Kovacs v Strathfield Municipal Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kovacs v Strathfield Municipal Council [2024] NSWPIC 151
APPLICANT:	Ovidiu 'Vince' Kovacs
RESPONDENT:	Strathfield Municipal Council
MEMBER:	Rachel Homan
DATE OF DECISION:	26 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation, weekly compensation and treatment expenses in respect of psychological injury; whether applicant sustained an injury; credibility; whether real events occurred; whether defence pursuant to section 11A(1) made out; Held – the applicant sustained an injury pursuant to section 4(b)(i); the respondent failed to discharge its onus of establishing that injury was wholly or predominantly caused by reasonable action with respect to performance appraisal, discipline, dismissal or provision of employment benefits; matter remitted to President for referral to a Medical Assessor to assess the degree of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury arising out of or in the course of employment to which employment with the respondent was the main contributing factor pursuant to s 4(b)(i) of the Workers Compensation Act 1987. 2. The injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline, dismissal or provision of employment benefits pursuant to s 11A(1) of the Workers Compensation Act 1987. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 24 January 2022 (deemed) Body system: psychological Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents; c. documents attached to an Application to Admit Late Documents lodged by the applicant on 11 January 2024, and d. documents attached to an Application to Admit Late Documents lodged by the respondent on 12 January 2024. 5. The matter to be listed for further preliminary conference upon receipt of the Medical Assessment Certificate.

STATEMENT OF REASONS

BACKGROUND

Mr Ovidiu 'Vince' Kovacs (the applicant) was employed as a team member by Strathfield Municipal Council (the respondent).
The applicant claims to have sustained physical injuries in the course of his employment to his left elbow and left ankle. The applicant also claims to have suffered a psychological injury due to various adverse interactions with his supervisors and being required to perform duties with insufficient staffing support.
Liability in respect of the applicant’s physical injuries was accepted by the respondent’s insurer.
Liability for the psychological injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 March 2022. That decision was maintained in a further notice issued pursuant to s 78 of the 1998 Act on 10 August 2022.
Notices disputing ongoing liability to pay compensation in respect of the physical injuries and maintaining the disputes in relation to the psychological injury were issued on
15 November 2022.
On 8 June 2023, the applicant made a claim for lump sum compensation in respect of the psychological injury relying on an assessment of 24% whole person impairment (WPI) made by psychiatrist, Dr Frank Chow.
A further notice maintaining the liability disputes was issued on 4 October 2023.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 6 October 2023.
The applicant seeks lump sum compensation in respect of the psychological injury as well as weekly compensation and medical and related treatment expenses in respect of both the physical injuries and the psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a psychological injury pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (1987 Act);
(b) whether any psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline, performance appraisal, the provision of employment benefits to workers and/or dismissal pursuant to s 11A(1) of the 1987 Act;
(c)    the degree of permanent impairment resulting from the psychological injury;
(d)    the extent and quantification of incapacity resulting from the physical and psychological injuries, and
(e)    the entitlement to medical and related treatment expenses claimed pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 18 January 2024. The applicant was represented by Mr Luke Morgan of counsel. The respondent was represented by Mr David Baran of counsel.
During the conciliation conference, it was agreed that submissions would be heard first in respect of the liability disputes for the claimed psychological injury. The remaining issues would be considered following the Commission’s determination of that matter or upon receipt of any Medical Assessment Certificate.
At the commencement of the arbitration hearing, an application to cross-examine the applicant was made by the respondent. After hearing submissions from both parties, that application was declined for reasons given orally and recorded.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 11 January 2024, and
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 12 January 2024.

Applicant’s evidence

The applicant’s evidence is set out in written statements dated 7 April 2022, 25 October 2022 and 20 April 2023.
The applicant’s first statement was prepared with the assistance of an investigator procured by the insurer.
The applicant stated that he commenced employment with the respondent in January 2017 as a labourer. After about six months, he was offered the role of leading hand and remained in that role until he moved into the role of team member following a restructure in 2019.
In early 2019, the applicant was the leading hand for a crew of three, one of whom was aged 63 and another of whom was overweight. The applicant’s crew was assigned the task of servicing a large park with three football fields. The applicant considered the task was impossible to do in one day with only his crew and required about 10 crew members. The applicant called his supervisor, Robert Cranmer and told him this. Mr Cranmer’s response was that he didn’t care and the applicant had to get it done. The applicant suffered a panic attack and an ambulance was called.
After the applicant was taken to hospital, about 10 crew members from other teams were sent to finish the job. This confirmed to the applicant that Mr Cranmer had an agenda against him.
Later there was a dispute as to whether the respondent should pay the applicant’s ambulance bill. After back-and-forth discussions for about a month, the respondent finally agreed to pay the bill.
After this incident, the applicant regularly received negative feedback from his executive manager, Peter Bowmer, and Mr Cranmer. They both made general comments to the effect that the applicant was not effective or efficient. The applicant began to be picked on and targeted by them. The applicant recalled one occasion when Mr Bowmer spoke to him about missing a single weed in a garden bed.
From 2019, the applicant’s crew was servicing 22 parks per month. The applicant told Mr Cranmer on several occasions that he needed more team members. His general response was that the applicant was not efficient and needed to plan his days better. Mr Cranmer often replied with phrases including, “suck it up princess” and “eat it”.
The applicant began to take “before and after” photographs of the work he did after being harassed about his parks not being properly serviced and looking bad. The applicant provided over 400 such photographs to Human Resources, after which Mr Bowmer was told to “back off” and let the applicant do his job.
On 25 July 2019, the applicant attended a team leader meeting during which Mr Bowmer talked about the applicant being ineffective and inefficient. The applicant challenged Mr Bowmer about this and said he did not have enough team members in his crew. Mr Bowmer responded with words to the effect of, “you have enough crew members but you come to work to drive around looking and perving at girls at the university.”
The applicant said he was extremely offended by the comment and denied the allegation. The applicant felt defamed and belittled and submitted a formal grievance. Afterwards, the applicant was known as a “pervert” at council.
The applicant said he formed the view that Mr Bowmer was trying to get rid of him and complained to his union representative. The applicant was told that Mr Bowmer would apologise, however, he went on annual leave and after returning to work changed his mind and said he no longer wished to apologise. Mr Bowmer denied making the comment in the meeting.
The applicant spoke to Human Resources about his grievance but nothing eventuated. The matter was taking a toll on the applicant mentally and he spoke about it with Raymund Bannister from Human Resources. Mr Bannister told the applicant that he would ask Mr Bowmer to leave the applicant alone at work.
Later in 2019, there was a vacancy in the team coordinator role. Three people, including the applicant, put up their hands for the opportunity. The applicant’s two colleagues were given the opportunity to act in the role for three months each. When it was the applicant’s turn, Mr Bowmer and Mr Cranmer told the applicant he would not be doing it. The applicant was very upset and felt it was obvious that Mr Bowmer and Mr Cranmer had an issue with him.
Around the same time, the applicant was due for an increase in his classification from Grade 6 Step 3 to Grade 6 Step 4. Following the restructure, the applicant was reclassified as a team member but still receiving the same wage as a leading hand. The applicant spoke to Mr Cranmer about the step increase and was told that he would no longer get it as he was now a team member. The applicant raised the matter with Mr Bannister and ended up having to attend meetings with executive managers, the director, the Deputy Chief Executive Officer (CEO) and the CEO before the step increase was approved.
During a meeting in connection with that matter, Mr Cranmer said that he didn’t think the applicant deserved the pay increase as he came across as aggressive and difficult. The applicant responded that this was because he was working in a team with a grumpy old man and a younger worker who was overweight. Mr Cranmer had also encouraged the applicant to be tough and not friendly when he was first given the leading hand role.
Despite the step increase being approved, it did not come into effect. The applicant approached Mr Cranmer about this and was told that it was not being approved because of the applicant’s attitude. The applicant said that hurdles were continuously being put in front of him to upset him.
The applicant was required to attend a meeting with the CEO, Henry Wong. Mr Wong came into the room and in a raised voice said it had come to his attention that the applicant was aggressive towards other staff. The applicant suggested that Mr Wong go to the depot and randomly ask people about him. If anyone confirmed this, the applicant would resign. The matter was not taken any further.
The applicant was moved from team to team instead of being assigned to a consistent team. A team leader, Jean Captor, told the applicant that Mr Bowmer referred to him as a “bone in the neck”. The applicant also later discovered that Mr Bowmer had referred to the applicant as a “fraud” in connection with a physical injury.
The applicant described feeling a pinch in his elbow while fencing off a park on 21 January 2020. The applicant had reported the injury and was performing other duties when he was directed by Mr Bowmer to resume working on the fence. This required the use of a drill to clamp fences together. While performing this task, a piece of the fence snapped, resulting in a tear and flareup of the applicant’s elbow injury.
The applicant was off work for about three months before returning to work in April 2020, performing light administrative duties including completing rosters. After two weeks of performing this work, the applicant was assigned to work on a mower. The work on the mower aggravated the applicant’s injury and his doctor advised council that the work was unsuitable.
The applicant was sent to the respondent’s doctor who provided a report opining that the applicant’s elbow needed about 12 to 18 months to recover. The applicant did not agree with this opinion and felt his elbow was improving. The applicant had a meeting with Mr Bannister in which he was told that Council did not have any suitable duties to offer the applicant and so his employment might be terminated. The applicant cried and told Mr Bannister that he wanted to work with Council for the rest of his life and did not want to lose his job.
The applicant said that other injured workers were offered light duties. After numerous emails and phone calls, the applicant learned that administrative work was needed in the urban services team. The applicant worked with that team until February 2021, when the work ran out. The applicant applied for a permanent position within that team but was not successful.
Around that time, the applicant was asked to provide a new medical certificate. The applicant’s doctor provided a certificate certifying him as fit to resume his pre-injury duties. The certificate was not accepted and he was sent to see the Council doctor, Dr Ma.
The applicant attended a meeting with Mr Bannister in which he was shown portions of Dr Ma’s report. The applicant believed that his employment was going to be terminated as Mr Bannister’s assistant had a letter in her hand. The applicant was emotional and upset and Mr Bannister ultimately agreed that the applicant could return to his job.
When the applicant returned to his job as a team member, he continued to be moved around from team to team. Three separate team leaders told the applicant that when the applicant was being assigned to their team, Mr Cranmer made comments such as “work Vince hard” and “don’t go easy on Vince, work him hard.”
The applicant still enjoyed the work and was in larger teams so found the workload much easier. Despite being demoted from a leading hand to a team member role, the applicant was still happy to do the job and was on the same money.
The applicant began using the Employee Assistance Program (EAP) in January 2021.
On 23 June 2021, the applicant injured his left elbow again while chipping a branch. The applicant felt too scared to see his doctor or make a workers compensation claim due to the trauma of previous injuries and claims with council. The applicant just wanted to recover and move on.
From September 2021 onwards, the applicant was constantly harassed by Mr Cranmer and Mr Bowmer about getting COVID 19 tests. The public health orders at the time only required staff to get a test if they had symptoms.
There was a day in September or October 2021 when the applicant soiled himself at work due to having a bad breakfast. The applicant had to go home because of the incident. Mr Bowmer and Mr Cranmer said the applicant had to get a COVID 19 test as this was a symptom of COVID 19. Although the applicant explained that he ate a bad breakfast that morning, he was told he could not come back to work until he got tested.
When the applicant returned to work, Mr Bowmer and Mr Cranmer had let everyone know about the incident. Everyone was making fun of the applicant and this made him feel belittled and embarrassed. A number of members of staff made comments about the incident.
Around the same time, the applicant was accused of sending inappropriate emails to the CEO. The applicant denied sending emails to the CEO and was worried that someone had hacked his email account. The IT Helpdesk confirmed that no emails had been sent from the applicant to the CEO. The applicant felt that Mr Bowmer was trying to defame him and make false accusations against him.
The applicant submitted another grievance against Mr Bowmer. The officer assigned to investigate the grievance showed little interest in the matter and nothing was done.
Around this time, the applicant was asked to get tested for COVID 19 every three days. The applicant was only working four days per week and could have just been tested on a Sunday and Wednesday. The applicant did get tested every three days even though he did not think it was necessary.
One day, Mr Bowmer screamed at the applicant on the telephone to go get tested as he had not been tested that morning. The applicant tried to explain that he was busy and would get tested that afternoon. Mr Bowmer yelled at the applicant to go home and stay home until he got the test result and said he would not be paid. Mr Bowmer changed his tone when the applicant suggested they discuss the matter with Human Resources.
A few days later, Mr Bowmer told the applicant that if he did not get vaccinated he could not come back to work. There was a new policy requiring workers to be vaccinated or have a medical exemption. Mr Bowmer also asked the applicant when he last got tested. The applicant responded that he was providing the information to his managers and that Mr Bowmer should leave him alone and stop harassing him. The applicant said he was getting advice from his own doctor about the vaccine and asked Mr Bowmer to stop focusing his attention on the applicant as it was impacting negatively on his mental health.
The applicant provided a medical contraindication form in September 2021.
On 13 September 2021, the applicant injured his ankle at work. The applicant was distracted at the time because of all the issues he was experiencing at work and stepped on some overgrown roots and twisted his ankle.
The applicant submitted another workers compensation claim and was off work for about three or four weeks. The applicant was then given light duties which involved opening a gate for trucks entering the park. The ground surface was very uneven and there was no desk or chair for the applicant. The working environment was unsafe and the applicant raised this with Human Resources. The applicant’s ankle injury was aggravated due to walking on uneven surfaces.
The applicant was then instructed by Mr Cranmer to sand some benches. The applicant had never done any sanding before and was uncomfortable with this task. The mask he was provided was dirty and dusty and the applicant did not feel it was hygienic to wear it. The applicant declined the duties and was later assigned to sort golf balls.
The applicant returned to full duties on 29 November 2021. About three hours later, Mr Cranmer called and told him to go home. The applicant’s employment was terminated on 24 January 2022.

The applicant said he suffered from severe anxiety and depression, stress, lack of concentration and insomnia as well as a number of other psychological symptoms.
In his supplementary statement, the applicant confirmed that his relationship with his supervisors broke down in 2019. The applicant described his physical injuries and referred to having lodged a contraindication form in relation to the COVID 19 vaccine.
The applicant said he was not an “anti-vaxxer” but had genuine concerns about his health in relation to the vaccine. The legitimacy of the applicant’s certification was challenged. The applicant had an appointment with an immunologist scheduled for 28 February 2022, however, in the meantime his employment was terminated on the basis that a further contraindication form had not been supplied.
The applicant stated,
“I am deeply depressed about my circumstances. I feel my employment has come to an end as a result of a pattern of ongoing harassment and ill-treatment from my supervisor which I think has been completely unjustified. He made constant remarks to me and about my team members and I feel we were never provided with enough staff to do our job properly. Since 2019 I felt constant stress in relation to my supervisor and having to work in adverse circumstances including the daily pressure of getting jobs done where we simply didn't have enough staff and the continuing cynical and snide comments that he would make.”
In the statement dated 20 April 2023, the applicant provided detailed responses to the respondent’s witness statements. Annexed to that statement were various emails in which the applicant made complaints about the conduct of Mr Bowmer and raised grievances with the respondent’s Human Resources department.

Applicant’s witness evidence

The applicant relies on various written statements and emails from former colleagues. The statements generally attest to the applicant’s positive work ethic and good character.
Some of the witness statements, including a statutory declaration made by Goran Malesovic, dated 4 February 2023, referred to incidents where other workers reported being bullied by Mr Bowmer.
Hardy Tanner prepared a statement dated 6 February 2023 in which he described Mr Bowmer and Mr Cranmer setting unrealistic timeframes for the applicant to complete work. Mr Tanner recalled seeing the applicant struggle mentally due to the behaviour of Mr Bowmer. Mr Tanner said he recalled feeling very concerned about the applicant’s mental health when he was called a pervert at a meeting by Mr Bowmer.
In a statutory declaration, dated 7 February 2023, Brett Smith gave evidence that he and the applicant were bullied by Mr Bowmer including, inappropriate remarks being made about performance that were accurate and untrue. Those attacks took place in toolbox meetings in front of other staff. Mr Smith said the applicant was racially discriminated against and called a pervert.

Mr Bannister

An email from Mr Bannister to the applicant dated 14 September 2022 recalled a skills review the applicant requested in connection with advancing a step in his pay grade. The request was denied by Mr Cranmer and Mr Bowmer, following which a grievance was escalated to the CEO and Divisional General Manager. The union was involved. Mr Bannister recalled that the applicant found this challenging and problematic. At times, the applicant appeared quite distressed after interactions with Mr Bowmer.
In a statutory declaration dated 24 November 2022, Mr Bannister said he could recall at least two occasions when, after talking with the applicant, he suggested to Mr Bowmer that he refrain from having any direct supervision of the applicant. It appeared that the applicant was quite adversely affected after a number of interactions with Mr Bowmer.
Mr Bannister recalled another occasion on which Mr Bowmer was prepared to offer an apology to the applicant for comments made to which the applicant had taken exception. Mr Bowmer believed he had been misunderstood and there had been a miscommunication.
Mr Bannister said he suggested on a number of occasions that the applicant make an appointment with the council’s EAP.

Contemporaneous records

A Stage I Grievance Notification form regarding a meeting on 25 July 2019 in which Mr Bowmer was said to have accused parks staff members of being inefficient was attached to the ARD. The applicant and another worker were said to have been accused of driving several times a day around the Australian Catholic University campus to look at girls. The grievance sought an apology for bringing the applicant and his co-worker’s name into disrespect and slandering their characters in front of fellow workers. The grievance was signed by eight members of staff present at the meeting.
An email to the applicant from Human Resources business partner Christen Colborne-Veel dated 6 December 2019 stated:
“We have been made aware this week that Peter has had second thoughts in apologising to the wider team. At this stage Peter won't be apologising from what he has told Ray and I.”
A Stage II Grievance Notification form signed by the applicant on 18 December 2019 indicated that he considered the response to the Stage I grievance form inadequate. It was claimed that an apology did not occur and the applicant’s name was still being slandered in the yard.
Notes of an interview on 19 February 2020 refer to the same matter.
Email correspondence dated around 21 July 2021 confirmed that the applicant experienced symptoms of diarrhoea and had been asked to go home and get tested for COVID 19.
Notes of a meeting between the applicant, Mr Bannister and an HR & Payroll Officer on 24 August 2021 record that the applicant expressed concern about the potential effects and lack of testing with the current COVID vaccines. Mr Bannister offered to arrange for the applicant to receive a vaccination in order to comply with Public Health Orders. It was noted that workers with a contraindication would not have to receive the vaccine but would require testing every 72 hours. The applicant indicated that he wished to seek legal advice. Mr Bannister referred the applicant to the EAP.
A letter dated 27 August 2021, from Mr Bannister to the applicant noted that he had not received a vaccination or presented a contraindication. The applicant was advised that if he did not comply with the Public Health Order by Monday 30 August 2021 he would have to apply for accrued leave or leave without pay for the whole or part of period that the Public Health Order provisions were in effect.
A letter from Stephen Clements to the applicant dated 19 October 2021, advised the applicant that under Council policy, he was required to be fully vaccinated or obtain a Medical Contraindication Certificate prior to returning to the office on 25 October 2021. It was noted that a temporary medical contraindication valid until 29 November 2021 had been received.
An investigation report dated 8 November 2021 refers to allegations made by the applicant of bullying, harassment, spreading rumours, false accusations and defamation by Mr Bowmer and Mr Cranmer.
The investigation concluded:
“Due to the lack of information and evidence provided by Mr Kovacs and no solid supporting evidence gained through the investigation process, in the absence of information the allegations can not be substantiated.
-       There was no evidence of any email to the CEO from Mr Kovacs. It is just here say from an ex employee.
-       There is no evidence to suggest that Mr Bowmer ever screamed or harassed Mr Kovacs. Evidence suggests that Mr Bowmer provided direction to Mr Kovacs in a firm but fair way.
-       There is no evidence to suggest that Mr Bowmer was talking to other staff about Mr Kovacs
-       Mr Bowmer, as the Executive Manager of the division has the right to speak with staff directly, especially if that particular staff member is perceived as being difficult and not listening to his direct manager’s instructions.
-       The CEO had witnessed Mr Kovacs not wearing a mask on the 6 October (he contacted Raymund Banister straight away). It has been stated by witnesses that he has since been seen not wearing a mask at certain times which is against the PHO requirements. A warning had already been issued to Mr Kovacs for this. No further action is required on this point.
In speaking to all witnesses, it needs to be noted that there is a perception of Mr Kovacs that:
-       Mr Kovacs is creating a hostile work environment through his persistent challenging of management directives and perceived attitude of a poor work ethic, for the sake of going against management rather than for any good reason regarding the value of the request by management
-       It has been said that Mr Kovacs is always arguing management on their directives. That he always pushes the boundaries and always has an excuse or questions everything to create a delay in a process or task
-       Mr Kovacs has a poor work ethic and persistently avoids doing work and often fails to undertake reasonable management directive
-       Mr Kovacs actions could be perceived as bullying up
-       Mr Kovacs is creating a negative and toxic work environment
-       It should also be noted that Mr Kovacs was not wearing his mask properly during the fact finding meeting on the 17 November. The mask kept slipping off his nose while he was talking.”
A letter from Anthony Hewton to the applicant, dated 12 November 2021, advised the applicant that a valid contraindication effective from 29 November 2021 or proof of vaccination was required in accordance with policy by 29 November 2021.
A COVID 19 Vaccine Medical Contraindication form signed by Dr Frederick Leung certified the applicant as having a temporary medical contraindication to receiving Dose 1 of the COVID 19 vaccination. It was noted that the applicant was “pending to see immunologist Dr Gala on 29 November 2021”.
A letter of referral to Dr Gala dated 26 August 2021, requested opinion and management of the applicant in respect of a vaccine phobia due to a life-threatening reaction to a flu injection overseas.
A further COVID 19 Vaccine Medical Contraindication form signed by Dr Frederick Leung certified the applicant as having a temporary medical contraindication to receiving Dose 1 of the COVID 19 vaccination on 14 November 2021. A handwritten note on the form recorded that the applicant was “pending to see immunologist Dr Gala on 28 February 2022”.
A letter dated 29 November 2021 from Mr Hewton to the applicant acknowledged the temporary contraindication dated 14 November 2021 and requested proof of the immunologist appointment in February 2022. The applicant was required to attend an appointment with Council’s doctor to confirm the validity of the contraindication.
An email from Mr Bannister to the applicant on 10 December 2021 attached a further letter and stated,
“Basically because there is no medical evidence supporting your recollection of illness as a young man Council does not have any proof it can rely on to help you.
Council has allowed you to until 24 January 2022 to supply the evidence you have coming from Romania or get fully vaccinated.
This is the date of your entitlement to long service leave so that you would not be disadvantaged regarding this 6.5 weeks entitlement at that time.
I hope this is enough time for you to acquire a copy of the Romanian hospital records or get advice as to which vaccination type you can receive.
Please do your very best to attend a Hospital, COVID-19 clinic (as the Immunologist Dr Gala suggested) or get an urgent appointment to another Immunologist (I am sure one will have a cancellation in their appointment book and let you jump the queue once you explain the situation).”
The applicant was advised of the termination of his employment by letter dated 25 January 2022. The applicant’s employment was said to have been terminated due to his failure to comply with a lawful and reasonable direction to supply verifiable medical evidence to support a permanent COVID 19 contraindication or be vaccinated by 24 January 2022. The letter referred to the correspondence dated 10 December 2022 and multiple conversations and emails about the matter. The applicant was provided with five weeks’ pay in lieu of notice as well as annual and long service leave owed to him. The applicant was provided with the EAP details.

Respondent’s witness evidence

Mr Hewton

Anthony Hewton, General Manager of People, Place and Civic Services, prepared a written statement signed on 17 May 2022. Mr Hewton recalled receiving poor feedback about the applicant’s work performance from Mr Bowmer and Mr Cranmer from about 2019. The applicant was reported to exhibit inappropriate behaviour at work including being difficult to work with, argumentative and failing to follow reasonable work requests.
Concerns were raised about the applicant driving around in work vehicles in areas he was not assigned to be working in. An anonymous team member complaint reported that the applicant was driving past a particular area to look at girls from a particular educational institution. No formal complaint was made due to the team member’s fear of reprisal from the applicant. Mr Bowmer and Mr Cranmer were instructed to monitor the behaviour.
Mr Hewton noted that the applicant’s employment was terminated as he was not fully vaccinated and did not have a valid medical contraindication form. The form submitted to Council was too vague and did not list a specific condition or information. The applicant was allowed additional time in good faith to comply with the policy but failed to do so.
Mr Hewton noted that the applicant had postponed his appointment with an immunologist, originally scheduled to occur in November 2021.

Mr Captor

A statement signed by Jean Captor on 11 April 2022, noted that the applicant injured his elbow while working in January 2020 and asked to rest. The applicant was assigned a basic task of operating a portable hand drill to drill nuts into some temporary fencing. This was the easiest and least physically demanding task available at the park that day. The applicant had indicated that he was comfortable with the task and it was in line with his restrictions at the time.
Mr Captor recalled an occasion in November 2021 when he was speaking with Mr Bowmer on speaker on his mobile phone. Mr Bowmer asked Mr Captor to ensure that the applicant was tested for COVID. Mr Bowmer said something to the same effect directly to the applicant on speaker in a normal tone of voice. Mr Bowmer did not raise his voice or speak inappropriately.
Mr Captor denied witnessing any inappropriate treatment from Mr Bowmer and Mr Cranmer towards the applicant.

Ms Wijangco

A statement signed by Michelle Wijangco, dated 23 March 2022, noted that in November 2021, the applicant requested an investigation into a grievance. The applicant sent a number of emails and it was difficult to decipher any specific allegations or incidents requiring investigation. About 20 emails were sent in total and they were not in any coherent or logical order.
A meeting was scheduled for 17 November 2021, following which, an investigation plan was formulated. Statements were obtained from Mr Bowmer, Mr Cranmer, Mr Captor and Mr Hewton. Ms Wijangco was not able to substantiate any of the allegations made by the applicant.
Ms Wijangco spoke to the applicant about the outcome of the investigation on the phone around 8 December 2021. The applicant expressed a desire to move to another team.
The applicant never mentioned any psychological condition or symptoms in any of his phone calls with Ms Wijangco during November and December 2021.
Ms Wijangco provided further statements dated 20 February 2023 and 21 March 2023, in which she responded to the evidence of the applicant’s witnesses.

Mr Bowmer

Peter Bowmer signed a written statements on 29 March 2022 and 21 January 2023.
In his first statement, Mr Bowmer recalled an ambulance being called for the applicant in 2019 due to chest pains. There was never any indication that the applicant was suffering a panic attack and it was never reported to be a work-related matter. A couple of weeks earlier, the applicant had complained about chest pains and had been driven to hospital by some colleagues.
Mr Bowmer said he was aware of performance issues related to the applicant. Three or four team members had reported that they did not want to work with the applicant.
The applicant never complained to Mr Bowmer about needing more staff in his team while he was a leading hand.
Mr Bowmer recalled the meeting in 2019 in which he addressed the team generally with regard to efficiency. Mr Bowmer said,
“I did not make any mention to Vince about him driving around. I deny accusing Vince of driving around to look at or perve at girls at a university. I was aware that this issue was happening, but I didn't mention it to Vince at that time. Other team members provided feedback to Robert about Vince driving around a university to waste time and to look at girls at the university. Robert told me that this was referred to by other team members including Vince as the ‘slut run.’ I also observed Vince parked up and not working on a few occasions about thirty minutes or more before his shift was due to end.”
Mr Bowmer said he checked the work vehicle’s global positioning system (GPS) trackers which showed that the applicant’s crew made regular drives around the university without justification.
Mr Bowmer confirmed that a grievance was lodged after that meeting but the allegations were not substantiated. Mr Bowmer denied ever suggesting he would apologise. The allegations were denied from the start.
Mr Bowmer denied trying to get rid of the applicant as part of a restructure. The applicant received a pay rise as part of the restructure.
Mr Bowmer gave evidence that the applicant was not qualified to act in the coordinator role in 2019 as he did not have a Certificate IV in parks maintenance.
Mr Bowmer denied ever being directed to leave the applicant alone.
Mr Bowmer denied calling the applicant a fraud in relation to his physical injuries but conceded he may have referred to the applicant having a "miraculous recovery" following a sudden change from being unfit for work to fully fit for work after it was suggested he may lose his job.
Mr Bowmer said that diarrhea was a listed symptom of COVID 19 and it was a rule that any staff with any sort of symptom be tested before returning to work.
The applicant regularly had to be reminded to comply with the rules on COVID testing and was very argumentative about this. Mr Bowmer agreed that he had conversations on the phone with the applicant about this but denied ever saying he would not be paid.
Mr Bowmer said he had relayed information given to him from another member of staff to Human Resources about the applicant sending inappropriate emails to the CEO.
In his supplementary statement, Mr Bowmer responded to the applicant’s statement evidence and his witness evidence. Mr Bowmer noted that all of the character references were from ex-employees.

Mr Cranmer

Robert Cranmer signed written statements on 25 March 2022, 12 January 2023 and 24 February 2023.
In his first statement, Mr Cranmer recalled an ambulance being called in 2019 due to concerns the applicant was having a heart attack. There was never a suggestion that the applicant was suffering from a panic attack. Mr Cranmer recalled that the applicant had called him earlier in the day suggesting he would not be able to get a job he was assigned to do with his crew done that day. Mr Cranmer replied to the effect of, “do your best to try to get it done”. Mr Cranmer recalled assigning approximately 10 team members to complete the job later that day due to time lost while the applicant was escorted to hospital by ambulance.
Mr Cranmer denied that the applicant complained to him about his team members.
Mr Cranmer denied harassing the applicant or treating him inappropriately at work. Concerns had been raised with staff generally about efficiency and effectiveness in team meetings.

The applicant and his crew were servicing 22 parks per month, which was reasonable and achievable. Every team had between 22 and 25 ha. The applicant had raised concerns about this and a meeting was held with his union representative. The difference between the teams was less than half a hectare.
The applicant would deliberately waste time at work by driving around doing nothing until 9.00am some mornings. Mr Cranmer observed this for himself and received similar feedback from a number of team members.
Feedback was also received from a number of team members about the applicant driving around a reserve pretending to be working at that reserve. The applicant’s purpose in doing this was to look at girls at the nearby university. After obtaining approval to do so, Mr Cranmer looked into the GPS trackers and found numerous instances of the applicant driving up and down the reserve for no work-related reason.
Mr Cranmer recalled a meeting in 2019 in which Mr Bowmer addressed attendees collectively about some efficiency and effectiveness concerns. The applicant was not singled out or addressed directly in the meeting. At one point, Mr Bowmer made reference to the applicant driving around when he should be working but there was no reference to looking at girls.
In 2019, two members of staff with suitable qualifications filled in as acting coordinator for three months each. By the time it was the applicant’s turn, a permanent replacement had been found. When the vacancy was announced, the team was told that there was no guarantee that they would get the opportunity to act.
Mr Cranmer said he did not believe that the applicant deserved a pay increase based on his performance. Mr Cranmer said he had received feedback that the applicant was a toxic team member and generally argumentative and difficult to work with. It was, however decided that the increase should be awarded and Mr Cranmer completed the necessary paperwork. Mr Cranmer denied holding off or obstructing the process.
Mr Cranmer denied making comments to the effect of “suck it up princess” or “eat it”. Mr Cranmer denied moving the applicant between teams from time to time with any ill intent or malice. At times, teams were shuffled around due to staffing shortages.
Three members of staff had approached Mr Cranmer saying they did not want to work with the applicant as he was not a team player and did not get his hands dirty, intentionally slowing down work for the team. Mr Cranmer denied telling any team leaders to treat the applicant differently or “work him hard”.
Mr Cranmer said that during the COVID outbreak, Council was required to follow strict instructions on testing. On numerous occasions, the applicant did get tested but held off providing the test results. Mr Cranmer said he believed this was to induce him or Mr Bowmer to follow up the test results with him.
Mr Cranmer said he was aware that diarrhoea was a potential symptom of COVID 19. Any employees displaying symptoms, regardless how mild, were required to be tested and return a negative result before returning to work.
Following his ankle injury, Mr Cranmer recalled instructing the applicant to sand some benches as part of his light duties. Mr Cranmer sent the applicant all the necessary personal protective equipment and someone from the carpentry team to train him. The applicant complained about the mask provided to him and said he did not know where it came from. Both the dust mask and respirator provided to the applicant were new and unused.
Mr Cranmer said he received instructions from Mr Bannister to send the applicant home on 29 November 2021 as he was not vaccinated and had not submitted a valid contraindication form.
Mr Cranmer said he personally felt worn down by the constant issues with the applicant at work. He was a difficult employee and generally argumentative and combative. It was well-known in the workplace that the applicant had a poor and inappropriate attitude towards Mr Cranmer.
Mr Cranmer denied witnessing any inappropriate behaviour by Mr Bowmer towards the applicant.
In his supplementary statements, Mr Cranmer provided further evidence with regard to the applicant’s pay grade increase and responded to the statements of the applicant’s witnesses.

Mr Bannister

Raymund Bannister provided a written statement to an investigator on 17 May 2022.
Mr Bannister confirmed that in mid-2019 the applicant reported that Mr Bowmer had made inappropriate comments about him driving around during work hours to look at girls during a team meeting. Mr Bowmer denied making such comments and denied addressing the applicant directly during the meeting. Mr Bowmer said he addressed the team generally about efficiency issues and mentioned that employees should not be driving around during work time for no legitimate work reason.
Around the same time a female employee reported that the applicant was driving around looking at girls at a university during work hours in a work vehicle. This was not a one off instance.
Mr Bannister did not recall any great hurdles or obstacles faced by the applicant in receiving a grade increase. Mr Bannister spoke with Mr Cranmer and Mr Bowmer, explaining that based on the length of time since the previous grade increase, the applicant was due to receive another. Both Mr Cranmer and Mr Bowmer agreed, despite being initially opposed to the increase.
The applicant was never assigned any duties outside his medical restrictions and limitations following his work injury. Significant attempts were made to find suitable duties. Mr Bannister recalled telling the applicant that if suitable duties were exhausted and the applicant was not medically cleared to complete any duties, he may not be able to continue with his employment. Within a week or two of this conversation, the applicant provided a medical certificate clearing him to return to pre-injury duties. Given the sudden change in the applicant’s certification, advice was sought from Council’s doctor. Suitable duties were found in accordance with that doctor’s recommendations.
Mr Bannister denied that Ms Wijangco, who was present in the meeting to discuss this matter, had a letter of termination in her hand. She may have had some notes from previous meetings.
In around November 2021, the applicant complained that Mr Bowmer had yelled at him about getting COVID tested that day. Mr Bowmer denied yelling at the applicant but had asked him to get tested that morning and had to ask him again in the afternoon as he did not follow the earlier instructions. Mr Bannister was aware of ongoing frustrations due to having to regularly remind the applicant to get tested due to his vaccination status.
The applicant initially submitted a medical contraindication indicating that he was going to see an immunologist on 28 November 2021. The appointment did not go ahead. Council contacted the federal Department of Health and was advised that the only legitimate reasons for a contraindication were those listed on the form. The reason used by the applicant was not listed on the form as an acceptable reason and so the contraindication was not deemed to be compliant. Mr Bannister spoke to the applicant about this and he explained that he was trying to make an appointment to see another immunologist. The applicant also suggested he was attempting to obtain medical records from Romania to confirm a prior adverse reaction to injection.
The applicant was given an extension of time to submit a compliant contraindication form but did not do so. The applicant was the only employee at Council who was not fully vaccinated or had not submitted a valid contraindication form.

Treating evidence

Clinical records from United Care Medical Centre include notes of a consultation on 14 March 2019 for work-related stress. The applicant reported,
“Has to do jobs of 3 people – one left & not replaced, & 1 casual who is not motivated to work at all.”
A mental health treatment plan was prepared. The applicant was referred to psychologist, Dr Fadi Anjoul, and provided with a medical certificate for time off work.
On 29 July 2019, the applicant reported a lot of stress at work due to harassment and bullying.
Ongoing psychological symptoms including, insomnia related to working conditions, were again noted on 1 August 2019.
Several medical certificates for psychological symptoms were issued around this time.
On 7 September 2020, general practitioner, Dr Medhat Guirguis noted symptoms of anxiety in the context of the applicant’s manager threatening to retire him if there were no suitable duties in connection with the applicant’s elbow injury.
On 14 January 2021, Dr Guirguis again noted symptoms of anxiety. The applicant reported that his managers told him there was no work for him but he knew there was lots of work.
On 26 August 2021, Dr Ofo Niumeitlou noted the applicant was suffering vaccine anxiety and phobia due to an allergic reaction overseas. A referral was prepared to Dr Gala.
On 7 March 2022, the applicant told Dr Guirguis that he was unfairly dismissed from his work at Council. The applicant told Dr Guirguis that he was bullied and harassed at work. The executive manager called the applicant a “pervert” in front of his team. The applicant was also accused of sending inappropriate emails to the CEO. The applicant reported symptoms of anxiety and depression.
On 30 March 2022, the applicant reported ongoing psychological symptoms including insomnia, increased alcohol intake and irritability.
Dr Guirguis continued to note symptoms of anxiety and depression throughout 2022.
A letter from Dr Guirguis to the applicant’s solicitor dated 20 November 2022 stated that the applicant’s history of anxiety and depression commenced on 7 September 2020 when the applicant’s manager “threatened him to retire” if he didn’t return to full unrestricted duties following an injury to his left shoulder.
The applicant presented on 7 March 2022 alleging that he was bullied and harassed work. It was noted that the executive manager called the applicant a pervert in front of other workers and accused him of sending inappropriate emails to the CEO. The letter also referred to the applicant having a phobia of the COVID vaccine due to severe complications from another vaccine administered in childhood. The applicant was referred to an immunologist but the applicant’s managers did not accept his explanation for delaying the vaccination and kept harassing him.
Dr Guirguis stated that he referred the applicant to a psychologist, Dr Fayez Ramzy, on 13 April 2022.
A report from psychology counselling and mediation consultant, Fayez Nour, dated 12 April 2022 stated that he had been providing psychology counselling therapy to the applicant since January 2021. The applicant was initially referred by his EAP and had continued attending therapy throughout 2021 and into 2022.
Mr Nour referred to the employer’s refusal to allocate lighter duties following an injury to the applicant’s elbow in January 2020 and a bullying management approach characterised by a narcissistic, micromanagement style. Mr Nour noted that the applicant had experienced adverse reactions to vaccines previously and had attempted to obtain appropriate medical advice regarding the COVID vaccine. The employer’s denial of the opportunity to obtain such advice further added to the applicant’s state of anxiety, stress and depression. Mr Nour stated,
“Mr Kovacs suffers from long-term bullying, harassment and unfair dismissal which is mentally damaging to his state of mind. He is currently confused and often hallucinating. Some of his self-talk; ‘life is no longer meaningful.’”

Dr Chow

The applicant relies on medicolegal reports prepared by psychiatrist, Dr Frank Chow, dated 17 October 2022 and 26 May 2023.
In his first report, Dr Chow took a history of excessive workload, being accused of driving around looking at girls at work and being called unpleasant names by his manager. The applicant reported that he was subjected to ongoing harassment and negative comments with regard to his hesitancy to have the COVID 19 vaccine. The applicant was later dismissed due to his vaccination status despite having a doctor’s certificate.
Dr Chow diagnosed a chronic adjustment disorder. Asked whether interactions with management represented a substantial contributing factor to the condition, Dr Chow responded:
“With Mr Kovacs’ report prolonged difficulties with management especially with his manager, I am of the opinion his employment; in particular, his interactions with management represents a substantial contributing factor to his ongoing psychiatric condition. Although he was dismissed with regard to his vaccination status, he reports a series of interaction difficulties with the management preceding the last event.”
In his supplementary report, Dr Chow reported that the applicant’s condition had deteriorated further and now warranted a diagnosis of major depressive disorder. The applicant remained totally unfit for work.
Dr Chow was asked to comment on the findings of the medicolegal expert qualified by the respondent, Dr Abhishek Nagesh. Dr Chow noted that Dr Nagesh concluded that the allegations of bullying and harassment made by the applicant were not substantiated and therefore the cause of the applicant’s injury was administrative action taken with regard to the vaccine mandate.
Dr Chow commented that it was not his role as psychiatrist to determine the truth but assuming the validity of the applicant’s reported workplace difficulties, the main contributor factor to the applicant’s psychiatric injury was the reported bullying, harassment and maltreatment from his workplace.

Dr Nagesh

The respondent relies upon medico-legal reports prepared by consultant psychiatrist, Dr Abhishek Nagesh, dated 6 July 2022 and 20 July 2023.
The history recorded by Dr Nagesh in his first report was broadly consistent with the applicant’s statement evidence. Dr Nagesh noted that the applicant’s allegations of bullying and harassment had been refuted by the statements of his various colleagues. The respondent’s factual investigation found the applicant’s allegations to be unsubstantiated.
Dr Nagesh recorded that the applicant claimed to have consulted his general practitioner and had not been prescribed any medications. He was not currently seeing any psychologist.
Having regard to the reported symptoms, Dr Nagesh diagnosed an episode of adjustment disorder with depressed and anxious mood.
Dr Nagesh gave the following opinion on causation:
“In my opinion, Mr Kovacs alleges to have developed depressive and anxiety symptoms since 2020 in the context of the alleged bullying, harassment and lack of support from the management. Although Mr Kovacs alleges to have developed depressive and anxiety symptoms, he has been working at full capacity. On the balance of probabilities, in my opinion Mr Kovacs’ alleged depressive and anxiety symptoms are in the context of the mandated COVID-19 vaccination policy was the main contributing factor for his incapacity.
My rationale for this is Mr Kovacs’ alleged bullying and harassment has been refuted by his colleagues. Mr Kovacs had a number of performance issues and when this was discussed, Mr Kovacs has perceived it as being bullied and harassed. Even though Mr Kovacs alleges to have developed depressive and anxiety symptoms since 2020, the evidence points to that he was working at full capacity and there was no incapacity.”
Asked whether any psychological injury was wholly or predominantly caused by the actions taken, or proposed to be taken, by the employer with respect to, the provision of employment benefits, dismissal and/or discipline, Dr Nagesh responded:
“On the balance of probabilities, in my opinion, the reasons for Mr Kovacs’ incapacity is caused by the actions taken or proposed to be taken by employer with respect to the provision of employment benefits to Mr Kovacs and/or dismissal and/or discipline.
My rationale for this is Mr Kovacs alleges to have developed these symptoms since 2020 but he was working at full capacity and hence I would not consider that Mr Kovacs was incapacitated prior to this and his reason for incapacity and the onset of his alleged symptoms in my opinion is the termination of his employment due to the mandated COVID vaccine policy and the allegations of bullying and harassment have been unsubstantiated.”
Dr Nagesh found that the applicant remained symptomatic and was totally incapacitated from a psychological perspective for any sort of work, whether part-time or full-time.
In his supplementary report, Dr Nagesh opined that the applicant’s symptoms now met the criteria for major depressive disorder of moderate degree with anxious distress. The applicant’s condition had not resolved or gone into remission.
With regard to causation, Dr Nagesh gave the revised opinion:
“On the balance of probabilities, the non-work factors including the Government’s public health orders requiring vaccination of the workers in his role, which applied to the worker’s role on 30 August 2021, albeit these orders was superseded and augmented by the Council’s vaccination mandate, which applied from 15 November 2021 was the main contributing factor to the claimant’s development of depressive and anxiety symptoms, which has given rise to his alleged incapacity. My rationale is, the worker’s history of alleged bullying and harassment has not been substantiated. This has been refuted by the employer’s representatives. Even though the worker alleges to have been bullied and harassed since 2020, there is no evidence of the worker’s bullying and harassment having led to his incapacity.”
With regard to the whole or predominant cause for the purposes of s 11A(1) of the 1987 Act, Dr Nagesh gave the opinion:
“During my previous report I had advised that the worker’s incapacity was in the context of the actions taken or proposed to be taken by the employer with respect to the provision of employment benefits to the worker’s dismissal and/or discipline. I had implicated the worker’s termination of employment as the whole or predominant cause of his incapacity for work and subsequent notification of a psychological injury. I still continue to remain of the view that on the balance of probabilities, the worker’s alleged psychological symptoms have developed in the context of his employment being terminated in the context of his vaccination status, which the worker has perceived as being bullied and harassed.”
Dr Nagesh noted that the applicant had commenced on antidepressant medication but had not had the opportunity to see a psychologist. The applicant remained symptomatic and totally incapacitated from a psychological perspective.

Applicant’s submissions

The applicant noted that the primary issues for determination were whether he had sustained an “injury” and the s 11A(1) defence. In respect of the latter, there was no evidence of any action with respect to discipline, performance appraisal or provision of employment benefits causing the injury.
The applicant submitted that if the Commission agreed that the workplace events in late 2021 and early 2022 and ultimately the termination of the applicant’s employment were the whole or predominant cause of injury, a question arose as to whether the respondent’s actions were reasonable.
The applicant submitted that the Commission would have little difficulty being satisfied that there was an injury and would have serious reservations with respect to the s 11A(1) defence.
The applicant referred to the statement he gave to an investigator and noted that he gave multiple examples of conflict with his supervisors.
With regard to the meeting on 25 July 2019, although Mr Bowmer and Mr Cranmer did not recall the applicant being accused of being a pervert, the applicant’s evidence was supported by a grievance signed by six members of staff who sought an apology from Mr Bowmer. Mr Bowmer’s evidence was inconsistent with the contemporaneous records of the meeting.
The applicant consulted his general practitioner a few days after the meeting on 29 July 2019 reporting psychological symptoms associated with events in the workplace. The applicant was certified as unfit for work due to depression and anxiety.

The applicant formed the view that Mr Bowmer was trying to get rid of him. The applicant described the mental toll of the workplace conflict.
Mr Bannister’s statement of 24 November 2022 was said to be consistent with the applicant’s evidence that Mr Bowmer had been asked to back off. Mr Bannister observed the applicant to be quite adversely affected after a number of interactions with Mr Bowmer and suggested the applicant consulted his EAP.
The applicant referred to the contemporaneous emails and records pertaining to the restructure and the applicant’s efforts to obtain a pay increase.
The applicant also referred to the difficulties experienced securing suitable duties following his physical injuries.
The applicant’s evidence was that he began using the EAP from January 2021. Although a workers compensation claim was not made until a later date, the applicant explained that he had been scared to make a claim because of the trauma associated with the claims for his physical injuries.
Despite the evidence of multiple difficulties in his dealings with the respondent between 2019 and 2021, Dr Nagesh formed the view that only events after September 2021 were the whole or predominant cause of the applicant’s decompensation. This was said to be on the basis that the applicant was able to continue working. The applicant submitted that this was an incorrect assumption.
The applicant referred to the contemporaneous records of the applicant’s interactions with Council regarding COVID testing and his vaccination status. The applicant observed that he had received temporary medical contraindications which covered the period until 28 February 2022, when the applicant was due to see an immunologist. The applicant’s employment was terminated before his appointment with Dr Gala. The applicant submitted that this action was not reasonable on any level.
The applicant referred to his witness evidence supporting his views as to Mr Bowmer’s general conduct. Other workers had similar problems with Mr Bowmer.
The applicant described it as curious that no investigation was made of the allegation that the applicant was driving Council’s vehicles in a certain location to look at girls. No effort was made to discipline the applicant. This was said to be relevant in determining the weight to be given to Mr Bowmer’s evidence.
Mr Bowmer’s evidence was contradicted by the contemporaneous records and the statement evidence of Mr Bannister and Mr Malesevic. The applicant described Mr Bowmer’s statement evidence as self-serving, clearly incorrect and aimed at exculpating himself.
The response of the respondent’s witnesses to the applicant’s statement and their denigration of the applicant’s witnesses was said to be an indication of the toxicity of what was taking place in the workplace.
The applicant submitted that the factual material allowed a comfortable conclusion that whilst working, the applicant was experiencing anxiety and distress due to the manner in which he was treated by those above him. This was confirmed by the evidence from Mr Bannister and the applicant’s witnesses. The applicant’s claims were said to be consistent with the treating medical evidence.
The applicant submitted that the Commission would have little difficulty accepting that the applicant sustained a psychological injury arising out of his employment with the respondent to which employment was the main contributing factor. Both of the experts took a history consistent with the applicant’s evidence. Both experts found that the applicant had sustained a psychological injury. Both experts formed the view that the applicant was totally incapacitated for work.
The applicant referred to Dr Chow’s opinion that, although the applicant was dismissed with regard to his vaccination status, the main contributing factor to his psychiatric injury was the reported bullying, harassment and maltreatment from his workplace.
Dr Nagesh’s opinion that nothing before September 2021 played any role in the applicant’s decompensation was clearly contrary to the treating and factual evidence.

Respondent’s submissions

The respondent submitted that for applicant to succeed, the Commission would need to be satisfied that there were real events, the perception of which caused an injury.
The respondent’s primary submission was that the applicant’s evidence was untruthful and unreliable. The applicant was willing to make statements to suit his case and derive a monetary benefit.
For example, the respondent noted that the applicant denied driving around to look at girls whilst at work. That denial was contradicted by every witness privy to the conduct and behaviour of applicant. The respondent’s witnesses had given evidence that the applicant’s vehicle GPS confirmed that he was driving in the area without justification. A female member of staff did not want to work with the applicant because of his behaviour.
The respondent submitted that the absence of a formal investigation into the applicant’s conduct confirmed that the applicant was not being targeted. The absence of an investigation was also explained by the evidence that the complainant wished to remain anonymous due to fear of reprisal. The respondent’s evidence in relation to this issue was more probable.
With regard to the meeting at which the applicant was allegedly called a pervert, the respondent noted that no evidence had been presented from any witness who was at the meeting and actually observed the remark being made.
Although the applicant alleged that his grievance was not properly investigated, that evidence was contradicted by Mr Wijangco and the contemporaneous records attached to the Reply. The allegation was a nonsense.
With regard to the applicant’s claim that he suffered a panic attack, the respondent submitted that the event never happened. The respondent’s witnesses gave evidence that the applicant reported symptoms of a heart attack. The applicant never reported that he suffered from a panic attack. No notes from the hospital or ambulance had been produced to suggest the applicant was suffering from psychiatric symptoms. The failure to adduce that evidence ought to lead to a Jones v Dunkel inference that it would not assist the applicant’s case. The clinical notes from the applicant’s general practitioner referred to symptoms of chest pain around the same time.
The evidence from the two supposed “bullies” indicated that they called the ambulance out of concern from the applicant. Although Mr Cranmer confirmed that the applicant had complained about his workload that morning, his response had been for the applicant to “do his best” to get it done. Ten team members were later assigned to complete the task due to the time lost in dealing with the applicant’s condition.
The respondent submitted that the applicant’s evidence with respect to the entire panic attack episode was false.
The applicant’s other claims were refuted by the respondent’s witnesses. Mr Cranmer said the applicant had never complained about his team members. The applicant’s claim of being allocated an excessive workload was denied by Mr Cranmer who explained the equitable division of work between teams.
The evidence was also inconsistent with the applicant’s claim that the respondent failed to provide him with suitable duties following his physical injuries.
The applicant painted himself as a victim but the evidence pointed to the contrary being true.
The respondent’s witness evidence described the applicant as lazy, toxic, not a team player and unwilling to get his hands dirty. The applicant was identified as dishonestly pretending to work at times.
With regard to the occasion on which the applicant suffered from diarrhea at work, the respondent submitted that the Commission could inform itself from relevant Australian Government websites that diarrhea is a symptom of COVID 19.
The respondent submitted that the Commission would have substantial doubt about whether the events complained of by the applicant had occurred and whether the applicant’s onus of establishing an “injury” had been discharged.
The respondent submitted that the evidence from Mr Nour was vague as to what events were said to have constituted bullying or micromanagement.
The respondent submitted that it was not apparent that Dr Chow had the respondent’s witness statements before him in giving his opinion. As a result, little weight would be given to his opinion.
The respondent’s witnesses all substantially corroborated the respondent’s case and contradicted the applicant’s case. Mr Bowmer’s evidence was forthright and credible. Mr Cranmer had addressed every issue. In contrast, the applicant relied on a series of hearsay statements from former employees which were so weak, the Commission would give them little weight.
Even if the Commission were to accept that some of the events were possible, they were not probable. The significant lies told by the applicant would lead the Commission to the view that the allegation of “injury” was not satisfied on the balance of probabilities. The respondent relied on the numerous challenges to the applicant’s evidence in its dispute notices.
In the alternative, the respondent relied on a s 11A(1) defence. The respondent noted that legislation was passed in 2021 conferring power to make mandatory health orders. No challenge had been made to the validity of those orders in these proceedings.
In accordance with the health orders, the applicant was required to be vaccinated or have a valid medical contraindication. The applicant supplied a temporary medical contraindication on the grounds that he had an appointment to see an immunologist Dr Gala. An earlier appointment with Dr Gala had been cancelled without explanation. Given the delay in providing a valid contraindication, proof of the appointments with an immunologist was requested. This was reasonable in circumstances where the applicant worked with a large number of co-workers and in light of the respondent’s legal obligations.
The applicant asserted that he had been in a coma after a vaccination as a child yet not a single document was supplied to verify any hospital admission or coma. Elsewhere the applicant had described only an anaphylactic reaction to a vaccination. Both of the applicant’s parents had been vaccinated without any issue.
The applicant’s failure to provide a valid contraindication gave rise to the termination of his employment. The process leading to the termination and the reasons for the termination were reasonable and provided a full defence to the claim pursuant to s 11A(1) of the 1987 Act.
Dr Nagesh went through the history and all the evidence and concluded that the termination was the whole or predominant cause of the injury. That opinion was open on the evidence available to him. The same evidence had not been provided to Dr Chow.
The Commission would not accept Dr Chow’s evidence as he did not have an appropriate history. The history given by the applicant was unreliable and could not be accepted.
Although the treating evidence made reference to stress in the context of work from time to time, there was no evidence of a diagnosable psychological condition until the termination of the applicant’s employment. Stress was not enough. There were significant gaps between the reporting of symptoms.
The respondent submitted that the Commission would not be satisfied that the applicant sustained an injury to which employment was the main contributing factor pursuant to ss 4 and 9A of the 1987 Act. The Commission would reject the applicant’s medical case on the basis of the inadequate history and inappropriate acceptance of facts by Dr Chow.
The opinion of Dr Nagesh would be accepted. The contemporaneous material suggested that the injury was referrable to the termination. The Commission would be satisfied on the balance of probabilities that the s 11A(1) defence was made out.

Applicant’s submissions in reply

The applicant observed that a grievance about the “pervert” comment was lodged contemporaneously to the event. This was not a recent construct but something that was documented well before the present claim. No evidence had been provided from the workers who complained of the applicant’s conduct. The evidence from Mr Bowmer was contradicted by the contemporaneous emails. The Commission would have reservations about the veracity of the respondent’s witness evidence.
With regard to the vaccination issue, the applicant noted that an appointment had been made by the applicant for February 2022 to obtain medical advice as to the safety of the vaccine in the applicant’s circumstances. In a COVID year, an urgent appointment with an immunologist would have been next to impossible. Before the applicant could obtain the additional information he needed, he was sacked. This circumstance was not explained on the respondent’s evidence.
The termination of the applicant’s employment was consistent with the respondent’s attitude of suspicion and distrust of the applicant and the behaviour described in the applicant’s statements.
The respondent’s case was that the health orders had to be complied with but the respondent’s efforts to implement the orders were not reasonable in all the circumstances.
The clinical notes documented contemporaneous complaints of psychological symptoms prior to the events leading to the termination.

FINDINGS AND REASONS

Injury

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
In Attorney General's Department v K[1] (K) Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
“The following conclusions can be drawn from the above authorities:
(a)     employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[1] [2010] NSWWCCPD 76.
It is the applicant who bears the onus of establishing on the balance of probabilities that
he sustained an injury which satisfies the requirements of ss 4 and 11A(3) of the 1987 Act.
The applicant’s claim is disputed by the respondent primarily on the grounds that the applicant’s evidence is untruthful and unreliable. The respondent says the Commission would not be satisfied that the events which the applicant claims were causative of a psychological injury were real events that actually occurred.
In considering the respondent’s submissions, it is noted that the medical evidence before the Commission universally indicates that the applicant has a psychological condition. Both parties’ experts initially diagnosed the applicant as suffering from an adjustment disorder which, over time, came to satisfy the criteria for a major depressive disorder. The expert opinions are consistent with the evidence from the applicant’s general practitioner, Dr Guirguis and his counsellor, Mr Nour.
There is no evidence of a pre-existing psychological condition.
It is also relevant to note that the medical evidence universally indicates that the applicant’s psychological condition arose out of or in the course of his employment. There is no medical opinion before the Commission, and it was not suggested in submissions, that anything other than employment was the main contributing factor to the diagnosed condition.
The respondent’s submissions did suggest, however, that the Commission ought to go behind the body of medical evidence. The respondent’s primary submission was that the applicant’s claim has been fabricated for monetary gain.
In reviewing the lay evidence, I find there is in fact a significant degree of consistency between the witness evidence presented by the applicant and that relied upon by the respondent. After carefully analysing the lay evidence, I am satisfied that most of the events on which the applicant relies in fact occurred.
The evidence on both sides confirms, for example, that in 2019, the applicant complained to Mr Cranmer that the task of servicing a large park was too onerous for his crew. An ambulance was called for the applicant later the same day. Mr Cranmer subsequently assigned approximately 10 crew members to complete the task.
The witness evidence diverges in relation to this event on the question of whether an ambulance was called because the applicant was suffering symptoms of a heart attack or a panic attack. The respondent observed that no hospital or ambulance records had been provided by the applicant to confirm that he had suffered a panic attack. The applicant did not tell his employer he suffered a panic attack. It was also noted that there was evidence of the applicant reporting cardiac symptoms and being taken to hospital as a result of those symptoms previously.
Whilst these observations are correct, the absence of evidence to verify the occurrence of a panic attack does not lead me to reject the applicant’s claim that he suffered a psychological response to the task he had been assigned. The evidence confirms that the applicant complained about the task to Mr Cranmer. Chest pains were associated with psychological symptoms in the general practitioner’s records from around this time. The clinical notes indicate that the applicant reported symptoms of stress related to not having sufficient staffing support at work. The applicant was provided with a mental health treatment plan, referred to a psychologist and certified unfit for work.
While there are discrepancies with regard to what Mr Cranmer said to the applicant when he complained about the size of the task and the reasons why 10 crew members were later assigned to complete the task, I accept that these discrepancies can be accounted for by differing recollections following the passage of time and differing perspectives on the same circumstances.

The witness evidence confirms that the applicant complained on other occasions to Mr Cranmer about his workload around this time. Mr Cranmer confirmed that he had a meeting with the applicant and a union representative about the distribution of work between teams following one such complaint.
The lay evidence confirms that there was a meeting on 25 July 2019 in which Mr Bowmer discussed efficiency. Although Mr Bowmer denied accusing the applicant of driving around to look at or “perve” at girls at a university, he confirmed that he believed the applicant had in fact engaged in such conduct having regard to complaints made to him by other workers and the GPS tracking data.
A grievance, signed by several attendees at the meeting, contemporaneously records that the applicant and another worker were accused at the meeting of driving several times a day around a university to look at girls. That document records the attendees’ perception that the applicant and his co-worker’s name and character had been slandered.
Although the contemporaneous records do not confirm that Mr Bowmer explicitly called the applicant a ‘pervert’, I am satisfied that there was discussion at a meeting on 25 July 2019 which led the applicant to perceive that he had been accused by Mr Bowmer of “perving” at girls in front of his co-workers.
A few days after the meeting in question, the applicant again consulted his general practitioner reporting stress due to harassment and bullying at work.
The lay evidence on both sides confirms that there was a dispute between the applicant and Mr Cranmer and Mr Bowmer about a pay increase after a restructure.
The evidence confirms that the applicant was assigned to different teams after being reclassified as a team member, although the purpose and intent behind the reassignments were perceived differently by the applicant and the respondent’s witnesses.
Both the applicant and the respondent’s witnesses confirmed that the applicant had wished to act in a coordinator role but was not given the opportunity.
The evidence confirms that the applicant was accused of sending inappropriate emails to the CEO.
The evidence confirms that the applicant sustained physical injuries and that there was some difficulty finding suitable duties for the applicant at one point. The witness evidence on both sides confirmed that there were meetings between the applicant and Mr Bannister about the provision of suitable duties following the physical injury and the possible consequences of no suitable duties being available.
The applicant asserted that Mr Bowmer called him a fraud in connection with his physical injuries. Although Mr Bowmer denied this, his own evidence confirmed that he may have expressed surprise at what he considered a “miraculous recovery”. Although I am not prepared to find that Mr Bowmer called the applicant a ‘fraud’, I accept on his own evidence that he expressed some reservations about the extent of the applicant’s incapacity following the physical injuries.
The evidence establishes that the applicant lodged a number of grievances about Mr Bowmer’s conduct. The applicant’s allegations were investigated but ultimately unsubstantiated. The contemporaneous records of an investigation conducted by Ms Wijangco in late 2021 and the respondent’s witness statements confirm that the applicant had a difficult working relationship with his supervisors and that he was generally perceived unfavourably by them.
That the applicant perceived he was being treated in a hostile manner by Mr Bowmer and suffered psychological symptoms as a result is confirmed in the email evidence from Mr Bannister dated 14 September 2022 and his written statement dated 24 November 2022. Mr Bannister gave evidence that, at times, the applicant appeared quite distressed and adversely affected after interactions with Mr Bowmer. Mr Bannister said he suggested to the applicant on a number of occasions that he seek psychological assistance through the respondent’s EAP.
The applicant’s witness, Mr Tanner also gave evidence that he had observed the applicant struggling mentally as a result of these interactions.
The evidence with regard to the applicant’s compliance with the respondent’s COVID 19 policy is broadly consistent in establishing that there were frequent interactions between the applicant and his supervisors about testing and the provision of test results. These included at least one occasion on which Mr Bowmer communicated with the applicant on speaker on a colleague’s mobile phone about the need to get tested.
Both parties’ evidence confirmed that the applicant was required by his supervisors to go home and get tested on one occasion after suffering diarrhea at work.
The evidence with regard to the applicant’s vaccination status, the provision of temporary medical contraindications and the events leading to the termination of the applicant’s employment is also largely consistent.
It is clear on all the evidence that the applicant’s employment was terminated on the basis that he had failed to comply with the respondent’s requests for further information to support a valid contraindication.
These consistencies between the applicant’s and respondent’s witness evidence weigh strongly in favour of a conclusion that the majority of the interactions and events in the workplace described by the applicant were real and in fact occurred.
There are, of course, very significant differences between the applicant’s and respondent’s evidence with regard to the tone, purpose and particular language used in many of these interactions. For the purpose of determining whether the applicant has sustained an injury, however, the authorities referred to above confirm that the applicant need not establish that his own perception of the events was objectively correct or reasonable. It is sufficient that real events occurred which were perceived as hostile and a psychological condition resulted from that perception.
Many of the respondent’s criticisms of the applicant’s evidence go more to the accuracy of the applicant’s perception or recollection of events rather than the question of whether there was a real event at all.
There was some criticism made of the lack of corroboration of some of the applicant’s claims. This was particularly so in relation to the alleged panic attack and the content of the meeting on 25 July 2019. As indicated above, however, elements of both events are corroborated by the respondent’s own witness evidence and the contemporaneous records. The contemporaneous general practitioners’ notes are also consistent with the applicant experiencing psychological symptoms associated with work events around that time.
The respondent sought to impugn the applicant’s credibility generally by reference to the evidence suggesting that he had been driving, without cause, in a particular area near a university to look at women. The respondent submitted that the weight of evidence favoured a conclusion that the applicant had engaged in such conduct notwithstanding his denial. Even if I were to accept that submission, I am not persuaded that it ought to lead to the conclusion that all of the applicant’s other evidence is untrue.
In Brines v Westgate Logistics Pty Ltd,[2] Keating P commented:
“Where a worker has given untruthful evidence the Arbitrator must carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of the evidence may have been acceptable because other independent or objective evidence confirmed it. However, where a worker’s evidence was not independently supported it clearly must be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings (see Malco Engineering Pty Ltd v Ferreira and others (1994) 10 NSWCCR 117 and Divall v Mifsud (2005) NSWCA 447).”
[2] [2008] NSWWCCPD 43.
For the reasons explained above, a great deal of the applicant’s evidence is corroborated by the respondent’s own witness evidence and the contemporaneous records.
Similarly, the general criticisms of the applicant’s character and conduct in the workplace are not, in my view, determinative of whether his evidence in these proceedings ought to be accepted. The character evidence before the Commission goes both ways. Whilst such evidence might be relevant in weighing whether uncorroborated evidence ought to be accepted, the fact remains that much of the respondent’s evidence corroborates the applicant’s assertions that real events occurred in the workplace which he perceived as hostile.
Reviewing the evidence as a whole, I am satisfied that there was a sufficiently sound factual foundation for the medical opinions given by Dr Chow and Dr Nagesh that the applicant sustained a diagnosable psychological condition arising out of or in the course of his employment with the respondent. I am further satisfied on the evidence before me that employment with the respondent was the main contributing factor to the applicant’s psychological injury. I am satisfied that the applicant has sustained an injury which meets the requirements of s 4(b)(i) of the 1987 Act.
Where the experts differ is on the question of which events in the workplace were the whole or predominant cause of the applicant’s injury for the purpose of s 11A(1) of the 1987 Act.

Section 11A(1)

A psychological injury which meets the statutory definitions will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:
“(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.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[3]
[3] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Hamad v Q Catering Ltd[4] (Hamad), Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[4] [2017] NSWWCCPD 6.
The test of reasonableness is an objective one.[5] In Commissioner of Police v Minehan[6] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[7]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[5] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[6] [2003] NSWCA 239.
[7] (unreported 18 June 1998).
In Heggie, Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(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 these 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.”
The respondent relies upon the opinions of Dr Nagesh in support of a s 11A(1) defence. Dr Nagesh formed the view that the termination of the applicant’s employment over his failure to comply with Public Health Orders and the respondent’s COVID 19 policy was the whole or predominant cause of the injury.
The rationale for this conclusion was said to be that the allegations of bullying and harassment prior to this event had been refuted. Dr Nagesh also placed significant weight on the fact that the applicant was able to continue working notwithstanding his perception of bullying and harassment.
As the discussion above illustrates, it is not necessary for the applicant to demonstrate that he was in fact bullied and harassed. It is sufficient that there were real events in the workplace which were perceived as hostile and a psychological condition followed. I have accepted that there were real events in the workplace in 2019 and 2020 which the applicant perceived as hostile.
I do not accept that the applicant was not incapacitated by his perception of those events. There are several medical certificates before me certifying the applicant as unfit for work due to reported psychological symptoms for periods in 2019. A number of the certificates of capacity issued in connection with the applicant’s elbow injury in 2020 and early 2021 described symptoms of stress and anxiety related to the applicant’s perception that the respondent was refusing to provide suitable duties and the prospect of his employment being terminated as a result.
The clinical notes confirm that the applicant sought treatment from his general practitioner for work-related psychological symptoms in 2019 and 2020. In 2019, a mental health treatment plan was prepared in respect of work-related psychological symptoms and the applicant was referred to a psychologist. The evidence from Mr Nour confirms that the applicant was referred to him from the EAP and he had been treating the applicant for work related symptoms since January 2021.
While there are periods in the clinical notes during which no psychological symptoms were reported, particularly in late 2019 and early 2020 I am not satisfied that this leads to the inevitable conclusion that the earlier events had no bearing on the applicant’s current psychological condition.
Dr Chow formed the view that it was the prolonged series of difficult interactions with management described by the applicant that caused the diagnosed condition. In other words, it was the accumulation of events commencing in 2019 that were causative of injury
The respondent submitted that Dr Chow’s opinion would be disregarded because it was founded upon an unreliable history provided by the applicant. For the reasons given above, however, I am satisfied that there was a proper factual foundation for the expression of Dr Chow’s opinion.
Dr Chow’s opinion is broadly consistent with the evidence from Dr Guirguis and Mr Nour who both identified “long-term” bullying and events prior to 2021 as causative of the applicant’s injury in addition to more recent events related to the applicant’s compliance with the respondent’s COVID 19 policy.
While the respondent submitted that the evidence of Mr Nour was vague as to the events which constituted bullying or “micromanagement”, it is the respondent who bears the onus of establishing the hierarchy of causative events for the purpose of s 11A(1) of the 1987 Act.
In my view, Dr Nagesh failed to properly grapple with the treating evidence and the applicant’s claims in relation to the earlier events. Whilst the events relating to the termination of the applicant’s employment identified by Dr Nagesh were, on all the evidence, causative of the applicant’s injury, I am not satisfied on the material before me that they were “the whole or predominant” cause of the injury.
The respondent has not discharged its onus of establishing that the injury was “wholly or predominantly” caused by reasonable action with respect to discipline, performance appraisal, dismissal or the provision of employment benefits for the purpose of s 11A(1) of the 1987 Act.
In view of these findings, there will be an order remitting the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the psychological injury.
The matter will be listed for a further preliminary conference on receipt of the Medical Assessment Certificate to deal with the claims for weekly compensation and medical and related treatment expenses.

[2024] NSWPIC 151

26 March 2024