Jansons v NSW Educational Standards Authority
[2021] NSWPIC 86
•19 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jansons v NSW Educational Standards Authority [2021] NSWPIC 86 |
| APPLICANT: | Paul Jansons |
| RESPONDENT: | NSW Educational Standards Authority |
| MEMBER: | Mr Anthony Scarcella |
| DATE OF DECISION: | 19 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for permanent impairment compensation for primary psychological injury, where injury not disputed; section 11A(1) defence raised in respect to transfer, demotion or promotion; Northern NSW Local Health Network v Heggie [2013] NSWCA 225; Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465 (1999); 19 NSWCCR 181; Mani v Secretary, Department of Education [2021] NSWPICPD 3; and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 considered and applied; Held- the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to transfer, demotion or promotion within the meaning of section 11A(1) of the 1987 Act; the matter remitted to the President for referral to a Medical Assessor for assessment under the 1998 Act. |
| DETERMINATIONS MADE: | 1. The respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to transfer, demotion or promotion within the meaning of section 11A(1) of the Workers Compensation Act 1987. |
| ORDERS MADE | 2. The matter is remitted to the President for referral to a Medical Assessor for assessment under the Workplace Injury Management and Workers Compensation Act 1998 as follows: Date of injury: 21 September 2018. Body System: Primary psychological injury. Method of Assessment: Whole Person Impairment. 3. The following documents are to be provided to the Medical Assessor: (a) Application to Resolve a Dispute dated 23 December 2020 and attached documents. (b) Reply dated 15 January 2021 and attached documents. (c) This Certificate of Determination and Statement of Reasons. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mr Paul Francis Jansons, is a 45-year-old man who was employed by NSW Education Standards Authority (the respondent) as a Liaison Officer – Metropolitan, under secondment from the NSW Department of Education.
In the Application to Resolve a Dispute (ARD) filed in the Workers Compensation Commission, now being the Workers Compensation Division of the Personal Injury Commission (the Commission), Mr Jansons alleged that he was a victim of bullying and harassment in his usual place of employment with the respondent. He alleged that the bullying and harassment was in the form of discrimination in respect of his pre-existing Autism Spectrum Disorder (ASD) and resulted in him suffering a work-related primary psychological injury, namely, an adjustment disorder with depressed and anxious mood. He identified the date of injury as being 21 September 2018.
On a date that is not ascertainable on the evidence, Mr Jansons lodged a claim under the Workers Compensation Act 1987 (the 1987 Act) with Allianz Australia Insurance Limited (Allianz), the insurer of the respondent.
On 18 December 2019, the respondent issued a Dispute Notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing that Mr Jansons was entitled to compensation for psychological injury because such injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and provision of employment benefits to him under section 11A of the 1987 Act.[1]
[1] ARD at pages 29-33.
On 21 May 2020, Mr Jansons, through his lawyers, requested a review of the decision contained in Allianz’s Dispute Notice dated 18 December 2019 under section 287A of the 1998 Act.
On 21 May 2020, Mr Jansons, through his lawyers, claimed permanent impairment compensation under section 66 of the 1987 Act in respect of his alleged work-related primary psychological injury.[2]
[2] ARD at pages 34-35.
On 4 June 2020, Allianz issued a Dispute Notice in response to Mr Jansons’ request for review under section 287A of the 1998 Act and maintained its decision to dispute liability. In addition, Allianz raised reasonable actions of the respondent with respect to discipline under section 11A of the 1987 Act. Allianz also disputed that Mr Jansons was entitled to compensation under section 66 of the 1987 Act.[3]
[3] Reply at pages 1-7.
On 7 July 2020, Allianz issued a Dispute Notice in response to Mr Jansons’ claim for permanent impairment compensation under section 66 of the 1987 Act dated 21 May 2020. Allianz disputed that Mr Jansons was entitled to permanent impairment lump sum compensation under section 66 of the 1987 Act based on its reframed section 11A defence, wherein it stated that his psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer and/or demotion and/or the provision of employment benefits. Further, Allianz disputed liability because Mr Jansons’ accepted primary psychological injury had not resulted in, at least, 15% permanent impairment as required by section 65A(3) of the 1987 Act.[4]
[4] ARD at pages 36-41.
Mr Jansons, through his lawyers, lodged an ARD dated 23 December 2020 in the Commission seeking lump sum compensation under section 66 of the 1987 Act as a result of the primary psychological injury sustained in the course of his employment with the respondent on 21 September 2018.
ISSUES FOR DETERMINATION
The parties agreed that the following issues remained in dispute:
(a) Whether the respondent’s defence pursuant to section 11A(1) of the 1987 Act has been made out, namely, whether it has established that Mr Jansons’ primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion or promotion.
(b) Whether Mr Jansons is entitled to lump sum compensation within the meaning of section 66 of the 1987 Act.
Matters previously notified as disputed
The issues in dispute were notified in the Dispute Notices referred to above.
Matters not previously notified
No other issues were raised.
PROCEDURE BEFORE THE COMMISSION
The parties participated in a conciliation conference/arbitration by audio visual link on 3 March 2021. Mr Greg Horan of counsel appeared for Mr Jansons, instructed by Ms Hanaa Survey and Ms Lyn Goodman of counsel appeared for the respondent, instructed by Mr Ron Galea.
During the conciliation phase the parties agreed as follows:
(a) Mr Jansons sustained a primary psychological injury in the course of his employment with the respondent on 21 September 2018 in the form of a chronic adjustment disorder with depression and anxiety.
(b) Mr Jansons’ pre-existing ASD did not contribute to his diagnosis of chronic adjustment disorder with depression and anxiety.
(c) If the respondent’s defence under section 11A(1) is not made out, then the matter is to be remitted to the President for referral to a Medical Assessor for the assessment of whole person impairment under the 1998 Act.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD dated 23 December 2020 and attached documents, and
(b) Reply dated 15 January 2021 and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence from or to cross-examine any witness.
SUBMISSIONS
The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.
AN ANALYSIS OF THE EVIDENCE
Mr Jansons’ evidence
In evidence, there is an Australian Human Rights Commission (AHRC) Complaint Form dated 14 March 2019 lodged on behalf of Mr Jansons that nominated the respondent as being the subject of his complaint.[5] The complaint alleged discrimination against Mr Jansons by the respondent on the basis of his disability, namely, ASD and alleged that the event/s occurred on 18 September 2018.
[5] ARD at pages 62-67.
In evidence, there is a signed statement by Mr Jansons dated 15 March 2019.[6] The statement is headed “Statement of Paul Jansons – Complaint to the Australian Human Rights Commission”. It is apparent that the statement is the one that Mr Jansons lodged with his complaint against the respondent with the AHRC and was now being submitted as evidence in the proceedings before me. There was no other statement lodged by Mr Jansons in these proceedings.
[6] ARD at pages 1-28.
Mr Jansons stated that prior to being employed by the respondent as a Liaison Officer under secondment from the NSW Department of Education, he worked at Cambridge Park High School as Head Teacher of Personal Development, Health and Physical Education (PDHPE). He had also performed higher duties as acting Deputy Principal and Principal at Chifley College Shalvey Campus and Cambridge Park High School.
Mr Jansons stated that in September 2014, he applied for the position of Liaison Officer – Metropolitan with the respondent. The process involved a written application, the submission of a curriculum vitae, an interview with three Assessment Panel members and referee checks. Mr Jansons’ application was successful and he commenced his role with the respondent in January 2015 on a full-time two-year temporary contract under secondment from the NSW Department of Education from 28 January 2015 to 28 January 2017. In 2017, he was offered an extension of his contract with the respondent to 28 January 2018. In 2018, he was offered a further extension of his contract with the respondent to 28 January 2019.
Mr Jansons stated that his manager was Ms Margot Braithwaite, Head of Liaison Unit. His duties with the respondent included acting as a key point of reference and referral between the respondent and schools and teachers; supporting the registration program for individual and non-government schools by completing document reviews and other tasks as directed; managing the Home Schooling Program; assisting with Higher School Certificate (HSC) support programs and panels; delivering the respondent’s registered professional development to teachers and schools; and assisting the Director of School Registration and Accreditation and later, the Director Media, Communication and Events.
Mr Jansons stated that he was of the view that his contract with the respondent was extended until 2018 because he was successful in his role. He frequently received very positive feedback on his performance by Ms Braithwaite, Ms Anne Keenan and members of the Home Schooling Unit and others.
Mr Jansons stated that, in about September/October 2017, he was diagnosed with ASD by Ms Natacha Desille, Clinical Psychologist. He underwent 11 sessions with Ms Desille and when she left the practice, he consulted Ms Tiffany Allen, who had taken over the practice. He consulted Ms Allen on four occasions, the last being on 12 June 2018. By this time, his anxiety had reduced.
Mr Jansons stated that, in November 2017, he and Ms Braithwaite went for a coffee as they regularly did. In the conversation over coffee, he informed Ms Braithwaite, in confidence, that he had recently been diagnosed with ASD. He set out his recollection of the conversation in his statement. The essence of the conversation from his point of view was that, despite his diagnosis, he was still the same person, nothing had changed. He asked Ms Braithwaite not to tell anyone about his diagnosis and she agreed that she would not tell anyone. He stated that following his disclosure to Ms Braithwaite, she became distant. Prior to the disclosure, they had an extremely close relationship and spoke a lot about non-work-related matters, including family matters and life in general. Ms Braithwaite attended his 40th birthday celebrations and also attended his mother’s funeral. He considered Ms Braithwaite a trusted friend and colleague.
Mr Jansons stated that following his disclosure to Ms Braithwaite, each time he would try to converse with her, she would say she was too busy. However, she conversed with others. He also observed that the way Ms Braithwaite spoke to him and treated him had changed. He felt that she thought less of him.
Mr Jansons stated that, in June 2018, he attended a casual dinner with work colleagues Ms Susan Barrie, Ms Julie Pyne and Ms Christine Keys. During the course of the dinner, whilst having a conversation about reapplying for his job once it was advertised, Ms Barrie asked Mr Jansons whether he was on the spectrum. Mr Jansons denied being on the spectrum. In another conversation, Mr Jansons stated that Ms Pyne asked why he was not part of the team. When Mr Jansons asked what she meant, Ms Pyne responded that he did not socialise with the team. Mr Jansons stated that he found the latter exchange extremely upsetting.
Mr Jansons stated that in or about July 2018, his position of Liaison Officer was advertised by the respondent.[7] On 24 August 2018, Mr Jansons sent written answers[8] to the Focus Questions[9] referred to in the advertisement to Ms Braithwaite.
[7] ARD at pages 90-91.
[8] ARD at pages 111-113.
[9] ARD at pages 114-115.
Mr Jansons stated that in or about August 2018, whilst sitting across from Ms Braithwaite in the office, he overheard her telling someone over the telephone that she should come and work with her and that Ms Braithwaite would soon be recruiting for the Sydney Liaison Officer position, being Mr Jansons’ current role. At that time, Mr Jansons understood that two Liaison Officer positions would be advertised by the respondent.
Mr Jansons stated that in or about September 2018, whilst sitting in the office, he overheard Ms Braithwaite speaking over the telephone about the upcoming interview for the respondent’s Liaison Officer position. He believed that she was speaking to Ms Barrie. He was aware that Ms Braithwaite had informed other Liaison Officer applicants about the composition of their Assessment Panels. He had overheard Ms Braithwaite discussing the composition of the Assessment Panel with another Liaison Officer during a telephone conversation. Ms Catherine Munro, the South Coast Liaison Officer, had also told him that Ms Braithwaite had informed her who was on the Assessment Panel. Shortly afterwards, Mr Jansons had a conversation with Ms Braithwaite and asked her who was going to be on his Assessment Panel. Ms Braithwaite informed him that she was not going to disclose that information. When Mr Jansons informed her that he was aware that she had disclosed the identity of members of the Assessment Panel to others, he stated that she responded that she was not required to tell him.
Mr Jansons stated that on 11 September 2018, he participated in the interview for the position of Liaison Officer with the respondent before an Assessment Panel consisting of Mr Michael Charlton, Ms Braithwaite and Mr Neal Crocker. Mr Jansons stated that he felt the interview went really well and that he encountered no issues during the interview process. Further, he was confident that, being the incumbent and because he had performed so well in the interview, he would retain his position.
Mr Jansons stated that on 18 September 2018, he entered the office and Ms Braithwaite informed him that Mr Charlton wanted to see him. He went to Mr Charlton’s office and they had a conversation about the outcome of his Liaison Officer interview in the presence of Ms Braithwaite. Mr Jansons set out the conversation as he recalled it in some detail.[10] The essence of the conversation was that Mr Jansons’ application for the position of Liaison Officer with the respondent was unsuccessful. Mr Jansons sought the reasons for his failure to secure the position and was advised by Mr Charlton that the successful candidate was outstanding and that he, Mr Jansons, had done nothing wrong. On enquiring as to whether he was placed on the eligibility list, Mr Charlton responded in the negative and stated that there could only be one person on the list and that they had put someone else on it. Mr Jansons challenged the response and argued that anyone who met the capabilities should be placed in the recruitment pool. By not being placed on the list, he queried whether Mr Charlton was saying that he had not met the capabilities for the role. Mr Jansons stated that Mr Charlton responded that he had not thought about that aspect and that if an error had been made, they would have to rectify it and put him on the list. Mr Jansons asked if the successful candidate was known to the Assessment Panel. Mr Charlton responded in the affirmative but added that the successful candidate was not known to him. Mr Charlton advised Mr Jansons that he was unable to tell him who the preferred candidate was for privacy reasons. The meeting ended.
[10] ARD at pages 12-14 at [61].
Mr Jansons stated that he was shocked at the outcome. He felt upset, angry, confused, humiliated and used. Mr Jansons stated that, in October 2017, Ms Anne Keenan made an offer for him to stay in her directorate as a Senior Registration Officer pending the advertising of a new role with three positions to be filled. Ms Keenan told him that, once she had advertised the positions, she hoped that he would apply for a full-time, ongoing position. She informed him that the offer was only for him, as he had worked so well when he was in her directorate. Ms Keenan also informed Mr Jansons that Ms Braithwaite wanted him to go with her to Mr Charlton’s team because she wanted to train him for the Head Liaison role before retiring. Ms Keenan left the choice to Mr Jansons. Mr Jansons chose to relocate with Ms Braithwaite and the rest of the team. Mr Jansons stated that, in a meeting in October 2017, Mr Charlton informed him that he was glad that he chose to relocate with Ms Braithwaite. Ms Braithwaite also expressed her gratitude to Mr Jansons for agreeing to relocate with her and her team and promised that she would always take care of him.
Mr Jansons stated that, after having decided to change directorates and pass up the opportunity offered to him by Ms Keenan, he felt that it was the disclosure of his diagnosis of ASD only that caused Mr Charlton and Ms Braithwaite to decide to employ another person in the role of Liaison Officer. Mr Jansons felt it was unjust. He felt extremely stressed and anxious by what had occurred.
Mr Jansons stated that he was provided with no feedback in relation to his performance during the interview process. After his meeting with Mr Charlton and Ms Braithwaite on 18 September 2018, Mr Jansons sent an email to Mr Charlton requesting feedback in relation to his performance during the interview process and received no response.
Mr Jansons stated that, on 21 September 2018, he had a further meeting with Mr Charlton for the purpose of seeking further feedback in relation to his performance during the interview process. Mr Jansons set out the conversation as he recalled it in some detail.[11] Mr Jansons stated that Mr Charlton informed him that he had been interviewed out of courtesy because that is what is done in the public service when someone is in an incumbent position. Mr Charlton also informed him that six candidates were interviewed and that Mr Jansons was placed equal fifth. In response to a question from Mr Jansons, Mr Charlton confirmed that Mr Jansons was never going to get the job and that he did not have enough experience for the position. Further, the respondent required someone who was a Deputy Principal or Principal. When Mr Jansons pointed out that the latter requirement was not identified in the advertisement for the role, Mr Charlton responded:
“Paul, we just think that you should return to school and become a Deputy Principal or School Principal to get more experience.”[12]
[11] ARD at pages 15-17 at [70].
[12] ARD at page 16 at [70].
In his meeting with Mr Charlton on 21 September 2018, Mr Jansons stated that he asked Mr Charlton whether he was aware that he had a disability. Mr Jansons stated that Mr Charlton responded as follows:
“I assure you that disability did not factor in our decision relating to the position.”[13]
Mr Jansons informed Mr Charlton that he believed that Ms Braithwaite had broken his confidence and told others in the Liaison Team about his ASD. Mr Jansons stated that Mr Charlton responded as follows:
“It sounds like there may be a process that you may need to follow in relation to what you are telling me.”[14]
[13] ARD at page 16 at [70].
[14] ARD at page 17 at [70].
In his meeting with Mr Charlton on 21 September 2018, Mr Jansons informed Mr Charlton that Ms Braithwaite had told him that there would be two positions available. Mr Charlton responded that there was now only one role and that Mr Jansons was not in the recruitment pool. Mr Jansons sought to have Mr Charlton inform him of areas for improvement that resulted in him not being placed in the recruitment pool. Mr Jansons stated that Mr Charlton responded as follows:
“Paul, you are only on a temporary contract, you were not in an ongoing role. I have been made redundant 8 times. I had a mortgage to pay and a child at home at least you have a job in a school to return to!”[15]
[15] ARD at page 17 at [70].
Mr Jansons stated that following his meeting with Mr Charlton on 21 September 2018, he felt humiliated and embarrassed. Although he tried, he was unable to focus on his work after the meeting and left work before the end of the day and consulted his general practitioner, who certified him unfit for work for one week.
Mr Jansons stated that, on 25 September 2018, he made an application under the Government Information (Public Access) Act 2009 (GIPA) for access to all documentation relating to his recruitment process with the respondent.
Mr Jansons stated that on 25 September 2018, in response to a voicemail message from Ms Amanda Cohen from Human Resources, he returned her telephone call. Mr Jansons set out the conversation as he recalled it in some detail.[16] Ms Cohen enquired about Mr Jansons’ well-being. There was discussion about Mr Jansons’ unsuccessful application for the Liaison Officer position and the government rules relating to talent pools. Mr Jansons complained to Ms Cohen about a lack of any meaningful feedback from Mr Charlton in respect of Mr Jansons’ strengths or areas for improvement. Mr Jansons stated that Ms Cohen said that she had met with Mr Charlton and Ms Braithwaite to discuss the requirements for the role of Liaison Officer. It had been agreed that experience as a Deputy Principal or Principal was required, as only candidates with such experience provided credibility to the role. In response to a question from Mr Jansons, Ms Cohen denied ever having been told that he lacked credibility. When Mr Jansons raised Mr Charlton’s comment that he only got an interview out of courtesy and was never going to be successful in his application, Ms Cohen advised that she would now terminate the telephone call. Mr Jansons then advised her that he would obtain the feedback himself by making a GIPA application. Ms Cohen recommended that he not act out of anger and request information through GIPA and asked whether he had submitted the application as yet. Mr Jansons informed her that he did not wish to discuss the matter with her and the conversation ended.
[16] ARD at pages 18-21 at [74].
Mr Jansons stated that, on 25 September 2018, he received an email from Mr Charlton requesting a meeting to provide further feedback. Mr Jansons did not respond as he was not comfortable in attending another meeting with Mr Charlton to discuss the matter.
Mr Jansons stated that, on 8 September 2018 (the correct date being 8 October 2018), he received correspondence from the respondent in response to his GIPA application.[17] The documents included emails between Mr Charlton and Ms Cohen with redactions; interview notes with redactions; interview questions; and a document titled “APPLICANTS NOT SUITABLE” (the ANS) with redactions.[18] In relation to the latter document, Mr Jansons stated that he was perplexed because the question relating to teamwork was not asked during the interview. According to that document, the capabilities that he did not demonstrate related to communication, relationships and working collaboratively. Mr Jansons believed that he was directly discriminated against because of his ASD and the incorrect perception that people who suffer from ASD experience difficulties with communication, relationships and working collaboratively. The emails, interview notes and interview questions referred to above were not in evidence.
[17] ARD at page 116.
[18] ARD at pages 117-118.
Mr Jansons stated that in the ANS, the notes adjacent to the two other candidates above him in that document seemed quite brief, whereas his notes were extensive.
Mr Jansons stated that, on 27 September 2018, the Liaison Team received an email from Mr Charlton advising the outcome of the recruitment process and that the successful candidate was from St Mary’s Senior High School. Mr Jansons’ understanding was that the successful candidate was Ms Lisa O’Neill, who was a Head Teacher and not a Deputy Principal or Principal. Mr Jansons found this perplexing because of what Mr Charlton had told him. Mr Jansons understood that only three of the Liaison Officers had held substantive positions as a Deputy Principal or Principal.
Mr Jansons stated that, on 28 September 2018, he received formal correspondence from the respondent informing him that he had been unsuccessful in the recruitment process.
Mr Jansons stated that, on 12 October 2018, he made a further GIPA application requesting his handwritten responses to the interview questions that were submitted to the assessment panel at the commencement of the interview. On 7 November 2018, Mr Jansons received from the respondent his hand written responses to the interview questions.[19] On reviewing the document, he inferred that the comments in the ANS relating to him were added after the interview to justify not giving him the job.
[19] ARD at pages 68-69.
Mr Jansons stated that in about October 2018, his general practitioner, Dr Michael Foster, formally diagnosed him with depression and anxiety. Dr Foster was concerned about his low mood.
Mr Jansons stated that, on 30 October 2018, he first consulted Ms Ivana Borrett, Clinical Psychologist and underwent eight or nine sessions with her. He also consulted a psychologist through the Employment Assistance Program on two occasions in December 2018.
Mr Jansons stated that Dr Foster referred him to Dr Sivaruby Thavakulasingam, Psychiatrist, who he first consulted on 14 February 2019.
Mr Jansons stated that he ceased working for the respondent on 28 January 2019 and returned to his role as Head Teacher of PDHPE at Cambridge Park High School earning $118,315 per annum. He was extremely anxious prior to returning to Cambridge Park High School. He stated that in his final year with the respondent, his salary was $137,362 and that the successful candidate for the Liaison Officer’s role was on a salary of $140,796 in 2019.
Mr Jansons went on to set out the symptoms he experienced as a result of the respondent’s recruitment process and provided a summary of the medical treatment he received. The rest of his statement focused on the relevant legislation and submissions in support of his complaint to the AHRC.
The respondent’s response to Mr Jansons’ complaint to the AHRC
There were no witness statements filed on behalf of the respondent in these proceedings. In evidence there was the respondent’s response to Mr Jansons’ AHRC complaint dated 23 August 2019 and attachments (the Response).[20] The document was prepared by the respondent’s lawyers, Lander & Rogers.
[20] ARD at pages 70-107.
The Response confirmed that Mr Jansons held a contract position with the respondent from January 2015 to 28 January 2019 in the role of Liaison Officer – Metropolitan, which was embedded in the School Registration Standards Directorate.
The Response stated that, in July 2018, a role of Liaison Officer was advertised as part of an external, merit-based recruitment process and was external in so far as it sought applications from candidates outside of the respondent. Despite having the same position title, the duties of the advertised role were different to the duties previously performed by Mr Jansons. The respondent advertised the position with the intention of recruiting an experienced candidate who, specifically, had at least 12 months cumulative experience in either Deputy Principal or Principal roles. At the completion of the recruitment process, Mr Jansons was unsuccessful. The successful candidate performed better than Mr Jansons throughout the merit-based recruitment process and had the requisite experience.
The Response stated that, Mr Jansons’ Liaison Officer role description during the period of his employment with the respondent was attached to the Response.[21] It described an agency overview; the primary purpose of the role; the key accountabilities; the key challenges; the key relationships; the role dimensions; the essential requirements; and the capabilities for the role. Mr Jansons’ role was embedded in the School Registration Standards Directorate and primarily required him to carry out administrative work in the home-schooling program, that is, managing and assessing applications for registration for home schooling.
[21] ARD at pages 79-84.
The Response stated that, the advertised role of Liaison Officer in July 2018[22] was to be embedded in the Communications, Media and Events Directorate. The role description described an agency overview; the primary purpose of the role; the key accountabilities; the key challenges; the key relationships; the role dimensions; the essential requirements; the capabilities for the role; and the focus capabilities.[23] The role was to have no administrative connection within the School Registration Standards Directorate. The majority of the successful candidate’s time was to be spent communicating with schools for different purposes, including the delivery of accredited professional development courses and the remaining time was to be spent delivering the respondent’s priorities and projects across NSW; participating in the respondent’s consultations; and the credentialling of teacher accreditation and HSC programs.
[22] ARD at pages 90-91.
[23] ARD at pages 85-89.
The Response stated that, the advertised role featured substantive differences to Mr Jansons’ role. Paragraphs 8 and 9 of the Response[24] highlighted the differences in respect of providing advice to the executive leadership team rather than providing support for the respondent’s regulatory program for home schooling; the differences in the key point of contact; the differences in respect of personal attributes particularly, to act with integrity and self-management; and relationships in respect of working collaboratively.
[24] ARD at pages 72-73.
The Response stated that the recruitment process was conducted in accordance with the Government Sector Employment (General) Rules 2014 and was a merit-based, comparative assessment that sought applications from external and internal candidates.
The Response referred to the broad categories of the recruitment process.[25] The categories referred to were those of role analysis; the inherent requirements; the essential requirements; the essential requirements for the Assessment Panel; and the focus capabilities.
[25] ARD at page 73 at [12].
The Response stated that, a Comparative Assessment Matrix[26] was used during the assessment and interview process, encompassing candidates’ scores evaluating the objective criteria referred to above for each candidate. The matrices were then used to assess the candidates and ultimately appoint the most suitable candidate to the advertised position. Mr Jansons failed to meet the advanced requirements for the role in respect of effective communication, self-managing and acting with integrity. Mr Jansons did not score sufficiently highly in these requirements. These capabilities were not required in his previous role. There were more suitable candidates who achieved higher scores on the assessments and, when assessed against the requirements of the merit-based recruitment process, had the most suitable qualities for the role. No other factors were involved in the decision-making process.
[26] ARD at pages 98-107.
The Response stated that, the ultimate hiring decision was made on the basis of an assessment of the capabilities, experience and knowledge of the candidates, measured against the pre-established standards for the role to determine the candidate best suited to the requirements of the role and the respondent’s needs. The assessment panel provided a provisional recommendation as to the preferred candidate for the role to the Chief Executive Officer. The ultimate decision not to hire Mr Jansons was not made by the Assessment Panel.
The Response stated that, the respondent accepted that Mr Jansons had his temporary contract extended on two occasions but that this fact was not relevant because the recruitment process undertaken was a merit-based process in which an incumbent candidate was not guaranteed to secure the role. Mr Jansons performed adequately during his employment with the respondent. Mr Jansons had his contract extended twice because the Directorate was being restructured and the respondent wanted to maintain stability and consistency in the team until the restructure was completed.
The Response stated that, the respondent accepted the café conversation with Ms Braithwaite had occurred and that she had promised Mr Jansons that the content of their conversation would be kept confidential. However, the Response stated that, Ms Braithwaite did not subsequently disclose the fact or circumstances of Mr Jansons’ disability to others within the respondent’s employment and that the respondent was unaware of Mr Jansons’ ASD until he lodged his complaint with the AHRC. The Response stated that, Ms Braithwaite continued to manage Mr Jansons as she had always done in a professional and personable manner.
The Response stated that, in respect of Mr Jansons’ alleged conversation with Mr Charlton on 18 September 2018, the respondent did not seek comment on the conversation because the latter no longer worked for the respondent. The respondent contended that Mr Jansons fundamentally misunderstood the process with respect to the recruitment pool and rejected his characterisation of the recruitment pool.
The Response stated that, the respondent accepted that the successful candidate was known to one member of the Assessment Panel. However, it had no relevance as no inference could be drawn as to suitability from being known to the Assessment Panel members in advance of an interview.
The Response stated that, in respect of Mr Jansons’ alleged conversation with Mr Charlton on 21 September 2018, the respondent could not comment.
The Response stated that, the respondent rejected the contention that the successful candidate had the same level of experience as Mr Jansons. The respondent maintained that the successful candidate had the requisite experience sought for the role and that Mr Jansons did not.
The Response stated that, the respondent categorically rejected the assertion made by Mr Jansons that the comments in the ANS relating to him were added after the interview to justify not giving him the job. The respondent asserted that Mr Jansons conflated his written responses with the questions that were asked by the Assessment Panel. The information reflected in the notes from the interview was accurate and the respondent maintained that Mr Jansons did not demonstrate that he could lead, be led, nor work as a partner with other Liaison Officers to meet the level of capacity required for the advertised role. This was reflected in his scores and the outcome of his assessment.
The treating medical evidence
In evidence, are Mr Jansons clinical records produced by Lower Mountains Family Practice.[27]
[27] ARD at pages 123-399.
The entry in the clinical records dated 29 September 2018, recorded a consultation with Dr Scott Walker.[28] The recorded reason for the consultation was anxiety/depression, ASD and GP Mental Health Care Plan. The history provided by Mr Jansons to Dr Walker may be summarised as follows:
(a) He recently reapplied for a contract with the respondent for a job he had been doing for four years as a Liaison Officer and was told that his application was unsuccessful on 18 September 2018.
(b) The feedback from the respondent was not positive.
(c) The respondent did not place him on the talent pool list for similar positions. He grieved that he had not been acknowledged as capable in his role. He felt that it was unjust and he was angry.
(d) He felt that he had been discriminated against because of his sex as he was the only male in his team.
(e) Ms Desille, Psychologist had diagnosed him with ASD. A colleague at an informal function remarked that Mr Jansons was like her son, who was also on the spectrum. This made him feel that his boss had broken his confidence. His boss had been distant, which he found difficult because he regarded her as a friend.
(f) He remains in his job until January and then has to return to school as a PE teacher. He does not feel he can return to the position because he is embarrassed. He paces, is on edge and suffers from insomnia.
(g) He was taking Lexapro. He had no thoughts of self-harm.
[28] ARD at page 173.
Dr Walker referred Mr Jansons to Mr Greg Pankhurst; prepared a GP Mental Health Care Plan; and issued a medical certificate from 21 September 2018 to 29 September 2018.
In evidence, there is a response by Dr Foster to a questionnaire submitted to the doctor by Allianz.[29] The response to the questionnaire was dated 3 October 2019. Dr Foster described Mr Jansons’ symptoms as depression, poor sleep, lack of motivation and constant tiredness. He diagnosed an adjustment disorder with depressive symptoms. The symptoms first occurred after Mr Jansons reapplied for a contract in September 2018. He described the main contributing factor to Mr Jansons’ psychological condition as being the treatment he received at work after applying for a new role he felt he was suited to. He described the predominant cause of the psychological injury as being the treatment by staff after he was turned down for the new job.
[29] ARD at pages 58-61.
In evidence, there is a report by Dr Thavakulasingam, Mr Jansons’ treating psychiatrist to his lawyers dated 26 February 2020.[30]
[30] ARD at pages 55-57.
Dr Thavakulasingam reported the following relevant history taken from Mr Jansons:
(a) He denied any past history of mental health issues. He disclosed a diagnosis of ASD.
(b) He alleged that his diagnosis of ASD was disclosed to other staff members by his manager (Ms Braithwaite) because he was asked about it during an informal gathering.
(c) He started to feel low mood after he failed to secure his position with the respondent. He reported low mood, increased discomfort, poor sleep and self-doubt with lack of confidence. He felt upset because he was not provided with an explanation as to why he did not succeed in securing the position. He felt intimidated by the director during a meeting, which led to him leaving the meeting early.
(d) He reported self-isolation; an inability to enjoy or appreciate life; and feelings of negative themes of himself and his future.
(e) He returned to his previous role as Head Teacher in physical education but felt that he needed to start all over again to restructure the program.
(f) He reported that he was upset that he missed out on the commercial opportunities within the school.
On examination, Dr Thavakulasingam relevantly found Mr Jansons anxious but polite and cooperative. He spoke logically with a normal rate and volume of speech. His affect was that of anxiety. There was no formal thought disorder or delusional content. He had good insight into his current condition and was willing to comply with all treatment options.
Dr Thavakulasingam diagnosed an Adjustment Disorder with symptoms of Major Depressive Disorder and opined as follows:
“In my clinical opinion, Mr Jansons developed this condition as a result of his employment with NESA. Mr Jansons is a dedicated and passionate employee who sets high standards for himself. The disappointment in failing to secure the job that he had been assigned for the past four years, the hostile treatment he was given and the breach of confidentiality of his ASD could have contributed to the above condition.”
The forensic medical evidence
On 9 December 2019, Mr Jansons consulted Dr Clayton Smith, Consultant Psychiatrist at the request of Allianz. In evidence, there is a report by Dr Smith dated 9 December 2019.[31] In his report Dr Smith referred to his sources of information, which included, amongst other documents, Mr Jansons’ complaint to the AHRC, Mr Jansons’ statement and the Response.
[31] Reply at pages 8-14.
Dr Smith reported that Mr Jansons presented with symptoms consistent with a diagnosis of chronic adjustment disorder with depression and anxiety, which began immediately after he was unsuccessful in his application for a new role with the respondent. He opined that Mr Jansons also had an unrelated ASD as well as an alcohol use disorder. Dr Smith opined that Mr Jansons’ sense of shock and disbelief that he was unsuccessful in securing the role with the respondent was the predominant cause of his adjustment disorder. Mr Jansons believed he had been discriminated against.
On 30 April 2020, Mr Jansons consulted Dr Richa Rastogi, Consultant Psychiatrist at the request of his lawyers. In evidence, there is a report by Dr Rastogi dated 30 April 2020.[32] In her report, Dr Rastogi referred to her sources of information, which included, amongst other documents, a statement by Mr Jansons dated 3 October 2019 (it is unclear whether the date is a typographical error or whether the statement is different to the one which is presently in evidence), a medical questionnaire completed by Dr Foster dated 3 October 2019, the clinical notes of Dr Foster and Mr Jansons’ complaint to the AHRC and the Response.
[32] ARD at pages 42-54.
Dr Rastogi recorded a detailed history of injury in her report, which was consistent with Mr Jansons’ evidence. Dr Rastogi diagnosed an adjustment disorder with depressed mood and anxiety and noted the following:
“He reported being discriminated and bullied by fabrication of reasons and perjury of documents rather than being unsuccessful in application. He also stated that there was a breach of confidentiality by his boss disclosing about his ASD. Since his request to GIPA, he was victimised, isolated and sidelined by other officers and managing director and they were dismissive of him. There were allegations placed against him of harassing and bullying his manager and HR staff however no further details were provided and this caused tarnishment of his reputation. He felt under constant scrutiny and harassment culminating into adjustment disorder.”[33]
[33] ARD at pages 48-49
Dr Rastogi opined that Mr Jansons’ employment with the respondent was a substantial contributor to his psychological injuries, having had no performance issues over three years, he was victimised, scrutinised and had allegations made against him following his unsuccessful interview and his subsequent GIPA application in relation to the interview.
On 29 June 2020, Mr Jansons again consulted Dr Smith at the request of the respondent’s lawyers (via telepsychiatry). In evidence, there is a report by Dr Smith dated 29 June 2020.[34] In his report Dr Smith referred to his sources of information, which included Dr Rastogi’s report dated 30 April 2020, Dr Smith’s earlier report dated 9 December 2019, a table outlining the differences for the role of Liaison Officer and an email from Ms Braithwaite.
[34] Replying at pages 15-25
Dr Smith reported that Mr Jansons described the onset of anxiety and depressive symptoms after unsuccessfully applying for a position with the respondent. Mr Jansons believed he was denied the position because the selection process was unfair; that he was discriminated against because of his ASD; and that he was humiliated and not treated with dignity and respect. He reported that, Mr Jansons had remained preoccupied with that version of events and had remained unhappy and unfulfilled since. Dr Smith identified perpetuating factors as being Mr Jansons belief that he was dealt with unfairly and humiliated by his employer and trapped in his current position because he is too fearful to apply for a more challenging position. There was minimal change in his condition since his last review.
Dr Smith agreed with Dr Rastogi’s opinion that Mr Jansons had a diagnosis of chronic adjustment disorder with depression and anxiety. Dr Smith opined that Mr Jansons’ ASD did not contribute to his current condition and disabilities. He further opined that Mr Jansons’ condition developed immediately after his unsuccessful application for a new role with the respondent. Dr Smith did not consider that Mr Jansons was feigning his condition. However, he reported that the degree of distress described by him was not reflected by the objective evidence of his vocational function. At the time of the consultation, Mr Jansons was still in his substantive role at Cambridge Park High School. Nevertheless, Dr Smith opined that Mr Jansons’ current condition was consistent with his diagnosis. He reported that the specified stressor was his unsuccessful application for a position with the respondent and the subsequent alleged events which caused him to question his competence and self-worth.
FINDINGS AND REASONS
Has the respondent’s defence under section 11A(1) of the 1987 Act been made out?
The respondent did not dispute that Mr Jansons has suffered a primary psychological injury in the course of his employment with the respondent but raised the defence available to it under section 11A(1) of the 1987 Act.
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken 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 respondent bears the onus of establishing on the balance of probabilities both that the “action” was, at least, the predominant cause of Mr Jansons’ primary psychological injury and that such an action was reasonable.[35] If both these elements are established, then Mr Jansons’ entitlement to compensation is extinguished by section 11A(1) of the 1987 Act.
[35] Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair).
Section 11A(1) of the 1987 Act uses the phrase “with respect to”. The phrase “with respect to” is a broad one. It does not restrict itself to matters of process.[36] The word “transfer” in section 11A(1) of the 1987 Act should be construed in the employment context and encompasses a move from one position to another, even though there is no change in location. A change in the nature and responsibilities of work performed may be of more significance in determining whether there has been a “transfer” rather than a change in location. The reasonableness of an employer’s actions in transferring a worker has to be “assessed by reference to the facts giving rise to the transfer”.[37]
[36] Mani v Secretary, Department of Education [2021] NSWPICPD 3 at [129].
[37] Jeffery v Linitipal Pty Ltd [2008] NSWCA 138 at [44].
Section 11A(1) of the 1987 Act uses the words “wholly or predominantly”. It is important to appreciate that “wholly” and “predominantly” are separate concepts and a finding of one or the other needs to be considered.[38] The test of causation to be applied is that described in Kooragang Cement Pty Limited v Bates (1994)[39]; Ponnan v George Weston Foods Ltd[40]; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[41]; and Smith v Roads and Traffic Authority of NSW[42].
[38] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith).
[39] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[40] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan).
[41] Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd [2008] NSWCCPD 96 (Temelkov).
[42] Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
In ISS Property Services Pty Ltd v Milovanovic[43] at [67], it was held that where none of the actions of the employer were found to be reasonable and the worker’s psychological condition arose from those actions, it was not necessary to determine by which of the actions the injury was “wholly or predominantly” caused. Candy ADP went on to state at [89] that what is required by section 11A(1) is comparison between all of the employment related contributions to injury and those contributions as a result of reasonable actions by the employer.
[43] ISS Property Services Pty Ltd v Milovanovic [2009] NSWCCPD 27 (Milovanovic).
The meaning of “predominantly caused” was considered in Ponnan in which Handley ADP at [24] applied the dictionary meaning of “mainly or principally caused”. Roche DP agreed with this view in McCarthy v Department of Corrective Services.[44]
[44] McCarthy v Department of Corrective Services [2010] NSWCCPD 27 at [157] (McCarthy).
Section 11A(1) refers to “reasonable action”. In considering the issue of reasonableness, Geraghty J in Irwin v Director General of School Education[45] said:
“… The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of reasonableness is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[45] Irwin v Director General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998, unreported) (Irwin).
In Ivanisevic v Laudet Pty Ltd,[46] Truss CCJ said:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[46] Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) (Ivanisevic).
The passages quoted above in Irwin and Ivanisevic were quoted with approval by Foster AJA in Commissioner of Police v Minahan[47] where his Honour said:
“I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgement and in his Honour’s judgement. The words ‘reasonable action’, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.”[48]
[47] Commissioner of Police v Minahan (2003) 1 DDCR 57; [2003] NSWCA 239 (Minahan).
[48] Minahan at [42].
The question of whether the action is reasonable is one of fact involving an objective test and is not a matter of law.[49]
[49] Minahan.
In Department of Education and Training v Sinclair[50], Spigelman CJ observed that one must look at the entire process to see if it was reasonable action within section 11A of the 1987 Act and that includes looking at the circumstances surrounding the action, both before and after the action.[51]
[50] Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair).
[51] Burton v Bi-Lo Pty Ltd [1998] NSWCC 13; Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454 at 458.
In Director General, Department of Education and Training v Pembroke[52] [2006] NSWWCCPD 182 Handley AP stated:
“In determining whether conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer (Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWCCPD 66 at [82]). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation.”[53]
[52] Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182 (Pembroke).
[53] Pembroke at [26].
An employer cannot rely on section 11A(1) of the 1987 Act because it held a genuine belief that its action was reasonable if, in all the circumstances, the Commission determines the action not to be reasonable.[54]
[54] Jeffery v Linitipal Pty Ltd [2008] NSWCA 138 (Jeffery).
It is not for the Commission to consider whether the employer’s actions could have included other options or taken a different course. It is for the Commission to consider whether the action taken by the employer was “reasonable action” taking into consideration all relevant factors.[55]
[55] Hartley v Dux Manufacturing [2008] NSWWCCPD 55.
The reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken.[56]
[56] Northern NSW Local Health Network v Heggie [2013] NSWCA 225 (Heggie).
In Manly Pacific International Hotel Pty Ltd v Doyle[57] (Doyle) the term transfer in section 11A(1) of the 1987 Act was held to include a move from one position to another, whether or not there was any change in location and one needed to look at the decision or proposal or the manner in which the decision or proposal was communicated to the worker (per Fitzgerald JA). If the employer cannot show that the psychological injury was wholly or predominantly caused by action taken or proposed to be taken by the employer with respect to the transfer, the worker succeeds.[58] If the employer cannot prove that the actions taken by it in the context of the transfer were reasonable, the worker will also succeed.[59] Whether the injury was wholly or predominantly caused by reasonable action with respect to transfer is a question of fact to be determined on the evidence in each case.[60]
[57] Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181.
[58] Doyle at [5].
[59] Doyle at [5].
[60] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96.
In Northern NSW Local Health Network v Heggie[61] (Heggie), the NSW Court of Appeal dealt with the category of “discipline” in section 11A(1) of the 1987 Act and was of the view that a broad approach should be taken to “action with respect to discipline”. While the decision in Heggie is factually distinct from Doyle and the present case, it remains relevant to the proper approach to be taken to determining section 11A(1) of the 1987 Act. There is no cause to depart from the approach taken in Heggie with respect to the category of “transfer” or the other categories in section 11A. The majority in Doyle said that it is a “question of fact and degree” as to whether the relevant category was the whole or predominant cause of a worker’s psychological injury within the meaning of section 11A(1) of the 1987 Act.
[61] Heggie
Mr Jansons’ principal submissions in relation to this issue may be summarised as follows:
(a) In 2015, Mr Jansons commenced work with the respondent as a Liaison Officer under secondment from the NSW Department of Education for two years and was granted two one year extensions.
(b) In 2017, Mr Jansons was diagnosed with ASD. Sometime later, he informed his manager at work, Ms Braithwaite, in an informal setting over a coffee of the ASD diagnosis. Ms Braithwaite agreed not to tell anyone about the diagnosis.
(c) Mr Jansons’ case is that there were a series of issues that dated from the time he informed his manager, Ms Braithwaite of his diagnosis of ASD in November 2017.
(d) In June 2018, when a work colleague disclosed that she was aware of Mr Jansons’ ASD diagnosis, he felt that there had been a breach of confidence by Ms Braithwaite.
(e) In about July 2018, the respondent advertised the position of Liaison Officer externally and internally. Mr Jansons applied for the advertised position with the respondent.
(f) In September 2018, Mr Jansons had an interview in respect of the advertised position before an Assessment Panel of three. Assessment Panel members included Ms Brathwaite and Mr Michael Charlton, a director of the respondent under whom Mr Jansons worked and one other person. Mr Jansons felt that the interview went well.
(g) Later in September 2018, he was informed that his application for the position had been unsuccessful. In a meeting, he queried Mr Charlton as to why he had been unsuccessful and was told that he had not answered or properly answered the teamwork question in the interview. Following his conversation with Mr Charlton, Mr Jansons became distressed and consulted a general practitioner, on 21 September 2018.
(h) Being dissatisfied with Mr Charlton’s explanation as to why his application had been unsuccessful, he made a GIPA application and obtained the documents relating to the interview process. The contents of the documents heightened his suspicions that he had not been asked the question about teamwork in the interview. It also further heightened his suspicion that his disability (ASD) was the reason his application was unsuccessful.
(i) Mr Charlton and Ms Braithwaite, who sat on the Assessment Panel, knew of Mr Jansons’ ASD, causing Mr Jansons to believe that they had used it against him, consciously or subconsciously. Mr Jansons’ ASD was not raised in the interview. This was an unreasonable aspect of the recruitment process.
(j) Mr Jansons returned to the teaching position he held prior to his secondment at the end of January 2019. On the facts, that would constitute a transfer at that time. Mr Jansons’ chronic adjustment disorder with depression and anxiety commenced in late September 2018 and the weeks and months after that. He certainly had that condition by the end of January 2019 when the transfer occurred. Therefore, the timeline does not support the transfer, promotion or demotion categories under section 11A(1) of the 1987 Act.
(k) The respondent bears the onus of proving that the injury was, at least, predominantly caused by one of the section 11A(1) categories it relies on. The respondent’s own medical evidence as to the predominant cause of the injury was the recruitment process for the different Liaison Officer role, including the interview and subsequently, the notification that the application had been unsuccessful.
(l) There was no evidence that the predominant cause was the transfer, promotion or demotion of Mr Jansons. There was no evidence of promotion or demotion in any event. There were no statements from any respondent witnesses, such as Ms Braithwaite, Mr Charlton or the new director in the Home Schooling Directorate. There was only Mr Jansons’ version of events to rely on, which should be accepted in its entirety. There was nothing in Mr Jansons’ evidence that there was a complaint by him about transfer, promotion or demotion. The respondent’s section 11A(1) defence must fail.
(m) If it is found that the predominant cause of Mr Jansons’ psychological injury did fit one of the section 11A(1) categories relied on by the respondent, then Mr Jansons relies on his medical evidence which supports the main causative factors as being multiple matters.
(n) Dr Foster identified the main contributing factor to Mr Jansons’ psychological condition as being the treatment he received at work after applying for a new role that he felt he was suited to. Dr Foster identified the predominant cause of Mr Jansons’ psychological injury as the treatment he received by staff after he was turned down for the new job. This was consistent with Mr Jansons feeling upset about missing out on the new role and the feeling that he was being isolated in the workplace by being excluded from important meetings. The opinion as to causation was multi-factored. There was no reference to transfer, promotion or demotion in Dr Foster’s opinion.
(o) Dr Thavakulasingam opined that Mr Jansons developed his psychological condition as a result of his employment with the respondent, including the disappointment in failing to secure the job he had been assigned over the past four years; the hostile treatment he was given thereafter; and the breach of confidentiality in respect of his ASD. The opinion as to causation was multi-factored. There was no reference to transfer, promotion or demotion in Dr Thavakulasingam’s opinion.
(p) Dr Rastogi’s opinion as to causation was multi-factored. Mr Jansons reported to her that he had been discriminated and bullied in the fabrication of reasons and documents in his unsuccessful application for a new role with the respondent. Dr Rastogi noted that there had been a breach of confidentiality by his boss disclosing Mr Jansons’ ASD and that since he made a GIPA request, he was victimised, isolated and sidelined by other officers and the managing director. They were dismissive of him. Further, there were allegations against him of harassing and bullying his manager and HR staff without the provision of further details. He felt this tarnished his reputation. He felt under constant scrutiny and harassment, which culminated in an adjustment disorder. There was no reference to transfer, promotion or demotion in Dr Rastogi’s opinion.
(q) There was no particular factor that was a predominant factor in the multifactorial matters referred to above.
(r) The recruitment process included the interview for the Liaison Officer role; the notification of the outcome of Mr Jansons’ application; the GIPA request and the documents disclosed in response to it; and Mr Jansons’ treatment by employees of the respondent thereafter. All of the elements of the recruitment process were unreasonable.
(s) The recruitment process was unreasonable because the Assessment Panel had two persons on it that were aware of Mr Jansons’ ASD, including Ms Braithwaite, whom he had told in confidence. By inference, Ms Braithwaite had informed Mr Charlton, who was also on the Assessment Panel. If Ms Braithwaite did not inform Mr Charlton of Mr Jansons’ ASD, clearly, on the uncontested evidence, someone else had told him. It was unfair and unreasonable to have them on the Assessment Panel.
(t) The recruitment process was unreasonable because Mr Jansons was told by Ms Braithwaite and Mr Charlton that he was unsuccessful in his application because of his response to the teamwork question. Mr Jansons was not aware or could not remember a teamwork question and was disbelieving of the explanation, resulting in his GIPA applications. There was nothing in Mr Jansons’ handwritten notes, that he was permitted to take during the interview, about a teamwork question because he was not asked that question. It added fuel to Mr Jansons’ suspicions that there was a fabrication of the reasons for him not being selected for the new role. Leaving Mr Jansons in a vulnerable position, where he could subjectively feel the way he did, was unfair and unreasonable.
(u) The cold shoulder treatment and isolation by his work colleagues after his unsuccessful application for the new role of Liaison Officer was unreasonable.
(v) The respondent does not even get to the question of whether its actions were reasonable because it failed to discharge its onus that the predominant cause of Mr Jansons’ psychological injury was action taken by or on behalf of it with respect to transfer, demotion or promotion. The transfer occurred months later at the end of January 2019. There is no evidence that Mr Jansons’ transfer back to his former high school as Head Teacher in PDHPE was a demotion or promotion.
The respondent’s principal submissions in relation to this issue may be summarised as follows:
(a) Mr Jansons’ submissions did not address the allegation of bullying and harassment. The timeline of events provided in Mr Jansons’ submissions did not in fact constitute bullying or harassment. Both of which require some sort of repetition. One could not be satisfied that Mr Jansons was bullied and harassed by anyone at work. There were certain interactions that took place but they did not constitute bullying and harassment.
(b) The transfer occurred quite a deal of time after Mr Jansons’ decompensation. The decompensation and the date of injury relied on by Mr Jansons is 21 September 2018 and he did not return to his former school, Cambridge Park High School, until the end of January 2019. The fact that there was a gap between the date of decompensation and his return to Cambridge Park High School did not matter because the action the respondent takes must be “with respect to” transfer. The main action taken, constituting the section 11A(1) defence, occurred on 18 September 2018, being the date when Mr Jansons was told by Mr Charlton that his application for the position of Liaison Officer was unsuccessful. The mere fact that Mr Jansons was unsuccessful meant that his contract with the respondent would come to an end at the conclusion of 2018 and that he would have to return to his substantive school in January 2019.
(c) The respondent relied on the decision in Doyle, which is authority for the proposition that a transfer does not have to be between one office and another office. It could be between one role and another role, which was found to be the case in Doyle, where a chef was transferred from his role as chef to that of the saucier. In this case, even though Mr Jansons’ employment might, in fact, have remained on the same level and was going back to his previous employment, there was definitely a transfer. The act of telling Mr Jansons that he was not successful in his application was an action with respect to him being ultimately transferred back to his original school. No attack was made in Mr Jansons’ submissions on the reasonableness of that action. It should be found that the act of Mr Charlton telling Mr Jansons of his unsuccessful application in the meeting on 18 September 2018 was a perfectly reasonable action.
(d) Another action the respondent relied on preceded the meeting between Mr Charlton and Mr Jansons on 18 September 2018 and that was Mr Jansons’ interview with the Assessment Panel that took place on 11 September 2018. The respondent’s actions in respect of that interview were perfectly reasonable because of the matters referred to in the respondent’s statement in response to Mr Jansons’ AHRC complaint form. The Response was prepared by the respondent’s solicitors on instructions. Although it was not a statement in the traditional form from Mr Charlton or Ms Braithwaite, it was a statement made on instructions. At the time the Response was drafted, Mr Charlton had left the respondent’s employment. Ms Braithwaite provided information for the Response.
(e) The Response provided a detailed background in respect of Mr Jansons’ secondment. It stated that in July 2018, a role of Liaison Officer was advertised externally and internally as part of a merit-based recruitment process. The Response stated that, whilst the title Liaison Officer was the same as that then held by Mr Jansons, it was a completely different job. The primary purpose of the role was different. The accountabilities were different as was the line of command. The new role was to be embedded in the Communications, Media and Events Directorate, rather than the School Registration Standards Directorate. The majority of the successful candidate’s time was to be spent in communicating with schools for different purposes, including the delivery of accredited professional development courses, rather than home schooling. Further, the successful candidate’s remaining time was to be spent delivering the respondent’s priorities and projects across NSW and participating in respondent consultations and the credentialling of teacher accreditation and HSC programs. Although Mr Jansons thought the advertised role of Liaison Officer was the same role, the role was completely different as evidenced in the advertisement for it.
(f) The Response noted that, as it was a merit-based recruitment process, the respondent used a Comparative Assessment Matrix. In accordance with
rule 16 (2) of the Government Sector Employment (General) Rules 2014, the ultimate hiring decision was made on the basis of an assessment of the capabilities, experience and knowledge of the candidates, measured against pre-established standards for the role to determine the candidate best suited to the requirements of the role and the respondent’s needs. It was not the Assessment Panel that determined the successful applicant for the role. The Assessment Panel provided a provisional recommendation of the preferred candidate for the role to the Chief Executive Officer. It was then the Chief Executive Officer who made the decision.(g) The Response noted that, there were many more candidates that were more suitable for the role than Mr Jansons, despite the fact that he had been in a similar role. The only criteria considered by the respondent in determining the successful candidate were those that formed part of the merit-based recruitment process.
(h) The Response attempted, on instructions, to respond to some, if not all, of the allegations made by Mr Jansons. The respondent accepted that Mr Jansons performed adequately during his employment. The respondent accepted the conversation Mr Jansons had with Ms Braithwaite. The respondent denied that the latter subsequently disclosed the fact or circumstances of Mr Jansons disability to others within the respondent’s organisation. Ms Braithwaite continued to manage Mr Jansons as she had previously done. The respondent was unaware of Mr Jansons’ diagnosis until the AHRC complaint was made.
(i) The Response noted that the respondent was in the process of restructuring and six roles were advertised on that background.
(j) Mr Jansons did not get the job. He was understandably upset about not getting the job. He thought that it was the same job that he had already been doing. The respondent’s evidence was that it was not the same job at all. It was quite different. The respondent was looking for someone different. Mr Jansons was outdone by many of the other applicants for the job. The action the respondent took was, firstly, to interview Mr Jansons and give him the opportunity. Instead of sending him a note advising that his application was unsuccessful, the respondent called him into a meeting and told him that he had been unsuccessful. It was a reasonable action on the part of the respondent. Mr Jansons alleged that he did not really get any feedback. However, the conversation as recorded in Mr Jansons’ statement disclosed that Mr Charlton provided an explanation. There was feedback but it just was not enough to satisfy Mr Jansons. Mr Jansons stated that he sent an email to Mr Charlton requesting feedback but that Mr Charlton did not respond to it. Mr Jansons’ email to Mr Charlton was not attached to his statement.
(k) Mr Jansons stated that he had a further meeting with Mr Charlton to seek further feedback on 21 September 2018 and referred to their conversation. It cannot be inferred from that conversation that Mr Charlton was aware of Mr Jansons’ disability. Mr Charlton’s response to Mr Jansons’ enquiry as to whether the former was aware of his disability cannot be taken to be, or inferred to be, that he was aware of Mr Jansons’ diagnosis of ASD. Mr Charlton’s response was one that covered disability in general. Mr Charlton did not say, “your disability did not factor in our decision relating to the position”.
(l) There was no real reason for Mr Jansons’ belief that his application was unsuccessful because he disclosed his diagnosis of ASD to Ms Braithwaite. It did not make sense because he was going to return to his substantive teaching position and keep working there. The respondent wanted something completely different and Mr Jansons did not have the experience to do what they needed and that is why he did not get the job. That action was perfectly reasonable on the part of the respondent.
(m) There is no evidence that Mr Jansons was discriminated against. He might have felt that way. He brought proceedings in a different jurisdiction in relation to that complaint.
(n) Mr Jansons application was unsuccessful because to some extent, the respondent had shifted the goalposts in respect of the new role. In the end, this is a fact of life. The respondent conducted an interview with Mr Jansons and there were two meetings with him on 18 September 2018 and on 21 September 2018. The respondent listened to him and made the appropriate moves. The actions taken by the respondent, in the circumstances, were perfectly reasonable.
(o) The predominant cause of Mr Jansons’ condition were the actions of the respondent with respect to transferring him back to his original position. The transfer back to Mr Jansons’ original position falls within the category of “transfer” within the meaning of section 11A(1) of the 1987 Act.
(p) Mr Jansons’ submission that Dr Smith found that the predominant cause of Mr Jansons’ condition was his sense of shock and disbelief followed by anger and betrayal that he was unsuccessful in securing a role with the respondent and that he believed he was being discriminated against, matters not. It is a matter for the Commission to evaluate all of the various contributing causes of Mr Jansons’ condition and make a decision as to the predominant factor. It was the meeting of 21 September 2018 that caused Mr Jansons to decompensate. However, before that there was the meeting of 18 September 2018 where Mr Jansons was also very upset. It was certainly the meeting of 21 September 2018 that sent him off to his doctor. The appropriate finding is that the predominant factor, amongst all the factors alleged in Mr Jansons’ submissions, were the meetings to inform him that his application was unsuccessful and explain the reasons why he was unsuccessful. It was not wholly as a result of those meetings but they were the predominant reasons for Mr Jansons’ decompensation into an adjustment disorder.
(q) There was no submission by Mr Jansen that the meeting of 18 September 2018 was unreasonable. The meeting of 21 September 2018 was reasonable. Whilst Mr Jansons became upset that Mr Charlton told him that he was only on a temporary contract and not in an ongoing role, it was a fact. The reasonableness of those actions were addressed in submissions above.
(r) The respondent’s defence under section 11A(1) of the 1987 Act has been made out and an award should be entered in favour of the respondent.
(s) Equal weight ought to be given to the Response to Mr Jansons’ AHRC complaint form and to Mr Jansons’ own statement. The reason it ought to be given equal weight is because Mr Jansons’ written statement in these proceedings was the one provided in the discrimination proceedings.
Mr Jansons’ submissions in reply may be summarised as follows:
(a) Equal weight ought not be given to the Response prepared by Lander & Rogers on behalf of the respondent. Mr Jansons’ statement is signed by him. He was present at the conciliation/arbitration proceedings in this matter and was available for cross examination, if the respondent had made an application to do so. The source materials or the interview notes were not attached to the Response. One can assume that Ms Braithwaite was asked for information because of the contents of the Response. It was unsatisfactory for the respondent to present its evidence in such a way and little weight ought to be given to it.
(b) The interview and the respondent informing Mr Jansons that his application was unsuccessful was not an act with respect to transfer within the meaning of section 11A(1) of the 1987 Act. There was a period of four months from the asserted act and the actual transfer. With the benefit of hindsight, one could say that he was ultimately transferred back to his original school. At the time Mr Jansons was informed that his application was unsuccessful, anything could have happened. He may have been seconded to another position with the respondent. He may have resigned his employment with the respondent and the Department of Education for any number of reasons. The fact that Mr Jansons ultimately went back to his old school did not make the act of informing him in September 2018 of his unsuccessful application, an act with respect to transfer. It is a long bow to draw. Neither was the interview. They were entirely separate matters.
I now turn to the application of the relevant legislation and the legal principles referred to above, to the evidence in this matter.
I reject the respondent’s submission that I ought to give equal weight to the contents of its Response to the AHRC complaint and Mr Jansons’ signed statement dated 15 March 2019. The Response was prepared by the respondent’s lawyers on instructions from an unidentified person or persons. Although the respondent suggested that Ms Braithwaite provided information for the Response, there was no evidence of that on the face of the document. I also reject the respondent’s submission that the reason for giving the Response equal weight was that Mr Jansons’ written statement in these proceedings was the statement provided in the discrimination proceedings. I give the Response little weight as it amounted to little more than written submissions, rather than evidence.
There was no signed statement by Mr Charlton in evidence to respond to the matters raised by Mr Jansons in his statement. The respondent, in submissions, explained that Mr Charlton had left its employment at the time the Response was drafted. However, on careful reading of the relevant passage in the Response, it stated:
“… Mr Charlton no longer works for NESA (the respondent). Accordingly, NESA has not sought comment (emphasis added) on the conversation alleged to have occurred between Mr Jansons and Mr Charlton.”[62]
[62] ARD at page 76 at [27].
There was no signed statement by Ms Braithwaite in evidence to respond to the matters raised by Mr Jansons in his statement. There was no signed statement in evidence by Mr Crocker, who was one of the Assessment Panel members together with Mr Charlton and Ms Braithwaite. There were no signed statements by Ms Barrie, Ms Pyne, Ms Keys, Ms Keenan or Ms Cohen in evidence to respond to the matters raised by Mr Jansons in his statement.
There was no dispute that Mr Jansons commenced his role with the respondent as a Liaison Officer – Metropolitan on a full-time two-year temporary contract under secondment from the NSW Department of Education from 28 January 2015. Thereafter, he was offered and accepted two one year extensions of his contract with the respondent, the last of which was due to end on 28 January 2019. The role was embedded in the School Registration Standards Directorate. There was no evidence of the respondent having granted or intending to grant a further extension to Mr Jansons’ contract beyond 28 January 2019. Mr Jansons’ evidence was that, on 21 September 2018, Mr Charlton had reminded him that he was only on a temporary contract; it was not an ongoing role; and that he should return to his substantive position and become a Deputy Principal or Principal to gain more experience.
There was no dispute that, prior to commencing his employment on secondment with the respondent, Mr Jansons was employed by the NSW Department of Education as a Head Teacher in PDHPE at Cambridge Park High School.
There was no dispute that, once Mr Jansons’ temporary contract under secondment from the NSW Department of Education ended, he would return to his substantive role at Cambridge Park High School as a Head Teacher in PDHPE. The evidence was that he did so in January 2019 and that he has continued in that role.
At the arbitration hearing, the respondent relied on the transfer, demotion or promotion categories in section 11A(1) of the 1987 Act. There was no evidence supporting the promotion category. The only tenuous evidence relating to the category of demotion was to be found in Mr Jansons’ statement that, in his substantive role at Cambridge Park High School he was earning $118,315 per annum and that the successful candidate for the respondent’s Liaison Officer’s role was on a salary of $140,796 in 2019. The respondent bears the onus under section 11A(1) of the 1987 Act. I am not satisfied that the respondent has discharged its onus in relation to the categories of demotion or promotion.
In any event, during submissions, the respondent focused on the transfer category. The respondent submitted that the predominant cause of Mr Jansons’ psychological condition were its actions with respect to transferring Mr Jansons back to his original position and that the transfer back to his substantive role with the NSW Department of Education fell within the category of “transfer” within the meaning of section 11A(1) of the 1987 Act.
Mr Jansons submitted that the timeline of events did not support the transfer, promotion or demotion categories under section 11A(1) of the 1987 Act. Further, there was no evidence that any of those categories were the predominant cause of Mr Jansons’ psychological condition. In the alternative, if it were found that the predominant cause of Mr Jansons’ psychological condition did fit one of the categories, then the medical evidence supported the predominant causative factors as being multifactorial. There was no particular factor that was a predominant factor in those multifactorial matters. Further, the recruitment process was unreasonable.
I accept Mr Jansons’ unchallenged evidence of his conversation with Ms Braithwaite in November 2017, when he disclosed his diagnosis of ASD. I also accept his unchallenged evidence about the change in the nature of his close relationship with Ms Braithwaite following his disclosure thereafter. I accept his evidence that the way Ms Braithwaite spoke to him and treated him had changed and that he felt that she thought less of him. This was consistent with the history he provided to Dr Walker. I find that this contributed to his psychological decompensation.
I accept Mr Jansons’ unchallenged evidence of the conversations and events at the casual dinner with work colleagues in June 2018. The evidence was consistent with his belief that his trust had been betrayed by a person he considered a trusted friend and colleague, namely, Ms Braithwaite. This was consistent with the history he provided to Dr Walker, Dr Thavakulasingam, Dr Rastogi and Dr Smith. In the absence of any evidence from Ms Braithwaite and/or other employees of the respondent, and in view of Mr Jansons’ conversation with Ms Barrie, I find that, on the balance of probabilities, Ms Braithwaite disclosed Mr Jansons’ ASD diagnosis to, at least, Ms Barrie. I find that this contributed to his psychological decompensation.
I accept Mr Jansons’ unchallenged evidence that he overheard Ms Braithwaite inviting someone to come and work with her and that she would soon be recruiting for the Sydney Liaison Officer position over the telephone in about August 2018. I find that this contributed to his psychological decompensation.
I accept Mr Jansons’ unchallenged evidence that he was aware that Ms Braithwaite had discussed the composition of the Assessment Panel with other applicants for the position of Liaison Officer. I also accept his evidence about his conversation with Ms Munro about her having been informed of the composition of the Assessment Panel for her interview. Further, I accept his evidence that when he approached Ms Braithwaite in relation to the composition of the Assessment Panel for his interview, she responded that she was not going to disclose that information to him, nor was she required to do so. I find that this contributed to his psychological decompensation, in that, he believed that he was being treated differently.
The respondent submitted that it was in the process of restructuring and six roles were advertised on that background. However, there is no evidence from the respondent about the purported restructuring. It is only referred to in its written submissions (the Response) and its oral submissions.
The respondent submitted that Mr Jansons thought the newly advertised role of Liaison Officer was the same as his current job. I disagree with that submission. I interpreted Mr Jansons, reference to “my job” as a reference to the title of his role, that is, Liaison Officer. The 2015 and 2018 role descriptions of a Liaison Officer with the respondent set out the differences in respect of the purpose of the role, key accountabilities, key challenges, key relationships, role dimensions, essential requirements, capabilities for the role, amongst other things. Mr Jansons’ evidence was that he had successfully fulfilled his previous role for three years and felt confident of being able to fulfil the advertised role.
Mr Jansons made no complaint about his Assessment Panel interview. In fact, he thought that it had gone well.
I accept Mr Jansons’ unchallenged evidence of the conversation that took place in his meeting with Mr Charlton in the presence of Ms Braithwaite on 18 September 2018. I also accept Mr Jansons’ evidence that he was shocked at having been unsuccessful in his application for the position of Liaison Officer and that he felt upset, angry, confused, humiliated and used. This was particularly so because he had chosen to continue working with Ms Braithwaite after turning down an offer from Ms Keenan to remain in her Directorate as a Senior Registration Officer. It was consistent with the history Mr Jansons provided to Dr Walker, Dr Rastogi, Dr Thavakulasingam and Dr Smith. I find that this contributed to his psychological decompensation.
I accept Mr Jansons’ evidence that he believed that it was the disclosure of his diagnosis of ASD alone that caused Mr Charlton and Ms Braithwaite to decide to employ another person in the role of Liaison Officer. It was consistent with the history he provided to Dr Walker, Dr Rastogi, Dr Thavakulasingam and Dr Smith. I find that this belief contributed to his psychological decompensation. It was consistent with his evidence that he was being treated differently by Ms Braithwaite after he disclosed to her his diagnosis of ASD. It was also consistent with his evidence of Ms Braithwaite’s refusal to inform him of the composition of the Assessment Panel for his interview despite having disclosed the same to other candidates.
I accept Mr Jansons’ unchallenged evidence of the conversation that took place at his meeting with Mr Charlton on 21 September 2018, when he was informed, amongst other things, by the latter that he had been interviewed out of courtesy; that he had placed equal fifth out of six candidates on the scoring system; that he was never going to get the job; that he should return to his substantive position and become a Deputy Principal or School Principal to gain more experience.
I accept Mr Jansons’ evidence that following his meeting with Mr Charlton on 21 September 2018, he felt humiliated and embarrassed, unable to focus on his work thereafter on that day and consulted his general practitioner. The meeting on 21 September 2018 was a significant event in the decompensation of Mr Jansons’ psychological condition. In his mind, the beliefs and inferences he had drawn that I have referred to above, were confirmed by the disclosure that he had been interviewed out of courtesy and that he was never going to get the job.
I accept Mr Jansons’ unchallenged evidence of his conversation with Ms Cohen on 25 September 2018, where, amongst other things, the latter initially enquired as to his well-being and then informed him that it had been agreed with Mr Charlton and Ms Braithwaite that the requirements for the role of Liaison Officer included experience as a Deputy Principal or Principal, as only candidates with such experience provided credibility to the role. She also sought to discourage him from making a GIPA application. I find that Mr Jansons’ interaction with Ms Cohen on 25 September 2018 was an event he perceived to be harassment and involved being targeted and scrutinised. The event added to the decompensation of his psychological condition.
I accept that Mr Jansons believed the comments recorded against his name in the ANS were added after his interview with the Assessment Panel to justify not giving him the job. I accept that he believed the process was unfair. In his mind, such belief was confirmed by the brevity in the redacted comment column of the two candidates above him in the ANS; the change in Ms Braithwaite’s interactions with him; the disclosure that he had been interviewed out of courtesy and that he was never going to get the job; and the disclosure that the respondent was seeking a candidate who was either a Deputy Principal or Principal. The latter requirement not having been referred to in the advertisement for the role.
Dr Foster described the main contributing factor to Mr Jansons’ psychological condition as being the treatment he received at work after applying for the new role of Liaison Officer, which he believed he was suited to. Dr Foster described the predominant cause of the psychological injury as being the treatment by the respondent’s staff after Mr Jansons was turned down for the new position.
Dr Thavakulasingam opined that Mr Jansons’ psychological condition was contributed to by the disappointment in failing to secure the job he had been assigned over the past four years; the hostile treatment he was given; and the breach of confidentiality in relation to his ASD.
Dr Smith opined that Mr Jansons’ sense of shock and disbelief that he was unsuccessful in securing the role with the respondent was the predominant cause of his adjustment disorder.
Dr Rastogi opined that Mr Jansons’ employment with the respondent was a substantial contributor to psychological injuries, after having been victimised, scrutinised and been the recipient of harassment allegations following his unsuccessful interview. Mr Jansons reported to Dr Rastogi that, since November 2018, he had been taken off NSW curriculum review consultation meetings where other Liaison Officers were attending and where he had already confirmed his attendance. Further, he was the only Liaison Officer who was not put on the additional HSC support appeal program. Mr Jansons reported that his manager allocated him cases of illness and misadventure, whereas normal practice was that more senior panel members addressed those complex cases separately only after working through the simpler cases. He felt targeted and scrutinised by being given complex cases immediately. He felt he was targeted because he made a further GIPA application. I accept that Mr Jansons perceived that he was being targeted and scrutinised as reported by Dr Rastogi above. These events added to the decompensation of his psychological condition.
Whilst it was raised in one or more of the medical reports in evidence, the allegations of bullying and harassment made against Mr Jansons by Ms Cohen were not agitated in Mr Jansons’ submissions.
Under section 11A(1) of the 1987 Act, I must take a broad approach to “action with respect to transfer”. Such action usually involves a series of steps, which cumulatively can have psychological effects. Often, it will not be possible to isolate the effect of a single step. In this situation, the whole or predominant cause is the entirety of the conduct with respect to transfer.
The fact that Mr Jansons was unsuccessful in his application for the new role of Liaison Officer with the respondent meant that his secondment would come to an end and that he would have to return to his substantive position as a Head Teacher in PDHPE at Cambridge Park High School in late January 2019. Had Mr Jansons’ application been successful, his secondment would have ended on the commencement of his full-time role as Liaison Officer with the respondent and he would not have returned to his substantive position as a Head Teacher in PDHPE at Cambridge Park High School.
I do not accept Mr Jansons’ submission that the actions of the respondent did not fall within the category of “transfer” within the meaning of section 11A(1) of the 1987 Act. Separating the recruitment process from Mr Jansons’ transfer back to his substantive role on the basis of a temporal gap of four months would be taking too narrow a view of the expression “action with respect to transfer”. The legal principles referred to above establish that a broad view is to be taken of that expression. In this case, it is capable of extending to the entire recruitment process that eventually resulted in Mr Jansons’ return to his substantive position at Cambridge Park High School. Therefore, taking a broad approach, the evidence in this regard satisfied the “transfer” category under section 11A(1) of the 1987 Act and I so find.
I find that the causation of Mr Jansons’ psychological condition was multifactorial. However, I find that it was predominantly caused by action taken by or on behalf of the respondent with respect to transfer. I have identified the actions taken by or on behalf of the respondent above, some of which were not taken with respect to transfer.
I find that actions taken by or on behalf of the respondent that were not taken with respect to transfer were those referred to in [119] and [120] above.
The respondent’s actions that were taken with respect to transfer were those in the lead-up to the recruitment process, the recruitment process itself and the actions taken after the recruitment process had been completed until Mr Jansons’ returned to his substantive position. Those actions were referred to in [118], [121], [125], [127], [128], [129] and [134] above.
I now turn to the question as to whether the respondent’s actions with respect to transfer were reasonable.
I find that the manner in which Ms Braithwaite spoke to and treated Mr Jansons in the lead up to the recruitment process was not reasonable. It was not reasonable for her to withhold the identity of the Assessment Panel members to Mr Jansons when she had disclosed it to other candidates for the new role of Liaison Officer.
I find that the respondent’s action in calling Mr Jansons into a meeting on 18 September 2018 to inform him of his unsuccessful application for the new role of Liaison Officer was reasonable. The meeting, whilst unpleasant for Mr Jansons, conveyed the outcome of his application face-to-face with Mr Charlton and in the presence of Ms Braithwaite.
I find that the respondent’s action in calling Mr Jansons into a meeting on 21 September 2018 and disclosing to him for the first time that he had been interviewed out of courtesy; that he had placed equal fifth out of six candidates on the scoring system; that he was never going to get the job; that he should return to his substantive position and become a Deputy Principal or School Principal to gain more experience, was not reasonable.
I find that Ms Cohen’s action on behalf of the respondent to discourage Mr Jansons from lodging a GIPA application in respect of the interview process was not reasonable.
I find that the respondent’s action in removing Mr Jansons from NSW curriculum review consultation meetings that were attended by other Liaison Officers was unreasonable. As was not being placed on the additional HSC support appeal program. I find that the respondent’s action in allocating Mr Jansons cases of illness and misadventure was not usual practice and was not reasonable.
I find that, overall, the entirety of the respondent’s conduct with respect to transfer, was not reasonable. Mr Jansons went through the recruitment process as a matter of courtesy according to Mr Charlton when the latter knew that Mr Jansons’ application would not be successful. In response to a question by Mr Jansons, Mr Charlton quite frankly disclosed that he was never going to get the job. This was not disclosed in the meeting on 18 September 2018. The job prerequisite of being a Deputy Principal or Principal was not disclosed in the advertisement for the new Liaison Officer role, nor was it disclosed to Mr Jansons in his meeting with Mr Charlton and Ms Braithwaite on 18 September 2018. Mr Jansons was treated differently by management, if not after the outcome of his application then, certainly, shortly after he lodged his GIPA applications.
Accordingly, I find that the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to transfer, demotion or promotion.
Mr Jansons’ claim for compensation under section 66 of the 1987 Act
The jurisdiction of a Member of the Commission, as opposed to that of a Medical Assessor of the Commission, is to determine liability issues and “the nature of the injury sustained”: Jaffarie v Quality Castings Pty Ltd (Jaffarie No 2).[63] As to whether an injured worker has recovered from any injury found to have been suffered; whether any aggravation, acceleration, exacerbation or deterioration has ceased; whether the impairment or any part of it results from an injury other than that referred for assessment; or whether a deduction is required pursuant to section 323 of the 1998 Act by reason of the impairment found being partly due to a previous injury or a pre-existing condition or abnormality, are issues and matters falling within the exclusive jurisdiction of a Medical Assessor of the Commission.
[63] Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88, [80] (White JA (MacFarlane and Leeming JJA agreeing on this point)).
The repeal of section 65(3) of the 1987 Act, allows Members of the Commission to make determinations of permanent impairment.
In this case, the respondent did not dispute that Mr Jansons suffered a primary psychological injury in the course of his employment with the respondent. The respondent unsuccessfully raised the defence available to it under section 11A(1) of the 1987 Act for the reasons stated above. The next issue for me to deal with is the referral of the matter to a Medical Assessor of the Commission for assessment under the 1998 Act. The parties agreed that, if the respondent’s defence under section 11A(1) of the 1987 Act is not made out, then the matter is to be remitted to the President for referral to a Medical Assessor for the assessment of whole person impairment under the 1998 Act.
Accordingly, I will remit the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment of Mr Jansons’ primary psychological injury as a result of injury on 21 September 2018.
CONCLUSION
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.
Anthony Scarcella
MEMBER
19 April 2021
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