Kaur v Westpac Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kaur v Westpac Group Limited [2023] NSWPIC 124
APPLICANT:	Kulwinder Kaur
RESPONDENT:	Westpac Group Limited
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	27 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits, medical expenses and permanent impairment compensation as a result of accepted psychological injury; respondent conceded that the applicant has no capacity for work; respondent relied on section 11A, specifically its actions with respect to performance appraisal and/or discipline; applicant had concurrent physical injuries; clinical records prior to disciplinary meeting contained no reference to the “bullying and harassment” relied on by the applicant; reference to “stress” was in the context of physical injuries and pain; applicant was responsible for a major breach of customer privacy, which was brought to the attention of the respondent by a third party; Consideration of Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Davis v Council of the City of Wagga Wagga, Mason v Demasi and Northern NSW Local Health Network v Heggie; Held – award for the respondent.
determinations made:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Kulwinder Kaur (Ms Kaur) was employed by the respondent, Westpac Group Limited (Westpac) as a customer service adviser/teller.
Ms Kaur sustained an accepted psychological injury, which is deemed to have occurred on 31 March 2020, arising out of or in the course of her employment with the respondent.
It is not clear when the applicant made the claim, but on 21 May 2020, Westpac, which is self-insured, issued her with a notice pursuant to s 78 of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act).
Westpac advised the applicant that it had determined that, although she may have sustained an injury in the course of her employment, with employment being the main contributing factor, any such injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal and/or discipline. Therefore, no compensation was payable.
By letter dated 21 October 2020, the applicant’s solicitors sought on her behalf a review of Westpac’s decision.
On 4 November 2020, Westpac advised that it maintained its decision to dispute liability.
There is a further review notice dated 16 November 2020, which also appears to be in response to the request for review dated 21 October 2020. This notice, however, added that Westpac maintained that any injury the applicant may have sustained was caused by reasonable action taken or proposed to be taken with respect to transfer. It also relied on its actions with respect to performance appraisal and/or discipline.
On 13 May 2022, Westpac issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It advised that it maintained its decision, but reference to “transfer” was deleted. It still relied on its actions with respect to performance appraisal and/or discipline.
By letter dated 18 May 2022, the applicant’s solicitors made on her behalf a claim for permanent impairment compensation, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
On 7 September 2022, Westpac issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It maintained the dispute, again relying on its actions with respect to performance appraisal and/or discipline. It disputed liability for the applicant’s claim for permanent impairment.
The applicant lodged an Application to Resolve a Dispute (the Application) on
1 December 2022.
The applicant claimed to have sustained a “disease” injury, the deemed date of which was
10 February 2020. She claimed that between February 2018 and 9 March 2020, she was subjected to bullying and harassment by her manager, “George”, and co-worker, “Laura” [sic]. [A] [sic: as] a result of the nature and conditions of her employment, she developed a psychological injury.
The applicant claimed weekly benefits from 9 March 2020 to date and continuing, pursuant to ss 36, 37 and 38 of the 1987 Act; past medical expenses of $2,109.07; and the sum of $49,300 with respect to 19% whole person impairment (WPI) pursuant to s 66 of the Act.
The respondent lodged its Reply on 4 January 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Whether the applicant’s psychological injury was wholly or predominantly caused by the respondent’s reasonable action taken or proposed to be taken with respect to performance appraisal and/or discipline.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference before me on 25 January 2023. Mr Malai appeared for the applicant, and Ms Corry appeared for the respondent, instructed by
Mr Nicholson of Westpac.
The applicant confirmed that she relied on “disease”, pursuant to s 4(b)(i) of the 1987 Act in respect of the injury pleaded.
The respondent confirmed that it conceded that the applicant had sustained injury. It relied on a defence to the claim pursuant to s 11A of the 1987 Act, specifically its actions with respect to performance appraisal and/or discipline.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,019.23 per week.
The matter was listed for conciliation/arbitration hearing on 28 February 2023, on the Teams platform. Ms Magee, instructed by Mr Malai, appeared for the applicant, who was present.
Mr Doak of counsel, instructed by Ms Corry, appeared for the respondent. Mr Nicholson also attended.
The Application was amended by consent to plead that the deemed date of injury was
31 March 2020, the date of the letter in which the applicant advised the respondent of her resignation.
In addition to the matters agreed at the preliminary conference, the parties agreed that the applicant has no capacity for work. They further agreed that, if I determined the dispute in the applicant’s favour, the appropriate course was that the medical dispute with respect to permanent impairment be referred to a Medical Assessor, after which I would, if necessary, determine the claim for weekly benefits and medical expenses.
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)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 22 February 2023 and attached documents, filed by the respondent.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Kulwinder Kaur

The applicant’s lengthy statement is dated 18 March 2022. I have summarised the main points.
In or about 2011, she suffered from symptoms of anxiety and depression during and after her second pregnancy. She was not diagnosed until 2013, when she received treatment. In 2018, she ceased treatment and made a full recovery.
She commenced work with St George Bank in a customer service advisory role, but was placed in a teller role, in or about September 2017. She worked part time, 19 hours per week.
In February 2018, she was employed full time, working 38 hours per week.
She was exposed to significant stressors, including ongoing interpersonal conflicts with management (George (Abboud) and Lara Tower), excessive and unreasonable workload, poor support from management, and bullying and harassment.
In or about February 2018, a new manager, George, was employed at her branch. He was instantly aggressive towards her and shouted at her soon after commencing employment.
The first instance of aggression occurred when she jammed a machine, which many staff had done. He raised his hands in the air and raised his voice, saying “You are the only one who jams this machine”. She burst into tears.
Lara noticed she was upset and spoke with George. Lara tried to calm her down by giving her a glass of water.
In or about May 2018, she rode her motorbike to work and left her helmet in the breakout room. She told George it belonged to her, and he called her a “bikie”. She felt disrespected and embarrassed in front of her colleagues. George called her this on a number of occasions, and she stopped riding motorcycles.
She felt intimidated and didn’t tell George she didn’t like being called that name. It should have been obvious she did not find it amusing.
On three to four occasions, George said “If anybody touches me, I will destroy that person”. He also said he would “demolish” a person if they touched him. He said this in Lara’s presence at least once.
She felt threatened by the comments and did not feel comfortable around George. He gave the impression he was violent, which made her very uneasy and scared.
On 24 June 2018, she had back pain, and told George she could not come to work. He responded, “I have short staff [sic], you have to come to work.” The next day she worked all day in a bended [sic] position, as she was unable to stand straight. She felt he was taking advantage of her, which made her feel down and stressed.
In August 2018, she was unwell and went to the doctor in her lunch break. She told Lara she was sick and needed to go home.
George heard the conversation. He said: “You look fine to me. Jenny is sicker than you and she is working. I can’t send you home.” She asked if she could please go and get her medicine, and Lara said OK. She purchased her medicine and continued working.
In or about January 2019, George changed her position to teller without her consent or agreement. When she said she wanted to work in a customer service advisory role, he said it was no longer available. She was given ATM (automatic teller machine) and bulk custodian duties.
In early 2019, during “Team Time”, George said words to the effect “I get what I want as I know the (big bosses)”, meaning area managers Mr Adam Ryan and Mr Dom Papalus, whilst talking about meeting targets. This wasn’t directed at her, but she still felt very intimidated. She felt she had no one to turn to if things turned even more sour.
In or about November or December 2019, she developed neck and shoulder pain, which she reported to Lara.
On or about 22 January 2020, she was changing the coin hopper in the ATM when she jammed one of her fingers and hurt her wrist. She reported it to Lara, who said, “Do you really want to report at this time of the day?” and to “Sleep it over”. She felt disheartened, as Lara acted like she did not care. She felt personally attacked, as she had not seen Lara treat other staff like this. She felt ignored, anxious, targeted, and that Lara didn’t like her.
On 23 January 2020, she was filling out an incident report for the injury to her left wrist. Lara told her not to lie about anything as they would check the cameras. She felt like Lara was attacking her character. She would never lie about her injuries, and she felt hurt and offended.
She felt so stressed and anxious that she couldn’t sleep because Lara’s words kept running through her mind all night.
On or about 31 January 2020, she notified Lara about the pain in her neck, shoulder, and left wrist, and requested that she work at the front of the house to avoid aggravating her pain. Lara agreed.
On or about 2 February 2020, she sent George a text message, asking for permission to attend an ultrasound and CT scan during working hours. George forwarded the text to Lara, who sent a text message denying that she had told her about her neck, shoulder, and left wrist pain.
Lara told her there would be a serious conversation with George the next day, about her “conduct”. She tried to remind her of their previous conversations, but she continued to deny it had occurred.
She felt very stressed and anxious, as she was made to feel as though she had done something seriously wrong. She felt betrayed and in shock. She was shaking. She knew Lara had a good relationship with George, who would side with her.
She was so stressed about her conversation with Lara and George that she could barely sleep. She vomited multiple times and stayed up most of the night.
On or about 3 February 2020, she was waiting to get scans for her neck and shoulder pain. She sent an email to George, explaining what happened, and Lara’s response to her injuries. She was crying and in a lot of pain. She also sent an email to her case manager on
4 February 2020 to reopen her “incident” and mentioned the pain in her neck and shoulder.
Her case manager called, and she explained what happened between her and Lara. The case manager explained that Lara was doing her best to support her and it was up to her doctor to decide whether her neck and shoulder injuries were related to work.
She felt she had no support, was helpless, and as though nobody was on her side.
On or about 3 February 2020, she had taken a week off work, during which she approached a union representative by phone for help regarding her workplace bullying and harassment. To the best of her recollection, his name was Stephen Povey. He told her to stay off work until she could see a psychologist.
She did not want to lose her job and cause further conflict at work. She also had to support her family, so she returned to work on 10 February 2020. George confronted her and told her not to mention any of the incidents she had with Lara. He said: “I don’t care what you are doing about [your workers compensation claim]”. He also said if anyone dared ask him about the incidents, that person will be slammed into the wall.
She felt very scared, intimidated, and that she was helpless. She couldn’t say anything. She was in shock and felt frozen. She eventually said something like: “I don’t have any personal conflict with anyone”.
George interrupted and said words to the effect: “Let’s just not go back to that”. She felt he didn’t want to hear her side, given his relationship with Lara.
As she left the conversation, Lara said not to worry about her weekly check-in, as “I have uploaded it for you”. Every week they were required to upload a report regarding their performance. She was surprised and thanked Lara.
She found out on 2 March 2020 that this was not true, and Lara had not uploaded the report. She felt she was purposely trying to sabotage her.
On or about 12 February 2020, an occupational health and safety (OHS) person assessed her workstation. She explained she had been using a bin as a footstep because the bar was uncomfortable. The OHS person said she needed a higher footstep and raised it with Lara and George, who denied knowing she was using the bin. They were both aware of it, and she felt hurt.
The OHS person suggested she get a custom footstep. Lara said they did not do special orders. The OHS person said they would include where to buy one in the report. She felt that George and Lara were not listening to her needs, and she was not being supported. She was very upset and felt betrayed.
By this stage, she was experiencing severe anxiety and stress, as she felt she was being targeted and victimised.
On or about 19 February 2020, she made an error when she called BT Super (Bankers Trust Super) directly and supplied incorrect customer details. She tried to fix the problem and approached senior staff for help.
On or about 21 February 2020, she told George she needed to see a doctor for her work capacity certificate for her physical injury and asked if she could leave early. He told her she should do it on her day off. She felt her injuries were not being taken seriously and she was not getting the support she “desperately” needed. She was feeling very upset and anxious. She should have been allowed to go and have a scan.
She felt George didn’t care at all, and was just taking advantage of her, as he knew she would agree to do it on her day off, as she likes to please people.
Not long after she commenced employment, Lara asked her to massage her shoulders, neck, and back, as she was feeling tired or stressed. She thought it was a strange request but did it to keep her happy.
After she sustained her neck and shoulder injury, Lara continued to ask her for massages. She felt as though Lara was not taking her injuries seriously. It made her very upset, as if she had taken them seriously, she would never have asked. She felt taken advantage of. She estimates that she gave Lara five massages after her neck and shoulder injury.
On or about 24 February 2020 she informed Lara about the error with BT Super. Lara reassured her not to worry, and it would be fixed. She asked if she needed to call one of the customers involved, but Lara said her colleague, “Mandy” (Ms Manpreet Sidhu), had tried calling the customer. She thought Lara had the situation under control and the mistake had been resolved.
On or about 26 February 2020, she asked Mandy about her call to the customer, but she did not recall making it.
She confronted Lara and George, who informed her that a JUNO report had been made. This is a report that is completed when an internal investigation is requested for a breach of policy. She felt Lara had betrayed her trust by not resolving the issue when she explicitly told her it had been fixed.
She felt she was not wanted in the branch and Lara and George were deliberately making her life more difficult by giving her inconsistent information. She was already suffering so much stress from the other incidences that she felt increasingly more overwhelmed and sad.
When she confronted George and Lara about this, George said in a very firm tone words to the effect: “You don’t trust me. I didn’t tell anyone what’s happening with you, and if someone dares to ask me that person will be slammed into the wall. I don’t like bitching.” He also mentioned that no one could come in or get a transfer out. “If I don’t like anyone, that person has to leave, and you have seen people leave this branch.” She didn’t understand why he was saying these things, as she hadn’t mentioned a transfer.
Lara also said words to the effect: “We don’t know if Angela or her manager from BT reported to JUNO. We didn’t do it.”
She was very disappointed and stressed as there was no effort made to resolve the issue at branch level. She asked: “What’s a JUNO and what will happen after this?” George replied that there would be a further investigation, and they did not know how long it would take.
On or about 27 February 2020, she began consulting clinical psychologist, Dr Gurprit Ganda. She reported to Dr Ganda that she was suffering anxiety and stress from work, ever since George joined in 2018.
She attended every fortnight, and the focus was to address her depression and anxiety that she had developed from work. Dr Ganda was very helpful in providing support and “allowing me a space to express the trauma that I had suffered at work”.
On or about 28 February 2020, she was in a lot of pain and stress at work and could not handle the constant bullying and harassment at work. She asked Lara if she could serve in the front, as she was in pain. She replied to the effect: “But your doctor said you can do normal teller duties?”. She replied that the doctor said to work it out with her team. Once again, she felt Lara didn’t believe her and was trying to catch her out in a lie.
By lunch time, she went to the staff room and could not stop crying. She felt like George and Lara were teaming up against her, and she had no one at the branch that could support her, particularly as George had made it clear he “knew the big bosses”.

Two colleagues, “Tracy” and “Jenny”, tried to comfort her and ask what was wrong, but she did not feel she could express her concerns to them. After lunch, she tried returning to work but continued to cry from her stress and pain.
Lara asked what was wrong, and she told her she was stressed at work, and it was having an impact on her health. Lara said she would speak to George and call her case manager to find a solution. She went for a walk and felt a little better.
Later that day, she was finishing and speaking with a co-worker as Lara exited. Lara told her to rest over the weekend, and she thanked her. Lara then pointed two fingers towards her eyes, and back at her, signalling that she was keeping an eye on her. She felt very uncomfortable and that her every move was being watched. She felt that she was targeting and signalling [sic] her out because she had a physical injury.
She got the impression Lara was going to tell George she was talking about her physical injuries, as George had already said “I don’t like bitching”.
She was very anxious that night and had trouble sleeping, as thoughts of the gesture were running through her mind.
On or about 2 March 2020, she asked George if she could speak with him later in private. She wanted to ask about the “horrible treatment” she was receiving with Lara, particularly the gesture implying she was keeping an eye on her, and how she felt unsupported by management. She also wanted to ask about the JUNO report.
At about 10.30am, she used the toilet. She flushed, but it was still dirty. She waited near the emergency door as the tank was filling, so she could re-flush. George opened the staff door and said words to the effect: “Are you coming out now or not?”
His tone was hostile and irritated, which instantly put her on edge, as she felt as though she was doing something wrong. She told him she was waiting for the tank to fill so she could flush. He said: “If someone needs to use that, they can flush it themselves”. She still waited to re-flush it.
After a few minutes, George called her into the office to talk near the tellers. Lara was there. She asked if they could go out the back instead, and they went to the bunker room.
She told George she wanted to talk about the JUNO report. He replied: “What? You want to talk about JUNO or something else?” She told him she wanted to talk about everything that had happened since her physical injury.
She told George about all the conversations she had with Lara regarding her injury and how she continually denied that she had told her about it. George and Lara supported each other. Lara said she never told her, and George agreed with her. She felt “broken inside”.
She asked George why he had not spoken to her about the mistake she made, as he had done in the past. He replied to the effect: “I didn’t need to ask you. You told Lara already and Lara asked Mandy, so I don’t need to ask you. You don’t need to teach me how I manage.” He said JUNO was just one thing, “You have made so many other errors”.
She was shocked, as she had not been told about other errors. She asked what errors she had made. George replied: “You don’t need to know as I already fixed the errors”. She said she would like to know her errors, and George replied he had already documented them. He refused to share this information with her.
She asked Lara about her weekly check in, which she said she had uploaded, as it was not there. Lara said she did not need to do it if she was on sick leave or annual leave. She said that Lara had said she uploaded it, and Lara said, “the system must have deleted it”. George sided with Lara, and said she did not need to do it, “so don’t do it”.
She felt deflated, as she wanted an answer for why Lara had given her false information. She also felt “ganged up on” as George instantly came to her aid.
George asked why her shoulder claim had not been accepted, and the reason for her pain. She replied that it was from repetitive transactions and typing. George said: “in the bank you need to do typing everywhere. You should start looking somewhere else.”
She felt very disheartened, as she wanted to keep her job. She felt as though she was being pushed out by Lara and George.
George offered her the option to transfer to a smaller branch. He said he knew the regional manager and could sort something out. She told him she would need to discuss this with her husband.
Before Lara went for lunch at 1.45pm, she mentioned that Georgina, her case manager, wanted an informal check in over the phone, and would call at 2pm. After Lara returned, she told her she didn’t feel comfortable talking over the phone and asked if she could send her an email. She was not feeling comfortable, as she was stressed and confused from the meeting. She was mentally exhausted.
Lara said: “You can send her an email and explain to her why you don’t want to talk to her”. Once again, Lara was unsympathetic, and she felt very unsupported.
She then received an email from her case manager, questioning why she mentioned an increase in pain to Lara when her doctors said she was recovering well. She had never mentioned an increase in pain to Lara but did tell her the stress from work was affecting her health on 28 February 2020. She felt so anxious, stressed, and unsupported that she could not bring herself to respond to the email.
On or about 4 March 2020, she sent an email to Lara and George explaining that she wanted to discuss the option of moving branches that was extended by George. Lara replied, denying the offer was made, and suggested she requested the transfer, which was not true. Her constant lying and belittling her hurt her feelings and made her lose trust in the leadership team.
On or about 9 March 2020, she could no longer cope with the ongoing psychological trauma she was experiencing, so she resigned. She felt like she had no choice. She was hardly sleeping, pacing around the house, and vomiting.
She checked herself into a mental health facility at Blacktown Hospital on or about
26 July 2020. She was discharged on or about 4 August 2020.
The remainder of the statement is a response to the evidence of the respondent’s lay witnesses. I will refer to that evidence now and return to the applicant’s evidence.
It appears that some of the respondent’s evidence is a response to evidence of the applicant that is not before me, as its witnesses’ statements were made in 2020/2021, and the applicant’s statement was made in 2022.

Evidence of George Abboud

Mr Abboud is the branch manager. His first statement is dated 14 April 2020.
He was not the applicant’s direct supervisor. She reported to Lara Tower, who reported to him.
He had very little understanding of what the applicant alleged contributed to her condition. He first became aware that she was off work as a result of this injury four to five weeks ago. This was the first time she made allegations of bullying and harassment. She had lodged two claims, one for her left wrist, and the other for her right neck and shoulder.
The applicant had not been targeted by management. If anything, they gave her a lot of support. This is why this came as a shock, when she lodged this claim.
The applicant was never discriminated against or harassed. She was supported with everything she wanted, including moving her, at her request, between teller and front of house throughout the day. They touched base with her regularly to ensure she was OK. This was not required due to any medical examination. They were willing to accommodate her to ensure she was feeling comfortable and supported.
The applicant was not told not to speak to other staff about her issues. She wanted her injuries kept confidential and they honoured this.
He agreed that the applicant was regularly monitored and checked on, but this was to ensure she was comfortable and not in pain. There were times she was doing tasks she was not meant to do because of her injuries, and they told her she shouldn’t be doing these.
He disagreed that he would speak over or be dismissive of the applicant. Each time he spoke to her, he and Lara were present. He denied having said no one could transfer, and if he didn’t like anyone, they could leave. He would never say this.
The applicant was well-supported. She spoke about her husband having a work-related injury and asked if she could change her work hours. He was very supportive of this.
He had no knowledge of the applicant being asked to change the language on her incident report for either physical injury. He was on annual leave when her wrist injury occurred. She initially didn’t want to do anything about her injuries, and they encouraged her to get treatment and lodge an incident report.
He disagreed that the applicant was in their “bad books”. They supported her with her injuries. He did not know what else they could have done to support her. This was why this had come as a shock.
Mr Abboud made a second statement dated 4 November 2020.
He denied shouting at the applicant in February 2018. He would never shout at anyone in the workplace. He does not specifically recall this incident. If the applicant is talking about a TCR jam, they jam multiple times a day. It’s likely he said something along the lines of “mistakes happen”. He would not consider a machine jam to be a big thing.
He walked into the kitchen one day and there was a helmet there. He asked who it belonged to, thinking one of the cleaners may have left it behind. The applicant showed him a video of herself on her phone, riding the motorbike. She said, “I’m part of the bikies now”, in a joking manner. She said she had a bike in India and her husband bought it for her birthday or anniversary. It was a joke, made by the applicant. “That was it.”
He denied that he ever spoke to the applicant with a raised voice, or made comments about destroying a person – “why would I ever say such a thing?”
Lara Tower would be the best person to speak to about any disciplinary action against the applicant. He recalled the applicant making a privacy breach, and she hid it for several days, when she should have notified them immediately.
BT Super lodged a JUNO case against the applicant. He cannot recall the outcome.
They had a discussion about the applicant moving to a smaller branch, at one of their check in conversations.
He said he would see if there was availability for the applicant to move branches and would speak to the area manager. He was told there were no vacancies for the branch where she wanted to work. They told her when something came up, she could apply.
He thought he and the applicant got along well. She called him “Dad” and said he reminded her of her father, who she was very fond of.

Evidence of Lara Tower

Ms Tower is the assistant branch manager. Her first statement is dated 14 April 2020.
She was the applicant’s direct supervisor.
She was quite shocked when she was notified of the applicant’s current claim. The applicant was always thanking her for her support and saying how much she trusted her and George.
She strongly disagreed that the applicant was targeted by management multiple times. They had a very open and family type atmosphere.
She strongly disagreed that the applicant was discriminated against and harassed. They were always checking in on her, and how she was going. She was always saying how well she was doing. She and George always spoke to her together and she never seemed to have any concerns.
She strongly disagreed that the applicant was dismissed or ignored. She and George often met with her and would check how she was feeling.
She disagreed that the applicant was told not to talk to staff about her issues. Initially, she spoke to several people about her wrist injury. When they completed the incident report, she mentioned she didn’t want anyone to know, so they supported her with this.
She strongly disagreed that the applicant was kept under watch. She did not have the capacity to watch her all day. There were times she would see the applicant doing things with her shoulder or wrist that she shouldn’t and would comment on this if she saw it.
She disagreed that the applicant wasn’t supported, or they told her they didn’t care about her personal life. The applicant was offered various levels of support. Since her physical injuries, she had met with her more often to support her and ensure she was OK. “That is what makes all of this so confusing.”
When she assisted the applicant with the claim for her wrist, it happened at approximately 11am, and she didn’t report it until 4pm. She strongly advised her to see a doctor. When she followed up the next day, the applicant said she hadn’t seen a doctor and was experiencing more pain.
She told the applicant she needed to see a doctor and assisted her to lodge the Incident Report. She told her she needed to be as descriptive as possible. If anything, she assisted her with adding more information.
She strongly disagreed that she told the applicant she was being watched.
She strongly disagreed that the applicant was in their “bad books”. She had been a teller and told her staff that mistakes happen. She felt she had an open relationship with her staff and told them that if they made a mistake, to tell her and there were always ways for mistakes to be fixed.
Ms Tower made a further statement dated 4 November 2020.
As regards the applicant’s allegations about a discussion with her and George relating to “ongoing concerns”, they had been advised to place the applicant on light duties as a result of a physical injury. A month had passed, and they checked in with her multiple times a day to see how she was going.
She would not generally conduct these check ins on her own. She would have George with her and would often email the applicant a summary of the discussion. Based on her discussions with the applicant, she was under the impression that everything was going well.
She was with Jarrod Provost in the back ATM room one day, and the applicant approached her about her injury. She asked why she hadn’t brought it up previously and said she should have raised any issues she was having as soon as she started to experience pain, so they could amend her duties.
The disciplinary action taken against the applicant was the result of a major breach on her behalf. In her role, she was not meant to call BT Super directly with regard to opening a super [annuation] account. She should have gone through a specialist to provide a Needs Profile prior to this.
The applicant did contact BT Super to open a customer super account. She had the customer with her, completed identification for a new bank customer, and gave BT Super the wrong profile details. This was a major breach, as they opened a super account for the incorrect customer.
The applicant tried to hide this from her. The applicant was still working when she left for the day, and she asked her what was going on. She said everything was fine when it wasn’t.
The next day, she received a call from BT Super, advising what had happened. A JUNO case was lodged by BT Super.
The applicant raised a change of branch with her and George at one of their meetings. She said she wanted to go to Stanhope Gardens, and George said he would see if this was a possibility. She said this was fine, and she would wait for them to let her know.
The regional manager for the west said he couldn’t move any staff to swap with the applicant. The customer to staff ratio was the same as at Blacktown, so the applicant would have been doing the same amount of work.
She was not aware of any issues regarding bullying and harassment. No one had made prior reports to her about it, nor had she observed such behaviour.
Ms Tower’s final statement is dated 2 September 2021.
She has no recollection of witnessing George Abboud ever speaking over the applicant. Her observations were that everyone got on with him. She recalled the applicant stating that she felt this was a family and he was like a father figure.
She believed Mr Abboud was a great manager and would not describe him as authoritative or aggressive. He always developed people and was very approachable.
She denied having asked the applicant to give her a massage. If the conversation arose, the applicant would have instigated it. If she ever said she was stressed or tired, the applicant used to say she had great hands and would offer a massage. She always refused as she believed it might be inappropriate.
Her notes indicated that in December 2019, the applicant complained about needing to press the button on the printer the whole time. She said the applicant could submit a request to IT to troubleshoot the issue, and if not resolved the printer would be replaced if necessary. The staff switched terminals and rotated desks, so the applicant would not be working on that terminal for the entire shift.
The applicant did not complain of pain, only about being annoyed at the printer. As no new printer ever came, she could deduce the applicant never followed her advice to submit a request to rectify the issue, because one was never submitted.
Her notes indicated she had a discussion with the applicant on 31 January 2020 about her request to rotate between front and back of house. She said the reason was to stop her doing repetitive movements, as she feared aggravating her wrist injury. Her notes indicated the applicant did not complain about any pain. Jarrod Provost, customer service assistant, was present.
She agreed to the applicant’s request to avoid any potential aggravation of the wrist injury. She was on light duties at that time. The applicant sent her an email on 28 January 2020 saying she was feeling better and did not want to do repetitive duties.
On 3 February 2020, she and George spoke to the applicant about text messages sent on
2 February 2020. There was a lot of confusion. She had said in the previous week that she had no pain, and they did not know if the pain mentioned in her text messages was work related.
Her documents show that the applicant’s doctor refused to provide her with an “RMI” at first because he wanted to be sure it was work related. He provided a general medical certificate saying the applicant was unfit for work. She had previously asked for the claim to be closed.
On 3 February 2020, they arranged for an ergonomic consultant. The applicant had requested via email that she wanted to go on WorkCover because the pain would not go away. Even after she was cleared, they kept her on light duties to prevent an aggravation.
She denied having suggested to the applicant that any reported workplace injury could be non-work related. She would never say this. 23 February 2020 was a Sunday. By this time, she had ceased communicating with the applicant by SMS, at her request.
On 5 February 2020, she received an email request from the applicant to send all communication via email, including return to work (RTW) consultant, “Georgina” (Boutros). The previous week they had ergonomic consultant, “Karen”, checking the applicant’s desk.
She had no knowledge or recollection of the applicant using a bin as a foot stool. The tellers and front of house staff had a metal railing, or pole, attached to the desk, to place their feet on. She had no recollection of discussing the applicant using a bin with the ergonomics consultant. She had no correspondence or documentation that mentioned a foot stool.
She denied having told the applicant the breach error had been fixed.
On 19 February 2020, the applicant performed a task she was not accredited to perform. She was aware of this at the time she performed it.
The applicant created a new St George customer profile for a new customer, which she was accredited to do. She then contacted BT Super to open the super account. However, she provided a customer profile belonging to a different customer.
The applicant’s colleague, Manpreet (Mandy) Sidhu, who was accredited to perform this task, told her to book the customer in for an appointment, as Mandy was busy and could not open the account. This was when the applicant proceeded to perform the task.

She believed that when the applicant and Mandy realised what had happened, they contacted the BT consultant, and they were all trying to contact the relevant customers.
On 19 February 2020, as she was leaving, between 4.30pm and 5.00pm, they were the only staff left, which was unusual, and she asked why they were still there. The applicant responded: “Nothing, we are just waiting”. She asked if everything was OK, and the applicant responded: “Everything is great”. They did not tell her about the error.
On 20 February 2020, the applicant was not at work, as there was an injury management related change to her hours. She received a call from BT consultant Angela Lemaniak, who told her of the error. Angela said she spoke to the applicant about what had happened, and she was trying to rectify the issue.
Angela said she was consulting her risk team about what they needed to do to fix the situation. She was advised during the phone call to load a JUNO against the applicant. This advice was not included in any correspondence.
She told Angela she wanted to investigate at branch level before loading a JUNO, so that, with consideration of the applicant’s ongoing injury management needs, she did not feel targeted. She could not contact the applicant or discuss it with her immediately, as it was her day off. She consulted Angela and Mandy to gather as much information as she could.
She did not work on 21 February 2020. She had no records of discussing the matter with the applicant on 24 February 2020. She was unsure if the applicant worked that day. At that stage, the only person who had approached her to advise her of the breach was Angela.
On 25 February 2020, she emailed Human Resources (HR) for assistance managing the situation and loading a JUNO. The regional executive, Adam Ryan, contacted her and George.
She spoke to George, and they advised Georgina what had happened, as they needed to know how this issue could impact the applicant’s ongoing injury management. Georgina said it was a branch matter, and not an injury management matter, and needed to be managed as usual.
On either 25 February 2020 or 26 February 2020, after the team meeting at 9.30am, everyone started work. She asked the applicant to sit with her and George to discuss the BT Super issue. She kept it brief, as she did not want others hearing.
She and George sat with the applicant in the back of house/ATM bunker area where their desks were located. She asked everyone not to enter the area until further notice. It was a sensitive matter, and she did not want anyone hearing or interrupting, and to make it as private as possible. This was usual practice when they had weekly 1:1 coaching, training, or work-related discussion with staff.
She asked the applicant her version of the situation and told her they would also be speaking to Mandy. This is when the applicant told her what happened.
She said to the applicant: “Why didn’t you come to me straight away and we could have fixed it?” The applicant said she wanted to try and fix it before it came to her.
They told the applicant a JUNO report had been lodged by BT Super and would be investigated upon further notice. They again explained why she should not have done it, and the implications of the privacy breach.
The applicant accepted she had done the wrong thing, and also tried to blame Mandy. She asked if the applicant could confirm how Mandy was involved, and she started crying.
She denied having gestured with her fingers towards the applicant, suggesting that she was watching her, on 28 February 2020. Although she did not recollect any conversation of that date, she could have told the applicant to rest up, as this is the sort of thing she would say.
She could not comment on the applicant’s allegation that George entered the female bathroom and said something to her. At times, if people are in the bathroom for lengthy periods, someone might go in and ask if they are alright. George would never go into the female toilets. If he was concerned, he would send a female in. He was not aggressive.
She had no recollection of any conversation with the applicant on 2 March 2020, and no notes relating to any conversation on that day.
Everyone makes mistakes. There was no expectation for people not to make mistakes, until they became repetitive. If there were repetitive mistakes by the applicant, it would have been cash errors. That is nothing out of the ordinary when handling bulk cash. There was nothing so bad that it would have required HR to commence formal performance management. The applicant always said she and George made her comfortable, and she could come to them with anything. She had returned to her normal duties by this time.
ATM management was a normal part of the applicant’s job as a customer service officer. She always put her hand up for the role and told her on numerous occasions she wanted to be ATM custodian because she enjoyed it. She was not a bulk custodian.
She had never denied knowledge of the applicant’s injuries. When the applicant complained of injuries, she told her she needed to load them in the system, and she said she didn’t want to. She could not force her to do it. She did not report her wrist injury until the end of the day. It occurred in the morning. The day after, the applicant informed her she hadn’t been to the doctor. She told her to sign off and go to the medical centre next door.
The applicant never stated that she was stressed from work or her injuries. She had no recollection of any conversation with the applicant about her being stressed. She had never observed anything in the applicant’s work, demeanour, or behaviour to make her think she was suffering, or at risk of suffering, a psychological condition.
She denied any favouritism at the Blacktown branch. Everyone makes mistakes. There would have been email correspondence about that, however there was no favouritism. The applicant was not treated any differently, with the exception of her medically certified work alterations.
There were occasions where if someone made a general mistake, they fixed it without raising it with them. If there was an error that could become something bigger, they raised it. She denied they were withholding information with respect to the applicant’s errors. There was never any need to commence formal performance management.
She had never reported, or considered reporting, a JUNO, because she had never had a breach of privacy of this magnitude. The breach, had it not been detected, would have resulted in a customer’s compulsory superannuation payments not being made, and somebody else would have received them. The customer for whom the account was intended would have received someone else’s personal details, such as the Tax File Number and other sensitive information.
The process of loading a JUNO is no different to loading a complaint or contacting HR via the intranet portal. She did not believe there was any specific policy with respect to loading a JUNO. However, JUNO itself is for reporting privacy breaches.

Email attachments

The statement attaches emails regarding the applicant’s claims and the JUNO case. between Ms Tower, the applicant and Ms Lemaniak. There is also a copy of Ms Tower’s email to Ms Boutros and Mr Justin Lal (claims consultant) requesting advice on handling the JUNO case.
On 23 January 2020, Ms Boutros emailed Ms Tower to check how the applicant was going. If she had not seen a doctor, Ms Tower could make an injuryNET appointment. She would have to attend the appointment with Ms Kaur.
Ms Boutros asked if there was any reason why the incident was not loaded yesterday when it occurred.
Ms Tower responded that she was unsure of the state of the applicant’s hand. She had seen a doctor yesterday and was awaiting the results of the X-ray.
The incident occurred on 22 January 2020 at approximately 11am. The applicant informed Ms Tower about it at roughly 4.10pm to 4.15pm. She informed the applicant to complete the incident report online and seek medical advice immediately. She wanted to see the doctor first and monitor her hand overnight. Ms Tower advised her otherwise.
On 23 January 2020, Ms Tower asked if the applicant had seen a doctor. She said no, but the pain in her hand had progressed. She situated the applicant in the back of house to complete the incident form and organise a doctor’s appointment next door.
Ms Tower also asked the applicant to re-complete the E-Academy and learning back module of safer handling and OH&S. She spoke with the HR help desk as the applicant was completing the online form. They did not advise that she had to sit down in the appointment or make an appointment with injuryNET.
Ms Tower asked if Ms Boutros wanted her to organise an appointment with injuryNET, and whether she would like her to send the X-ray results when they came in.
On 24 January 2020, Ms Boutros emailed Ms Tower, Mr Abboud and the applicant.
Ms Boutros asked Ms Tower to make sure the team was aware of the importance of same day reporting to ensure the right support and if “we” need to intervene, they could do so as early as possible.
Ms Tower was asked to do what was working for the applicant with regard to her duties “etc”. She was to refrain from giving Ms Kaur any coin handling/ATM/safe duties at that time.
Once the applicant had connected with the general practitioner (GP), Ms Tower was to advise if any further support was required.
The applicant was asked to send any medical certificates she had, and if she was out of pocket, to send the invoices/receipts “etc”.
Ms Boutros concluded “Speak soon and wishing you a speedy recovery!”
Also on 24 January 2020, Ms Tower emailed Ms Boutros, copying Mr Abboud.
Ms Tower advised that the applicant had attended her doctor’s appointment. The X-ray result stated injury to left wrist, tender mid carpus. Dr Dharma said she would not be giving
Ms Kaur a report or stating what duties she could perform unless she went through WorkCover. Ms Tower was not sure what to do and asked for advice.
Ms Boutros responded that she had tried to call the applicant and would wait to hear from her to talk through the next steps. It was “a little disappointing and odd” that the doctor was not willing to support or provide the applicant with the report unless she lodged a claim.
Ms Boutros asked if Ms Tower had connected with the practice to see if it was injuryNET accredited. If not, she asked that Ms Tower call injuryNET to confirm.
On 28 January 2020, the applicant emailed Ms Boutros, copying Ms Tower and Mr Abboud. She thanked Ms Boutros for her support. Over the weekend she rested her hand and used the cold pack, as advised by the doctor.
The applicant said she was feeling better, as the pain in her wrist was reduced, so she would not be seeing the injuryNET doctor.
Also on 28 January 2020, Ms Tower emailed the applicant, Ms Boutros, and Mr Abboud. She referred to their conversation and the conversation between Ms Boutros and the applicant “on Friday”.
If the applicant did not see an injuryNET doctor, Ms Boutros would close the case. Ms Tower said, “Please proceed”.
Ms Boutros emailed Ms Tower, the applicant and Mr Abboud on 29 January 2020. She said that as no further intervention was required, the incident was closed.
Ms Boutros asked the applicant to make sure to continue stretching her hand and be mindful of appropriate safe handling. Ms Tower and Mr Abboud were asked to make sure the team was aware of safe safety [sic] and appropriate use, if they had not already done so,
On 31 January 2020, Ms Tower emailed Mr Abboud about the applicant’s duties and role update.
The applicant had requested to rotate her workstation between front of house and teller 02, whilst still keeping her on light duties. The reason was that the applicant did not want to continuously complete reparative [sic] movements.
Ms Tower had agreed to start rotation on Monday 3 February 2020.
On 3 February 2020, Ms Tower emailed the applicant. She said she believed the applicant had asked Mr Abboud about her X-ray result. She was responding on his behalf.
The applicant had provided the X-ray report so Ms Tower could send the details to
Ms Boutros. She did not scan the X-ray “(as I told you)”. Once she sent the result to
Ms Boutros, she returned it to the applicant, who had the original. She would need her doctor to fill in the form “above” that day.
Ms Tower concluded “Hope your [sic] okay. We still need to discuss your wellbeing upon arrival and work duties.”
The applicant emailed apologies and said Ms Tower did give her back the hard copy. She would get the doctor to fill the form.
The applicant sent another email to Ms Tower, copying Mr Abboud, on 3 February 2020, advising that her doctor was not able to sign anything until he got all the report[s], CT scan, ultrasound, and X-ray. She needed to collect her X-ray report which she left at the branch.
On 6 February 2020, the applicant sent an email to Ms Tower, copying Mr Abboud. The subject line was “Request for Work Compensation Form”.
The applicant thanked Ms Tower for the text message she had sent that morning – “It means a lot to me at this point”. The applicant was “going through lots of things like stress, pain in my wrist, neck and shoulder area which is all related to work”. Because of that, her family life and work life were affected.
The applicant said she would like to get better and return to work. “So I need your future assistance in this critical time. As per my Doctor request, Can I kindly request to you to send me worker compensation form. It would be much appreciated if you can send me as soon as possible.” The applicant ended the email with “Thank You” and “Kind regards”.
On 10 February 2020, Ms Tower emailed the applicant “Welcome back!” She recapped that morning’s conversation with Mr Abboud (who was copied).
They had gone through the applicant’s care plans, which were subject to change according to her doctor’s recommendations. She reminded the applicant to please take her postural breaks every 25 to 30 minutes.
“Karen”, a workplace ergonomic specialist, was booked for 12 February 2020. The applicant would be sent an invite. Ms Kaur had notified them of a doctor’s appointment on
12 February 2020. Ms Tower asked that she notify her and George of any future appointments so they could “input” them into their calendars.
Finally, Ms Tower asked the applicant to let her or Mr Abboud know if she was experiencing any discomfort, pain “etc” moving forward.
Also on 10 February 2020, Ms Tower emailed Ms Boutros and Mr Lal, copying Mr Abboud. This was to advise them of the “catch up session” with the applicant.
The applicant had been working front of house and said she had not felt any discomfort or pain, “it’s been good”.
During a general conversation about the applicant’s well-being and family, she mentioned her husband had had an incident at work and was in hospital due to a slipped disc in his back. She would be driving to and from work and dropping her children at school. She would be coming in to work at 9am, rather than 8.45 am.
On 14 February 2020, Mr Lal emailed Ms Tower to ask if there was a job report about the “faulty” printer, at which a technician had looked, to show there were no issues.
Ms Tower responded, copying Mr Abboud, that there must have been a misunderstanding. She said they could not replace the printer because it was not broken and had no technical issue. As it was not faulty, they could not log a job with IT.
She had several staff members, including George and herself [check] and none of them had any issues with the spider printer button to date. The applicant was just pressing it twice.
Mr Lal emailed Ms Tower back, to ask if she knew whether the applicant believed the printer was still faulty.
Ms Tower responded that that was correct. When Ms Kaur first advised her about the printer button issue on 11 December 2019, she said she had to push the button twice, which was annoying.
Ms Tower did not encounter any issues, and they joked about her “magic touch”. She advised the applicant not to sit on that terminal. Another staff member was present during this encounter.
In the next week or so, Ms Tower continuously checked in with other staff who used that printer, and no issues were raised.
On 20 February 2020, Ms Lemaniak emailed Ms Tower, and copied the applicant. She had tried to contact “Nirmal”, the customer whose account was opened incorrectly on his profile but was unable to reach him. Her manager had suggested that, if possible, could Ms Tower’s team attempt to contact him and notify him that they had made this mistake, and were closing the super account. She provided his email and mobile number.
Ms Lemaniak had “the go-ahead” from her risk team to contact the “real Nirmal” and hopefully help him open a new correct account. She asked Ms Tower to let her know if there were any questions or updates on her end.
Also on 20 February 2020, Ms Lemaniak advised Ms Tower and the applicant that “correct Nirmal” had been notified, and a new account opened. She had yet to speak with “the incorrect Nirmal”.
On 24 February 2020, Ms Tower emailed Ms Lemaniak, copying the applicant, and asking if there was any communication from Nirmal.
On 25 February 2020, Ms Tower emailed Mr Lal and Ms Boutros, copying Mr Abboud. She asked for assistance regarding a JUNO case loaded by BT Super against the applicant. She provided details of the “major privacy breach” that led to BT Super loading the case. Due to the applicant’s injury and the sensitive nature of the case, she needed advice on how to approach the matter, and the limitations.
On 27 February 2020, Ms Lemaniak emailed Ms Tower. She apologised for her late response (to Ms Tower’s email of 24 February 2020) and advised that “Most of this is sorted”, but they still could not contact “duplicate Nirmal” to inform him of the incident. He was the one on whose profile they mistakenly opened the account. She asked, “Any luck on your end reaching him?”
On 2 March 2020, Ms Kaur emailed her certificate of capacity (COC) for her left wrist, neck and shoulder injury to Ms Tower, Mr Abboud, Ms Boutros, and Mr Lal.
Ms Boutros emailed the applicant, copying Ms Tower, thanking her for sending the COC. She noted that, based on the medical certificate, which was similar to her other certificates, she was fit for most of her duties. She inserted a smiley emoji.
Ms Boutros understood that the applicant had a 1kg lifting restriction, and Lara had accommodated this by removing any coin bag duties. She referred to restrictions on pushing/pulling, and the temporary removal of coin hopper/coin handling duties.
Ms Boutros also noted that the applicant’s physiotherapist felt she would make a full recovery over the next few weeks – “great work there, just remember to continue with the recommended stretches and exercises!”
“On a side note”, Ms Boutros had spoken to Lara that day, and she mentioned the applicant was experiencing an increase in discomfort in her neck and shoulder. It was “super important you keep me in the loop” with how she was feeling, and if she was in discomfort, as this was all part of the injury management and workers compensation process.
Ms Boutros asked the applicant to please remember that she was there to support her and ensure her recovery at work was safe and sustainable. She asked Ms Kaur to call her when she had a chance.
On 31 March 2020, the applicant emailed her resignation letter to Ms Tower.
On 31 March 2020, Ms Tower emailed the applicant, copying Mr Abboud.
Ms Tower thanked the applicant for her email and was “sorry to know” she had resigned. “As you know”, they saw her as a valuable team member and she, George and the team were saddened to lose her.
Ms Tower said she knew the applicant had a lot going on and hoped before she made her final decision, she consulted with her family, psychologist, or GP to ensure it was the right decision for her.
She confirmed the applicant’s last day with St George would be 28 April 2020. She advised of her annual leave and sick leave balance. She again said they would be sad to lose the applicant, and she would remain in touch over the next few weeks to see how she was going.

Although the applicant had said she preferred to communicate by email during this time,
Ms Tower provided her mobile number, “if you ever need to chat about anything I encourage you to reach out to me”. She finally wished the applicant all the best in her recovery and future endeavours.
On 7 April 2020, Mr Lal emailed the applicant, copying Ms Boutros. He asked if the applicant was free for a “chat” that day regarding her claims. He suggested perhaps a time when her husband was available as a support person. He asked her to let him know if she would prefer email.
Also on 7 April 2020, Mr Lal again emailed the applicant, copying Ms Boutros. He was following up his email from that morning and asked if she would be free some time tomorrow, or if she would prefer email.
On 8 April 2020, Mr Lal emailed the applicant. He had “tried to reach out” to her by email and SMS but had not had a response. He informed her that he would be declining her claim for her right shoulder and neck injury, effective that day, meaning he would be unable to pay for treatment or weekly benefits.
Mr Lal was also declining the applicant’s “wages ongoing” for her left wrist injury, but the required notice period was two weeks, so her entitlements would cease on 22 April 2020. He would continue to pay for treatment for her left wrist.
Mr Lal advised that he would send Ms Kaur formal notices and documents, once she confirmed she had a support person available to review them. He advised that she had the right to review his decision, and the process was outlined in the letter.
In relation to the applicant’s psychological injury claim, Mr Lal had arranged an appointment with an independent medical examiner and attached a letter with details. He forwarded the email as an “FYI” to Ms Boutros, Mr Ryan, Mr Abboud, and Ms Tower.

Evidence of Aysenur Inan

Ms Inan is employed by the respondent as a customer service specialist. Her statement is dated 6 November 2020.
She worked with the applicant and saw her regularly throughout the day. The applicant never spoke to her about any difficulties in the workplace or with management.
She had been with the branch for approximately two years, and it was one of the best branches she had worked in. It was a calm atmosphere and the team all worked together well. It was “a great place to work, it feels like home”.
She had not witnessed any behaviour that would constitute bullying and harassment.

Evidence of Joseph Semaan

Mr Semaan is employed by the respondent as a customer service specialist. His statement is dated 12 November 2020.
The applicant did not speak to him about experiencing problems in the workplace. He knew she had injured herself prior to leaving. He took some leave around that time, so did not have a lot of information about it. He thought it may have been a strain injury to her shoulder or wrist.
The applicant did not mention that she was having any problems with management.
As regards the culture and general atmosphere in the workplace, “I’m a big fan, the culture is good”. He was the youngest in the branch, and it was daunting to begin with, but it was a friendly workplace. There were no politics.
He had not witnessed any behaviour in the workplace that would constitute bullying and harassment towards any staff.

Applicant’s evidence in response

In response to Aysenur Inan’s evidence, Aysenur was always close to George, and regularly went on smoking breaks with him. She did not feel comfortable talking to Aysenur about her difficulties at work, as she feared her comments would get back to George, and she would be in further trouble.
George had also threatened physical violence if she mentioned her issues with Lara, so she kept this to herself.
Aysnenur described the workplace as calm and feeling like home. Aysenur always got on with George and was very friendly with him. She did not believe she suffered the same harassment and bullying.
Joseph had a close relationship with George and would also join him and Aysenur on smoking breaks. She did not feel comfortable mentioning any harassment and bullying, due to his close relationship with George, and George’s threats of violence if she mentioned her issues to anyone.
The comments by Lara were false and untrue. She did not mention her injuries as soon as they occurred because they were short staffed, it was busy in the morning, and Lara was dealing with customers.
Her injury occurred at roughly 11.15am and she did not have the opportunity to report it until roughly 4pm. Lara asked if she really wanted to report it at that time and advised her to sleep on it and see how she felt the next day.
The next day, she told Lara she would like to report the injury. Lara requested that she finish her ATM duties first.
She did not hide the BT Super mistake from Lara and had approached senior staff on the day she made it. She approached Lara when she was next in the branch and was under the impression it had been handled. She remained “transparent and open” before the JUNO report was filed.
George extended the offer to change branches, and she did not request the transfer first. He said he knew the managers personally and would sort something out. The main reason she wanted to move was the bullying and harassment, and not her physical limitations.
Lara and George always supported each other, and never called out each other’s behaviour. Lara continuously undermined her trust and commitment to the job.
George always raised his voice at her and had a short temper. When the TCR jammed, he got aggressive and shouted at her, resulting in her crying.
She never referred to herself as a “bikie”. George gave her this name and she did not like it.
George said he would “destroy” or “demolish” someone, and at least once said this in her and Lara’s presence.
She received inconsistent information from George about a transfer but was always under the impression he had promised her a transfer.
She sometimes got along with George, but their relationship mostly consisted of him bullying and harassing her. She said he reminded her of her father because both he and George had anger issues. She grew up in a household of domestic violence and George’s aggression and temper reminded her of her father’s.

Medical evidence

The respondent has conceded that the applicant has sustained an injury and has no capacity for work. It is therefore unnecessary that I discuss all the medical evidence.

Stanhope Park Medical Centre

Several copies of the clinical records are attached to the Application, some complete and some incomplete. It is not my intention to refer to every entry. The records appear to commence on 17 August 2009. The applicant was then 19 weeks pregnant.
The applicant’s second child was born in late 2011.
On 18 January 2012 Dr Neeta Waje recorded that the applicant was planning to send her sons overseas for a year – “is upset”.
On 8 March 2012, Dr Waje recorded that there was some issue about overpayment from Centrelink. The applicant requested a letter for Centrelink “(re termination and her depressed moods)”.
On 13 April 2012, Dr Waje recorded that the applicant had had hair loss for a few weeks. “Stressed +”.
On 10 July 2012, Dr Waje recorded that the applicant was “a bit teary today, says she is getting short fused. Supportive counselling”.
On 6 September 2012, Dr Waje recorded that the applicant would start counselling with a psychologist in mid-September. She was “better with her moods”.
On 29 January 2013, the applicant was “upset as not find her true career pathway. Counselling done”.
On 30 August 2013, Dr Waje recorded “Anger!” The applicant was teary and emotional. There were multiple issues. She would complete her studies in November and then hunt for a job. She felt unsupported at home. She felt she snapped at the kids and “hubby” and they did not love her.
On 20 November 2013, Dr Waje recorded a lack of concentration. There were issues at home, “verbal conflicts with her husband”.
On 19 March 2014, Dr Waje recorded that the applicant looked worn down, she thought a lot and was highly emotional. “Words and actions hurt me”. Her husband was dismissive of her concerns and even ridiculed her counselling sessions. She was extremely teary and felt vulnerable. She had headaches and was not sleeping well.
On 6 May 2014, Dr Waje recorded that the applicant was not taking her Citalopram. She felt good when she took it initially. She was coping well, “has a few outbursts”. She had started counselling and wished to study further.
On 28 July 2014, Dr Waje recorded that the applicant had bought a new house. She was thinking about repayments and the pressures of moving. She was not sleeping well.
On 4 October 2014, the applicant presented with a lump on her forehead. She admitted to hitting it on the wall. Dr Waje probed about domestic violence, and she said there was none. She was frustrated and angry “? Cause.”
On 17 October 2014, the applicant felt “better in the anger dept”. Her sleep had improved, and trivial matters were being ignored.
On 7 November 2014, Dr Waje recorded that the applicant’s sleep was still disturbed. Her anger control was “coming good”.
On 19 January 2015, Dr Waje recorded that the applicant was slightly emotionally upset. Her in-laws were at home, and supportive.
On 24 February 2015, the applicant was upset and teary about her son’s behaviour.
On 8 May 2015, the applicant requested a certificate to say she had anxiety or depression, as she planning to study, and apparently she could apply with a “disability” and her fees could be reduced.
On 13 May 2015, Dr Gillian Dyer recorded that the applicant was attending court tomorrow for a speeding offence. She suffered from depression/anxiety. She was warned about medication and driving.
On 17 June 2015, the applicant presented with symptoms that Dr Waje recorded were most likely stress related. She was upset that she couldn’t pursue fashion designing.
On 28 August 2015, the applicant requested a disability certificate. She wished to retrain and needed to apply “through her disability and can thus avail the discount of fees”.
On 19 January 2016. Dr Waje recorded that the applicant was teary, “little things affect her, upset at her own anger”.
On 21 January 2016, Dr Waje recorded that the applicant was teary and upset. She thought of things that had occurred in her past, “parental disharmony, her conditions then, fear etc”.
She felt little things were getting to her. There was no DV (domestic violence). Dr Waje asked specifically, and she denied it.
On 24 February 2016, the applicant requested a counsellor. She was teary and upset with her own emotions. She was very young when she had her first child. “? guilt feeling of not raising him up?”. She also felt upset about her own anger.
On 28 April 2016, Dr Waje recorded that the applicant’s moods were better. Her husband was going through WorkCover denial of claim, which was upsetting her.
On 8 July 2016, Dr Waje recorded that the applicant was emotionally upset, and feeling dizzy. She said she knew she suffered from psychosomatic symptoms when she was stressed.
On 14 September 2016, Dr Durre S Khan recorded that the applicant was on Prozac. She was not sleeping well, as she was hesitant to take Ativan, as suggested by Dr (Richa) Rastogi.
On 2 November 2016, Dr Waje recorded that the applicant wished to apply for a rider’s licence. She declared her mild depressive condition and an NSW Fitness to Drive Medical Assessment form was filled. There was a “long chat re: her depressed moods and effects of ongoing counselling”.
On 1 April 2017, Dr Waje recorded that the applicant had seen Dr Rastogi. Notes had not been received yet.
On 19 May 2017, Dr Waje recorded a driving medical for chronic depression and anxiety. The applicant was cleared for a year.
On 26 October 2017, Dr Waje recorded that the applicant forgot to vote, as she was unaware. She stated she was confused due to Epilim. Dr Waje noted that Epilim was started in February. There were no new incidents around the voting day. She was unable to give the applicant a medical note and explained why.
On 26 February 2018, Dr Muhammad Owais Wadud recorded that the applicant was under the care of a psychiatrist. Stress and anxiety continued. She was unable to cope at times, and very busy at work. Her husband worked as a chef with busy hours. There was lack of interaction and family support. She was in India a few weeks ago and felt better.
On 5 April 2019, Dr Waje recorded that the applicant was off all her anti-depressants. She was coping. She had had 10+ counselling sessions. “Better head space now”. She wished to have the restriction/annual review under the mental health category removed from her licence.
On 2 February 2020, Dr Wadud recorded that the applicant had high stress and anxiety levels due to pain. She was crying on arrival. She was complaining of right cervical pain with radiation to the right shoulder, since December. This was followed by an injury to the left wrist.
On 5 February 2020, Dr Wadud had a phone call from Ms Boutros. Ms Boutros was concerned that there was possible interpersonal conflict with the applicant and her manager and was surprised the applicant could ride a motor bike with her injuries.
Dr Wadud informed Ms Boutros to meet in the presence of the applicant, which would help plan for her recovery and return to work.
The applicant came in with her husband. “High stress and anxiety”. She was crying, “difficulty coping, unable to sleep for the last 3 nights. Vomiting”. She was overwhelmed due to her current health issues and worried about her future. “What will happen if they fire her due to current issues?” She denied motor bike riding and had sold the bike 1.5 years back.
Dr Wadud had a discussion with Ms Boutros, who was concerned that the applicant was very flat, depressed and stressed out. She “doesn’t sound too good”. Ms Boutros denied lack of support from the team and claimed there was a lot of support.
The applicant called Dr Wadud and said there was no conflict between her and her manager, but rather lack of support. The manager thought her shoulder/neck pain was not work related, and that was the reason they sent the paperwork/form to be completed.
On 6 February 2020 Dr Wadud recorded “Poor sleep. Early morning wakening. Depressed mood. Low self-esteem. Irrational fear. No panic attacks. No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. No substance abuse”. There is no recorded reason for these symptoms.
On 12 February 2020, Dr Wadud recorded a case conference with Ms Boutros and the applicant. Her stress and anxiety were much better. She was coping well. Return to work was discussed. She had already had a work-based OT assessment and needed a physio assessment.
On 27 February 2020, Dr Wadud recorded that the applicant was following up with the psychologist. She had “high stress level”. A recent trigger was an investigation due to breaching the code of conduct. She made an error at work by sending information to the customer support specialist about opening an account “(with a same surname and given name)”. She was finding it difficult to cope.
On 3 March 2020, Dr Wadud recorded that the applicant came in with her husband. She was “highly stressed” and “difficulty coping”.
On 4 March 2020, Dr Wadud recorded similar findings. The applicant had seen a psychologist that day. She was unable to go to work. Her sleeping issues continued. “Panic attacks”.
On 7 March 2020, Dr Waje recorded that the applicant stated there was bullying and she felt she was being micro-managed. She was extremely teary and upset. She felt she was not given opportunities to defend her moves and was constantly watched.
The plan was for email documentation, as verbal communication could not be documented and verified. The applicant was upset as she was not supported after undergoing counselling. There was a breach of the code of conduct and issues at work.
The reason for contact was recorded as “Emotional upset – due to her current work stress situation”.
On 8 March 2020, Dr Wadud recorded that the applicant reported having no support from work. She had been targeted by management multiple times, discriminated and harassed psychologically.
The applicant said she was not allowed to talk to other staff members, was followed and watched. George said, “I don’t like bitching”. In Laura’s presence, he said “if anybody touches me I will destroy that person. If I don’t like any person that person has to leave the branch”.
Dr Wadud recorded that the applicant made a mistake on 19 February 2020 (breach of privacy) and tried to fix it the same day. She informed the assistant manager on
24 February 2020 and asked to call the incorrect customer. The manager said don’t worry and Mandy had called the incorrect customer, but later made a complaint, which was under investigation.
On 27 March 2020, Dr Wadud recorded that the applicant’s stress and anxiety continued. She was having regular psychologist follow ups. Sleep issues continued. Her mood was low, “crying”. She could not imagine going back to work in the same environment.
On 2 April 2020, Dr Wadud recorded that the applicant had resigned last Tuesday as she was unable to cope. She was unable to sleep, crying excessively, had high anxiety and low mood, loss of appetite, and thought she was a failure.
On 4 July 2020, Dr Waje recorded that the applicant said she was not offered the role of her choice. She was in pain with her neck and shoulder – “printer issue”. She admitted she was not verbal about her feelings. Her hand got stuck in the ATM and she did not bring it to the notice of the manager. Her wrist pain got aggravated by the evening.
On 9 August 2020, Dr Wadud recorded that the applicant had had a hospital admission with severe depression with psychosis. This was triggered by workplace bullying which caused her to leave her job.
In view of the concessions by the respondent, it is unnecessary that I discuss the remainder of the clinical records.

Dr Gurprit Ganda – clinical psychologist

Dr Ganda reported to Dr Waje on 9 August 2016.
The applicant presented with symptoms of anxiety. She felt irritable and angry and tended to yell, particularly at her kids. She tended to feel exhausted and tired. She was overly sensitive, took things personally, and got teary. Her concentration was affected, and she was forgetful. She did not have friends and found it difficult to trust people.
The applicant had been exposed to domestic violence at a young age. Her father was violent towards her mother. The whole family was afraid of him. His drinking made things worse. As a result, she grew up not expressing her feelings and opinions.
The applicant lived with her in-laws for a few months after marrying in 2009. She later joined her husband in Australia, where they lived with her sister-in-law and her family. She found it difficult to adjust and express her feelings. She is very upfront and has a strong personality. Her husband is loving and caring.
Dr Ganda diagnosed the applicant with depression, severe anxiety and stress symptoms.
Dr Ganda reported to “To Whom it May Concern” on 3 March 2020.
Dr Ganda reported that the applicant had been consulting her since 27 February 2020, but also that Ms Kaur was her client from 25 February 2016 to 21 July 2018. She had stabilised and was well settled, was managing the demands of her life, and they decided to terminate the sessions.
The applicant reported on 21 February 2020 [sic] that she had been having a hard time at work since the new manager joined in 2018. She felt discriminated against and found it difficult to voice her needs.
Dr Ganda recorded the history of injury on 22 January 2020. The applicant reported it to the assistant manager and was told if she wanted to report it formally, it would be a 16 page report. She decided to sleep over [sic] it and decide the next day.
Dr Ganda then recorded the subsequent history, including that the applicant’s shoulder pain had been aggravated. Her shoulder had been “playing up” since December 2019, due to the printer. She had asked “management” to fix it and reported it to Lara.

The respondent referred to Mr Abboud’s and Ms Tower’s evidence. It submitted that on the one hand, I have the applicant saying she was subjected to various forms of, at times, quite extreme behaviour, particularly from Mr Abboud. She does not suggest this was done privately, or in circumstances in which other employees wouldn’t have noticed, witnessed, heard and/or have been subjected to it, because she said it wasn’t just directed to her.
The respondent submitted there are also statements from Ms Inan and Mr Semaan. There is no challenge to them, and no suggestion there are other employees who may give a different account. They wholly and unreservedly corroborate the evidence of Mr Abboud and
Ms Tower. The applicant sought to suggest they were supporting each other to undermine her claim, but there is no attempt by her to identify any records that suggest a poor record of either Mr Abboud or Ms Tower.
The respondent submitted we are dealing with a very large national institution, which has very clear standards about behaviour. If either Mr Abboud or Ms Tower had been behaving in this way, there would presumably be disciplinary records about those matters. It would have been open to the applicant to ask for leave to issue directions for production, but that course has not been taken. It is the evidence of Ms Tower and Mr Abboud that it came completely out of the blue when the applicant raised these complaints.
The respondent submitted that “the other part of the jigsaw” is corroboration from contemporaneous medical records. It referred to the GPs’ records and those of Dr Rastogi. There was no refence prior to February 2020 of any stress related to work, adverse work conditions, psychological condition related to work, or bullying and harassment behaviour at work.
The respondent submitted that the report by the applicant to Dr Wadud on 2 February 2020 of high stress and anxiety was due to pain, not bullying and harassment. It was secondary to physical injuries and forms no part of this claim. By 12 February 2020, the doctor recorded improvement in pain and stress and anxiety was much better, the applicant was coping well, and was to return to work.
The respondent submitted the Commission would have little difficulty in finding the JUNO investigation amounted to a disciplinary matter. The applicant was spoken to about it on
20 February 2020, and by 27 February 2020, her GP recorded the entry I have noted above. The applicant proceeded in a downhill fashion, resigned, ceased work, and notably raised bullying, harassment and micromanaging.
The first recorded complaint of this, since 2018, was on 7 March 2020. The respondent submitted this was despite a fairly comprehensive history of various medical issues through that period. There is nothing in the applicant’s evidence to explain why it wasn’t until after the disciplinary action that the complaint of bullying and harassment was raised, or of why there was no complaint to Westpac, or an action taken by her to bring it to anybody’s attention.
The respondent submitted the Commission would have little hesitation in accepting the accounts of Mr Abboud and Ms Tower about the applicant’s allegations. There is clear identification of the trigger or cause for the applicant’s decompensation. The whole or predominant cause is the disciplinary action taken following the breach, which occurred on 19 February 2020 and was brought to the respondent’s attention on 20 February 2020.
The respondent submitted there can be little doubt that the cause of the applicant’s condition as at March 2020 was the effects of the investigation, as clearly set out in Dr Wadud’s records on 27 February and following. The entries prior to that all relate to matters completely unrelated to a primary psychological or psychiatric injury. They relate to the psychological effects on the applicant of her physical conditions, and that’s not any part of this case.
The respondent then referred to the medical evidence. The applicant omitted to tell A/Prof Kaplan that she had been given a warning on 27 February 2020, the very day she attended her GP complaining of high stress. He was aware of this from other material. He noted that
s 11A would apply because the whole or predominant cause was because the applicant was given a warning for breach of conduct.
The respondent conceded that A/Prof Kaplan’s final report is, on its face, a little confusing. It submitted it is tolerably clear that he has seen this from a medical perspective. He said it is a secondary condition, but he was clearly delineating between the effects of the disciplinary action rather than it being due to other aspects. In bringing all his reports together, it is clear that is his opinion. It is underlined by him saying the applicant’s condition is predominantly caused by the actions of Westpac with regard to discipline and performance appraisal, as found in the initial report.
Against this, there is the opinion of Dr Ganda. The history was given after the disciplinary matter came to the fore, after or about the time of the first complaint to the GP and was the first time those matters had been raised by the applicant.
The applicant submitted that the opinion in the report largely stands or falls on the accuracy of the history, which I would not accept as accurate.
The respondent submitted that Dr Khan took a similar history to Dr Ganda. The history that the applicant returned to work on 10 February 2020 in the hope that the situation would improve, but she continued to be bullied and harassed, is diametrically opposed to and at odds with the history recorded by the GP that she had improved from the secondary psychological condition by 12 February 2020 and returned to work.
Dr Khan recorded that the applicant’s past anxiety and depression had stabilised after approximately two years, but the respondent submitted that, from the clinical records, she was still experiencing difficulty in 2018.
The respondent submitted that Dr Khan relied on a series of assumptions. They have to be made good, otherwise the opinion falls away. Dr Khan is saying he had a different history to A/Prof Kaplan, but he didn’t have a history of the disciplinary issue, and he hasn’t sought to come to terms with it, either by asking for and considering further material, or considering it and concluding that it’s not relevant.
The respondent submitted that A/Prof Kaplan did take other matters into account. He went through the issues about the bullying but had the additional factor of the disciplinary matter in February 2020 that led the applicant to her GP to complain of high stress.
The respondent referred to the authorities as to the weight to be given to medical evidence in a non-evidence-based jurisdiction, including Rich v Australian Securities and Investments Commission;[1] and Krstevska v Fast and Fluid Management Australia Pty Ltd.[2]
[1] [2004] HCA 42; 220 CLR 129; 209 ALR 271; 78 ALJR 1354.
[2] [2012] NSWWCCPD 69.
The respondent submitted I would not favour the applicant’s account because it is uncorroborated and contradicted by both Ms Tower and Mr Abboud, and two other employees. For that reason, the applicant’s medical evidence simply falls away.
The respondent submitted that I am left with uncontrovertibly a disciplinary matter that arises on 19 and 20 February 2020, and the attendance by the applicant at her GP complaining of high levels of stress due to a trigger, being the incident on 27 February when she was told there could be a warning about it.
The respondent submitted the elements of s 11A are clearly made out. There is nothing to suggest the action taken by the respondent in investigating the privacy breach was unreasonable. It was brought to its attention by a third party. The applicant concedes that she made an error, and it was a significant matter that had to be investigated and addressed. There is nothing from the applicant to suggest there was unfairness to her in the way that was done.
The respondent submitted I would be comfortably satisfied that it had made out the s 11A defence.
In reply to the applicant, the respondent reiterated that A/Prof Kaplan is the only doctor who has the proper history. Dr Ganda obtained a history that the applicant raised the issue of bullying in the period May to July 2018. The respondent submitted that contrasts with what was said or not said to the GP. Even if it were accepted that the history to Dr Ganda was correct, by July 2018 any complaints ceased.
The respondent submitted that the complaints on 27 February 2020 were the first complaint of psychological problems since, accepting Dr Ganda’s account as accurate, July 2018.
The respondent submitted there was no incapacity from July 2018 until the applicant was off work for a period due to the combined physical and secondary psychological effects. It submitted the evidence of a secondary condition is contained in the very records on which the applicant relies, that is those of the GPs.
The respondent submitted there was no complaint to the GP in January 2020 and
February 2020 prior to 27 February 2020 of bullying and harassment. It was not until after the disciplinary complaint that those complaints were made, and the applicant’s evidence must be seen in that context.
The respondent did not submit that the applicant had consciously or deliberately lied, but there are all sorts of reasons for reconstruction, conscious or otherwise. There is the obvious factor that she is involved in the compensation claim and is seeking to justify her own views about what has happened to her. She also notably had a prior psychological condition, and in early 2020 was subjected to high stress that might have had another effect on her, “we just don’t know”.

Applicant

The applicant submitted that the respondent had not made out a s 11A defence.
The applicant referred to the report of Dr Ganda. She submitted that she was under the care of Dr Ganda from May to July 2018, and it is clear she had raised concerns with bullying at least by George at that point. There were complaints of bullying prior to the alleged disciplinary action in February 2020.
The applicant submitted that this is not a case where the only thing that happened was that she was disciplined because of an alleged security breach. She submitted that happened on the back of 24 months of bullying by George and Lara. She referred to her first statement.
The applicant submitted that for the respondent to succeed, it had to prove her injury was caused wholly or predominantly by the alleged security breach, or investigation or disciplinary action that occurred after the breach in February. The applicant referred to all the incidences when she says she was bullied.
The applicant submitted I would be persuaded by Dr Ganda, who saw her in early 2018 when she first started working for the respondent.
The applicant referred to the note made by Dr Wadud on 5 February 2020 and on
6 February 2020. She submitted that the note on 27 February 2020 of “recent trigger” doesn’t say it was the only trigger. She submitted that the investigation was one of many things that led to her injury and was not the predominant or whole cause. She referred also to Dr Waje’s notes of 7 March 2020 and 8 March 2020.
The applicant submitted that the respondent asks me to draw an inference that the absence of complaints to her GP regarding bullying in 2018 and 2019 means that bullying and harassment did not take place. This would require her to be deliberately trying to reconstruct her case from as early as March 2020. There is no medical report that suggests she is inconsistent in her presentation or malingering.
The applicant asked that the statements from Lara and George be given little weight. They are the employees accused of bullying.
The applicant referred to the reports of Dr Khan, and his comment that A/Prof Kaplan’s assessment is not consistent with his assessment, or those of the GP or psychologist. She also referred to Dr Rastogi’s report dated 29 January 2021 and the records of Blacktown Hospital. She submitted that the doctors at the hospital did not record that her low mood or the main stressor was because of a breach of privacy.
The applicant submitted that A/Prof Kaplan took a history that her manager had bullied her after February 2018 but dismissed it without saying why. He concluded that the injury arose from the disciplinary steps taken by her employer without identifying what they were.
The applicant submitted that Lara’s statement suggests there were conversations that occurred after the security breach, but the specific disciplinary steps have never been fleshed out. The respondent has not addressed what the action is on which it relies.
The applicant submitted that the submission that her injury is secondary to a physical condition is not supported by any of the doctors. The respondent has relied on the entry “high stress and anxiety levels due to pain” to ask that I draw an inference that the psychological injury is a secondary condition. None of the treating doctors has given this diagnosis.
With regard to her not having complained to her employer earlier, the applicant referred to her evidence that she did not feel comfortable talking to Aysenur or Joseph. She submitted it is quite understandable that an injured worker, suffering a significant psychiatric condition, which is not disputed, would not feel comfortable discussing that with co-workers.
The applicant finally submitted that the respondent had not made out that the disciplinary action that is alleged to have occurred after the data breach was the whole or predominant cause of her injury. Whilst there is a significant factual dispute between the parties, she submitted I would be guided by Dr Ganda’s report.

SUMMARY

The sole issue to be determined is whether the applicant’s accepted 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 discipline and/or performance appraisal.
Neither counsel submitted on action with respect to performance appraisal, and each appears to accept that “discipline” applies. The applicant did not submit otherwise and made no submissions on the reasonableness of the action taken or proposed to be taken by or on behalf of the respondent, apart from submitting that the respondent had not addressed the action on which it relied.
Section 11A of the 1987 Act 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.
(3)     A “psychological injury” is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)     This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
…
(6)     This section does not extend the definition of “injury” in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)     If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
The respondent bears the onus of establishing a defence pursuant to s 11A of the 1987 Act: Department of Education and Training v Sinclair.[3]

Was the injury wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline?

[3] [2005] NSWCA 465; (2005) DDCR 206.

“Wholly or predominantly” has been held to mean “mainly or principally caused” – Ponnan v George Weston Foods Ltd [4](Ponnan).
[4] [2007] NSWWCCPD 92.
Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd.[5] In the same case Roche DP dealt with the issue of causation, on the basis that Kooragang Cement Pty Ltd v Bates[6] applied. He said: “causation is a question of fact to be determined on the evidence in each case”.
[5] [2008] NSWWCCPD 96.
[6] (1994) 35 NSWLR 452.
The applicant has given evidence of what she described as interpersonal conflicts with management, excessive and unreasonable workload (of which no detail has been provided), poor support from management, and “bullying and harassment”. Her complaints referred to her interactions with Mr Abboud and Ms Tower.
Much of the applicant’s evidence has been contradicted by Mr Abboud and Ms Tower, and at least some of it is at odds with contemporaneous email records. It appears that she may have been mistaken about some events, or there may be an element of reconstruction about events some years in the past.
The applicant was encouraged to report the injury to her wrist and to seek medical advice. She thanked Ms Boutros for her support. When she requested rotation of her duties,
Ms Tower arranged for this.
The applicant complained that she felt targeted and was being “watched”. It is clear from the evidence of Ms Tower that she was monitoring the applicant’s work, although she said she did not have the capacity to watch her all day. However, this was in the context of ensuring that Ms Kaur did not do anything inconsistent with her physical restrictions. Nonetheless, the applicant’s evidence is that she felt she was being victimised. This may have been heightened because Ms Tower and Mr Abboud often spoke to her together and checked in with her.
The evidence of the applicant and Mr Abboud regarding the “bikie” comment is at odds, but it is possible that they have differing recollections of a conversation that took place some years before they made their statements.
I do not accept the applicant’s evidence that Mr Abboud spoke of “destroying” or “demolishing” a person who touched him. It appears inherently unlikely that he would do so, given the unlikelihood of anyone “touching” him and, as he has stated, “why would I ever say such a thing?” The applicant has given no evidence of the context in which this is alleged to have been said, apart from saying it was once said in her and Ms Tower’s presence.
Ms Tower’s evidence is that she believed Mr Abboud was a great manager, and she would not describe him as authoritative or aggressive.
Mr Abboud’s evidence that the applicant was supported when her husband sustained an injury and she wanted to change her work hours, is confirmed by the email from Ms Tower on 10 February 2020 to Ms Boutros and Mr Lal. According to Ms Tower, this matter arose during a general conversation about the applicant’s well-being and family. It is not consistent with a lack of consideration for the applicant’s situation.

The applicant’s evidence that she was offered a transfer, and the offer was then withdrawn, is contradicted by both Mr Abboud and Ms Tower. They both stated that it was the applicant who raised the possibility of a transfer, and Mr Abboud said he would see if it was possible.
It appears unlikely that Mr Abboud would have been able to simply offer a staff member a transfer, without first ascertaining whether there were vacancies elsewhere, and completing the necessary formalities.
The applicant has said she was under the impression Mr Abboud was promising her a transfer. His evidence is that he said he would speak to the area manager, which in my view is more likely than that he made any promise to the applicant. The applicant may have assumed Mr Abboud had the power to arrange the transfer, rather than merely to discuss it with senior management.
I accept that the applicant may not have felt comfortable talking to either Ms Inan or
Mr Semaan about her situation. However, their evidence is not only that she did not mention bullying or harassment to them, but they had not witnessed any such behaviour. They are both very positive about their experiences at work.
If Mr Abboud had the anger issues described by the applicant, it seems unlikely that Ms Inan and Mr Semaan would not have witnessed behaviour that would preclude them describing the workplace as having a calm atmosphere, being a great place to work, like a family, friendly, or from being a “fan”.
The applicant did not state that Mr Abboud was aggressive to her only in private. She described bursting into tears after he shouted at her for jamming the printer. It is unlikely that this would have gone unnoticed, had it occurred. While she has described Ms Inan and
Mr Semaan as being close to Mr Abboud, she has not suggested any colleagues who would support her evidence.
While there are aspects of the applicant’s evidence I have not accepted, and instances where I believe she may have been mistaken, or there is an element of reconstruction, I have found the contemporaneous medical evidence of more assistance.
It is of note that none of the GPs who has treated the applicant at Stanhope Park Medical Centre has made a record of the matters on which she relies in support of her claim.
I am conscious, of course, that clinical records must be considered with some caution – see, for example, Davis v Council of the City of Wagga Wagga[7] and Mason v Demasi.[8] However, the applicant has not sought to advance any explanation of the absence from the records of reference to the matters of which she has given evidence.
[7] [2004] NSWCA 34.
[8] [2009] NSWCA 227.
The clinical records of the GPs at Stanhope Park Medical Centre are quite detailed, unlike some records that provide little assistance in determining issues in dispute. They reflect that the applicant was active in requesting support for her pre-existing psychological condition, including seeking assistance with a Centrelink matter, a certificate to allow her to obtain a reduction in fees for study, and to explain forgetting to vote.
The only reference in the records before 2020 that may be interpreted as relating in any way to the applicant’s employment is that of Dr Wadud on 26 February 2018 that the applicant was unable to cope at times, and very busy at work. Other factors were also recorded. This was about two years before the applicant ceased work.
The clinical records show that the applicant improved in 2019 and in fact wanted to have the mental health restriction/review requirement removed from her licence.
It was then not until 2 February 2020 that Dr Wadud recorded that the applicant had high stress and anxiety levels due to pain. This was, of course, after she had sustained her physical injuries. Dr Wadud recorded her complaints of pain.
There is a record on 5 February 2020 of Ms Boutros advising Dr Wadud of possible interpersonal conflict between the applicant and Ms Tower. This appears to have been related to the applicant’s physical injuries and return to work, when the email from the applicant to Ms Tower and Mr Abboud on 6 February 2020 is considered.
The applicant referred to going through stress, and pain in her wrist, neck, and shoulder, all of which was related to work.
Dr Wadud recorded on 5 February 2020 that the applicant had high stress and anxiety and was overwhelmed due to her current health issues. She was worried about losing her job.
Dr Wadud recorded that she said there was no conflict between her and her manager, but rather a lack of support, as the manager thought her neck/shoulder pain was not work related.
The applicant’s psychological symptoms, according to Dr Wadud, were related to her physical condition and in my view, they were secondary to it.
In any event, by 12 February 2020, the applicant’s stress and anxiety, according to
Dr Wadud’s records, were much better. She was coping well and discussing a return to work.
There was then no further attendance on Dr Wadud until 27 February 2020, which was after the error made by the applicant was discovered and the JUNO report made. The investigation was, according to Dr Wadud, a recent trigger for the applicant’s high stress level.
It was not until 7 March 2020 that Dr Waje recorded a history of bullying and being micromanaged. For the first time, complaints of being targeted, discriminated against, and harassed followed.
By the time these issues were raised by the applicant, she was aware that the breach of privacy was regarded as serious, a JUNO report had been raised, and the matter was being investigated. It is likely, in my view, that her psychological symptoms related to this matter.
The applicant submitted that I would be persuaded by the evidence of Dr Ganda.
Dr Ganda apparently treated the applicant only between 2016 and 2018, before Ms Kaur again consulted her on 27 February 2020, after the privacy breach occurred. However, she has recorded no history of the breach.
What Dr Ganda had “learned” about the applicant’s experiences at work, she learned in February 2020, not during the period when she first treated the applicant. I have already said that I do not accept that some of these events occurred; and some may have been misunderstood or reconstructed by the applicant.
Dr Ganda had discharged Ms Kaur in July 2018, when she had stabilised and was well settled. The applicant apparently did not feel the need to again seek treatment from her until after the privacy breach in February 2020. There are no contemporaneous records from
Dr Ganda, apart from her report in 2016.
Dr Ganda diagnosed the applicant with a psychological injury due to “workplace bullying”. It is not known what she would have opined had she known about the privacy breach, which was in my view the catalyst for the applicant again seeking treatment from her.
I do not find Dr Ganda’s evidence persuasive.
The applicant was treated by Dr Rastogi until December 2018. While she reported the applicant’s account of events in 2020, there is no contemporaneous record (bearing in mind that Mr Abboud commenced work for the respondent only in early 2018, but the applicant stated he was “instantly” aggressive towards her). The only reference in Dr Rastogi’s report to the privacy breach is that the applicant made an error, and “they” reported it.
The applicant apparently did not seek treatment from Dr Rastogi after 2018, just as she did not seek treatment from Dr Ganda after 2018. If she was experiencing the conditions at work of which she complains, and experiencing significant psychological symptoms, I would have expected her to again consult either Dr Rastogi or Dr Ganda, or both.
I also do not find Dr Rastogi’s evidence persuasive.
The applicant also relies on the evidence of Dr Khan. He accepted the applicant’s history and referred to Dr Wadud’s clinical notes dated 5 February 2020 and 6 February 2020, opining that it is “clear” the applicant’s injury was caused by repeated workplace stressors.
I have already said that in my view the applicant’s psychological symptoms in early
February 2020 were secondary to her physical injuries. Dr Khan has not commented on the complete absence of any reference to the bullying and other matters of which the applicant complained, and which on her evidence had continued from 2018 to 2020.
Dr Khan has not commented on whether, and if so, to what extent, the privacy breach and disciplinary action may have contributed to the applicant’s psychological condition. It is also not apparent that he was provided with the factual evidence.
The respondent conceded that A/Prof Kaplan’s final report is a little confusing. However, I accept that his opinion is that the applicant’s condition was predominantly caused by the respondent’s actions with regard to discipline and performance appraisal.
A/Prof Kaplan was provided with factual and medical evidence that Dr Khan either did not have, or at least to which he has not referred.
I prefer the evidence of A/Prof Kaplan. When it is considered in light of the factual and treating medical evidence, I am persuaded that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the applicant with respect to discipline.

Was the action reasonable?

It is clear that the privacy breach was regarded as serious by the respondent and BT Super. The latter believed it was sufficiently serious to warrant making a JUNO report. Ms Tower had never made a JUNO report because she had never dealt with such a serious breach. She wanted to try to deal with the issue at branch level.
Banks are by their nature institutions that deal with the personal and private information of their customers. The respondent had a process in place where only specified staff members were authorised to open superannuation accounts. The applicant was not one of them.
The applicant performed a task she was not authorised to perform, and in doing so breached the privacy of a customer, who had not requested that a superannuation account be opened for him. I accept that was a serious breach of his privacy and could have been a reputational risk to the respondent. It obviously required investigation and potentially disciplinary action.
I do not accept the applicant’s evidence that she did not try to hide the breach. She has not denied that she and Ms Sidhu were still at work when Ms Tower left on the day it occurred, or that they assured her when she asked that everything was “great”.
The applicant has said she approached a senior staff member on the day the error was made, but not who that person was. She may have been referring to Ms Sidhu, or perhaps Ms Lemaniak of BT Super, but Ms Tower would have been the logical person to tell, particularly when Ms Tower had provided her with the opportunity to do so as she left work on the day the error occurred. Ms Tower’s evidence, which I accept, is that the applicant said she wanted to try to fix the issue before bringing It to her.
It was left to a third party, BT Super, to bring the error to the respondent’s attention. There was obviously a need for Ms Tower and Mr Abboud to speak to the applicant about the breach and its likely results.
The applicant stated that she had a conversation with Ms Tower on or about
24 February 2020 and was told not to worry about the breach. She then “confronted”
Ms Tower and Mr Abboud on or about 26 February 2020 and was told a JUNO report had been made.
Ms Tower’s evidence is that she has no record of a meeting with the applicant on
24 February 2020, and at that stage, the only person who had approached her to advise of the breach was Ms Lemaniak.
The applicant’s evidence is that she was bullied and intimidated by Mr Abboud, and he had threatened physical violence. It appears unlikely therefore that she would then “confront” him.
Ms Tower’s evidence is that she and Mr Abboud obtained a quiet location in which to ask the applicant her version of events. They also said they would be speaking to Ms Sidhu, and told her a JUNO report had been lodged by BT Super.
I accept Ms Tower’s evidence about the meeting as more plausible than that of the applicant.
The Court of Appeal discussed the issue of “discipline” in the matter of Northern NSW Local Health Network v Heggie[9] [2013] NSWCA 255.
[9] [2013] NSWCA 255.
Sackville AJA made the following general observations at [59]:
“(i)     A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)     Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)    An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)    The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)     Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)    The assessment of reasonableness should take into account the rights of the employee, but the extent to which those rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (Emphasis in original).
It was after the meeting with Ms Tower and Mr Abboud that the applicant sought treatment from Dr Wadud, on 27 February 2020, with “high stress level”.
It was a necessary first step in any disciplinary process to ask for the applicant’s version of events and also to speak to Ms Sidhu. It was part of “the entire process involved in disciplinary action”.
In my view, both the fact that the meeting was held, and the way in which it was conducted, were reasonable.
The applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline.
The order is set out in the Certificate of Determination.

[2023] NSWPIC 124

27 March 2023