K & W Haulage Pty Ltd v BCL
[2023] NSWPICPD 7
•8 February 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | K & W Haulage Pty Ltd v BCL [2023] NSWPICPD 7 |
APPELLANT: | K & W Haulage Pty Ltd |
RESPONDENT: | BCL |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W6677/21 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 8 February 2023 |
ORDERS MADE ON APPEAL: | 1. Time to appeal the Member’s decision of 6 July 2022 is extended to 5 August 2022. 2. The Certificate of Determination dated 6 July 2022 is revoked. 3. The matter is remitted to another non-presidential member for re-determination. |
CATCHWORDS: | WORKERS COMPENSATION – Extension of time to appeal – Yacoub v Pilkington (Australia Ltd [2007] NSWCA 290 applied; Ho v Professional Services Review Committee No. 295 [2007] FCA 388; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34; Gallo v Dawson [1990] HCA 30 – discussed and applied – perception of events – Attorney General’s Department v K [2010] NSWWCCPD 76 applied – duty to give reasons – Waterways Authority v Fitzgibbon [2005] HCA 57 applied – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 considered and applied – failure to consider evidence State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq) [1999] HCA 3; 160 ALR 588 – applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Ms L Goodman, counsel | |
| Bartier Perry Lawyers | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Santone Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr M McGrowdie |
DATE OF Member’s DECISION: | 6 July 2022 |
INTRODUCTION AND BACKGROUND
At the application of the applicant in the proceedings below, the name of the applicant (the respondent in the appeal) was de-identified as “BCL”. It follows that the de-identification is adopted in this appeal.
BCL (the respondent) commenced employment with the appellant, K & W Haulage Pty Ltd, as a truck driver in March 2020. The respondent’s employment was terminated on 5 November 2020. The letter of termination cited the respondent’s involvement in road accidents, failure to enter weigh bridges, failure to give notice of annual leave days and being involved in altercations with other workers on various sites while the respondent’s employment was still probationary.[1] The respondent commenced proceedings in the Fair Work Commission, which ultimately resolved. The respondent lodged a workers compensation claim dated 13 April 2021, alleging that he had suffered a psychological injury as a result of being bullied and harassed on the basis of his sexual orientation and his HIV status over the period of his employment with the appellant. He nominated the date of injury as 5 November 2020.[2]
[1] Reply to Application to Resolve a Dispute (reply), p 114.
[2] Application to Resolve a Dispute (ARD), pp 23–31.
The appellant denied liability for the claim, asserting that the respondent had not suffered an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act), or in the alternative, if the respondent did suffer an injury, it was wholly or predominantly caused by reasonable action taken by the appellant in accordance with s 11A of the 1987 Act. The actions relied upon by the appellant were said to be actions with respect to discipline, retrenchment, dismissal and/or provision of employment benefits.[3]
[3] ARD, pp 32–38.
The respondent commenced proceedings in the Personal Injury Commission (the Commission), claiming weekly payments, treatment expenses and lump sum compensation in respect of his whole person impairment pursuant to s 66 of the 1987 Act. The matter could not be resolved and proceeded to arbitration.
The Member issued a Certificate of Determination on 6 July 2022. He found that:
(a) the respondent suffered a psychological injury as a result of his perception of other employees’ conduct in the workplace;
(b) the respondent’s employment was a substantial contributing factor to the injury;
(c) although the respondent’s dismissal was a contributing factor to the injury, it was not the whole or predominant cause of the condition so that s 11A of the 1987 Act did not apply, and
(d) the respondent was unfit for work and required ongoing treatment as a result of the injury.
The appellant appeals the decision. The appeal was lodged on 5 August 2022, outside of the 28 day timeframe prescribed by s 352(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant seeks an extension of the time within which an appeal must be lodged, in accordance with s 352(4)(b) of the 1998 Act. The respondent opposes the application for extension of time and the appeal.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 (Determination of matters ‘on the papers’) and WC3 (Presidential appeals and questions of law), the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met. There is no issue as to whether the decision is interlocutory in nature.
THE APPLICATION FOR EXTENSION OF TIME
The appeal was lodged on 5 August 2022. The date for filing the appeal was 3 August 2022, so that the appeal was lodged two days late. Section 352(4) provides:
“(4) The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Rule 133A of the Personal Injury Commission Rules 2021 (the 2021 rules) relevantly provides:
“133A Extension of time for making certain applications
(1) This rule specifies the procedure for determining a period of time, longer than the statutory period, within which 1 of the following (a relevant application) may be made—
(a) an appeal under the 1998 Act, section 352,
(b) …,
(c) …,
(d) ….
Note—
The listed provisions specify that a relevant application must be made within the statutory period or a longer period determined or allowed in accordance with these Rules.
(2) A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.
(3) An extension application—
(a) must be made at the same time as the relevant application to which it relates, and
(b) must be in the approved form, and
(c) must include full details of the arguments relied on in favour of granting the order, and
(d) is taken to form part of the relevant application for the purposes of the requirements relating to service under rules 123 and 129.
(4) The extension application must be decided by the following (the decision-maker)—
(a) for an appeal under the 1998 Act, section 352—a presidential member,
(b) otherwise—the President.
(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.
(6) In this rule—
statutory period means—
(a)for the 1998 Act—the period specified in section 352(4)(a), and
(b) …
(c) …”.
Thus, the appellant must show that there are exceptional circumstances and that a refusal to extend time would constitute a demonstrable and substantial injustice.
The appellant’s submissions
The appellant’s submissions were included in submissions attached to the Application – Appeal Against Decision of Member (appeal application).[4]
[4] Appellant’s submissions, [2.1].
The appellant indicates that it seeks an extension of the appeal period for a period of two days. The appellant advises that the failure to lodge the appeal within time was an administrative or human error. The appellant explains that its solicitor mistook the final day to be 5 August 2022, rather than 3 August 2022. The appellant says that its solicitor was incapacitated for work from 2 August 2022 to 4 August 2022 because he had contracted COVID-19, and that his seven month old daughter also caught COVID-19 and was hospitalised.
The appellant advises that the solicitor did not become aware of the error until he had returned to work on 5 August 2022.
The appellant submits that the respondent is not prejudiced by the delay and that it is in the interests of justice for an extension to be granted because of the “content and gravity of the errors of law identified” in the Certificate of Determination.
The respondent’s submissions
The respondent asserts that the appellant has not provided acceptable reasons for failing to lodge the appeal within time. The respondent says that the appellant’s legal representatives are experienced in the jurisdiction and would be well aware that the appeal had to be lodged within 28 days, namely by 3 August 2022.
The respondent submits that there is no evidence in affidavit form from the appellant’s legal representatives that would show what steps were taken and when, in respect of seeking and acting upon instructions to appeal and the progress of the work done to draft and settle the appeal.
The respondent lists 14 examples of questions that it says need to be addressed, most of which enquire as to the chronology of the representatives’ conduct of the appeal. The respondent submits that the appellant’s solicitor ought to have filed an affidavit as to why he held the belief that the last date was 5 August 2022, and when that belief arose. The respondent contends that, in the absence of such an affidavit, and the absence of information pointed to at [19] above, the Commission would not be in a position to assess the substance of the assertions made.
The respondent queries why the appellant’s representatives did not act in a more timely manner to protect their client’s interests, rather than leaving it to the last day.
The respondent refers to the appellant’s submission that its solicitor was absent for work from 2 to 4 August 2022 and submits that this excuse should be disregarded because the solicitor thought the due date was 5 August 2022. The respondent adds that there are more queries which should be answered in relation to this excuse, such as why a colleague was not appointed to handle the matter. The respondent also queries the veracity of the appellant’s assertion that the solicitor suffered from COVID-19 and was absent from work and asserts that the appellant’s counsel also ought to have explained what knowledge she had as to the final date to appeal. The respondent asserts that a proper disclosure should have been made.
The respondent refers to the requirements of r 133A(3) that the application for an extension must provide full details of the arguments in favour of the grant in order for the Commission to be satisfied that exceptional circumstances exist, and also so that the Commission can be satisfied that it was reliably informed of the circumstances.
The respondent submits that the appellant’s explanation for the delay does not provide a satisfactory basis for excusing a failure to comply with the statutory requirements. He submits that if the appellant’s “bald” assertion was accepted, the provisions of s 352(4) would be “nugatory” and lead the profession to consider that time limits are not to be taken seriously.
The respondent refers to Procedural Direction WC3, and the requirement that there be “exceptional circumstances” before a Presidential member can extend the time to file the appeal. The respondent cites Yacoub v Pilkington (Australia) Ltd,[5] which is authority to say that exceptional circumstances are out of the ordinary course or unusual, special or uncommon. That is, they are not regular circumstances which are routinely or normally encountered. The respondent submits that there is nothing unusual, special or uncommon about miscalculating the due date or having overlooked it.
[5] [2007] NSWCA 290 (Yacoub).
The respondent asserts that the fact that the appellant fell ill within the time for filing the appeal is of no relevance when he had miscalculated the final due date. The respondent points out the consequences that may arise if miscalculating the date that the appeal was due to be lodged is considered an exceptional circumstance, and, in any event, it is not sound practice to wait until the last day available to file the appeal.
The respondent points to the second limb of r 133A(5) which must be satisfied, which is that the failure to grant leave would result in a demonstrable and substantial injustice. Citing the decision of Keating P in Bree v IR Doyle and PA Doyle t/as Ian Doyle’s Meat Service,[6] the respondent submits that the Commission must have regard to the prospects of the appeal succeeding. The respondent refers to his substantive submissions in response to the appeal and submits that the appeal has poor prospects of success and so there would not be a demonstrable and substantial injustice if leave to appeal was not granted.
[6] [2009] NSWWCCPD 25.
The appellant’s submissions in reply
The appellant responded to the respondent’s submissions, advising that it “provides the following chronology and affirms this is a true and accurate account to the best of the appellant solicitor’s recollection of the events leading up to 5 August 2022”:[7]
(a) on 28 July 2022 (a Thursday), the appellant’s solicitor conferred with the insurer and the funds administration manager (icare) to discuss the possibility of appealing the decision by the Member, following which verbal instructions were given to the solicitor to proceed with the appeal. At that meeting, the solicitor advised his client that the last day to appeal was 5 August 2022.
(b) on 31 July 2022 (a Sunday), the solicitor sent an email to counsel instructing her to prepare submissions for the appeal, advising counsel that “The last day to appeal is 5 August 2022 (coming Friday)”.
(c) 1 August 2022, as asserted by the appellant, was a public holiday (Labour Day).
(d) from and including 2 August 2022 – 4 August 2022, the solicitor was on personal (sick) leave due to COVID-19. During this time, the solicitor was unable to attend to any work-related matters.
(e) on 5 August 2022, the solicitor returned to work and on that day the solicitor and counsel had a telephone discussion, during which time counsel informed the solicitor that the last day to appeal was in fact 3 August 2022. It was at this time that the appellant’s solicitor first became aware that the appeal was out of time and that his belief that the last day was 5 August 2022 was erroneous.
[7] Appellant’s submissions in reply, [1]–[2].
The response was signed by the appellant’s counsel. The appellant enclosed copies of the following documents:
(a) a diary entry on 28 July 2022 confirming a Microsoft Teams meeting that day to discuss the appeal,
(b) the solicitor’s leave history from 2 August 2022 – 4 August 2022, showing that personal leave was approved for those days because the solicitor had contracted COVID-19;
(c) an email from the solicitor to counsel dated 31 July 2022, advising counsel that instructions had been provided to appeal the Member’s decision and requesting counsel to draft the appeal submissions, noting that the last day to appeal was 5 August 2022, and
(d) an email from the insurer to the solicitor dated 5 August 2022, requesting an update on the status of the appeal and noting that the insurer had diarised 5 August 2022 as the last day to appeal.
The email trail attached to the email sent on 5 August 2022 discloses that on 18 July 2022, the solicitor contacted the insurer forwarding a copy of his advice in relation to his recommendation to appeal the Member’s decision, noting that icare required notification.
Further correspondence from the respondent
On 28 September 2022, the respondent wrote to the Commission requesting that he be given leave to file further submissions in reply to the appellant’s submissions in reply, on the basis that in the appellant’s reply, the appellant had referred to evidence, the details of which had not previously been provided. The Commission wrote to the respondent advising that it was appropriate for the application to be determined by a Presidential Member. Further, the Commission advised that if the application was pressed, the draft submissions should be attached to the application, which would be placed on the Commission’s file for the Presidential Member’s consideration when the appeal was allocated.
On 29 September 2022, the respondent emailed the Commission seeking seven days within which to attempt a resolution with the appellant in respect of the issue of leave to lodge further submissions. The appellant also wrote to the Commission on that day, confirming that discussions were taking place between the appellant and the respondent.
No further application for leave or submissions were lodged with the Commission.
Admission of the documents annexed to the appellant’s submissions in reply
Section 352(6) of the 1998 Act provides that fresh evidence or additional or substituted evidence that was not before the Member in the arbitral proceedings may only be admitted on appeal with the leave of the Commission. The Commission is not to grant leave unless the evidence was not available to and could not have been reasonably obtained by the party seeking to adduce the evidence, or that a failure to grant leave would cause a substantial injustice in the case.
The evidence was clearly not relevant to the proceedings before the Member. The documents were sought to be tendered in response to matters raised by the respondent in the appeal. The documents are limited to providing some explanation for the delay in lodging the appeal. On the basis of the conclusions that I have reached in respect of my consideration of the application to extend time, the only document of relevance is the email dated 5 August 2022 and the email trail attached to it. Taking into account my conclusion, I can see no prejudice to the respondent if that document is admitted and I admit the document. The remaining documents are rejected.
Consideration of whether there were exceptional circumstances
Rule 133A(5) of the 2021 rules requires me to consider whether “exceptional circumstances” exist and whether a failure to grant leave would result in a “demonstrable or substantial injustice”. Whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted is “a composite expression in the rule to be dealt with within jurisdiction.”[8]
[8] Bryce v Department of Corrective Services [2009] NSWCA 188, [8]–[10], per Allsop P (Beazley and Giles JJA agreeing).
Exceptional circumstances are circumstances that are out of the ordinary course or unusual, special, or uncommon.[9] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.[10]
[9] Yacoub, [66], per Campbell JA.
[10] Ho v Professional Services Review Committee No. 295 [2007] FCA 388, [26].
Rule 16.2(12) (which was amended on 3 October 2019 to become rr 16.2(5) and 16.2(6)) of the former Workers Compensation Commission Rules 2011 provided the Presidential Members of the former Commission with the power to extend the time for filing an appeal. As with r 133A(5) of the 2021 rules, the rule(s) required the Presidential Member to be satisfied, in exceptional circumstances, that to lose the right to appeal would work a demonstrable and substantial injustice. The authorities relevant to a consideration of the former rules are therefore equally applicable to a consideration of the phrase “exceptional circumstances” in r 133A(5).
The extent of the delay and the reasons for the delay are a relevant consideration.[11]
[11] Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd, [2014] NSWCA 34, [9], per Basten JA.
The appeal was lodged just two days after the time for lodgment expired.
The Member issued his Certificate of Determination on 6 July 2022. The information provided by the appellant, discussed at [28]–[30] above, discloses that on 18 July 2022, the appellant’s solicitor sent advice to the insurer that an appeal was recommended, and an on-line meeting took place on 28 July 2022. The appellant provides no explanation for the delay of eight working days between the issue of the COD and the advice being provided, or the delay of eight working days between the provision of the advice and the meeting to discuss that advice. By the time the meeting took place, 21 days of the 28 day appeal period had already expired.
The appellant asserts that 1 August 2022 was a public holiday. It was not a holiday for the general public but was likely to be a holiday reserved for banks and some financial institutions. While the insurer and even the solicitor may have had the benefit of a holiday that day, that is irrelevant because the insurer had provided instructions to appeal on 28 July 2022 and the solicitor had retained counsel to draft the submissions for the appeal on 31 July 2022.
In any event, the fact remains that the appeal was lodged out of time because the appellant’s solicitor had miscalculated the date. There is no evidence to suggest that counsel’s submissions were not provided by the actual due date of 3 August 2022 or that the appeal could not be lodged by that date, had the solicitor correctly calculated that date. As the respondent submits, it would have been expected that a legal firm would arrange for another employee to oversee the solicitor’s legal practice in his or her absence from work from 2 August 2022 to 4 August 2022.
The former Commission has held in a number of cases that administrative errors by a legal practitioner are not a valid ground for extending the time to appeal.[12] Failure to comply with the legislative requirements for filing an appeal is not uncommon or rare, and somewhat regularly occurs. The failure to comply with those requirements because of administrative error on the part of the solicitor does not constitute exceptional circumstances.
[12] See Department of Education & Training v Mekhail [2006] NSWWCCPD 1 (Handley ADP); Department of Corrective Services v Buxton [2007] NSWWCCPD 55 (Snell ADP); Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72 (Roche DP); Webb v Penrith Rugby Leagues Club Ltd [2016] NSWWCCPD 16 (Keating P).
As the reasons for failing to lodge the appeal within time do not constitute exceptional circumstances, the appellant must show that demonstrable or substantial injustice would occur if leave to extend time for the making of the appeal was not granted.
Consideration of whether a failure to grant leave would cause substantial injustice
In Gallo v Dawson[13] the High Court set out the matters that ought to be taken into account when considering an application to have time extended. Justice McHugh said (excluding references):
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. ... This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. ... When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. ... It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted. ... It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”[14]
[13] [1990] HCA 30 (Gallo).
[14] Gallo, [2].
I have considered and discussed the prospects of success of this appeal below. I have concluded that the appeal has merit and should be allowed for the reasons set out therein. I find that the failure to extend time would cause a substantial injustice to the appellant. Time to appeal is therefore extended until 5 August 2022.
THE APPEAL
The evidence
The respondent’s statement evidence
The respondent provided a statement dated 11 February 2021.[15] He gave a history of having been physically fit, and that although he suffered from HIV, the condition was well-controlled by medication. He disclosed that he had struggled with mental health issues since he was 16 and also had been diagnosed with bipolar disease in 2018, both of which were also well controlled with medical treatment.
[15] ARD, pp 3–13.
The respondent said that he did not have a regular doctor but had attended the Menai Medical Centre for about 10 years. He said he nominated Dr Rose [Rosanne] Arentz, general practitioner, as his treating doctor for the purpose of his claim.
The respondent described a history of past employment with several organisations. He said that he commenced work with the appellant in March 2020 performing various duties, including truck driving, which he was able to perform without complaint. He asserted that he had never had any performance issues and he had only ever received praise for his work from the appellant.
The respondent indicated that he began to experience difficulties at work within the first two weeks of his employment. He said that the first incident involved both the yard supervisor (Karl) and another truck driver (Kyle), who both made comments about his hair, which he had coloured red. He said they queried him as to why he had done so and criticised his response. The respondent stated that, thereafter, Kyle would daily question him about his sexuality in an aggressive tone. He said he denied being gay because he was concerned that Kyle’s attitude may change if he admitted his sexuality. The respondent asserted that within the first month of his employment, Kyle asked him frequently whether he was gay in front of another employee, who the respondent referred to as “Plucker.”
The respondent stated that he considered consulting management about the issue but did not feel comfortable about doing so because he felt they were not approachable. He felt he had no one to go to to discuss the matter.
He asserted that he overheard Karl speaking to Ken, the company owner, in relation to the respondent’s sexuality in an inappropriate manner. He described the comments that the yard supervisor was making as “more malicious” in nature than joking, because of the aggressive tone he used.
He added that Kyle also questioned him about his HIV status and how he contracted it. The respondent advised that he never found out how Kyle knew he had HIV.
The respondent said that, while driving the truck he was involved in two accidents which were said to be his fault, even though in one of the accidents the other vehicle was speeding. He said that, as a consequence, his pay was reduced every week in order to pay the insurance excess of $2,800. He indicated that this caused him significant financial strain. He said that he did not feel that deducting money from his pay was warranted, and it caused a lot of stress and anxiety for him.
The respondent stated that he then suffered an ankle injury which was not work related and caused him to be unfit to work for two weeks. He said that after he returned to work, he was told that the appellant was terminating his employment immediately because he had taken too much leave at short notice. The respondent added that he was told his probationary period had been extended, but he did not have any prior knowledge that that was the case.
The respondent asserted that he had never received any formal warning or any performance warnings. He indicated that he commenced proceedings in the Fair Work Commission in respect of the dismissal, but because he was struggling financially he agreed to an early settlement.
The respondent advised that three weeks after the termination he commenced work with a new employer but was struggling to attend and perform the work so his employment was terminated after two months. He asserted that his inability to work resulted from the comments made and questions asked by Kyle in his employment with the appellant.
The respondent reported that he attended his general practitioner on 27 January 2021 because he was stressed, depressed and anxious. He said that the general practitioner referred him to his psychiatrist and provided him with a workers compensation medical certificate. He explained that he did not make a claim earlier because the symptoms did not present until his attempted return to work with the new employer.
The respondent described his mental health condition as poor and said that even though he was depressed because he was not working, he felt unable to return to work. He added that he was struggling with a lack of motivation and in looking after himself and his home.
The respondent provided a supplementary statement dated 27 September 2021.[16] He spoke of his employment with the subsequent employer, and how he felt anxious and distressed in that work because of his experiences in the employ of the appellant. He said he was worried about making mistakes and revealing his sexuality. He said he was constantly on edge which affected his ability to work. He described how, on 14 December 2020, he was having a bad day and it took him three times longer to load his truck. He said that there were a number of people watching him and he was anxious that they would notice potentially flamboyant behaviour on his part. He advised that on the following day he did not go to work because he was stressed.
[16] ARD, pp 14–16.
The respondent added that he had an accident with a forklift when he collided with another forklift, causing significant damage which he reported to the transport manager. He said that the company treated him well and did not discipline him about that incident, or the time he took to load his truck.
The respondent stated that he took a day off work following two nights of depression when he had consumed excessive alcohol. He said that he was also late for work on 25 January 2021 and on 26 January 2021 he had to stay later than normal to complete the work, missing his appointment with his general practitioner. He indicated that he had an anxiety attack that night and was mostly bed ridden until 3 February 2021. He said he returned to work on 4 February 2021 but was told that he had not successfully completed his probation.
The respondent described his ongoing symptoms of difficulty with memory, lack of motivation, poor eating habits, inattention to household cleanliness and difficulty sleeping. He asserted that the symptoms were consistent with how he was feeling during his employment with the appellant.
The respondent made a further statement on 17 March 2022 in response to several statements relied upon by the appellant that described the respondent’s behaviour in the workplace as aggressive.[17] He denied that he behaved in that manner, but conceded that as his employment progressed, his mood and behaviour were affected by the treatment he was receiving. He indicated that the termination of his employment was upsetting, but not in any way as distressing as the treatment he received in the workplace.
[17] Application to Admit Late Documents (AALD) dated 18 March 2022 pp 1–2.
The respondent attached a screen shot from a mobile telephone of text messages passing between him and his brother in relation to the termination of the respondent’s employment, which included what appears to be a reference to an employee remarking upon the respondent’s sexuality and HIV status.[18]
[18] ARD, p 18.
The statement of the respondent’s brother
The respondent’s brother made a statement dated 4 November 2021.[19] He reported that in his employment he was required to interact with staff employed by the appellant. He referred to one conversation with an employee of the appellant who described the respondent as a “pretty boy.” The brother described the employee’s appearance. He referred to a second conversation between him and another employee of the appellant in which the employee referred to the respondent as a “handbag”.
[19] ARD, pp 20–22.
Statements of Ms Karen Buchanan, the appellant’s office manager
Ms Karen Buchanan made a statement dated 17 February 2021.[20] She confirmed that the respondent commenced employment with the appellant on 1 April 2020. Ms Buchanan described the respondent’s attitude and willingness to work as “good.” She confirmed that the respondent had not been the subject of disciplinary action, although he had:
(a) received verbal warnings about failing to enter the weigh bridge on two occasions;
(b) been spoken to about two accidents in which the respondent was involved, and for which the respondent was at fault, and
(c) behaved aggressively with one of the other drivers following a disagreement.
[20] Reply, pp 84–89.
She reported that no formal action was taken about those matters.
Ms Buchanan stated that she first became aware of the respondent’s allegation of psychological injury on 27 January 2021, when the respondent had forwarded by email a workers compensation medical certificate, which cited “bullying in the workplace” as the reason for injury. Ms Buchanan said that she lodged the claim with the workers compensation insurer and sent an email to the respondent, confirming the claim had been lodged and asking for details about how the injury occurred, who was involved, and what had happened.
Ms Buchanan stated that the respondent replied on 1 February 2021 and provided an outline of the four allegations made by him. She advised that she had no knowledge of those incidents and no knowledge of when they had happened. She said she spoke with “Plucker” (Dave), who denied seeing the incident when Kyle questioned the respondent about his HIV status.
Ms Buchanan provided an explanation in relation to why the insurance excess was deducted from the respondent’s pay, which was permitted in accordance with the appellant’s handbook in circumstances of negligence or lack of care. She indicated that the first accident caused damage of $4,000, which the appellant decided to pay without claiming on the insurance. She said that the respondent agreed to pay half, and have the payment deducted from his pay at the rate of $100 per week. She advised that the second accident caused significant damage, so the appellant claimed through the insurer, and the excess for the appellant to pay was $1,750. Ms Buchanan advised that the respondent agreed to pay $1,000 of the excess, on the same terms as the first incident. She said that, if there were periods during which the respondent was unable to pay, the appellant had no issue with the repayment being deferred. She added that the respondent made no complaint about the repayments.
Ms Buchanan advised that the respondent’s employment was terminated on 5 November 2021 (sic, 2020) as a result of an incident in which the respondent was making a delivery to another site. She stated that the respondent was said to have behaved aggressively towards a forklift operator, which was reported to the appellant by the manager of that site.
Ms Buchanan made a further statement dated 14 September 2021.[21] She advised that the respondent had not passed the probationary period. She confirmed that the respondent had not undergone any formal disciplinary process but had been given verbal warnings. She said the respondent was spoken to in relation to:
(a) two occasions when the respondent did not go through the truck weigh bridge;
(b) the motor vehicle accidents in which the respondent was involved, and
(c) displaying hostile behaviour towards other employees.
[21] Reply, pp 129–133.
Ms Buchanan denied that the respondent was “blindsided” by the termination of his employment. She advised that he was well aware of the incidents referred to in the letter of termination and that all of those matters had been discussed with the respondent.
Ms Buchanan confirmed that the appellant’s handbook, which had been signed by the respondent, allowed for termination of employment without notice where an employee acts in a verbally aggressive manner and that was also a provision in the respondent’s contract of employment. Ms Buchanan referred to the respondent giving no notice of his intention to take annual leave on the day prior to, and the day after, the October long weekend. She said that the appellant’s handbook required four weeks of notice to be given when single days of annual leave were taken. Ms Buchanan concluded that, in her view, the termination of the respondent’s employment was reasonable.
Statement of Mr Kyle Hannan-Aitken
In his statement dated 17 February 2021,[22] Mr Hannan-Aitken confirmed that he was employed by the appellant as a truck driver. He advised that he was surprised about the respondent’s allegations because he was of the view that they had a good relationship and had been in contact after the respondent’s employment ceased. He asserted that he had never made any derogatory comments about the respondent’s hair, although he may have remarked that the respondent had changed the colour of his hair, which the respondent did regularly. He stated that they were not negative comments, and the respondent did not react negatively.
[22] Reply, pp 91–94.
Mr Hannan-Aitken denied that he had ever asked the respondent about his sexuality and stated that he had never used an aggressive tone or made malicious comments when speaking to the respondent. Mr Hannan-Aitken reported that the respondent could be aggressive and angry at times and had a reputation of having a “short fuse”, so Mr Hannan-Aitken was careful not to say anything to upset the respondent.
Mr Hannan-Aitken also denied having questioned the respondent about having HIV and denied having knowledge to that effect. He reported that in December 2020 he had passed the respondent in his truck and the respondent, having recognised the truck, had telephoned him, advising that he had a new job and suggesting they get together for a beer.
Statement of Mr Karl Bowers
Mr Karl Bowers made a statement dated 17 February 2021.[23] He confirmed that he was employed by the appellant as a yard supervisor and would see the respondent regularly when the respondent came to pick up freight. Mr Bowers denied ever having a conversation with the respondent about his hair colour and denied making negative comments to the respondent or asking him about his sexuality. He further denied that he had a conversation with Ken (the company owner) about the respondent being gay.
[23] Reply, pp 96–98.
Statement of Mr David Walsh
Mr David (“Plucka”) Walsh also provided a statement dated 17 February 2021.[24] He advised that he was an interstate truck driver employed by the appellant and would see the respondent occasionally at the appellant’s yard. He denied witnessing Kyle questioning the respondent about his sexuality and asserted that such a conversation was highly inappropriate and that if he had witnessed it, he would have reported it to management.
[24] Reply, pp 100–101.
Statements of Mr Bill Buchanan, the appellant’s operations manager
Mr Bill Buchanan made a statement dated 17 February 2021.[25] He advised that he had been notified about an incident involving the respondent and another driver in which the respondent threatened the other driver. He said that he discussed the incident with the respondent and the other driver, but no formal action was taken. Mr Buchanan stated that the respondent had previously made potentially violent threats against other employees and had been spoken to about that behaviour when those events occurred.
[25] Reply, pp 103–106.
Mr Buchanan stated that the respondent was advised on 9 September 2020 that he would remain on probation for a further two months because he had not yet performed work over a six month period. Mr Buchanan explained that the respondent had been off work on workers compensation for four weeks and for three additional weeks had performed suitable duties.
Mr Buchanan advised that the incident which had caused the respondent’s employment to be terminated involved the respondent’s aggressive behaviour towards an employee of an important client. He said he was notified of the incident by the site mechanical engineer, who indicated that a formal complaint would be made unless action was taken by the appellant, so he advised the site mechanic that the respondent would not be sent to that site again.
Mr Buchanan said that he then discussed the respondent’s record of behaviour and the respondent’s employment contract with the appellant’s office manager. He said the employment contract provided that unreasonable verbally aggressive behaviour may result in termination of employment and so the respondent’s employment was terminated. He indicated that the respondent did not voice any objection at the time.
Mr Buchanan stated that the appellant was surprised to receive the respondent’s workers compensation claim because the respondent had appeared happy at work and had made no complaints of bullying or harassment in the workplace. He added that if such a complaint was made, it would have been taken seriously.
Mr Buchanan provided a further statement dated 15 September 2021.[26] He confirmed that:
(a) on 22 October 2020, the respondent was verbally aggressive towards an employee of an important client, he was notified of the incident by the client and the respondent was spoken to about the incident;
(b) the appellant was to meet with the respondent to further discuss the matter on Monday 26 October 2020, however the respondent was absent on sick leave that day;
(c) for a further two weeks, the respondent would express the intention to work the following day but then ring in sick on the day, and
(d) the respondent returned to work on 5 November 2020 and Mr Buchanan met with the respondent and terminated his employment. He cited aggression towards the client’s employee, twice failing to stop at the weigh bridge, three motor vehicle accidents and taking leave on short notice.
[26] Reply, pp 135–138.
He advised that, in his view, the termination of the respondent’s employment was reasonable.
Mr Buchanan provided a third statement dated 2 March 2022.[27] He referred to the statement by the respondent’s brother and stated that he had never witnessed any employees behave in the manner described. He said that he enquired of each of the appellant’s employees who fitted the description provided by the respondent’s brother and none of them could recall having the conversation asserted by the respondent’s brother.
[27] AALD dated 10 March 2022, pp 4–6.
Mr Buchanan also referred to the respondent’s assertion that the only reason given to him in relation to the termination was that he had not given sufficient notice that he was taking leave. He reiterated that it had been explained to the respondent that there were too many incidents that occurred during his probationary period, and he had kept a note of the incidents. He said that verbal aggression was one of the incidents taken into account.
The clinical notes of Menai Medical Centre
The clinical notes recorded by Menai Medical Centre showed that the respondent attended that medical centre between 11 April 2013 and 25 June 2021.[28]
[28] ARD, pp 79–155.
On 18 May 2020, the respondent attended Dr R Khozam, general practitioner. He complained of auditory and visual hallucination during the previous night. Dr Khozam recorded a history of bipolar disorder which was treated with Seroquel, with the last dose taken 2 months previously. The doctor noted that the respondent was experiencing stress at work and was anxious.
On 20 May 2020, Dr Khozam again recorded stress at work but noted that the respondent was not anxious. On 22 May 2020, Dr Khozam recorded that the respondent was feeling much better and had no anxiety or depression.
The respondent attended the practice on 1 July 2020, 4 July 2020, 16 July 2020, 27 July 2020, 4 August 2020 and 19 August 2020 in relation to lower back pain. On 13 July 2020, the respondent attended Dr Harold Lau, general practitioner, in respect of symptoms of bipolar disorder in the context of sleeping difficulties. At the consultation on 4 August 2020, Dr Lau recorded that the respondent had returned to some work duties which improved his mood, and the respondent was looking forward to returning to work. On 14 September 2020, Dr Khozam noted that the respondent was doing well on medication for his bipolar disorder, the respondent was no longer hallucinating, and his mood was fine. On 24 November 2020, the respondent attended Dr Rosanne Arentz, who increased his medication for his bipolar disorder. On 31 October 2020 and 3 November 2020, the respondent also attended the practice in relation to trauma to the ankle.[29]
[29] ARD, pp 133–143.
On 27 January 2021, the respondent again consulted Dr Arentz and complained that he had been bullied about his sexuality and HIV status when he worked with the appellant.[30]
[30] ARD, pp 143–144.
Dr Melissa Corr, psychiatrist
Dr Melissa Corr was the respondent’s treating psychiatrist in respect of his bipolar disorder. On 6 April 2021, she responded to queries made by the assessing officer of the Consultation Liaison Psychiatry Service at Royal Prince Alfred Hospital.[31] Dr Corr provided the history that the respondent had been well on medication for his bipolar disorder but presented on 16 February 2021, complaining of an abrupt onset of anxiety and distress, which he attributed to comments about his sexuality and questions as to his HIV status. Dr Corr commented that the symptoms were not typical of his usual symptomatology. She considered that the respondent had suffered a psychological or psychiatric injury as a result of his employment. She added that the respondent had been well for three years, and she could not provide any other explanation for his current symptoms than the incidents in the workplace and those incidents were the predominant cause of his current condition.
[31] ARD, pp 74–77.
Dr Olivia Lee, consultant psychiatrist
Dr Olivia Lee provided a number of reports at the request of the appellant. She initially examined the respondent on 29 March 2021 and provided a report on 13 April 2021.[32] She recorded a detailed and consistent history of the allegations made by the respondent. She reviewed the available statement evidence relied on by the appellant. She noted that the respondent indicated that his current symptoms did not arise until he began working for the subsequent employer, Waverley Forklifts. Dr Lee took the history that the respondent was shocked when his employment was terminated by the appellant and became intensely angry about what he perceived to be unfair treatment.
[32] Reply, pp 157–171.
Dr Lee considered that the respondent’s symptoms were consistent with a major depressive disorder and diagnosed that this was a relapse as part of his bipolar disorder, which destabilised his mental state in November 2020 when his employment was terminated. She concluded that the respondent suffered the condition as a result of being dismissed, on the background of cumulative distress from the alleged comments made in the workplace, but his perception of the workplace at the subsequent employment caused a further relapse. Dr Lee added that there were no other stressors identified.
Dr Lee provided a second report dated 1 September 2021 at the request of the appellant’s legal representatives, following a “telehealth” assessment.[33] She reviewed the report of Dr Takyar dated 2 June 2021 (discussed below) and the report of Dr Corr dated 6 April 2021. She provided a detailed summary of the respondent’s progress since the previous examination. She noted that the respondent explained that he was too depressed to seek treatment prior to the first consultation with his general practitioner in February 2021.
[33] Reply, pp 172–182.
Dr Lee diagnosed the respondent as suffering from either a major depressive disorder or an adjustment disorder, each on the background of a bipolar disorder with a temporal connection to his perceived negative experience in the employ of the appellant. She considered that the main contributing factor to the injury was the combination of:
(a) the alleged conversations and comments about his sexuality;
(b) the perceived unfair treatment he received in the employ of the appellant in respect of having deductions taken from his pay and being criticised for taking too many unplanned sick days, and
(c) his dismissal.
Dr Lee observed that the allegations made by the respondent were self-reported, but there were no non-work related events that caused or contributed to the respondent’s distress. She considered that he would be unable to interact with others in the workplace and he would be unreliable because of his lack of motivation. She was of the opinion that the respondent could potentially work at Bunnings or as a handyman, which was work he had previously undertaken, but would need to have a graded return to work.
Dr Lee provided two further reports. In a report dated 11 October 2021,[34] she observed that the respondent was able to maintain a level of function by attending work, but that function declined when his employment was terminated, so that the dismissal was the main contributing factor. In a short report dated 15 October 2021, she described the dismissal as the “chief or principal cause of the injury.”[35]
[34] Reply, pp 183–184.
[35] Reply, pp 185–186.
Dr Ash Takyar, consultant psychiatrist
Dr Ash Takyar examined the respondent at the request of his solicitor on 19 May 2021 and provided a report dated 2 June 2021.[36] He recorded a history that was consistent with the respondent’s statement evidence. He assessed the respondent’s psychological state. Dr Takyar reviewed the evidence relied upon by the appellant, the report of Dr Corr and some unidentified handwritten notes.
[36] ARD, pp 49–56.
Dr Takyar formed the view that the respondent had capacity to work for 15 to 20 hours per week on a graded return to work with a new employer. He noted that the respondent had a pre-existing history of bipolar affective disorder, and that the respondent had contracted HIV.
Dr Takyar diagnosed the respondent as suffering from “Bipolar affective disorder (type II) – depressive phase (an aggravation) and an adjustment disorder with anxiety (chronic) under DSM-5.”[37] He considered that the bipolar disorder was aggravated, and the respondent suffered a new anxiety disorder due to the circumstances in his employment with the appellant. He assessed the respondent’s whole person impairment and recommended ongoing treatment. He confirmed his opinion in relation to the respondent’s capacity for work in the order of 15–20 hours per week.
[37] ARD, p 55.
Dr Takyar was asked by the respondent’s legal representatives to re-examine the respondent in order to provide an updated opinion. Dr Takyar re-examined the respondent on 15 December 2021 and reported to the legal representatives on 21 December 2021.[38] He reviewed the respondent’s ongoing progress. He read Dr Lee’s further reports, noting that her diagnosis was that of a partial relapse of a depressive disorder associated with bipolar affective disorder from November 2020, which developed as a result of the respondent’s dismissal from work. Dr Takyar further noted that, in a subsequent report dated 1 September 2021, Dr Lee considered the main contributing factors to the condition were the respondent’s perception of the reported negative verbal interactions about his sexuality and the dismissal. Dr Takyar further observed that in a subsequent report dated 15 October 2021, Dr Lee opined that the chief or principal cause of the injury was the dismissal.
[38] ARD, pp 63–71.
Dr Takyar summarised the contents of the clinical notes recorded by the various doctors at the Menai Medical Centre. He formed the view that, given the entrenched and prolonged nature of the respondent’s symptoms, the respondent would struggle with working more than minimal hours in restricted duties and at a lower pace. He considered that the respondent continued to suffer from symptoms similar to those presented at the previous consultation and diagnosed a depressive disorder on the background of a bipolar disorder and an adjustment disorder with anxiety. He opined that the respondent’s employment with the appellant was a substantial contributing factor to the injury.
The Member’s reasons
The Member provided a short summary of the respondent’s work history with the appellant. He noted that the respondent was absent from work for two weeks because of a non-work related ankle injury, he had also been involved in two truck accidents which were his fault and deductions from the respondent’s pay were made for the cost of the damage in those accidents. He also noted that after the respondent returned to work following his non-work related ankle injury, he was given notice that his employment was terminated. The Member observed that the appellant considered that the respondent’s attitude to work was aggressive.
The Member referred to the issues in dispute, noting that there was no issue that the respondent suffered from a psychological condition. He recorded the issues raised by the appellant, namely that:
(a) the allegations of comments about the respondent’s sexuality were denied, and for that reason the respondent’s psychological condition was not work-related, and
(b) any injury was not compensable because it was caused by reasonable action taken by the appellant in dismissing the respondent.
The Member reviewed the relevant provisions (s 4, s 9A – whether the respondent’s employment was a substantial contributing factor to the injury, and s 11A of the 1987 Act). He noted that, after the respondent ceased work with the appellant, he obtained new employment but was unable to continue working because of his psychological condition. The Member observed that the respondent then consulted a psychiatrist, Dr Corr, who had been treating the respondent for bipolar disorder. The Member said that the respondent provided a history to Dr Corr that he suffered an “abrupt onset of anxiety and distress in his workplace related to comments about his sexuality and his HIV status.”[39]
[39] BCL v K & W Haulage Pty Ltd [2022] NSWPIC 552 (reasons), [13].
The Member observed that Dr Corr recorded that the respondent had been well for three years up until the events at work and that Dr Corr was of the opinion that the respondent’s anxiety and distress were caused by the events at work with the appellant.
The Member noted that the respondent’s general practitioner had certified that the respondent was unfit for work as a result of his condition. The Member referred to the opinion of Dr Takyar, noting that Dr Takyar’s view was that:
(a) the respondent suffered from an adjustment disorder with anxiety and depression on the background of a stable bipolar disorder;
(b) the respondent would struggle with a return to work;
(c) the respondent’s employment was a substantial contributing factor to the condition, and
(d) the respondent’s prognosis was guarded.
The Member further referred to the opinion of Dr Lee, which he summarised as saying that the respondent’s symptoms resulted from the dismissal from work.
The Member said that the dispute was a factual dispute about whether there were conversations made in the workplace about the respondent’s sexuality and his HIV status. He summarised the facts alleged by the respondent and the evidence from the respondent’s brother. The Member observed that the appellant and its employees denied the allegations. He noted that, in response to that evidence, the respondent conceded that he was “upset and affected” by the termination of his employment, but adamantly asserted that the causative issue was the comments and questions at work about his sexuality.
The Member concluded that there was a consistency in the respondent’s complaints and the histories provided to the doctors. He accepted that the respondent perceived that he was the subject of comments and questions regarding his sexuality, which precipitated his symptoms, and the symptoms were continuing. The Member said he also accepted that the respondent was unfit for meaningful work and required ongoing treatment as a result of the injury.
The Member considered that (citation omitted):
“Whilst the [respondent’s] dismissal from his employment has been a contributing factor to his ongoing condition, I do not regard the dismissal to be the whole or predominant cause of his condition and that the requirements for section 11A to apply are not met, leaving aside whether the dismissal was reasonable or not.”[40]
[40] Reasons, [29].
The Member further concluded that the respondent’s employment was a substantial contributing factor to the psychological injury and that the respondent was entitled to weekly compensation as claimed, as well as the treatment expenses.
The Certificate of Determination issued on 6 July 2020 records:
“The Commission determines:
1. The [appellant] is to pay the [respondent], in accordance with the legislation, weekly [compensation] as claimed by the [respondent] in the Application for Determination,
2. The [appellant] is to pay the [respondent’s] medical expenses pursuant to section 60 of the Workers Compensation Act 1987.
3. The matter is remitted to the President to refer the matter to a Medical Assessor to assess any whole person impairment as a result of psychological injury on 5 November 2020 (deemed date). The documents to be furnished to the Medical Assessor are: (1) the ARD, (2) the Reply, and (3) any late documents already filed.”
Grounds of appeal
The appellant asserts that the Member erred in law by:
(a) Ground 1: failing to have regard to all of the evidence when determining that the respondent suffered an injury within the meaning of s 4 of the 1987 Act;
(b) Ground 2: failing to provide any, or adequate reasons for determining that the respondent suffered an injury within the meaning of s 4 of the 1987 Act;
(c) Ground 3: failing to give proper regard to the appellant’s defence pursuant to s 11A of the 1987 Act;
(d) Ground 4: failing to provide adequate reasons for finding that the respondent’s dismissal from his employment was not the whole or predominant cause of the psychological injury, and
(e) Ground 5: characterising the date of injury as a “deemed” date of injury and/or applying the incorrect test for determining the relevant connection between employment and the injury.
The legislation relevant to the appeal
Section 4 of the 1987 Act provides:
“Definition of ‘injury’ (cf former s 6 (1))
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act provides:
“No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 11A(1) of the 1987 Act relevantly provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Rule 78 of the 2021 rules relevantly provides:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision maker’s reason for the determination that includes the following–
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning process that led to the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
Ground One
The appellant’s submissions
The appellant asserts that, in determining whether the respondent suffered an injury pursuant to s 4 of the 1987 Act, the Member failed to give regard to all of the evidence. The appellant submits that the Member took into account the opinions of Dr Corr, Dr Lee and Dr Takyar but failed to take into account the clinical notes recorded by Dr Khozam and other doctors from the Menai Medical Centre. The appellant says that it made submissions to the Member that the entry made by Dr Khozam on 18 May 2020 was significant because:
(a) Dr Khozam made no record of the respondent being bullied at work because of his sexuality, and
(b) Dr Khozam noted that the respondent had not taken medication for his bipolar disorder for two months, which meant that the respondent was not taking his medication when he commenced work with the appellant.
The appellant further submits that it referred the Member to the various clinical entries between 1 July 2020 and 31 October 2020 and says it submitted to the Member that there were no references by those medical practitioners to any complaint by the respondent that he had issues at work such as being questioned about his sexuality. The appellant submits that the Member failed to refer to this evidence in his reasons and failed to reconcile this evidence with his finding that the respondent suffered an injury in accordance with s 4 of the 1987 Act.
The appellant asserts that, by failing to take this evidence into account, the Member committed an error of law.
The appellant adds that the Member did not deal with its submission that the history provided to Dr Corr was not corroborated by the evidence from the Menai Medical Centre. Further, the history given to Dr Corr on 16 February 2021 was more consistent with the respondent’s employment with the subsequent employer, which the respondent had undertaken up until 5 February 2021.
The appellant refers to its submissions it made to the Member that any psychiatric injury that the respondent relied upon based on his perception of events could not succeed because they were not real events. The appellant points to the evidence from the various witnesses that deny the events occurred.
The appellant submits that, while the Member noted that there was a factual dispute about whether the comments and questions about the respondent’s sexuality and HIV status occurred, the Member provided no explanation as to why he preferred or accepted the respondent’s evidence to that of those witnesses. The appellant says that the Member accepted the respondent perceived he was the subject of such events without dealing with the factual dispute.
The respondent’s submissions
The respondent submits that the appellant is required to show that the Member failed to have regard to evidence that, if accepted, would have resulted in a different outcome. The respondent asserts that the question to be answered is “how that supposed omission had any adverse bearing on the outcome.”[41] The respondent contends that none of the grounds of appeal allege error on the part of the Member in finding that the respondent suffered a work-related injury.
[41] Respondent’s appeal submissions, [38].
The respondent submits that the appellant’s own medico-legal expert, Dr Lee, was of the opinion that the respondent’s injury was caused by a number of work-related events and there were no non-work related causes. The respondent says that it is important to note that there were several workplace events which Dr Lee found causative that were not disputed as occurring. The respondent asserts that the clinical notes of the general practitioners have no bearing in the context of the consistent conclusions reached by the medical specialists.
The respondent refers to the appellant’s submissions in respect of the lay evidence disputing that the events in a hostile workplace occurred, which presumably is a reference to the statement evidence provided by the employees of the appellant. The respondent queries the relevance of that evidence in the context of there being undisputed evidence of stressors that were causative of injury. The respondent contends that it was open to the Member to accept the respondent’s evidence of being bullied in respect of his sexuality and HIV status, which was corroborated by the respondent’s brother’s evidence and the text messages between the respondent and his brother on 5 November 2020.
The respondent adds that there was also no issue that the respondent had been dismissed from his employment, which was a significant stressor and was accepted by Dr Lee as being causative of the injury. The respondent says that there is no medical evidence that the dismissal did not contribute to the respondent’s psychological injury. The respondent points out that, in Ground Four of the appeal, the appellant criticises the Member for failing to give reasons for discounting the opinion of Dr Lee.
Consideration
The Member failed to refer at all to the clinical notes from the Menai Medical Centre. The appellant’s submissions made at arbitration included an analysis of the clinical notes showing that the respondent attended for medical treatment on numerous occasions. The appellant’s submission was that the notes contained no reference to workplace bullying as it was described by the respondent in his statement.
The respondent asserts that the clinical notes of the general practitioners have no bearing in the context of the consistent conclusions reached by the medical specialists. That assertion does not appreciate the case presented by the appellant, which was that the respondent’s allegation of being bullied was not made out, partly because he did not contemporaneously complain about that conduct to his treatment providers, and partly because the respondent’s evidence was contradicted by the evidence of the appellant’s employees.
The clinical notes were therefore relevant to the question of whether the respondent suffered an injury as alleged and if he did not, whether the opinions provided by the medical specialists who considered the alleged bullying was causative of any injury could be accepted.
The appellant also complains that, while the Member noted there was a factual dispute about whether the respondent was bullied as alleged, the Member failed to provide any reasons as to why he preferred that evidence over the evidence of the appellant’s employees, who denied the alleged bullying occurred.
The respondent queries the relevance of the appellant’s lay evidence and says that there was undisputed evidence of other stressors that were causative.
The respondent’s case was squarely put as: “The [respondent] was bullied and harassed in relation to his sexuality and his HIV status.”[42] Dr Corr provided the history that the respondent had been well on medication for his bipolar disorder but presented on 16 February 2021, complaining of an abrupt onset of anxiety and distress, which he attributed to comments about his sexuality and questions as to his HIV status. The history recorded by Dr Takyar explicitly recorded the respondent’s allegations of being bullied about his sexuality and his HIV status.
[42] ARD, Form 2, Injury Details.
The relevance of the appellant’s lay evidence is plainly obvious.
The appellant’s case was that the respondent did not suffer injury as alleged because those events did not occur. The respondent’s perception of events must be in respect of events that have actually occurred.[43] It was therefore incumbent upon the Member to consider the evidence from the appellant’s witnesses and to reconcile that evidence against the evidence of the respondent and his brother. He did not do so and did not provide any reasons why he accepted the respondent’s evidence that those events occurred in the workplace. Reasons should be given for preferring one version to another, after an analysis of the competing evidence.[44]
[43] Attorney General’s Department v K [2010] NSWWCCPD 76.
[44] Waterways Authority v Fitzgibbon [2005] HCA 57 (Fitzgibbon).
A failure to consider all of the material relevant to a particular issue is an error in the process of fact finding and itself amounts to an error of law.[45]
[45] Fitzgibbon, [130], per Hayne J (McHugh and Gummow JJ agreeing).
The respondent submits that, in order for the appellant to succeed, the appellant is required to show that the Member failed to have regard to evidence that, if accepted, would have resulted in a different outcome. The respondent appears to be confusing the principle applicable to the admission of late documents on appeal with what is required in order to disturb a decision of a Member in respect of a finding of injury pursuant to s 4. In this case, the “error has to be one upon which the decision depends, so the decision is vitiated by the error.”[46] That is, the error must be material to the outcome. If material facts have been overlooked, or given undue or too little weight,[47] it is open to find an error without being satisfied that a contrary finding was appropriate.[48]
[46] Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 419;Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287, [110].
[47] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.
[48] Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277, [17].
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq),[49] Kirby J observed that where there is evidence in support of a party’s case, that evidence must be considered in the reasoning process in a satisfactory way.[50]
[49] [1999] HCA 3 (Earthline Constructions).
[50] Earthline Constructions, [94].
The Member failed to consider and take into account the evidence in the form of the clinical notes of the Menai Medical Centre and the lay evidence provided by the appellant’s employees, all of which was relied upon by the appellant in respect of the dispute pertaining to the respondent’s allegation of injury. That failure constitutes error and has infected the Member’s conclusion that the respondent suffered injury as a consequence of the respondent “perceive[ing] he was made the subject of comments and questions with regard to his sexuality”[51].
[51] Reasons, [27].
It follows that this ground of appeal has merit.
Ground Two
The appellant’s submissions
The appellant refers to the Member’s reasons for finding that the respondent suffered an injury pursuant to s 4 of the 1987 Act. The appellant asserts that those reasons were limited to the following passage in the Member’s Statement of Reasons:
“Given the consistency of the [respondent’s] complaints substantiated by the histories he has given to doctors, I accept that the [respondent] perceived he was made the subject of comments and questions with regard to his sexuality and that this precipitated symptoms which have continued.”[52]
[52] Reasons, [27].
The appellant submits that the reasons were not sufficient in that the Member did not deal with the absence of complaints of bullying with respect to the respondent’s sexuality and HIV status in the treating general practitioners’ notes during the period of the respondent’s employment with the appellant. Additionally, the Member did not deal with the appellant’s submissions as to that evidence. The appellant submits further that the Member failed to give reasons for concluding that the respondent suffered an injury as a result of him perceiving that he was subjected to comments and questions about his sexuality and HIV status, in circumstances where there was evidence that contradicted the factual basis for the conclusion.
The appellant asserts that the Member failed to give any reasons why he preferred the respondent’s evidence over that of the appellant.
The respondent’s submissions
The respondent submits that:
“Regardless of the extent of the Member’s reasons, it is clear from the undisputed evidence of work-related stressors, and the specialist consensus, that the respondent’s condition is work-related.”[53]
[53] Respondent’s appeal submissions, [45].
The respondent submits that there is no possible basis upon which the appellant could question the Member’s finding that the dismissal from employment was a contributing factor to the respondent’s condition. The appellant asserts that that event clearly establishes an injury pursuant to s 4 of the 1987 Act, so that the appellant’s complaint is “academic.”
Consideration
Section 294 of the 1998 Act imposes a statutory obligation on a Member to give reasons for the decision. In accordance with r 78 of the 2021 rules, the Member is required to express the reasoning process that led to the conclusions made in order to make the parties to the proceedings aware of the Member’s view of the case made by each party. Rule 78 is consonant with the common law authorities as to the sufficiency of reasons.
As Meagher JA observed in Beale v Government Insurance Office of NSW,[54] while an Arbitrator’s (or Member’s) reasons do not need to be elaborate or lengthy, there are three fundamental elements of the duty to give reasons. Firstly, a judge should refer to the relevant evidence. Secondly, where the evidence is important to the proper determination of the matter, and the judge does not refer to it, on appeal it may be inferred that the judge overlooked, or failed to give consideration to the evidence. Where evidence is accepted over other significant evidence, the judge should set out his or her findings as to how he or she came to accept that evidence over the other. Thirdly, a judge should provide reasons for making the relevant findings of facts, and conclusions reached. The process of reasoning should be understandable and logical.
[54] (1997) 48 NSWLR 430, 443–444.
Relevantly, Ipp JA (with Mason P agreeing) in the Court of Appeal decision in Goodrich Aerospace Pty Limited v Arsic said:
“It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.”[55]
[55] [2006] NSWCA 187, [28].
McColl JA (with Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd,[56] observed that:
“The reasons must do justice to the issues posed by the parties’ cases ... Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another’.”[57]
[56] [2009] NSWCA 110 (Pollard).
[57] Pollard, [56]–[59].
It is apparent from the Member’s reasons that he did not sufficiently engage with the evidence relied upon by the appellant. It is further apparent that the Member did not provide a logical reasoning process for his acceptance of the respondent’s evidence that he was subjected to comments and questions with regard to his sexuality, which precipitated his symptoms, thereby suffering an injury pursuant to s 4.
The respondent does not dispute the appellant’s assertion that the Member failed to provide any, or any sufficient, reasons for his conclusion in respect of the respondent having suffered an injury pursuant to s 4 as a consequence of being bullied at work in respect of his sexuality and HIV status. The respondent asserts that such error does not matter because it is clear that he suffered an injury because of other work-related stressors.
The attack on the Member’s conclusion that the respondent was injured by his perception of work events is very relevant to the Member’s conclusions that followed. The Member’s finding was erroneous because it was not supported by any proper reasoning. The Member subsequently determined that the respondent’s dismissal was not the whole or predominant cause of the injury. When taking into account the finding quoted in [147] above as to the respondent’s perception, it is implicit that the Member might have taken that finding into account when assessing whether the dismissal was the predominant cause of the injury, although it is not clearly apparent from his Statement of Reasons. The Member’s finding that the dismissal was not the whole or predominant cause of the injury is the subject of Grounds Three and Four of this appeal. The error established under this ground has infected the Member’s subsequent finding that the dismissal was not the whole or predominant cause of the injury. It is thus very relevant that the Member erred in respect of his conclusion that the respondent suffered injury as a result of his perception of events in the workplace.
It follows that this ground has appeal has merit.
Ground Three
The appellant’s submissions
The appellant asserts that the Member failed to have regard to the appellant’s defence under s 11A of the 1987 Act. The appellant contends that the Member’s reasons for finding against the appellant in respect of s 11A were limited to the following:
“Whilst the [respondent’s] dismissal from his employment has been a contributing factor to his ongoing condition, I do not regard the dismissal to be the whole or predominant cause of his condition and that the requirements for section 11A to apply are not met, leaving aside whether the dismissal was reasonable or not (see generally: Commissioner of Police v Minahan [2003] NSWCA 239).”[58]
[58] Reasons, [29].
The appellant says that it made submissions to the Member that there were a number of actions relied upon by the appellant in respect of the termination of the respondent’s employment which were relevant to its defence under s 11A, which were:
(a) counselling the respondent with respect to the respondent’s aggressive behaviour directed towards other drivers;
(b) seeking information from the worker about the complaint of an altercation with an employee of the appellant’s important client, and
(c) organising a meeting with the respondent to discuss the complaint, which took place on 5 November 2020, when the respondent’s employment was terminated.
The appellant asserts that the Member failed to engage with that evidence and made no findings in relation to it, but concluded that the dismissal was not the whole or predominant cause of the injury. The appellant submits that the Member failed to articulate what the other causes were, in circumstances where Dr Lee formed the view that the appellant’s actions were the whole cause of the injury. Further, the Member did not weigh up the opinion of Dr Takyar and did not evaluate whether the appellant’s actions were reasonable.
The appellant submits that the Member was not required to be satisfied whether the dismissal was or was not reasonable, he was required to determine whether the appellant’s actions with respect to the dismissal were reasonable, he did not do that, which resulted in error on the part of the Member.
The respondent’s submissions
The respondent submits that the appellant has failed to address the “primary point,” which was that the respondent was dismissed, the dismissal caused him distress and contributed to his psychiatric condition, which constitutes an injury within the meaning of s 4 of the 1987 Act.
The respondent says that it was not necessary for the Member to consider the reasonableness of the appellant’s actions because he determined that the dismissal was not the whole or predominant cause of the injury. The respondent asserts that, in any event the actions of the appellant were not reasonable for the reasons provided by the respondent in his submissions made at arbitration.
Consideration
The respondent is correct in his submission that, as the Member concluded that the dismissal was not the whole or predominant cause of the injury, the Member was not required to assess whether the appellant’s actions were reasonable. However, the respondent asserts that, in any event, he suffered injury as a result of the dismissal, which constitutes any injury within the meaning of s 4. If that injury was the only injury established (as the respondent appears to be suggesting), the Member was required to determine whether the actions taken by the appellant were reasonable, which he did not do.
This ground of appeal also asserts that:
(a) the appellant submitted to the Member that there were a number of actions relied upon by it (listed at [116] above);
(b) the Member failed to engage with that evidence and made no findings in relation to it;
(c) the Member failed to articulate what the other causes were, but
(d) the Member concluded that the dismissal was not the whole or predominant cause of the injury.
It is apparent from the Member’s reasons that the Member:
(a) made no reference to those submissions;
(b) failed to evaluate the available evidence relating to those submissions, and
(c) failed to articulate what the other causes of injury were.
The Member did not include the actions of the appellant that were given as reasons for the respondent’s dismissal in his reasoning process.
I have discussed above the effect of the failure to take into account material evidence and the failure to provide adequate reasons. The Member did not identify or explain what the “other” causes of injury were. The only other finding as to the cause of injury identified by the Member was that the respondent was injured as a result of his perception of workplace events of bullying about his sexuality and HIV status, which finding was erroneous. Assuming that, in the Member’s mind, that constituted “other causes,” his erroneous finding infected his conclusion reached about the whole and predominant cause of injury. If that was not what the Member was referring to, it cannot be gleaned from the reasons as to what the other causes were.
It follows that the Member was erroneous in his conclusion reached in respect of the appellant’s defence pursuant to s 11A of the 1987 Act.
Conclusion
As the appellant has succeeded in establishing error on the part of the Member, it is not necessary to consider the remaining grounds of appeal. The appeal has merit and leave is granted for an extension of the time to file the appeal to 5 August 2022.
For the reasons set out above, Grounds One, Two and Three disclose error on the part of the Member in respect of his determination that the respondent suffered injury as alleged and his determination that the respondent’s dismissal was not the whole or predominant cause of the injury in accordance with s 11A of the 1987 Act.
The appeal succeeds and the Member’s Certificate of Determination is revoked.
The respondent appears to submit that, if the appeal is successful, the matter should be re-determined by a presidential member.
The re-determination will involve resolving a factual dispute, considering the weight of the evidence and forming a preference for some evidence over the other. Those are matters that, in some cases, are best determined by a primary decision maker. In this case, I consider that it is appropriate to remit the matter for re-determination by a non-presidential member.
DECISION
Time to appeal the Member’s decision of 6 July 2022 is extended to 5 August 2022.
The Certificate of Determination dated 6 July 2022 is revoked.
The matter is remitted to another non-presidential member for re-determination.
Elizabeth Wood
Deputy President
8 February 2023
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