ISS Property Services Pty Ltd v Milovanovic
[2009] NSWWCCPD 27
•12 March 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27 | |||||
| APPELLANT: | ISS Property Services Pty Ltd | |||||
| RESPONDENT: | Mirjana Milovanovic | |||||
| INSURER: | Self insured | |||||
| FILE NUMBER: | A1-005454/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 22 October 2008 | |||||
| DATE OF APPEAL DECISION: | 12 March 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 11A of the Workers Compensation Act 1987; reasonable actions taken or proposed to be taken with respect to transfer, discipline or provision of employment benefits | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Anthony Candy | |||||
| HEARING: | On the papers. | |||||
| REPRESENTATION: | Appellant: | TurksLegal | ||||
| Respondent: | Steve Masselos & Co | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 22 October 2008 is confirmed. | |||||
| The appellant employer is to pay the costs of the appeal of the respondent worker. | ||||||
BACKGROUND TO THE APPEAL
Mirjana Milovanovic (‘the worker’) was born in Serbia in 1947. She was working as a cleaner employed by ISS Property Services Pty Ltd (‘the employer’) when she alleges she suffered stress and anxiety as a result of the actions of her employer on or before 12 December 2006. On that day, shortly after arriving at work and before beginning her cleaning shift, the worker collapsed and was taken to St Vincent’s Hospital where she remained overnight. It will be necessary to deal with the events prior to 12 December 2006 in further detail later. A document entitled Notification of Workplace Incident was completed by the worker’s manager, Paul Emerson, that day and a Report of Injury was made by the worker on 19 January 2007. Some payments of weekly compensation were made however, they ceased on 21 January 2007.
On 22 January 2007 the employer wrote to the worker giving notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) that the claim for compensation was declined. The reasons given in support of this decision were that:
(a) she had not sustained an injury as defined;
(b) employment was not a substantial contributing factor to her injury;
(c) any injury she sustained was wholly or predominantly caused by the employer’s reasonable action with respect to performance appraisal, discipline, provision of employment benefits and transfer; and
(d) she was fit for work.
The employer was thus relying on sections 4, 9A and 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).
The worker commenced proceedings in the Workers Compensation Commission of New South Wales (‘the Commission’) on 17 July 2008 which came before a Commission Arbitrator for teleconference on 21 August 2008 and for a conciliation/arbitration conference on 8 October 2008. At such conference written material only was relied on and no witnesses were called to give evidence. On 22 October 2008 the Arbitrator found in favour of the worker and awarded weekly compensation and made other orders.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 October 2008 records the Arbitrator’s orders as follows:
“1. Respondent pay the Applicant weekly compensation pursuant to sections 36 and 37 of the Act the following sums:
$278.04 per week from 22 January 2007 to 22 July 2007,
$286.38 per week from 23 July 2007 to 22 January 2008
$294.97 per week from 23 January 2008 to 22 July 2008
$303.82 per week from 23 July 2008 to date and continuing in accordance with the Act
2.Respondent pay the Applicant’s medical expenses pursuant to section 60 of the Act.
3.The Applicant claim for permanent impairment for psychiatric injury on 12 December 2006 is remitted to the Registrar for referral to an AMS.
All relevant documents in the Application and Reply should be forwarded to the AMS.
Leave was granted to file the following documents, which should also be forwarded to the AMS:
(a)WorkCover Certificates of Dr Adams-Dzierzba dated 12 August 2008 and 1 October 2008.
(b)Report of Dr Miller dated 5 September 2008
(c)Report of Dr Kecmanovic dated 2 September 2008, with a letter of instruction from Steve Masselos dated 26 August 2008.”
ISSUE IN DISPUTE
The sole issue in this appeal is whether the Arbitrator was correct in determining that the employer could not successfully rely on section 11A of the 1987 Act to defeat the worker’s claim.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount at issue on the appeal is greater than $5,000.00 and the entire sum awarded is at issue. It is conceded by the worker that the appeal thresholds prescribed by section 352(2) of the 1998 Act are met.
Accordingly, leave to appeal is granted.
EVIDENCE
All of the evidence, in some cases several copies of the same document, was placed before the Commission by the worker with the exception of a factual report of 27 July 2007, a statement of a witness, Ms Sazdic, of 20 July 2007 and a report of Dr Janelle Miller, a psychiatrist, of 5 September 2008 which were later admitted in evidence. Commonsense should dictate that if a document is already attached to the Application to Resolve a Dispute it need not be again reproduced merely because some other document refers to it.
There are two statements from the worker in evidence dated 5 January 2007 and 21 February 2008. In the earlier statement the worker said that she had been employed for 11 years as a cleaner, although her employer had undergone certain changes in its corporate identity. Until July 2006 there were no problems with her work until a new manager, Paul Emerson, started. She had made an application for leave in May of that year in order to go overseas for four and a half months. She returned to Australia earlier than she had intended and before her leave had expired. Some days after she had arrived back in Australia she was phoned by Mr Emerson who asked why she was not at work and said he wished to give her job to someone else. Later Mr Emerson was said to have admitted that he had made a mistake and that the worker was entitled to work (sic ?not work) for the rest of that month. This portion of the worker’s statement is somewhat unclear. On 16 October she resumed work at the NRMA building at the corner of King and George Streets, Sydney. Part of her duties was to stack a dishwasher on Level 14 which the tenant’s employees did not do. She had been doing this for a period of over three years and had been paid for an extra 15 minutes per day in order to perform this task. (It appears from a claim form completed by the worker on 16 March 2007 that she was working 16¼ hours per week, namely 6 to 9.15 p.m. five days a week.)
She said that Mr Emerson was “shouting and screaming” at her at Level 14 asking her why she was doing the dishwashing job. When she told him that she had an arrangement with the previous supervisor who is identified as “Victor”, he told her that she was not to do work any more and she received a letter at the end of November 2006 that she was no longer required to perform the work of loading the dishwasher.
After Mr Emerson began, she had all sorts of problems. She said that the vacuum cleaner she had would break down and she would ask him to have it fixed or give her a replacement. He would then give her an older or more damaged machine than the one she had before. She also said that Mr Emerson had a tendency to come into the cleaners’ change room and ask her to “step outside”. This was said to be not done in a polite manner but as a barked order. He told her he no longer wished her to work in the NRMA building and wanted to send her to the MLC Centre to work. She drew the implication that he thought she was an unsatisfactory employee.
There was a further episode where some employees were still having dinner at work at a time when she was cleaning and they told her not to clean their table area. This she did and received a complaint from the manager that she failed to clean the area concerned.
On 29 November 2006 her vacuum cleaner had broken again. She approached her immediate supervisor, Ms Sazdic. The worker was upset and very frustrated. She complained about the state of the equipment and was shouting and screaming because she “had enough of everything and the complete lack of support from Management”.
On 4 December 2006 she received a written disciplinary warning from Mr Emerson dated 29 November 2006 in which he accused her of shouting and screaming and smashing equipment. This letter is not in evidence. She said she attended a medical centre in Liverpool Road, Ashfield which she did not normally attend. The reason for this was that her family doctor, Dr Adams-Dzierzba, was unavailable. She said she was given a certificate by the doctor that she was unfit for two days. This was given to her employer. She later saw Dr Adams-Dzierzba on 15 December 2006 and he has provided her with certificates of incapacity since that date. Medicare records in relation to the worker show that she consulted a Dr J.S. Chan of 240-242 Liverpool Road, Ashfield on 29 November 2006. No certificate or report from that doctor is in evidence.
Dealing with her collapse on 12 December 2006, she said she was not sure of the cause of it but it might have had something to do with the mixture of medication she was taking, which included blood pressure tablets and Valium. While she had been taking blood pressure medication for some time, Valium had been prescribed by the doctor she saw on 29 November.
The worker said that she was aware that a number of fellow employees agreed with her about the behaviour of Mr Emerson, however, they were not willing to say anything because they were fearful of losing their employment.
On 21 February 2008 the worker made a further statement. She clarified that 12 December 2006 was her last day at work and since that time she had been unable to work. She had been attending her general practitioner who had provided her with medical certificates. On occasions she saw other doctors at that practice.
She said that a drug called Azanza (sic) had been prescribed when she was being treated by a psychiatrist, Dr Kecmanovic. (That doctor’s records show that he saw her on nine occasions between 21 February 2007 and 7 May 2008.) She said that Dr Kecmanovic had also prescribed Valium for her. She described difficulties with her day to day life and felt upset and depressed. She complained of lack of income, being on an age pension rather than receiving her former wage. She asserted that she was harassed and stood over and was treated very badly and differently from other workers by Mr Emerson. She noted a document relied on by the employer, an inventory of equipment as at 19 November 2006, that all equipment was passed and was safe. She said she did not believe that was the case.
On a number of occasions Mr Emerson had said that he would “basically sack (her)”. He had pointed to the door and said “You know where the door is, if you get three warnings, that’s where you will go.” She said that she had replied that if he was not happy with her work he should sack her. The worker denied damaging a vacuum cleaner by dropping it. There is however some lack of clarity in the worker’s account of the vacuum cleaner incident.
In a claim form dated 16 March 2007, the worker described her injury as follows: “Protracted & repeated harassment, poor treatment & substandard working conditions & equipment during the course of my employment.” It should be noted that this claim form appears to be completed in two different hands and the passage which I’ve set out does not appear to have been written by the worker. I draw no inference from this.
It is necessary in my view to have regard also to what the worker has told the various doctors that she has seen. She was asked to see a psychiatrist, Dr Thomas Clarke, by her solicitors and did so on 7 March 2007. Dr Clarke reported on 17 March 2007. He obtained a history that the worker was subjected to systematic harassment and standing-over by managers at her work. She said that formerly she had enjoyed a close working relationship with her boss and colleagues. She had returned to work in October 2006 after a holiday and was made to do demeaning jobs, stood over and criticised. She said the root of her difficulties was that she was employed at a higher rate of pay than other workers because of her long-term duties. She earned $17.00 an hour where the other cleaners only got $14.00 an hour (this appears to be incorrect and is a reference to the extra quarter hour of work which the worker did each day). She said she was given unwarranted warnings and had to use faulty machinery for which she was blamed. The doctor also obtained a history that her employer showed a “ ‘callous’ disregard for her family and welfare”. She was persuaded to return to another section at work and has been moved into a new office (this also appears to be incorrect). I will deal with Dr Clarke’s opinion separately.
Dr Kecmanovic, the worker’s treating psychiatrist, reported on 31 March 2007. The worker had been referred to him by Dr Adams-Dzierzba on 12 February 2007 and had been seen twice. That doctor obtained a history that the worker had resumed work in 1995 after staying home for a time to look after her husband who had serious heart problems. She complained that her boss was unfair towards her and “every now and then he threatened that he would fire her” and he sent her warning letters for small thing. That doctor obtained a history that her boss did not want her to be present when he talked to her workmates and told her to step outside. (This appears to be inaccurate. Elsewhere she refers to being asked to step outside so that Mr Emerson might speak to her.)
The employer instructed a company named Psychology in Practice Pty Ltd to investigate the claim and a psychologist employed by that company, Mr Greg Anning, obtained a further statement from the worker dated 5 January 2007. It is in fact expressed in the third person although signed by the worker. She was on leave from 1 June to 16 October 2006. Upon her return from overseas she received a phone call from Mr Emerson who she claims said to her “why are you not going to work, I will give your job to somebody else if you don’t want to come to work”. She made a complaint that Mr Emerson wished the same rubbish bags to be used for days so that rubbish bins would have to be emptied by hand rather than taking the bag out of each bin. She said that gloves were not provided. She also claimed that Mr Emerson was angry when he saw her washing up dishes in the staff kitchen on the floor that she cleaned. On 28 November 2006 she was given a letter informing her that her hours of work were changed from 3¼ to 3 hours per night. On 29 November 2006 she was given a warning letter in which it was alleged that she was hitting the vacuum onto a wall and breaking it. The worker said, however, that she was given a broken vacuum cleaner and Mr Emerson wanted a perfect job. On 7 December 2006 she had been given a letter stating she was transferred to another building. At this, the worker said, she had become quite distressed and upset because she had been working in the NRMA building for such a long period of time and thought she had done a good job. The transfer to the MLC Centre was further away from the bus stop at the Queen Victoria Building so that she would not be able to get to the bus stop by 9.10 p.m. in order to catch her usual bus and would have to wait an extra hour. She complained that Mr Emerson would point at her and tell her to “step outside” to give her letters. She would step into a car park and while he had someone with him she had no one accompanying her. Following the receipt of the last letter on 7 December 2006 she was upset and left work to see her general practitioner. On 12 December 2006 she had arrived at work and was outside the NRMA building when Ms Sazdic told the worker not to start work until 5.45 p.m. The worker said that Ms Sazdic’s mother was a family friend and at some time in the past there had been a falling out. The worker said she went up in the lift with another worker, entered the cleaner’s room, signed on and then collapsed. The next thing that she was aware was that she was in hospital at 1.30 a.m. She said the hospital had tried to call her husband without success and neither Mr Emerson nor anyone else from work had contacted her family. Mr Emerson, she said, claimed that he was dialling the wrong number. This she did not believe as he had previously called her at home when she returned from overseas. Her husband was reportedly out on the street looking for her when she did not return home at her usual time. She was discharged from hospital at approximately noon the following day.
A psychiatrist, Dr Janelle Miller, saw the worker on behalf of the employer on 10 January 2007. It is not necessary to set out all the history given to this doctor except insofar as it differs from that contained in her statements or histories to other doctors. She said that on her return from her overseas holiday she had noticed ten cleaning machines standing against a wall awaiting the electrician. Previously the electrician had attended weekly to perform repairs. The new supervisor had frequently advised that there would be inspections as the cleaning contract was up for renewal. She said she felt singled-out for criticism by her supervisor. The worker said that Mr Emerson screamed at her and he was young enough to be her son.
On the day before Dr Miller saw the worker a gentleman named Hancock from the employer called at the worker’s home to discuss the situation. So far as I can see there is no other reference to him. He suggested she return to her work at the NRMA building. To this the worker told Dr Miller she had replied:
“I don’t want to go back there. That person stressed me so much. All I needed was to work 2 more years and then I had my Super … now they destroy me. I have never had difficulties at work before … not with supervisors, team leaders or the girls. … We would bring lollies, cakes and talk before we started … now they don’t want to see us before 5.45 p.m. … We actually used to start before we were supposed to … Why clog the lifts with all of us arriving at the same time …
… before, there was always something they had to tell you that was not perfect, I am not perfect … everyone’s job is always missing something … but it is wrong to come in for nothing … point the finger and step outside in front of colleagues it is embarrassing … it does not matter which building I go to, it will still be the same supervisor.”
The outcome of the meeting was said to be that the worker had agreed to return the NRMA building but not under the same supervisor. Mr Hancock had responded that perhaps she could find her old boss and go to work with him because she had had no problems with him.
Mr Anning, obtained a statement from Ms Sazdic who had been appointed a supervisor about half way through 2006. She saw the worker as always being an “edgy person”. Every time they had an inspection resulting in her having to talk to the cleaners the worker would react in a negative way and she would say “They can’t expect me to do that in three hours”. On 29 November 2006 she was called by security to go to Level 14. She got out of the lift and saw the worker with a vacuum cleaner. The worker was crying and when she asked the worker what was wrong and went to put her arm around her the worker responded saying “Don’t touch me”. The worker had an issue with the vacuum cleaner and said “Look what he gave me to work with”. The worker then picked up the upright cleaner and banged it down on the floor with such force that the handle came out of its socket. The worker was screaming in her native language and in English. The worker told Ms Sazdic she was going home and did so. Ms Sazdic said she became frightened of the worker during this incident and she told Mr Emerson, the Senior Services Manager, that she would not approach the worker again.
Mr Emerson was interviewed on 4 January 2007 by Mr Anning. As with other witnesses the signed statement is in the third person. Mr Emerson had been with the employer for a long time. In February 2006 he had taken over the management of the NRMA building. He didn’t know the worker as well as other staff as she had gone on long service leave shortly after he took over managing the building. There were a few problems with the building and the client was not happy. He thought there was a culture of laziness and complacency and there was a need to change the culture. He had commenced a program of re-training, inspections and deep cleaning of areas such as toilets and kitchen floors. Mr Emerson described the site as “very neglected”. He said they worked within an extremely competitive industry. They had more competitors and clients’ expectations were going up. The company had lost a substantial amount of work over the preceding 12 months and they were under pressure to retain the contract at the NRMA building which had been put to tender nationwide. Although there had been an increase in the quality of cleaning, the standard had to be kept high all the time.
Mr Emerson said that the worker had returned from long service leave expecting that nothing had changed. The supervisor (presumably “Victor”) had also returned from long service leave and wasn’t willing to change. He said it was not easy for people who had been there for many years. He treated all staff with respect and dignity; however, the worker seemed to be aggressive and angry.
On 23 November 2006 he inspected Level 14 together with a David Quash from JLL who represented the tenants in the building. He said there was a decrease in standard on half the floor. Rubbish was on parts of the floor, the desks were dusty and particularly edges needed attention. Mr Emerson showed the worker the areas that needed attention and the worker then became extremely irate.
On another occasion he noted the discrepancy on her timesheet as compared to every other cleaner who was working three hours a day rather than three and a quarter hours. He asked the worker about this and she was reportedly unable to tell him who had asked her to do this extra work. The worker was said to be quite annoyed at this and thought that Mr Emerson was accusing her of a conspiracy. Out of fairness to other cleaners, he said he sent the worker a letter on 29 November 2006 to inform her that her hours of work had been changed as of 6 December 2006 to 3 hours per day. He described the worker as being upset at receiving this letter. On that afternoon he received a phone call from Ms Sazdic who informed him that sometime between 6.30 and 7 p.m. the worker was on the floor screaming uncontrollably while the tenants staff were trying to comfort her. The worker was also screaming at her supervisors, Ms Sazdic reportedly said. Mr Emerson was told that the worker had picked up an upright vacuum cleaner, throwing it on the floor and damaging it. The machine had only just been tested and tagged and was, he said, worth between $500 and $600. As a result of this incident he had to provide the worker with a warning letter. This the worker would not accept and he had to post it to her address. After that event the worker went around trying to upset the rest of staff and Mr Emerson said she was quite aggressive. Mr Emerson reported that the worker had said to Ms Sazdic “If you all push me around like this I’ll go on compo”. This statement is not however made by Ms Sazdic in her evidence.
Since the cleaning contract was coming up for national tender he said he couldn’t afford to have the worker on the site and he informed her that the only course of action he could take was to move her to another site. On 7 December 2006 he sought to provide her with a letter transferring her to the MLC Centre with the same hours and undertaking the same role. He said he did not wish to speak to her and give her the letter in front of other staff so he asked her to come outside. He and the afternoon supervisor at the MLC Centre attempted to discuss the matter with the worker however she would not talk to them. He said the worker would not accept the letter, she turned her back on them and the letter had to be mailed to her home address. Following the worker’s collapse on 12 December 2006 Mr Emerson tried to call the worker’s husband however he said he was ringing the wrong number.
By statement dated 20 July 2007 Ms Sazdic said the following:
“8.I deny that the claimant was ever harassed or stood over while an employee of the insured.
9.I deny that the claimant was treated any differently after she returned from holiday in October 2006.
10.I deny that the claimant was made to perform demeaning work or unfairly/inappropriately criticised.
11.I deny that the claimant was paid extra at work. The cleaners are paid equal. Everyone receives $17.00 per hour.
12.I deny the claimant was required to use any faulty machinery.
13.In regards to the event on 29 November 2006 the claimant made no mention of having anything wrong with the vacuum cleaner. She simply kept say, ‘Look what he gave me’. She repeated this two or three times. She then lifted the vacuum cleaner up by the handle and threw it on the ground. The vacuum cleaner did not break or anything once landing on the ground. Later that night, after the claimant left work, I checked the vacuum cleaner. It worked fine. In my opinion that the vacuum cleaner was 100% in good working order at the time that the claimant complained, ‘Look what he gave’. I have no idea why the claimant complained that night about the vacuum cleaner – it was fine.
14.I can confirm that before I became a supervisor the claimant had another supervisor. This supervisor was ‘Victor’. He did not care much about his work. People, such as the claimant, could in real terms do what they pleased when Victor was their supervisor. When I became supervisor, I found that the workplace was dirty and not being cleaned properly. I instructed the workers, such as the claimant, that they had to improve. I would show them what to do and how to improve their work. When I informed the claimant that her work performance was not good enough and what she had to do to rectify her work, she became upset and would simply state that there was not enough time – work – for example there was a filing cabinet that was empty that had dust on it – I told the claimant after inspecting her work one day the cabinet had dust on it – the claimant complained that she did not have to clean it despite the fact that the job was a five second job. I had worked in the same role as the claimant for eight years before becoming a supervisor and knew that the work could be achieved.”
The statement obtained from Ms Sazdic in July 2007 was obtained by private investigators who also contacted Mr Emerson. He advised the investigators that he did not wish to co-operate with their enquiries. Two extremely indistinct photocopies of photographs of a vacuum cleaner or cleaners are attached to the investigation report which makes no reference to them.
The various medical opinions expressed in relation to the worker are as follows. A psychologist, Mr Anning, saw her on 20 December 2006. As I have earlier noted, Mr Anning interviewed the worker, Mr Emerson and Ms Sazdic and obtained the “statements” from each of them. Mr Anning thought that a lack of clinical symptoms on the part of the worker did not allow a DSM IV diagnosis to be given. He had been unable to speak to the worker’s general practitioner who was away. In relation to the question of employment being a substantial contributing factor to injury, he found that the emotional distress suffered by her was most likely as a result of being informed that her hours were being reduced by 15 minutes per day. This he thought provoked her hysterical reaction resulting in a warning letter to her. He also thought that the hysterical reaction exhibited on 12 December 2006 was provoked by her receiving the letter on 7 December 2006 informing her of her transfer to another workplace. He thought that on balance of probabilities the primary causative factors to her emotional distress were personality factors. Although the situations in the workplace provoked her distress he did not consider that her employment was a substantial contributing factor to her psychological status. He also expressed the view that any emotional distress experienced by the worker was wholly related to issues in relation to reduction of hours, disciplinary action taken and transfer which he thought were reasonable actions taken by her employer.
Dr Janelle Miller on 17 January 2007 thought the most likely diagnosis was “Adjustment Disorder with Mixed Anxiety and Depressed Mood”. The doctor thought that her symptoms were as a response to identified stressors and it would be expected to cease once those stressors had ended. She noted, however, there was no history of any previous psychiatric disorder. The distressing workplace events, according to the worker’s account, included:
· threatened dismissal for not being at work while she was actually on leave;
· perceived harassment and unfair criticism by her supervisor;
· unwarranted disciplinary action (she denied the allegations);
· unreasonable direction to a transfer to another work location.
Dr Miller thought those circumstances would be expected to cause significant emotional distress in a typical employee and were sufficient to give rise to an Adjustment Disorder in some individuals. If the worker’s account of events were accepted, it followed that her employment was a substantial contributing factor to the precipitation of her Adjustment Disorder. As to the application of section 11A of the 1987 Act, Dr Miller thought that this would depend on the reasonableness of the actions of the employer in all the circumstances. This would hinge on which version of events was accepted.
Dr Miller saw the worker again on 25 June 2007. On this occasion the doctor thought that the appropriate diagnosis was that of Major Depression. Once again she considered that the employment was a substantial contributing factor to the injury and her answer in relation to the section 11A was as before. She thought the worker was currently unfit for any employment on the basis of her ongoing depressive symptoms.
On 5 September 2008 Dr Miller considered that the most likely diagnosis of the worker’s condition was a Major Depressive Episode which had become chronic. She considered that it was difficult to see that the contribution made by workplace difficulties to the worker’s condition extended beyond 12 months. In relation to the question of relationship between the worker’s injury and her present condition, the doctor thought that the worker remained distressed and angry at perceived mistreatment by her employer; however, she thought it was difficult to attribute the worker’s ongoing incapacitating psychiatric condition to her previous employment. She noted there were several significant stresses since the worker’s departure from work, namely her husband’s health problems, decreased contact with her children and grandchildren and financial strain. She was clearly unfit for work of any kind.
The worker’s general practitioner, Dr Adams-Dzierzba, in the certificate first provided by him dated 15 December 2006, gave the diagnosis of “acute anxiety reaction”. In later certificates the doctor has however expanded this to “anxiety/depressive illness; adjustment disorder”.
Dr Kecmanovic, the treating psychiatrist, made a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood, chronic type. He thought that her unfair treatment by her boss was her cause for incapacity and that the nature and conditions of her employment were a substantial contributing factor to her disturbed mental condition. He found that the worker’s condition caused her incapacity and it was difficult to say for how long she would be incapacitated. On 15 August 2007 he referred to a report of Dr Miller and said it was difficult to say that the worker had achieved maximum medical improvement. He expressed the hope that her mental condition might improve to some degree within a period of twelve months. On 24 January 2008 he expressed the view that the worker had reached maximal medical improvement. The letter of 7 May 2008 simply listed the occasions on which he had seen the worker and his fees for such consultations.
On 26 August 2008 the worker’s solicitors wrote to Dr Kecmanovic seeking answers to the following questions:
“1.Whether there is any reason to change your opinion previously expressed in your reports dated 31 March 2007, 15 August 2007, 20 January 2008 and 7 May 2008;
2.In particular we would like you to prepare your opinion as to whether you think that our client is fit for any future work from a psychiatric point of view. It will be contended by the insurer that the client is in fact able to work if she chooses to do so.”
In response to this Dr Kecmanovic replied that he had not changed his opinion expressed in his earlier reports and, in relation to the second question, he made the puzzling statement “Ms Milovanovic says that due to her mental problems she is not fit for work”.
Dr Clarke expressed the view that she suffered from a recognised psychiatric condition, namely Adjustment Disorder. It was probable that her employment constituted a substantial contributing factor (to the injury). He thought she was not able to return to her former work and was totally unfit. He noted that while Mr Anning maintained that the causative factors to the worker’s emotional distress were personality factors, neither he nor Dr Miller found that to be the case.
It is, I think, of assistance in understanding the salient events to set them out in a chronology.
Date Event Source 1995 Worker commenced employment as cleaner. Worker’s statement of 5 January 2007. June to Nov 2006 Worker takes 4 ½ months leave. Worker’s statement of 5 January 2007. 16 Sept 2006 Worker returned early from overseas. Mr Anning’s report of 9 January 2007 and the “statement” of the worker obtained by him of 5 January 2007. Shortly after 16 Sept
2006Mr Emerson phoned the worker enquiring why she is not at work and wished to employ someone else. Worker’s statement of 5 January 2007. 16 Oct 2006 Worker resumed employment. Worker’s statement of 5 January 2007. After return to
WorkMr Emerson shouted and swore at worker and asked why she was doing dishwashing job. Worker’s statement of 5 January 2007. 16 Nov 2006 Consulted Dr Adams-Dzierzba. Medicare records. 23 Nov 2006 Mr Emerson inspected level 14 seeing rubbish on the floor and desks unclean. Worker was extremely irate. Mr Emerson’s statement of 4 January 2007. 29 Nov 2006 Worker received letter concerning reduction in hours Worker’s statement to Mr Anning of 5 January 2007. 29 Nov 2006 Worker was crying over condition of vacuum cleaner. Ms Sazdic attended. Several employees of tenant present. Worker went home. Worker’s statement of 5 January 2007.
Ms Sazdic’s statement of 12 January 2007.29 Nov 2006 Mr Emerson received call from Ms Sazdic regarding the worker. A warning letter prepared but had to be posted as she would not accept it. Mr Emerson’s statement to Mr Anning’s of 4 January 2007. 29 Nov 2006 Worker consulted Dr J.S. Chan of Liverpool Road, Ashfield. Given certificate for 2 days absence from work. Valium prescribed. Medicare records. Worker’s statement of 5 January 2007. Dr Miller’s report of 17 January 2007. 04 Dec 2006 Worker received letter of 29 November 2006 from Mr Emerson which referred to worker shouting, screaming and smashing equipment. Worker’s statement of 5 January 2007. 07 Dec 2006 Mr Emerson tried to give worker a letter regarding her transfer to MLC Centre. Worker would not accept this and Mr Emerson had to post it to her. Mr Emerson’s statement of 4 January 2007.
12 Dec 2006 Worker attended her place of employment at NRMA building, signs on and then collapses. Taken to hospital. Worker’s statement of 5 January 2007 and Notification of Injury Form dated 12 December 2006 signed by Mr Emerson.
DECISION OF THE ARBITRATOR
The Arbitrator firstly noted that the employer did not contest that the worker had suffered an injury to which her employment was a substantial contributing factor. The issues which remained were the application of section 11A of the 1987 Act and the question of causation in relation to the worker’s incapacity. He does not appear to have dealt with the latter matter and this is not the subject of any appeal. He noted that the psychologist, Mr Anning, was acting as an investigator as well as an expert and he thought this coloured Mr Anning’s objective role in the proceedings and rendered his reports of little probative value. The Arbitrator disagreed with Mr Anning’s views that personality factors were the cause of her injury and that the notice of the 7 December 2006 of the worker’s transfer to another workplace was the cause of her hysterical reaction at work five days later. It was conceded by counsel for the employer that Mr Emerson was mistaken in insisting that she return to work early from her long service leave and threatening to give her job to someone else. The additional concession noted by the Arbitrator in relation to the worker’s payment for an additional 15 minutes per day, does not appear to have been made.
Submissions made by counsel for the employer emphasised the necessity to improve services in order to retain the cleaning contract in question. It was in light of this that it was said any reasonableness of the employer’s actions ought be viewed. Two significant factors were relied on as being related to the worker ceasing work on 12 December 2006. These were the notification of transfer to another workplace and disciplinary action in relation to the worker, particularly following the incident in which she was said to have thrown a vacuum cleaner. Given the destructive nature of the worker’s behaviour it was said to be reasonable for the employer to transfer her. In relation to the worker’s reduction in working hours, this was said to be a matter of an “employment benefit” to the worker within the terms of section 11A and the employer’s actions in relation to this were reasonable.
The Arbitrator noted that neither Ms Sazdic nor Mr Emerson were required to be cross-examined and therefore he thought their evidence should be accepted except where in conflict with the worker’s own evidence. The Arbitrator noted Ms Sazdic’s broad denials of harassment of the worker and also that the worker was paid extra for the work in relation to loading the dishwasher. In relation to the condition of vacuum cleaners which the worker used, the Arbitrator preferred the worker’s evidence and especially her account to Dr Miller on 10 January 2007 that, upon her return from leave, she saw ten machines awaiting repair. On this she had not, he said, been challenged. This he thought went to the credit of the employer’s witnesses and was relevant to the written warning being given to the worker after she complained about the state of the equipment. This and the pressure on the worker to improve her performance explained the worker’s conduct on 29 November 2006 and demonstrated unreasonableness on the part of the employer.
The Arbitrator rejected Mr Emerson’s statement that the worker went around trying to upset the rest of the staff and was quite aggressive as being without evidentiary support. The Arbitrator noted that the worker was given her first warning letter in 11 years and told she was going to another place of work. He thought that normally an employer was entitled to make such a decision but this decision was based on an assessment of a trouble-making and screaming event on one occasion in relation to faulty machinery. He was not satisfied the event was so serious as to put the tender in jeopardy unless it was based on some complaint (? by the tenant) about the incident in question. He did not think there was anything which justified the warning letter being sent. The Arbitrator noted that the letter sent to the worker included the expression “smashing the equipment” which was untrue on Ms Sazdic’s evidence. (It is regrettable that none of the letters addressed to the worker by the employer after October 2006 was put in evidence.)
The Arbitrator noted there was no real evidence of incompetence on the part of the worker over the three to four week period after she returned to work from her long service leave, nor was it clear whether the worker had taken part in any re-training to which Mr Emerson referred. The Arbitrator then dealt with the inspection of various areas cleaned by the worker and the comment that desks were dusty and edges needed attention. This he regarded as relatively minor. He noted that he was not told if it was the worker’s duty to clean every desk each day she worked. He noted that it was not clear when this inspection took place. The worker was described as having “lost it” and being extremely irate, however, no warning of any kind was given to her nor was she disciplined in any way following this.
The Arbitrator then dealt with what he considered the real reasons why the worker had ceased employment in these terms:
“51.She had returned from her overseas trip during long service leave to be contacted at home while still on approved leave by Mr Emmerson (sic) to return to work or, on her evidence, he would give her job to someone else. He was new in the managerial role.
52.Next contact with Mr Emmerson on her evidence was over the extra 15 minutes she took (and was paid for on direction from prior manager). He challenged her directly, then cancelled that pay, confirmed by letter end November 2006.
53.Then there is the problem with faulty cleaning equipment, and the frustration expressed in her statement in carrying out her duties. She expresses this as a problem for other workers.
54.But Mr Emmerson’s conduct towards the worker doesn’t stop there. He goes to the cleaners’ change room up to 3 times a week, where presumably there are women changing, and he gives order to her such as ‘Step outside’. She complains about impolite behaviour and barking orders from Mr Emmerson. He does not deny this. This conduct is unacceptable and is both unnecessary and bullying on that evidence.
55.He says that he treated staff with respect and dignity. That was not so on the 2 occasions when he contacted the worker to return to work under a threat of losing her job, and a direct change to her dishwasher duty, before checking his facts.
56.There is no evidence of apology for the errors, and that is not so critical except that there is only evidence of further pressure on this worker, perhaps from showing him up on those 2 occasions. I make no finding on that issue.
57.The equipment is obviously regularly faulty and all that Mr Emmerson can think about is improving the standards, which he concedes ‘everyone had noticed’ in his statement of 4 January 2007, a matter of weeks after the worker became ill in mid December 2006.
58.Obviously winning the next tender was important to the employer, however harassment and bullying a worker is not acceptable even in this context.
59.Competition in an industry is no reason for this conduct.
60.Discipline is justified where an employee’s conduct is unacceptable. Dismissal is also justified if the worker doesn’t meet the reasonable standards of the employer. That wasn’t going to happened (sic) to this worker. She was being sent to another building to continue cleaning duties, so her work obviously wasn’t so bad that dismissal was contemplated.
61.She had on the evidence been back at work under the new management regime for a matter of weeks, had had a number of unjustified charges from Mr Emmerson, who also changed her work duties to delete 15 minutes pay after he found that he was wrong again, barks orders at her, repeatedly gives her (tagged repaired) replacements for faulty equipment, then gives her an unjustified written warning after 11 years service for smashing equipment, which she did not do, and a single incident of screaming, which on her evidence, which I accept, was about faulty equipment.
62.She was challenged by the employer for not cleaning a table at the request of the tenant staff one evening. The worker gives a plausible explanation for that, and I accept it.
63.There is no other evidence of this worker’s failures, except Mr Emmerson’s belief that she was a troublemaker. That is not established in the employer’s case.
64.She may have been difficult at times but that relates to the faulty cleaning equipment on the evidence.
65.I expect that no cleaner is perfect or does not sometimes not keep up to standards, especially after some 11 years of lower standards, and after coming back from long service to a new regime to see numerous faulty cleaning machines the day she comes back to work.
66.She was to be moved to MLC, which in my view was not justified on the discipline issue of the written warning the casual review of her floor on 23 November 2006, and the brief evidence of Ms Sazdic about not dusting a cabinet.
67.The employer therefore fails on its section 11A defence of wholly or predominately (sic) reasonable action causing injury.”
Although what was said up to this point would appear to conclude the matter, the Arbitrator continued to give reasons for eight more paragraphs. Mr Emerson’s conduct was, he found, “totally unacceptable”. He added that he did not think the worker could be blamed for one outburst when she could not properly carry out her duties. The Arbitrator considered that the defence of reasonable action failed because the worker wasn’t give sufficient time to meet the new demands of her job because of faulty equipment and continuing harassment by Mr Emerson. He found that the payment in respect of an extra 15 minutes per day was not evidence of “employee benefit or ‘perks’” in accordance with section 11A. The Arbitrator expressed some disappointment that any manager would speak to an employee of the worker’s age about losing her job regarding anything but a serious matter. He thought this was the beginning of a course of pressure imposed on the worker which became intolerable for her.
He concluded with the further finding at [72] (actually [78]) that:
“The onus of proof in relation to 11A is on the Respondent to establish both reasonable actions and that the injury was wholly or predominately caused in the 11A processes. That onus has not been discharged for the reasons given”
With due respect to the Arbitrator, this latter statement more correctly addresses the requirements of section 11A than what was said at [67].
SECTION 11A GENERALLY
The history of section 11A was considered by the Chief Justice in Department of Education & Training v Sinclair (2005) 4 DDCR 206 (‘Sinclair’) at [53] and subsequently. As originally enacted by the WorkCover Legislation Amendment Act 1995, section 11A(1) provided as follows:
“No compensation for psychological injury unless employment substantial cause and not due to reasonable actions by employer
(1)No compensation is payable under this Act in respect of an injury that is a psychological injury unless:
(a) the employment concerned was a substantial cause of the injury, and
(b)the injury was not 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.”
Section 11A(1) in its current form is in the following terms:
“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.”
The difference in the terminology used will be noted. In Ritchie v Department of Community Services (1998) 16 NSWCCR 727 at 743 Armitage J adopted what had been said by Geraghty J in Irwin v Director-General of School Education (unreported 18 June 1998) (‘Irwin’). His Honour set out the passage in question as follows:
“The provisions of s11A have been changed. Counsel agreed what provisions were in force as at July/August 1996 and provided me with a copy of those provisions (significant amendments have been made since that time).
The onus of demonstrating the applicant’s injury was not caused by the reasonable action of the employer, rests on the applicant herself, whereas, when s11A was amended, the onus was shifted to fall on the respondent employer. As at July and August 1996, the provisions of s11A provided that no compensation would be payable in respect of a psychological injury ‘unless … the injury was not wholly or predominantly caused by a reasonable action …’
This was a very circuitous and obscure expression of the law which had to be amended to clarify it. There are three negatives contained in the former expression of the law, namely ‘no compensation’ and, ‘unless’ and ‘not wholly or predominantly caused’.
It is an onus difficult for an injured worker to meet – to establish that her psychological injury was not wholly or predominantly caused by the reasonable action of the employment. It was for this reason then, and to shift the onus, that the 11A [sic] was amended to provide ‘No compensation is payable … in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by a reasonable action …’
As a general rule, he who asserts must prove. The old formulation of s11A requires the applicant to assert a negative and therefore to prove that negative, whereas the amended legislation requires the employment to assert and prove a positive, namely, that the injury was caused by its reasonable action. In the end result, and for a short time, the onus rested upon the employee, and in this particular case, on Mrs Irwin to establish the negatives set out in s11A (1).”
GROUNDS OF APPEAL
There are no fewer than nine grounds of appeal relied on by the employer. These may I think be conveniently summarised as follows. The Arbitrator erred in:
1.finding that the employer had failed to establish a defence under section 11A.
2.failing to give any or any proper reasons for so finding.
3.his finding that the worker’s injury was not wholly or predominantly caused by a reasonable action of the employer. This finding was not open on the evidence or was against the weight of the evidence.
4.failing to give proper reasons for finding that the injury was not wholly or predominantly caused by reasonable action by the employer.
5.preferring the evidence of the worker to the respondent’s witnesses.
6.his preference for the evidence of the worker, which was not open to him on the evidence and was against the weight of the evidence.
7.failing to give any or any proper reasons for preferring the evidence of the worker.
8.making adverse findings as to credit and as a result erred in the exercise of his discretion in accordance with the principles as set out in House v The King (1936) 55 CLR 499.
9.finding that the worker was entitled to compensation.
The grounds of appeal are to some extent repetitious and overlapping. Ground 9 is not in reality a ground of appeal at all. I will deal with the grounds seriatim. However the same submissions have been made in respect of a number of grounds and I will deal with them accordingly.
Grounds 1 & 2
In support of these grounds it is submitted that the Arbitrator was required to make findings as to whether the worker’s injury was wholly or predominantly caused by one or more of the specified actions taken or proposed to be taken by the employer. What was also required, it is said, is that the Arbitrator ought to have made a finding whether the action was reasonable in the circumstances in respect of each action. A number of cases are referred to, namely: Manly Pacific International Hotel v Doyle (1999) 19 NSWCCR 181, Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 (‘Jeffery’) and Sinclair.
It is said that the Arbitrator dealt with the issues required to be addressed by section 11A in a “rolled-up” fashion and the reasons given by the Arbitrator failed to properly address those issues. The Arbitrator had also, it is said, confused issues of discipline and transfer and reliance is placed on what the Arbitrator said at [66], namely “She was to be moved to MLC, which in my view was not justified on discipline issue …”
The proposed transfer of the worker was, it is submitted, reasonable after the incident of 29 November 2006 involving the vacuum cleaner for the reasons given by Mr Emerson. The Arbitrator was said to have failed to address the issue whether there was a proposed transfer within the meaning of section 11A and whether the proposed transfer was causative of the worker’s injury. Reliance is placed on what she told Dr Miller on 10 January 2007, namely that after receiving the letter notifying her of the transfer she became very distressed, attended her doctor and requested stronger tablets.
So far as reasonableness is concerned, this was considered that the Court of Appeal in Commissioner for Police v Minahan [2003] NSWCA 239 where Foster AJA, with whom Sheller and Santow JJA agreed, at [27] referred with approval to a further passage in the reasons for judgment of Geraghty J in Irwin which had been relied on in the decision under appeal and is as follows:
“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.”
In relation to reasons given by the Arbitrator the employer cites a passage from the decision of Byron DP in ING Administration Pty Ltd v Singh [2008] NSWWCC PD 48 at [96] as follows:
“The reasons for decision will be adequate, notwithstanding that they do not set out the relevant statutory provisions at length, or specify and examine all relevant and judicial authority (Snow Confectionary Pty Ltd v Askin [2004] NSWWCC PD 56 at [45] (‘Askin’). Furthermore, it is not necessary for the Arbitrator to refer in detail to the evidence of each and every fact in issue, nor each and every step in the reasoning process (Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424). However, a statement of reasons must set out ‘with enough clarity, the relevant findings on material questions of fact, the Arbitrator’s understanding of the applicable law [and] the Arbitrator’s application of the law to those findings’ (Askin).”
The Arbitrator in this case found that none of the actions taken or proposed by the employer were reasonable. Accordingly, he was not required to consider by which of those actions the worker’s injury was wholly or predominantly caused. At one point in his reasons the Arbitrator clearly misstates what he was required to find in terms of section 11A, however, I think that is sufficiently corrected in his subsequent finding. Given the Arbitrator’s finding that all of the actions of the employer were unreasonable, it was not necessary for him to consider whether any of them or any combination of them was wholly or predominantly the cause of the worker’s injury.
It is submitted that the Arbitrator failed to give adequate reasons for his findings in relation to the matters he was required to determine in respect of the section 11A defence. The Arbitrator dealt fully with the evidence and in my view stated with sufficient clarity the basis on which he reached his conclusions. I am of opinion that the reasons are sufficient. However, it is necessary when looking at subsequent grounds to determine whether the factual conclusions reached by the Arbitrator were correct or not. In my opinion Grounds 1 and 2 fail.
Grounds 3, 4, 5 & 6
The employer refers to the statement by the Arbitrator as to the real reasons why the worker ceased employment. This is, of course, not in accordance with the statutory formula in section 11A. I would not be inclined to hold that the Arbitrator had not addressed the issues required by section 11A. However, a number of factual findings made by the Arbitrator are challenged, these relate to:
· The use of faulty equipment.
·The worker’s performance and her behaviour not justifying a warning letter about her performance.
· The wrongful reduction in the worker’s hours.
· The bullying and harassment by Mr Emerson.
I will take these in order.
In relation to all of these factual matters, I make the following observation. As has earlier been noted, no witness was called for cross-examination and there are some inconsistencies in the various statements of witnesses which remain unresolved. The Arbitrator appears to have been unmindful of the fact that the statement of Mr Emerson which was before him was obtained on 4 January 2007, that is before the statements of the worker and Ms Sazdic and before the worker saw any of the doctors whose reports were in evidence. When later approached by an investigator, Mr Emerson was reported to be unco-operative and, accordingly, it appears to me that he should not be taken to be conceding matters raised by the worker which could not have been put to him on 4 January 2007. It may be that there was an opportunity between then and the time when the investigators were asked to obtain statements (July 2007) for further evidence to have been obtained from him on the allegations by the worker, however, this does not appear to have been done. I draw no conclusion adverse to Mr Emerson or the employer in this regard.
Finding of faulty equipment
The reference of faulty equipment appears in the history given to Dr Miller by the worker as to what she observed on her return to work in October 2006. As to the condition of the vacuum cleaner which the worker says she was given on 29 November 2006, I accept what Ms Sazdic says that she used the machine subsequently and it was in good working order. There is no evidence that the worker damaged the vacuum cleaner in any way and the reference to the socket coming from the handle of the vacuum cleaner is puzzling, however it is consistent, in my view, with part of the vacuum cleaner becoming dislodged rather than any lasting damage to the vacuum cleaner.
The employer relies on an inventory of electrical equipment which shows that a number of items were inspected, “passed” and tagged on 19 November 2006. Precisely what “passed” means is not explained. In the absence of any evidence I would assume that it relates to the safety of these items rather than anything else. The worker in her earlier statement refers to her vacuum cleaner being “broke again” on 29 November 2006. In precisely what way it was broken is not specified and this appears inconsistent with what Ms Sazdic later found. It may be that the vacuum cleaner was older and in poorer condition than other vacuum cleaners which were available, however, the worker does not give any further particulars in relation to this vacuum cleaner and I find the Arbitrator’s conclusion that the worker was required to use faulty equipment was without sufficient evidentiary basis.
So far as the damage alleged to have been done to the vacuum cleaner by the worker on 29 November 2006 is concerned the best evidence comes from Ms Sazdic. Mr Emerson’s claim that the worker damaged the machine is without foundation.
The worker’s behaviour and work performance:
Both Ms Sazdic and Mr Emerson had brought to the worker’s attention matters requiring further attention and it is clear that Mr Emerson was intent on improving the standard of cleaning of the offices concerned. The worker considered this was harassment and bullying, but I do not think such behaviour ought be so described. The employer relies on Mr Emerson’s evidence that after 29 November 2006 the worker went around trying to upset other staff and was quite aggressive. This was rejected by the Arbitrator as being merely “bold assertions’ (sic). In relation to this matter I think the totality of the evidence is that the worker had been employed for some years and a lesser standard of cleaning had been permitted than was sought by Mr Emerson and Ms Sazdic in 2006. Understandably the worker was resistant to changes in her work habits, requiring, perhaps, extra effort on her part. However, like the Arbitrator, I do not consider that the assertions by Mr Emerson that the worker was disruptive and aggressive ought be accepted without more precise details of such behaviour. However, I note what was said by Ms Sazdic in her statement of 12 January 2007 that after the events of 29 November 2006 she was frightened of the worker and told Mr Emerson that she would not approach the worker any more.
The reduction of the worker’s hours:
The employer correctly submits that the Arbitrator erred in saying that it had conceded that Mr Emerson was mistaken in challenging the worker’s entitlement to work the extra time that she did. It was not in dispute that for some period the worker had been working extra hours and was been paid for doing so. This must have happened with the knowledge and approval of her supervisors at the time. Mr Emerson, however, was not one of them. The number of hours worked was clearly a matter within the province of her employer to determine. I think that Mr Emerson was entitled to put the worker on the same footing, so far as work, as other employees; that is, the reduction in the hours for which she was paid and the written notification of this were I think reasonable. However the manner in which she was challenged by Mr Emerson in relation to this extra work was, on the worker’s account of events, unjustified and unreasonable. I am unable to say, on the evidence, that Mr Emerson’s actions when he first became aware of the worker’s extra duties and payment and spoke to her were reasonable.
Mr Emerson’s behaviour:
The Arbitrator placed some weight it is said on the worker’s evidence in relation to being asked to step outside by Mr Emerson. Mr Emerson’s account of this is, in my view, entirely appropriate and reasonable in that he did not wish to embarrass her in front of other workers. Whether he “barked” orders at her when speaking to her it is impossible on the evidence to say.
The Arbitrator appeared to take particular exception to Mr Emerson’s going to the cleaner’s change-room where he says “presumably there are women changing” to give the worker orders on a regular basis. He describes this as “unacceptable, unnecessary and bullying”. The worker’s complaint in this regard relates to Mr Emerson’s manner and the frequency with which he sough to speak to her. I would not be prepared to conclude on the evidence that there was anything improper or unreasonable about Mr Emerson’s going to the room where cleaners assembled before commencing their duties in order to speak to the worker. It was the reasonableness of the employer’s actions, through its agents, with regard to the worker, rather than others, which had to be considered.
It follows from what I have said above the Arbitrator has erred in certain of his factual findings which were fundamental to his decision on the application of section 11A. In view of this it is not necessary to consider the remaining grounds of appeal. I therefore propose to redetermine this issue in accordance with section 352(7) of the 1998 Act.
REDETERMINATION
The facts are sufficiently set out elsewhere in these reasons and it is not in my view necessary to repeat them. The only issue in this matter is, in terms of section 11A, whether the worker’s injury was wholly or predominantly caused by reasonable action or actions taken or proposed to be taken by or on behalf of the employer with respect to transfer, discipline and the provision of employment benefits to the worker.
I take the view that the onus of proof in relation to these matters rests on the employer. I have earlier noted this is what Geraghty J held in Irwin. Foster AJA agreed with the trial judge in Minahan that an onus was imposed on the employer to prove the matters referred to in section 11A. I note however that Basten JA in Jeffery said the following at [33]:
“Whether questions of onus of proof have any significant bearing on the conduct of proceedings in the Commission need not be considered for present purposes … The statute not requiring that the action be demonstrated to be ‘unreasonable’ in order for the claimant to succeed, but rather providing that compensation will not be payable if the action were ‘reasonable’. “
Of these matters the employer submits that the reduction of the worker’s hours by 15 minutes per day comes under the heading of the “provision of employment benefits” to the worker, that the instructions to the worker as to the performance of her duties and a written warning being given to her after 29 November 2006 come within the heading of “discipline” and the proposed transfer of the worker to the MLC Centre and the written notification to her of this come within the heading of “transfer”. I’ll consider these three matters separately.
Provision of employment benefits:
While it is difficult to see the reduction of the worker’s working hours as being the “provision of employment benefits” to the worker I am of opinion that the preceding phrase, namely “with respect to” is sufficiently wide to encompass such reduction. As Davies A-JA said in Doyle at [26]: “The words ‘with respect to’ are of wide application.” I am of opinion that the reduction in working hours was reasonable in the circumstances for the reasons already given (at [75]) although the worker had received such extra payment for a number of years with the approval of her former supervisors. Although the giving to the worker of written notice as to this was I think reasonable I cannot, in view of the worker’s evidence, find that Mr Emerson’s actions were reasonable when he first spoke to the worker about this.
Discipline:
I accept that the word “discipline” has a wider meaning than punishment and, with respect, agree with what was said by Neilson J in Kushwaha v Queanbeyan City Council [2006] 23 NSWCCR 339. The headnote to that case is, in part:
“The word ‘discipline’ in s11A (1) of the Workers Compensation Act 1987 has a primary meaning of learning or instruction imparted to a learner and maintained by training, by exercise or repetition. The narrow meaning of that word as punishment or chastisement is secondary to its primary meaning but is included in it.”
The actions of the employer on those occasions when the worker was reprimanded because of the standards of her cleaning and/or advised as to extra work that she should be doing would appear to come within the primary meaning of discipline as referred to by his Honour. The employer relies also on the secondary meaning of discipline in relation to a written warning given to the worker following the events of 29 November 2006. Although a letter was sent to the worker, it is not in evidence as I have earlier noted. The worker appears to have acted adversely upon receipt of this letter. It was incumbent, in my view, upon the employer put the letter in evidence in order to prove that this aspect of discipline was reasonable. Both the worker and Mr Emerson have given second-hand evidence of what the letter said, however, this is not satisfactory. This letter was an important part of the employer’s case and it might be expected that with most employers it would be readily available. The same could not be said of a worker who was, it appears, in some distress when she received such letter.
It is necessary to examine in some detail the events leading to the disciplinary warning following the events of 29 November 2006. On that day the worker was undoubtedly emotionally upset as she and Ms Sazdic assert. She was, it seems, screaming and crying and several members of the tenant’s staff were trying to comfort her. There is no evidence that the vacuum cleaner she was given was broken: the evidence is quite to the contrary. Nor is there any evidence that the worker smashed the vacuum cleaner as appears to have been alleged by Mr Emerson. This was the first occasion on which the worker had received a written disciplinary warning and it is necessary to examine the justification for such warning being given. It is not clear when Mr Emerson prepared a warning letter following the worker’s emotional outburst of 29 November 2006. What is clear is that the worker attended a doctor on 29 November 2006 and obtained a certificate for two days absence from work, together with a prescription for Valium. I note that 29 November 2006 was a Wednesday and I accept the worker’s evidence that she presented the medical certificate she obtained to her employer in order to justify her two days absence from work. I infer that the employer was aware that the worker was emotionally upset and had sought medical advice, both from the observations made by Mr Emerson and Ms Sazdic and the worker’s absence from work for two days with a medical certificate. Mr Emerson ought to have been mindful of this in his subsequent conduct. It should have been apparent to him that a written disciplinary letter, at that time, was likely to have a seriously adverse effect on the worker’s health. It is not clear why Mr Emerson did not try to counsel the worker or have her referred elsewhere for counselling. Any reference to her smashing equipment is, on the evidence, erroneous and any reliance on such action as justifying the disciplinary letter is unfounded. I have taken into account the employer’s arguments about the commercial desirability of retaining the cleaning contract for the building in question, however, the behaviour of the worker alone was not, in my view, such as would cause the cleaning contract to be put in jeopardy. I have also taken into account the worker’s age at that time (59 years) and her long work history. Accordingly, I am of the view that while the actions of Mr Emerson and Ms Sazdic in relation to their instructing her and bringing deficiencies in cleaning to her notice were reasonable actions with respect to discipline, the sending of the letter about the events of 29 November and other matters of discipline was not a reasonable action.
Transfer:
It is beyond doubt that the action of the employer in advising the worker of her transfer to another place of employment was within the expression “transfer” in section 11A(1). It appears that the actions in relation to this were both oral and written. Once again, the letter relating to this is not in evidence. I turn to the circumstances in which the letter regarding transfer was sent. As I have said, the employer knew or reasonably ought to have known the worker was in a highly emotional state and had seen a doctor because of that. That state related to events at work which had happened to the worker in the space of six or so weeks after her return to work on 16 October 2006. Such written advice must, I think, have been given without thought as to its consequences to the worker, namely a worsening in her psychological state. I cannot accept that the action taken by the employer with regard to the worker’s transfer were reasonable in the circumstances. Those actions appear to have paid little or no regard to the rights or health of the worker. I have noted the arguments put on behalf of the employer that it was necessary to transfer the worker because of her disruptive behaviour and in order to maximise the employer’s chances of retaining the cleaning contract at the NRMA building. However, the invitation by Mr Hancock on behalf of the employer, related to Dr Miller on 17 January 2007, to return to work at the NRMA building casts some doubt on this.
In summary, I find that the reduction in the worker’s working hours was reasonable action taken with respect to provision of employment benefits. I am not satisfied that the employer’s action in relation to the issuing of a letter reprimanding the worker following the events of 29 November 2006 was reasonable although the actions of Mr Emerson and Ms Sazdic in instructing the worker and pointing out any deficiencies in cleaning were reasonable. I am similarly not satisfied that the sending to the worker of a letter regarding her transfer was, in the circumstances of the case, reasonable.
It is now necessary to consider whether those actions of the employer, which I have found to be reasonable, were wholly or predominantly the cause of her injury. The Macquarie Dictionary definition of “predominate’ is:
“1. to be the stronger or leading element; preponderate; prevail. 2. to have or exert controlling power. 3. to surpass others in authority or influence. 4. to be more noticeable or imposing than something else. 5. to dominate or prevail over.”
What section 11A(1) requires is a comparison between all of the employment related contributions to injury and those contributions as a result of reasonable actions by the employer in the specified areas (Spigelman CJ in Sinclair at [58]). Those reasonable actions I have found to be the reduction in her hours of work and in instructing the worker in the proper performance of her duties. Dr Miller considered that the worker’s symptoms developed in close proximity to a number of distressing workplace events which included:
· Threatened dismissal for not being at work while actually on leave.
· Perceived harassment and unfair criticism by her supervisor.
· Unwarranted disciplinary action.
· Unreasonable direction to transfer to another work location.
The evidence supports a finding which I make that all of the events at work after 16 October 2006 particularly those relating to Mr Emerson’s interaction with the worker had a cumulative effect on her. Of particular significance were the events which occurred in December 2006, namely the receipt by the worker of the two letters relating to discipline and transfer. Compared to the other actions of her employer causative of injury I do not think that its reasonable actions were the predominant, much less the sole cause of the worker’s injury. Accordingly, the employer fails on its section 11A defence and the worker is entitled to compensation as awarded by the Arbitrator.
DECISION
For the reasons given, the decision of the Arbitrator dated 22 October 2008 is confirmed.
COSTS
The appellant’s employer is to pay the costs of the respondent worker.
Anthony Candy
Acting Deputy President
12 March 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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