manager (in this case Ms Strang) to generally discuss their performance, then the information would be collated along with any other relevant information (in this case, Ms Brennan’s input) following which the performance ratings would be provided to the staff member. Ms Brennan said that normally the staff ratings would not be discussed at the first meeting, but she could not comment on what occurred in the first meeting between the respondent and Ms Strang.
Ms Brennan acknowledged that the respondent lodged a grievance in respect of his performance rating.
In relation to the meeting on 17 August 2017, Ms Brennan relied on her file note, which she said accurately reflected what occurred in the meeting that day. Ms Brennan added that after she communicated the performance based issues to the respondent, he became agitated and his tome became aggressive. She said that he responded by saying that if he was rated as a “two”, then the leadership team should be rated as scoring “one”. Ms Brennan replied that the purpose of the meeting was to discuss his performance, not that of the other staff. Ms Brennan said that during the meeting, the respondent kept interjecting and not letting her finish what she was saying. Ms Brennan described the respondent’s demeanour as angry, agitated, red in the face and aggressive. Ms Brennan said the respondent’s body language made her feel uncomfortable, and when she told him that his responses and tone indicated that there would be no resolution that day, the respondent agreed. Ms Brennan terminated the meeting. She said that the respondent, still looking angry and agitated, left the room, and she saw the door slam shut.
Ms Brennan indicated that she was upset and shocked, and asked Mr Bunt to follow the respondent and make sure that he was alright. She attempted to contact Mr Dustin Bartley, her manager, but was unable to reach him. Ms Brennan said that two other managers, who had heard the door slam shut, came to enquire as to her well-being.
Ms Brennan said that the respondent left work and returned on 21 August 2017. She had no contact with him on that day, and then she became aware that the respondent had gone off work and lodged a workers compensation claim.

Ms Brennan’s email to the respondent dated 5 May 2017

Ms Brennan’s email[4] was in response to concerns raised by the respondent in an email of 24 April 2017 in respect of the conclusion of his secondment.[5] The respondent requested responses in writing as to:
(a)    the reasons why his seconded position was extended in December 2016, rather than it being made a permanent role;
(b)    the reasons for concluding the seconded role on 30 April 2017;
(c)    why the technical advisor role was not “business as usual” in the context of Ms Brennan having announced that, moving forward, it would be “business as usual”;
(d)    the reason for refusing his leave applications for April 2017, when the refusal was inconsistent with past practice and the fact that, in the restructure, there would be only one technical adviser in any event, and
(e)    what his future role would be.
[4] Reply, pp 215–217.
[5] Reply, p 218.
In her response, Ms Brennan expressed that she was sorry that the respondent was disappointed that his seconded role was not made permanent. In response to the respondent’s concerns, Ms Brennan pointed out that the respondent’s substantive role was that of Senior Case Manager, and that the respondent had been unsuccessful in his application for the substantive role of Technical Adviser. Ms Brennan explained that the appellant had provided the respondent with the opportunity to act in the seconded role (which was not an existing role in the organisational structure), in order to improve his professional opportunities and progress his skills. Ms Brennan said that there were never any guarantees that the seconded position would become permanent, and that the respondent had been reminded of that on a number of occasions by Mr Beer, who indicated that making the position permanent required a strong business case in support. Ms Brennan told the respondent that he had not provided any reasons why the business needed the additional resource.
Ms Brennan emphasised that the decision did not have anything to do with his performance, but was a decision made purely on the basis of the needs of the business.
Ms Brennan provided further reasons as to why the role was not made permanent and the secondment was not extended.
In relation to the refusal of leave in April 2017, Ms Brennan explained that the reason for not approving the leave was because the other technical adviser was already on leave. Ms Brennan pointed out that she consulted with the respondent about this, and asked him to consider another day when there would be sufficient technical advisers to cover the needs of the team. Ms Brennan further reminded the respondent that she had informed him that he could take the leave if he consulted the team managers and they were happy to accommodate the request, but that the respondent did not do so.
Ms Brennan advised the respondent that he was returning to his substantive role of Senior Case Manager, and would be reporting to Ms Strang.

Mr Bunt’s evidence

Mr Bunt’s statements

In his short statement dated 28 September 2017, Mr Bunt referred to the meeting on 17 August 2017, and said that he relied on his file note which was an accurate record of what took place. Mr Bunt also referred to events that occurred after that meeting.[6]
[6] Reply, pp 134–136.
Mr Bunt provided a further short statement dated 1 December 2017.[7] He confirmed that for the last few months the respondent worked with the appellant, he (Mr Bunt) sat in the same office area as the respondent. Mr Bunt stated that the respondent did not directly report to him, but confirmed that he was not personally aware of the respondent being bullied or harassed by anyone in any manner at work during the period they were sitting near each other or at any other time.
[7] Reply, pp 288–289.

Mr Bunt’s file note

Mr Bunt’s detailed file note of what occurred at the meeting on 17 August 2917 was in evidence.[8] Mr Bunt recorded the names of the attendees, who included the Union advocate, Mr Lachlan Daly, who was noted as being the respondent’s support person.
[8] Reply, pp 89–92.
Mr Bunt recorded that Ms Brennan identified the primary purpose of the meeting, and set out the general expectations of the meeting, which were that:
(a)    all issues raised by the respondent would be addressed, although may not result in an agreement, or may require further action before re-convening;
(b)    all attendees would be polite, respectful and professional, and not use inappropriate language or raised voices, and
(c)    each person had a right to ask for a break or terminate the meeting if they felt uncomfortable.
Mr Bunt detailed an interjection by Mr Daly that he would only speak if there was an issue of procedural fairness, to which Ms Brennan replied that she was not an expert on procedural fairness, but the purpose of the meeting was to provide feedback about the respondent’s performance rating.
Mr Bunt noted that Ms Brennan went through the reasons for the inconsistent rating, in accordance with her run sheet of reasons. Those included overall performance, culture/behaviour/continuous improvement, financial results by way of leadership and lack of output in respect of work capacity decisions. Mr Bunt recorded that Ms Brennan then asked for feedback from the respondent. Mr Bunt noted that the respondent replied in an aggressive tone, and referred to the rating as entirely “rubbish”, that Ms Brennan was a liar, had provided him with no feedback over the year, and had not taken into account his feedback. The note included that the respondent asserted Ms Brennan should be rated as the lowest rating.
Mr Bunt further recorded that Ms Brennan then advised the respondent that the meeting was to talk about his performance, not anyone else’s rating and invited the respondent to provide her with evidence that she could review. Mr Bunt noted that during this conversation, the respondent spoke over the top of Ms Brennan, saying that the meeting was garbage. According to the note, Ms Brennan then indicated that, given the respondent’s behaviour and responses, it was apparent that there would be no resolution, so the meeting was terminated. Ms Brennan invited the respondent to escalate the matter to People Connect for an independent review. Mr Bunt reported that the respondent said he was never going to agree with the rating, and stormed out of the room, slamming the door on his way out.
Mr Bunt then noted Ms Brennan’s reaction, which was that she expressed a need to collect her thoughts, commented that such behaviour was inappropriate, and asked Mr Bunt to locate the respondent.

Mr Beer’s evidence

Mr Beer provided two statements.
In his statement dated 27 September 2017,[9] Mr Beer confirmed that the respondent was seconded to the position of Technical Adviser in October 2015, which was a created role designed to provide the respondent with the opportunity to improve his skills and experience, and so that the respondent could “drive improvement in the front end”[10] of the claims business. Mr Beer stated that during several discussions with the respondent, he made it quite clear that the role was temporary. Mr Beer asserted that he advised the respondent that if he could show that he could perform the role to the standards required, and provide demonstrable evidence of the benefits of and contribution the role could make if it was a permanent role, then he could put forward a case to management to have the role made permanent. Mr Beer said that such a case would include not only the respondent’s achievements, but also the feedback from claims staff and claims team managers as to the value the role added, in order to build a strong business plan to be referred to management.
[9] Reply, pp 142–150.
[10] Mr Beer’s statement dated 27 September 2017, Reply, p 143, [7].
Mr Beer identified the respondent’s skills as technically sound, with a good knowledge of his work area, but that his performance needed further development in areas of leadership, interpersonal skills and his ability to constructively influence the behaviour and capabilities of his team.
Mr Beer indicated that the respondent’s performance was impacted by the respondent taking extended periods of leave due to illness and surgery during the secondment, which compromised the appellant’s ability to gauge the value of the role and the respondent’s performance in that role. Mr Beer said that this was the main reason that the role was extended in October 2016.
Mr Beer proceeded to discuss the respondent’s lack of success in relation to being appointed to the substantive position of Technical Advisor, to which Mr Lindgren had been appointed. Mr Beer also referred to the respondent being given duties between April and September 2016 related to matters within s 59 of the 1987 Act, which was part of the reforms to the 1987 Act. Mr Beer said that was a further opportunity for the respondent to develop and improve his skill set, and that the respondent indicated he was happy to do those duties.
Mr Beer recalled that during the period from September to December 2016, he provided constructive feedback to the respondent in relation to identifying and detailing areas of development that required the respondent’s focus. These included the need for the respondent to build his profile outside the branch, build interpersonal skills and his leadership within the branch by fostering the work culture and supporting his team leaders.
Mr Beer considered that during that period, the respondent was meeting expectations of a person learning a new role. Mr Beer described the respondent as a Senior Case Manager who was aspiring to be more.
Mr Beer denied that he had ever given the respondent any indication that the role had any immediate prospect or guarantee that it would become permanent.
In a second statement dated 3 September 2018,[11] Mr Beer said that he was unable to comment on many of the allegations made by the respondent because he had ceased working for the appellant in December 2016. He said that while he could not comment on the period after December 2016, during the period he was working as Branch Manager, he did not witness any evidence of bullying or harassment by Ms Brennan towards the respondent. Further, he had never observed Ms Brennan using an aggressive tone in her interactions with any of the staff, including the respondent.
[11] Reply, pp 294–297.
In respect of the denial of the respondent’s leave, Mr Beer confirmed that it was expected that both Mr Lindgren and the respondent would take a coordinated approach to work and that the two Technical Advisers would coordinate their leave applications so that there would be one Technical Adviser present wherever possible. Mr Beer said that he made that clear at the commencement of the role to both of them that this was the appellant’s expectation.

The relevant medical evidence

The evidence from the respondent’s treatment providers

The clinical notes from Charlestown Medical Centre were in evidence.[12] The notes commenced from 2007. It is not apparent from the clinical entries as to which doctor in the practice was treating the respondent. However, the referrals and radiological investigations attached to the clinical notes suggest that the respondent was treated by various general practitioners within the practice, and most recently by Dr Sophie Roy.
[12] ARD, pp 159–185.
It is apparent that the respondent had been in receipt of psychological treatment since 19 October 2009, when he was prescribed Lexapro and placed on a mental health plan.[13] The respondent continued to be prescribed psychological medication in various forms over the years. The respondent attended the practice frequently over that time without reference to any work-related factors that may have aggravated that condition, until 18 August 2017.[14] On that day, the respondent presented, reporting that he felt anxious and depressed due to work related issues. He complained of leave being denied, his secondment being extended [rather than being made permanent] without him being given explanation, and an inconsistent performance report being given by his supervisor. On the same day, Dr Gaurav Vijay, general practitioner, referred the respondent for psychological intervention.[15]
[13] ARD, p 181.
[14] ARD, p 171.
[15] ARD, p 20.
The respondent attended the same surgery again on 22 August 2017.[16] On this occasion, the respondent complained of work stress since January, and that his recent performance review by his direct supervisor was downgraded by the Branch Manager. The union was involved in seeking an explanation.
[16] ARD, p 171.
Ms Helen Kelson, psychologist, reported to Dr Roy on 25 September 2017,[17] indicating that she had provided three counselling sessions with the respondent. In that report, Ms Kelson indicated that the respondent complained of being systematically targeted by Ms Brennan, that his professional conduct and work performance had been questioned and that over time, he started to feel isolated as a result of events. Ms Kelson’s notes were also in evidence.[18] Ms Kelson recorded on 1 September 2017 that the respondent complained that:
(a)    his role as a Technical Adviser was not going to be made a permanent role;
(b)    there was uncertainty at work;
(c)    since December 2016 his relationship with Ms Brennan had been strained;
(d)    he was told in March 2017 there would be no jobs at the end of the year;
(e)    the termination of the secondment was a “kick in the guts”;
(f)    his performance was downgraded, and
(g)    Ms Brennan could not give him answers and she was “game playing”.[19]
[17] ARD, p 21.
[18] ARD, pp 76–93.
[19] ARD, p 86.
In what appears to be a psychological assessment conducted by Ms Kelson on 18 September 2017, Ms Kelson noted that the respondent had been exposed to the “threat of professional conduct” and that his symptoms had commenced following the performance review.[20]
[20] ARD, p 81.

Dr Thomas Oldtree Clark

Dr Thomas Oldtree Clark, consultant forensic psychiatrist, was asked to assess the respondent. He provided a forensic medical report dated 4 July 2018 at the request of the respondent’s legal representatives.[21] Dr Clark took the history that the respondent was employed by the appellant for seven years, and during that employment, the respondent was bullied and harassed. Further, the pressure built up in 2016 with a change of managers. Dr Clark recorded that the respondent’s associates were made redundant, and his new manager (Ms Brennan) who always had a bullying style, was over-exacting and nit-picking. Dr Clark noted that the respondent complained that Ms Brennan thought he did not meet her standards and would never think he was right when he did meet those standards. Dr Clark also noted that there had been a reduction in workers compensation insurers and there were a lot of redundancies being offered. Dr Clark recorded that the respondent was no longer working, and said that the circumstances were outlined in the respondent’s statement.
[21] ARD, p 1–8.
Dr Clark reviewed the respondent’s background and medical history, and recorded his findings on examination. He noted that the respondent was “confused and obsessed with the cause and consequences of his forced redundancy.”[22] He did not record any prior psychological symptoms.
[22] ARD, p 3.
Dr Clark diagnosed a major depressive disorder. He opined that there was a direct relationship between the respondent’s psychiatric condition and the “subject incident.”[23]
[23] ARD, p 5, [E.4].
In an addendum to that report, Dr Clark assessed the respondent as suffering from 18% WPI, with no deduction in respect of any previous psychiatric impairment.[24]
[24] ARD, pp 9–15.

Dr Clark provided a supplementary report dated 4 December 2018, in response to a request from the respondent’s legal representatives to comment on:
(a)    two reports of Dr Graham Vickery (a psychiatrist qualified by the appellant);
(b)    the respondent’s statement, (presumably the signed statement dated 8 August 2018), and
(c)    the clinical notes from Charlestown Medical and Dental Centre.[25]
[25] ARD, pp 16–19.
Dr Clark confirmed that the respondent had worked for the appellant for seven years, and during that time he was subjected to bullying and harassment. Dr Clark reiterated the history recorded in his first report in respect of Ms Brennan’s bullying. Dr Clark attributed the respondent’s psychological condition to Ms Brennan’s bullying style. He said this was the “subject incident.”[26]
[26] ARD, p 17 [1].
In response to a question posed by the respondent’s legal representatives, Dr Clark said that a doubling of the dose of psychological medication in May 2017 was standard practice when a patient had only partially improved on that medication. When asked to address Dr Vickery’s view that that the respondent’s psychological condition was caused by transfer and performance appraisal, Dr Clark replied that the respondent’s major depressive disorder was specifically caused by bullying, harassment and being ostracised.

Dr Graham Vickery

Dr Vickery provided three forensic medical reports dated 11 October 2017,[27] 27 August 2018,[28] and 24 January 2019[29] respectively.
[27] Reply, pp 320–333.
[28] Reply, pp 334–336.
[29] Reply, pp 337–340.
In his first report, Dr Vickery recorded a past medical history, including the history of the respondent’s prior psychological symptoms and its causes. Dr Vickery also recorded the respondent’s current symptoms and treatment, which included a recent increase in dosage of the respondent’s antidepressant medication.
Dr Vickery took a history in respect of the development of the work related psychological symptoms. Dr Vickery noted that the respondent was seconded to the position of Technical Adviser in 2015. He further noted the following events, which were that:
(a)    the respondent met with the Branch Manager in September 2016, and his secondment was extended to December 2016. The Branch Manager resigned in December 2016 and Ms Brennan was appointed as the new Branch Manager;
(b)    in December 2016, there was a discussion with Ms Brennan about his role, and whether the position could be made permanent. Ms Brennan advised that she had two options, either to extend the secondment or return the respondent to his former role. The secondment was extended to 30 April 2017;
(c)    from that time, the respondent’s relationship with Ms Brennan deteriorated, and Ms Brennan tactically excluded him by no longer asking for his advice and by referring any questions to the other Technical Adviser. Ms Brennan would not greet him in the mornings, would walk out of a room if he entered, blocked him from her Facebook page, did not reply to his emails and ignored his requests for a sit/stand desk.
(d)    the respondent began to feel anxious in relation to the situation at work, and in January 2017 his antidepressant medication was increased;
(e)    in March 2017, the restrictions on the number of workers compensation insurers were announced, which meant that the staff would not have jobs in 2018. He was performing lesser duties, filling in for staff who had left, as well as doing audits for icare. The respondent said that those few months were very busy and stressful;
(f)    on 8 April 2017, the respondent was informed by Ms Brennan that he would be returned to his former role at the end of April 2017, and she was smiling when she told him. The respondent sent an email requesting reasons why the secondment had been terminated. Ms Brennan advised that it was purely a business decision and that his performance was not in question;
(g)    on 28 April 2017, the respondent was given a Senior Case Manager portfolio, which he considered to be a punishment;
(h)    the respondent’s new sit/stand desk was placed by Ms Brennan near her, in a corner and away from his team. The respondent felt ostracised, and
(i)    the respondent was given a rating of solid performer by his team leader in August 2017, but Ms Brennan downgraded it to inconsistent performance. The respondent lodged a grievance, and a meeting on 17 August 2017 was arranged to address the grievance. At the meeting, he was told that he did not undertake any work capacity decisions in March and April 2017. The respondent questioned why this had not been raised previously, said Ms Brennan was lying and stormed out of the meeting. The respondent reported to be stressed and an absolute mess.
Dr Vickery noted that the respondent ceased work, complained there were no suitable duties provided, and referred to financial stressors.
Following a mental state examination, Dr Vickery diagnosed an Adjustment Disorder with Anxiety and Depressed Mood. Dr Vickery also considered the respondent’s symptoms satisfied the diagnostic criteria for Substance Abuse – Alcohol and Recreational Drugs. Dr Vickery was of the view that those disorders were not diseases of gradual process. He considered that, on the history provided, the respondent’s employment was a substantial contributing factor to the frank psychological injury. Dr Vickery opined that the respondent’s perceived victimisation and harassment by Ms Brennan in relation to his transfer and performance review was the substantial contributing factor to his disorder.
Dr Vickery reviewed the factual investigation summary and the statements and emails collected by the investigator, including the email from Ms Brennan explaining the reasons for the termination of the secondment and for refusing the leave applications. Dr Vickery also read and quoted from the file note of the meeting on 17 August 2017. Dr Vickery considered that it was significant that there was no objective evidence to substantiate the respondent’s allegations of bullying and harassment, and maintained that the whole or predominant cause of the respondent’s conditions was the appellant’s actions with respect to transfer and performance appraisal. Dr Vickery opined that the pre-existing psychological disorder was of no significance in relation to the respondent’s current presentation.
In his second report, Dr Vickery responded to a query from the appellant’s legal representatives in relation to whether “promotion” was a causative factor to the injury, and advised that in the history provided, there was no mention of “promotion” being causative of the injury. Dr Vickery reviewed the report of Dr Clark dated 4 July 2018. Dr Vickery was of the view that the respondent’s WPI would be 7%, but the respondent had not yet reached maximum medical improvement, so that an assessment pursuant to s 66 of the 1987 Act could not be made.
The appellant’s legal representatives requested Dr Vickery to review the supplementary report of Dr Clark dated 4 December 2018 and the patient medical history from Charlestown Medical & Dental Centre, which appeared to have included the clinical notes from Ms Kelson. Dr Vickery responded in his report dated 24 January 2019. He considered that it was significant that Dr Clark was not informed of and did not document the respondent’s long standing pre-existing history of requiring antidepressant medication, which invalidated Dr Clark’s diagnosis. Dr Vickery thought it was also significant that Dr Clark could not give a reason for the increase in medication in May 2017. Dr Vickery noted that the general practitioner’s clinical notes indicated that the respondent had ceased antidepressant medication in 2012, but was subsequently prescribed therapeutic levels in 2015, which was inconsistent with the history recorded by Dr Clark.
Dr Vickery pointed out that Dr Clark did not discuss his (Dr Vickery’s) opinion on causation of the injury, which Dr Vickery found to have resulted from the transfer and performance appraisal.
Dr Vickery concluded that the material he was asked to review did not cause him to alter his opinions expressed in his earlier reports.

THE ARBITRATOR’S REASONS

The Arbitrator delivered oral reasons for his decision on 15 March 2019 (the day of the arbitration).
The Arbitrator noted that there was no dispute that the respondent suffered a work-related injury or that the treatment expenses claimed were reasonably necessary in respect of the injury. He identified the issue requiring determination to be whether the injury suffered by the respondent was wholly or predominantly caused by reasonable action taken by the appellant in respect of performance appraisal and transfer of the respondent, within the meaning of s 11A(1) of the 1987 Act. The Arbitrator noted that the appellant bore the onus of establishing the elements of s 11A(1). He identified that the respondent’s response to that allegation was that the causes of his injury were broader than those actions, and in any event the appellant’s actions in relation to the performance appraisal were not reasonable.
The Arbitrator observed that the test of reasonableness was an objective test, and proceeded to determine whether the appellant’s actions were reasonable.
The Arbitrator said that the respondent’s case was that the process of appraising his performance commenced on 5 May 2017, when Ms Brennan sent him an email advising the respondent that “there were no performance issues.”[30] The Arbitrator observed that the respondent attended a preliminary performance meeting with Ms Strang held in July 2017 and that Ms Strang described his performance as solid. The Arbitrator said that the respondent’s evidence about the email dated 5 May 2017, and Ms Strang’s assessment, was uncontradicted. The Arbitrator referred to a second meeting with Ms Strang, in which the respondent said he was told by Ms Strang that Ms Brennan had overridden some of his ratings and that his performance was now reported to be “inconsistent.” The Arbitrator pointed to the evidence that the respondent lodged a grievance about Ms Brennan’s assessment, alleging that he was unaware of the reasons why the ratings were changed and that he had been “blindsided”. The Arbitrator noted that the respondent was concerned because such a rating would have an effect on his remuneration.
[30] Transcript of the Arbitrator’s reasons (T1), Outram v Insurance Australia Group Services Pty Ltd, (6712/18, 15 March 2019).
The Arbitrator referred to the meeting on 17 August 2017, attended by Ms Brennan, the respondent and Mr Bunt, in which Ms Brennan gave verbal reasons for her assessment of the respondent’s performance ratings. The union representative, Mr Daly, attended by way of telephone link. The Arbitrator noted that the respondent complained that he was not given written reasons, either before or during the meeting. The Arbitrator further noted that the respondent took issue with Ms Brennan’s reasoning that the respondent had not issued a work capacity decision since April 2017, because the issuing of work capacity decisions was not part of his role description.
The Arbitrator recorded the respondent’s evidence as to how he felt during the meeting and the respondent’s concession that he spoke aggressively to Ms Brennan during the meeting. The Arbitrator considered the notes of the meeting made by Mr Bunt.
The Arbitrator said that, having regard to the uncontested evidence consisting of the email from Ms Brennan dated 5 May 2017 that indicated there were no performance issues, the meeting with Ms Strang, who assessed the respondent’s performance as strong, and the subsequent rating by Ms Brennan, it would be expected that the respondent would feel aggrieved. The Arbitrator added that, considering the matter objectively, and having regard to the interests of both the appellant and the respondent, it was unreasonable for the respondent not to have been provided with written reasons for the downgrade in his performance rating before the meeting. The Arbitrator said that:
“This is particularly so given the context of Ms Brennan having previously advised him that there were no issues with his performance and Ms Strang having advised him that his performance was strong, and particularly having regard to the fact that his ratings may potentially affect his remuneration.”[31]
[31] T1, 5.28–33.
The Arbitrator was of the view that it would not be a hard task for the appellant, and it would have been reasonable to give the respondent the opportunity to be aware of those reasons so that he could discuss the matters sensibly in the meeting. The Arbitrator said that if the respondent had been properly prepared, he would have been less likely to become distressed and blindsided during the meeting.
The Arbitrator concluded that the appellant ought to have foreseen that the way in which it conducted “that aspect of the process”[32] was likely to cause an employee to become anxious and potentially distressed. On that basis, the Arbitrator formed the view that the respondent had not discharged the onus of proving that that action was reasonable.
[32] T1, 6.7.
The Arbitrator then proceeded to determine whether the action was the whole or predominant cause of the injury. The Arbitrator considered it was a major contribution, but not the only contribution. The Arbitrator said that on the basis of the evidence before him, he was satisfied that the action of transferring the respondent to his former role as a Senior Case Manager also contributed to the respondent’s injury. The Arbitrator formed the view that the action in transferring the respondent was reasonable.
The Arbitrator considered that there were other events that occurred in the respondent’s employment which also contributed to the injury. Those events included the refusal by Ms Brennan to approve two days of carer’s leave for the respondent, and the placement of the respondent’s ergonomic desk away from his team. The Arbitrator reasoned that Dr Clark’s view was that the injury was precipitated by interactions between the respondent and Ms Brennan, and Ms Brennan was involved in both of those events.
The Arbitrator returned to consider the actions with respect to the transfer and the performance appraisal and repeated that they were the major causes of the injury, but formed the view that it could not be considered that those actions were the whole or predominant cause of the injury, given that there were other factors that were causative. The Arbitrator concluded that the appellant had not satisfied him that the actions involving transfer and performance appraisal were wholly or predominantly the cause of the injury pursuant to s 11A(1) of the 1987 Act.
In any event, the Arbitrator said, he had determined that he was not satisfied that the performance appraisal was done in a reasonable way by the appellant, so that even if the actions in respect of transfer and performance appraisal were the whole or predominant cause of the injury, the appellant had not discharged its onus under s 11A of the 1987 Act.
The Arbitrator made an award in favour of the respondent in respect of the claim for treatment expenses pursuant to s 60 of the 1987 Act, and remitted the claim for compensation pursuant to s 66 of the 1987 Act to the Registrar for referral to an Approved Medical Specialist in order to assess the respondent’s WPI.
The Certificate of Determination issued on 18 March 2019 records:
“The determination of the Commission in this matter is as follows:
1. The respondent pay the applicant as compensation under s 60 of the Workers Compensation Act $1,030.50.
2. The matter be remitted to the Registrar so as to refer it to an AMS to assess the medical dispute regarding the degree of permanent impairment of the applicant resulting from the injury on 17 August 2017. All documents filed by the parties are to be provided to the AMS.”

GROUNDS OF APPEAL

The appellant alleges four grounds of appeal. The grounds of appeal are non-specific, and do not comply with the Commission’s Practice Direction No 6, which requires:
“17. The grounds of appeal must be clearly and succinctly stated. The grounds of appeal must identify:
(a) the respects in which error of law, fact or discretion is alleged to have occurred;
(b) any material findings it is said the Arbitrator should or should not have made, and
(c) any material facts it is said the Arbitrator should or should not have found.
18. It is not acceptable to merely allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.”
The appellant is reminded that in future, care should be taken in drafting any appeal grounds, as a failure to comply with Practice Direction No 6 may result in an appeal being rejected.
The submissions made under each ground of appeal give some explanation of the issues raised on appeal and in my view, can best be expressed as:
(a)    Ground one: error of fact in the Arbitrator’s determination that the appellant’s action in relation to the meeting on 17 August 2017 was not reasonable;
(b)    Ground two: error of law in the Arbitrator’s determination that the appellant’s action in relation to the meeting on 17 August 2017 was not reasonable;
(c)    Ground three: failure to give adequate reasons in dealing with the question of causation of the respondent’s injury, and
(d)    Ground four: error of fact and law in dealing with the question of causation of the respondent’s injury.

LEGISLATION

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

SUBMISSIONS

The appellant generally submits that the Arbitrator’s decision is tainted by a number of factual errors as to what in fact occurred in the course of the respondent’s employment. It also alleges that the decision is affected by legal errors in the manner in which the Arbitrator dealt with s 11A of the 1987 Act, and his obligation to give reasons. The appellant says that these errors are identified in its submissions relevant to each ground of appeal.
The appellant further generally submits that what was to be the subject matter for discussion at the meeting on 17 August 2017 was clear from the email dated 4 August 2017.

Ground one: error of fact in the Arbitrator’s determination that the appellant’s action in relation to the meeting on 17 August 2017 was not reasonable

The appellant’s submissions

The appellant says that the meeting on 17 August 2017 was convened at the instigation of the respondent, and yet the Arbitrator concluded that the respondent was “blindsided”, and that this was something the appellant should have foreseen. The appellant submits that the reason for the meeting was to provide an explanation to the worker as to why his performance rating had been downgraded, which information he requested, and that was precisely what occurred. The appellant contends that it is absurd to conclude that the respondent was “blindsided” as it is defined in the Collins and Macquarie dictionaries.
The appellant further submits that the Arbitrator was wrong to interpret the email from Ms Brennan dated 5 May 2017 to have said that there was no issue with the respondent’s performance, when the Ms Brennan actually said that the reasons for the transfer had nothing to do with the respondent’s performance.
The appellant refers to the Arbitrator’s finding that it was unreasonable that the respondent was not provided with written reasons beforehand, when the respondent had in his possession the “Summary of Ratings” which put him on notice of the matters considered.

The appellant contends that it was clear from Ms Brennan’s notes that the purpose of the meeting was to explain the performance rating and address the respondent’s enquiries. Further, it was clear that the secondment remained an issue at that time, because it was identified by Ms Brennan as a “secondary purpose” for the meeting.

The respondent’s submissions

The respondent submits that there was no finding as to who requested the meeting on 17 August 2017.
The respondent maintains that the he was “blindsided” because he was not made aware of why his performance rating changed, not because he had called a meeting. The meeting was one of a series of meetings in respect of his performance appraisal. The respondent says that the appellant and Ms Brennan knew that the performance rating had changed, that the respondent wanted a meeting to discuss the matter and Ms Brennan had prepared a document in writing giving her reasons for the change. The respondent was not given those reasons, in any form, before the meeting. The respondent asserts that he was not allowed to consider the matters Ms Brennan was raising, which in effect had not been raised until the end of the assessment process. The respondent submits that there was no evidence that Ms Brennan’s reasons were as set out in the Summary of Ratings and Ms Brennan made no mention of the Summary of Ratings in her statement.
The respondent asserts that the appellant has assumed that the respondent set the agenda for the meeting, which was his agenda. The respondent contends that the evidence referred to in the above paragraph makes it clear that the agenda was set by the appellant when it changed the performance rating, and Ms Brennan prepared herself with that in mind. The respondent submits that one of the reasons why the respondent should have been given notice was that Ms Brennan referred to the respondent’s failure to deliver work capacity decisions, which was not part of the respondent’s responsibilities. The respondent asserts that had he had the opportunity to see the document Ms Brennan was reading from, there would have been the opportunity to correct that “major” error without it causing distress to the respondent.
The respondent refers to the secondment issue as “irrelevant,” and that all parties agree that it was secondary, at best.

Ground two: error of law in the Arbitrator’s determination that the appellant’s action in relation to the meeting on 17 August 2017 was not reasonable

The appellant’s submissions

The appellant refers to what is required in respect of the conduct of the employer for the purpose of s 11A of the 1987 Act, and maintains that its actions with respect to the meeting were reasonable. It says that this is so because:
(a)    the meeting was arranged at the request of the respondent, who had the benefit of a support person and an independent observer;
(b)    the respondent was given the opportunity to present further evidence if he wished to do so, and to take a break if necessary, and
(c)    no final determination was made and the respondent was given the opportunity to escalate the matter to People Connect for further review.
The appellant submits that “reasonable” denotes a standard of conduct which is something below unimpeachable, and whether hypothetically the conduct could have been better does not detract from the characterisation of the conduct as reasonable.
The appellant refers to the workers compensation scheme as a statutory scheme, and contends that care should be taken in borrowing terms such as “foreseeability” from common law concepts. The appellant asserts that use of the word “foreseeable” carries the risk of applying the wrong standard. In any event, the appellant says, the appellant could not have foreseen that the respondent would suffer a psychiatric injury by giving him the meeting he requested. If anything, the appellant says, it would be likely that the respondent would suffer a psychological injury if the appellant had:
(a)    refused the meeting;
(b)    prevented the respondent from airing his grievances;
(c)    refused the respondent the opportunity of a support person, or
(d)    refused the respondent the opportunity to present further evidence.

The respondent’s submissions

The respondent submits that the Arbitrator made a finding that the appellant did not act reasonably. The respondent asserts that the appellant’s submissions on this ground and on ground one do not take into account the factual matrix concerning the review of the respondent’s performance rating.
The respondent contends that the submissions recorded at [127] above are of no consequence if the respondent was not given a chance to know why his performance rating was downgraded, or a chance to answer the allegations against him. The respondent submits that the respondent was not given the opportunity to address the matters that were read to him, when at least one of those matters was completely wrong, and that completely negates the process.
The respondent refers to the standard of proof, which is the civil standard, and that the appellant bears the onus of establishing that it acted reasonably. The respondent submits that there was no confusion over the proper standard of proof and there has been no suggestion of any other standard than the civil standard.

The appellant’s submissions in reply

The appellant submits that its submission in relation to the common law test was intended to mean that care should be taken in borrowing from common law principles of reasonableness, such as in the context of an action for negligence, when considering the statutory test of reasonableness for the purpose of s 11A of the 1987 Act.

Ground three: failure to give adequate reasons in dealing with the question of causation of the respondent’s injury

The appellant’s submissions

The appellant cites the judgment of Meagher JA in Beale v Government Insurance Office (NSW)[33] as authority for the proposition that a decision maker’s reasons must be sufficiently detailed to enable the losing party to understand why it lost. The appellant submits that s 11A of the 1987 Act requires that the relevant conduct must be “wholly or predominantly” causative of the psychological injury, and a consideration of the Arbitrator’s reasons does not clearly reveal how that phrase was applied. The appellant also refers to BlueScope Steel Ltd v Markovski,[34] and says that the phrase “wholly or predominantly” can be equated to “main” or “principal”.
[33] (1997) 48 NSWLR 430.
[34] [2013] NSWWCCPD 69.
The appellant contends that there are two aspects of confusion in respect of the Arbitrator’s reasons.
Firstly, it submits it is not clear what the Arbitrator meant from his use of adjectives to describe the causative “potency” of the meeting and the transfer action, when those adjectives appear to pitch those actions as having a higher order of significance in the overall reasons for injury. That is, those actions were the whole or predominant cause of injury.
Secondly, the appellant submits, the Arbitrator found that the appellant’s actions in respect of the transfer were reasonable and were very “highly causative” of the injury, which should have resulted in an award in its favour. The appellant observes that the respondent’s medication was increased at that time, which again indicates the transfer was highly causative of the injury.
The appellant asserts that if the transfer was a predominant cause of the injury and was reasonable (as found by the Arbitrator), then if the meeting was a subsequent major cause of the injury (even if it was not reasonable action on the part of the appellant), the subsequent injury ought to have been an aggravation injury.
The appellant refers to the Arbitrator’s finding that the actions with respect to transfer were reasonable and that the actions with respect to the performance review were not, and that both actions were major contributors to the injury. The appellant refers to the Arbitrator’s finding that, although they were major contributing factors to the injury, given the other contributing factors to the injury, they could not be wholly or predominantly causative. The appellant submits that if those were major contributing factors, then there was no reason why they would not be the main contributing factors. The appellant contends that the word “predominant” allows for other, less dominant, causes of the injury, and reference to “major” cause connotes more than substantial, as for instance the word “substantial” is used in s 9A of the 1987 Act.
The appellant submits that the decision is again confusing in that the Arbitrator determined that the appellant had not discharged its onus of establishing that the performance appraisal and transfer were the whole and predominant cause of the respondent’s injury because other factors, namely the placement of the desk and the refusal of leave, also contributed.
The appellant asserts that the Arbitrator failed to give any reasons as to why the transfer could not be the predominant cause of the injury over and above the performance appraisal meeting, when:
(a)    on 22 August 2017, the treating doctor noted that the respondent had been distressed since January 2017. That is, the stress was present before the performance appraisal, but that history was not given to the doctor until after the performance issues arose;
(b)    on 24 April 2017, the respondent sent an email expressing his frustration about the transfer, and
(c)    the respondents’ medication was increased around the time of the transfer.

The respondent’s submissions

The respondent submits that the authorities relied upon by the appellant in respect of the failure to give reasons are common law propositions that apply to common law courts. The respondent contends that the Commission, as a specialist tribunal, is not required to give detailed reasons, relying on Liverpool City Council v Trovato.[35] The appellant submits that the evidence set out by the Arbitrator, the material facts found by the Arbitrator and alluded to by the appellant in its submissions, clearly point to the performance rating as being the respondent’s main concern. The respondent says that Ms Brennan described the transfer as “secondary.”
[35] [2004] NSWWCCPD 15 (Trovato).
The respondent asserts that on the above basis, there is evidence that supports the finding that the respondent’s actions in respect of the performance appraisal were a major cause of the respondent’s injury and were unreasonable.
The respondent contends that the use of the word “major” to describe one or more causes of the injury does not equate to the other injury not being the “[w]holly [p]redominant cause of an incapacity.”[36] The respondent says that that phrase can be applied where there are multiple causes of injury, of which one must be a predominant cause.
[36] Respondent’s submissions, [9].
The respondent maintains that it is clear that the Arbitrator set out the evidence in his reasons.

The appellant’s submissions in reply

The appellant acknowledges that some latitude can be extended in relation to the obligation to give reasons in a specialist tribunal. It says, however, that a losing party is at least entitled to be able to distil from the reasons provided why it lost. The appellant says that Trovato identifies the objectives of the legislation, which are to provide a speedy resolution to workers compensation disputes, and that lengthy reasons are not required.
The appellant maintains, however, that the reasons must be sufficiently clear so that sense can be made of the chain of reasoning that led to the result. The appellant submits that the fact that the legislation allows for an appeal process is, of itself, an indication that it was intended that sufficient reasons be provided in order to engage appellate oversight of the decision below.

Ground four: error of fact and law in dealing with the question of causation of the respondent’s injury

The appellant’s submissions

The appellant submits that the Arbitrator’s finding that there were other factors that were causative of the injury (the desk placement and the refusal of leave) was not supported by the evidence and was therefore an error of law. In particular, the appellant submits that Dr Clark did not attribute the injury to those events.
In the alternative, the respondent contends that those other matters were trivial in comparison to the action with respect to transfer and performance appraisal, and were thus not capable of detracting from the predominance of the major factors.

The respondent’s submissions

The respondent submits that the Arbitrator explained that the cause of the injury was the interaction with Ms Brennan. That is, the location of the respondent’s desk, the refusal to grant leave, the transfer and the performance appraisal were all aspects of that interaction. The respondent further submits that Dr Clark clearly commented on the interaction between the respondent and Ms Brennan. The respondent contends that the Arbitrator’s finding of injury was supported by the evidence.
The respondent further submits that, at the very least, the location of the desk, the refusal to grant leave and the way Ms Brennan handled the performance appraisal would constitute the predominant reason for the respondent’s injury.

The orders sought

The appellant seeks to have the Arbitrator’s determination set aside, and in lieu have an award in its favour. In the alternative, the appellant seeks to have the matter remitted to a new arbitrator for re-determination.
The respondent submits that the appeal should be dismissed.

DISCUSSION

In this matter, the Arbitrator took the rather unusual pathway of approaching the task before him by firstly considering whether the appellant’s actions in respect of the performance appraisal were reasonable. It was only after he decided that those actions were not reasonable, and that the appellant’s actions in relation to the transfer were reasonable, that he then turned to a consideration of what events were causative of the injury.
It is important to note that the Arbitrator’s reasons for his decision were delivered orally on the day of arbitration. In an appeal from an ex tempore decision, “the appropriate level of scrutiny of the tribunal's reasons is one which does not focus on infelicities of expression or possible ambiguities.”[37]
[37] Amaca Pty Ltd v Tullipan [2014] NSWCA 269 (Amaca), per Basten JA (with Gleeson JA and Leeming JA agreeing), [13].

Reasonableness

The appellant’s first ground of appeal asserts that the Arbitrator erred in fact in determining that the appellant’s actions with respect to performance appraisal were not reasonable. One error of fact identified by the appellant was the Arbitrator’s consideration of the email dated 5 May 2017, which the respondent asserted referred to there being no issue in relation to his performance at that time.
In the email, Ms Brennan in fact said:
“We want to emphasise that the decision to not make your secondment position permanent was based purely on business needs and has nothing to do with your performance.”[38]
[38] Reply, p 215.
The Arbitrator’s consideration of that evidence was as follows:
“To my mind, having regard to the evidence of [the respondent] regarding the email that Ms Brennan sent him on 5 May 2017 that there were no performance issues regarding him … which evidence of [the respondent] was uncontradicted, it was expected that [the respondent] would feel aggrieved by the downgrade in his ratings … [I]t was unreasonable, given the importance of the rating to him, for him not to have been provided with written reasons prior to the meeting … This is particularly so given the context of Ms Brennan having previously advised him that there were no issues with his performance and Ms Strang having advised him that his performance was strong, and particularly having regard to the fact that his ratings may potentially affect his remuneration.”[39]
[39] T1, 5.13–33.
It is not clear whether the Arbitrator’s reference to what Ms Brennan said about the respondent’s performance followed from a misreading of the email or was an acceptance of what the respondent asserted was said in the email, without consideration of the email itself. In any event, it is clear that the contents of the email did not say what the respondent asserted it said, or what the Arbitrator considered was uncontradicted evidence of that assertion.
In reaching his conclusion as to reasonableness, the Arbitrator clearly took account of what he perceived to be uncontradicted evidence that in May 2017, Ms Brennan told him there were no issues with respect to his performance. That was an acceptance of a fact that had no evidentiary basis, and was in fact contradicted by Ms Brennan[40] and the email itself. A demonstrable misunderstanding of relevant evidence constitutes an error on the part of the decision maker.[41] This error in the reasoning process was material to the Arbitrator’s ultimate finding that the appellant’s action was unreasonable. The appellant’s complaint that the Arbitrator erred in fact is justified and ground one of the appeal is made out.
[40] Ms Brennan’s statement; Reply, p 201, [9].
[41] Montgomery v Lanarkshire Health Board [2015] UKSC 11.
It is well established through a long line of authorities that the question of reasonableness requires an objective assessment of the action.[42] As Geraghty CCJ said in Irwin:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.[43]
[42] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 (Jeffery).
[43] Irwin v Director General of School Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, no 14068 of 1997, unreported) (Irwin).
The Arbitrator’s determination that the appellant’s actions with respect to performance appraisal were not reasonable was a factual determination. In order to disturb the Arbitrator’s finding, it is not sufficient that the Presidential member simply prefers a different outcome. However, relevant to this case, it may be shown that an Arbitrator was wrong by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn.[44]
[44] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505.
The Arbitrator determined that the respondent ought to have been provided with written reasons in respect of his performance ratings, so that the respondent could have been prepared for the meeting. The Arbitrator did not weigh that factor in the context of the fact that the respondent:
(a)    had instigated the meeting by requesting reasons for the downgrade in his performance;
(b)    had with him the assistance of a support person, or
(c)    was entitled to adjourn the meeting in order to collate evidence in response to the reasons for the downgrade.
In other words, the Arbitrator did not objectively weigh the rights of the respondent against the actions of the appellant, whose objective was limited to providing reasons for the performance assessment, as requested by the respondent. It follows that the Arbitrator reached his conclusion without balancing the rights of the respondent against the objectives of the employment in accordance with the principles enunciated in Irwin. The failure to do so flawed the Arbitrator’s decision that the appellant’s actions were not reasonable, and has resulted in error. It follows that ground two of the appeal succeeds.

Causation

The appellant asserts error on the part of the Arbitrator in respect of his conclusion as to the causation of the respondent’s injury. The appellant contends that the Arbitrator failed to give adequate reasons for his ultimate conclusion that the respondent’s injury was not wholly or predominantly caused by the appellant’s actions in relation to the transfer and the performance appraisal (ground three). The appellant also complains that the Arbitrator erred in finding that there were other causes of the injury (the desk positioning and the refusal of leave) and that finding was not supported by the medical evidence (ground four).

Section 294 of the 1998 Act imposes a duty on an Arbitrator to provide reasons for his or her decision.
Rule 15.6 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
An Arbitrator need not set out lengthy written reasons in order to comply with the 1998 Act and the 2011 Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission, which are to provide a speedy resolution to workers compensation disputes.[45]
[45] Trovato, [57].
However, it is still incumbent upon the Arbitrator to provide sufficient reasons to enable a losing party to understand why it lost.[46] A useful summary of the principles enunciated in various authorities dealing with the obligation to give reasons was provided by McColl JA (with Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd,[47] in which her Honour said as follows (citations omitted):
“The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them. However a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’.
The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice.
The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another’.”[48]
[46] Beale (per Meagher JA), 443–444.
[47] [2009] NSWCA 110 (Pollard).
[48] Pollard, [56]–[59].
Relevantly, in the decision of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq),[49] Kirby J observed that where there is evidence in support of a party’s case, that evidence must be considered in the reasoning process in a satisfactory way.[50]
[49] [1999] HCA 3; 160 ALR 588; 73 ALJR 306 (Earthline Constructions).
[50] Earthline Constructions, [94].
The Arbitrator determined that the transfer and the performance appraisal were the “major” causes of the respondent’s injury, but that because there were other causes, they could not be the whole or predominant cause. The Arbitrator based his conclusion on the opinion of Dr Clark that the cause of the injury was the respondent’s interaction with Ms Brennan, which the Arbitrator considered included actions with respect to the placement of the desk and the refusal to approve leave.
The fact that there were other incidents that contributed to the injury is not sufficient to negate the possibility that certain actions, described by the Arbitrator as having made a “major” contribution to the injury, could not be the predominant cause. Whether an action is a predominant cause must be ascertained by weighing the evidence of the effect of each of those incidents on the respondent’s psyche and the consequences that flowed from the incident. In many cases, medical evidence in respect of causation is required. As observed by Candy ADP in ISS Property Services Pty Ltd vMilovanovic,[51] what is required is a comparison between all of the employment related contributions to the injury and those contributions that resulted from reasonable actions by the employer in respect of discipline, transfer, or other actions specified in s 11A(1). The Arbitrator did not undertake that exercise, either by comparing the effects of the actions taken in respect of performance appraisal or transfer with the other actions he considered to be causative, or by assessing whether the transfer, which he found to be reasonable, by itself, was predominantly causative.
[51] [2009] NSWWCCPD 27.
The Arbitrator also failed to provide any reasons why he accepted the view of Dr Clark, or why he rejected the opinion of Dr Vickery. Whether Dr Clark’s opinion could be accepted was the subject of substantial submissions by the appellant at the arbitration about the lack of probative value of Dr Clark’s report.[52] The Arbitrator made no assessment of the veracity of the history taken by Dr Clark, or of Dr Clark’s reasoning process behind his opinion. The Arbitrator failed to weigh up the competing medical evidence from Dr Vickery, or give reasons as to why he preferred the evidence of Dr Clark, in circumstances where Dr Vickery provided an opinion that the whole or predominant cause of the respondent’s injury was the transfer and the performance appraisal.
[52] Transcript of the proceedings (T2), Outram v Insurance Australia Group Services Pty Ltd, (6712/18, 15 March 2019) T2, 6.17–15.28.
There is nothing recorded in the transcript of proceedings which might have led the appellant to understand that the Arbitrator intended to reject the opinion of Dr Vickery, and the reasons for doing so.[53] Where there is disputed expert evidence, the parties are entitled to an explanation by the judge as to why the judge prefers one case over the other.[54] This is so, despite the fact that the decision and reasons were delivered orally on the day of the arbitration.
[53] Amaca, per Basten JA (with Gleeson JA and Leeming JA agreeing), [13].
[54] Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311, [54] per Sheller JA (with whom Beazley JA agreed).
The appellant has identified error on the part of the Arbitrator’s failure to provide reasons for his decision and ground three of the appeal is made out.
The appellant asserts that Dr Clark did not support the conclusion reached by the Arbitrator that the incidents involving the desk placement and the refusal of leave were causative of the injury. Given error has been established in respect of grounds 1–3, it is not necessary for me to determine this ground of appeal, save to say that in accepting Dr Clark’s opinion, however expressed, the Arbitrator did not deal with the substantive submissions made at arbitration as to why the opinion of Dr Clark should be accepted.
It follows that the Arbitrator erred in respect of his findings on causation, and grounds one, two and three of the appeal succeed.

CONCLUSION

As errors have been established of the kind required by s 352(5) of the 1998 Act, the Arbitrator’s Certificate of Determination dated 18 March 2019 is revoked. The issues requiring a re-determination go to questions of reasonableness and causation, which are factual determinations. On that basis, I consider it more appropriate to remit the matter to another Arbitrator for re-determination, rather than re-determine the matter on this appeal.

DECISION

The Arbitrator’s Certificate of Determination dated 18 March 2019 is revoked.
The matter is remitted for re-determination of all issues by another Arbitrator.

Elizabeth Wood

DEPUTY PRESIDENT

23 August 2019