Kurido v Dulux Group (Australia) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kurido v Dulux Group (Australia) Pty Ltd [2021] NSWPIC 255
APPLICANT:	Idris Ali Kurido
RESPONDENT:	Dulux Group (Australia) Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	20 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly benefits and section 60 expenses resulting from primary psychological injury; injury admitted by respondent employer, but section 11A defence relied upon for reasonable action taken or proposed to be taken with respect to discipline and transfer; applicant worker did not become incapacitated for work until after alleged disciplinary action; worker relies upon Hamad v Q Catering Ltd to submit that no medical evidence to support action with respect to transfer, and Hancock v East Coast Timber Products Pty Ltd to submit that Independent Medical Expert report relied upon by respondent an ipse dixit; detailed examination of evidence; Held-finding that respondent had not discharged the onus on it to rely on section 11A defence, and that applicant’s injury resulted from the conduct of the respondent’s employees to which he was subjected during the course of his employment; awards in favour of applicant for weekly benefits and section 60 expenses; award in favour of respondent in respect of minor ankle injury found to have resolved.
DETERMINATIONS MADE:	1. The applicant sustained primary psychological injury arising out of or in the course of his employment with the respondent, deemed to have occurred on 20 August 2020. 2. The injury was not caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or transfer. 3. The applicant has had no current work capacity since 21 January 2021. 4. The applicant’s pre-injury average weekly earnings are $1,494.07. 5. The respondent is to pay the applicant $1,195.26 per week from 21 January 2021 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 6. The respondent is to pay the applicant’s costs and expenses in respect of the primary psychological injury pursuant to s 60 of the Workers Compensation Act 1987. 7. The applicant suffered a minor soft tissue injury to his right ankle on 20 August 2020 which had resolved by 10 November 2020. 8. Award for the respondent in respect of the applicant’s claim for weekly benefits and costs and expenses pursuant to s 60 of the Workers Compensation Act 1987 in respect of such ankle injury.

STATEMENT OF REASONS

BACKGROUND

Idris Ali Kurido (the applicant/Mr Kurido) claims weekly benefits from 20 August 2020 and medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of psychological injury deemed to have occurred on 20 August 2020. There is also a claim by the applicant that he suffered an injury on that day as he was leaving his manager’s office when he twisted his right ankle when walking down stairs. However, although this injury is disputed by the respondent, the applicant does not claim that he was incapacitated as a result thereof, nor medical expenses for treatment of such injury.
The respondent does not dispute that Mr Idris suffered from a primary psychological injury but defends the claim pursuant to s 11A of the 1987 Act, claiming that such injury was wholly of predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline or transfer. The respondent relies on the opinion of forensic psychiatrist, Dr Robert Kaplan, who independently medically examined the applicant on 24 November 2020 and produced a report dated 9 December 2020[1] and a supplementary report dated 21 December 2020[2].
[1] Application to Resolve a Dispute (the Application) p 51 and Reply p 145.
[2] Reply p 152.
The applicant commenced employment as a labourer with the respondent on 14 May 2018. In March 2020 he was offered the role of maintenance assistant, effective 30 March 2020, on a six months’ probation. He reported to Wayne Hanson, the maintenance manager and commenced a two level programme which detailed certain competencies to be achieved.
During the course of the applicant's employment with the respondent, Mr Kurido alleges he was exposed to the following conduct:
(a)    sexual harassment and unwanted advances by a work colleague;
(b)    being insulted and demeaned by a work colleague;
(c)    being ostracised by his supervisors and work colleagues;
(d)    being specifically targeted and alienated by his supervisors and colleagues;
(e)    being unreasonably directed to do tasks which were not allocated to anyone else;
(f)    constantly exposed to offensive, degrading names and comments;
(g)    constantly threatened in respect of his continuing employment with the respondent, and
(h)    exposed to harsh, degrading and demeaning treatment and other forms of bullying and harassment during a meeting on 20 August 2020.
The applicant alleges that this conduct involved yelling and swearing at him.

The respondent denies the conduct complained of by the applicant.
The applicant has not worked since a meeting in the manager’s office on 20 August 2020 when it is alleged he was subject to disciplinary action by or on behalf of the respondent.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did the applicant suffer an injury to his right ankle on 20 August 2020?
(b)    Was the psychological injury deemed to have occurred on 20 August 2020 wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline of transfer?
(c)    Has the applicant been incapacitated for work since 20 August 2020 as a result of the primary psychological injury sustained by him?

PROCEDURE BEFORE THE COMMISSION

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.
The parties attended a conciliation/arbitration hearing on 1 June 2021 conducted via telephone conference. Ms E Grotte appeared for the applicant briefed by Mr D Lam. The applicant attended on a separate line. Ms L Goodman appeared for the respondent briefed by Ms N Tancred. The Application was amended to include a claim for expenses pursuant s 60 of the 1987 Act. The proceedings were part-heard on that day, and the arbitration hearing was completed on 13 July 2021.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c) Application to Admit Late Documents lodged by the applicant dated 27 May 2021 dated with schedule of s 60 expenses attached, and
(d)    letter Barker Henley (the respondent’s former solicitors) to Dr R Kaplan dated 18 December 2021 (the Barker Henley letter), tendered by the respondent on 13 July 2021 and admitted by consent.

Oral Evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.

Applicant

The applicant submits that the medical evidence relied upon by the respondent in support of its s 11A defence, namely that of Dr Kaplan, is insufficient to discharge the onus on it to show that the psychological injury he suffered was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline or transfer. This is because of the opinion expressed by the doctor in his report dated 9 December 2020, that it is not possible to show that Mr Kurido’s condition arose wholly of predominantly from actions by his employer with respect to discipline and transfer[3], and also because of the opinion subsequently given in the supplementary report dated 21 December 2020. In that report, Dr Kaplan changes his opinion in respect of the s 11A defence relying on discipline. He says that the psychological injury was predominantly caused by action taken or proposed to be taken on behalf of the respondent employer with respect to discipline of his role. However, the basis on which he made that change of opinion, that is “…the foregoing factual scenario”[4], is not apparent from the report, and the opinion is merely an “ipse dixit.”
[3] Application p 57.
[4] Reply p 152.
The applicant maintains the last-mentioned submission, notwithstanding the admission into evidence of the Barker Henley letter referred to in [10 (d)] above.
The applicant submits that the evidence of Dr Kaplan cannot be accepted to support the
s 11A defence relying on transfer. In his report dated 21 December 2021, Dr Kaplan states only that the applicant’s psychological injury was predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline. He does not refer to transfer.
In making this submission the applicant relies upon what Deputy President Michael Snell said at [88] Hamad v Q Catering Limited[5]. The applicant also notes that Dr Kaplan found in the original report dated 9 December 2020 that his account of what caused the injury was credible and had internal consistency.
[5] [2017] NSWWCCPC 6 (Hamad).
The applicant examines the evidence in respect of his allegations listed in [4] above. He notes that there is no evidence from two witnesses nominated by him in his statement dated 9 September 2020[6], namely Nazeem, referred to in [6]-[7] of the statement and Anna Taveo, referred to in [15] of the statement. The applicant submits that a Jones v Dunkel inference should be drawn against the respondent in respect of the matters complained of by him which he says were witnessed by these two persons. The only statements obtained by the Procare investigators in respect of the applicant’s complaints were from Wayne Hanson[7], Michael Coleman[8] and George Cahuna[9]
[6] Application p 2.
[7] Reply p 106.
[8] Reply p 111.
[9] Reply p 113.
The applicant notes the issues raised by him and the evidence of Messrs Hanson, Coleman and Cahuna in respect of those issues. In his second statement, dated 31 March 2021, the applicant takes issue with the contents of the evidence of Nathan Wall in his statement dated 18 September 2020[10] and Cameron Thompson, whose statement taken 15 September 2020 is unsigned[11]. The statements of Michael Coleman and George Cahuna are also unsigned. For this reason, the applicant submits that these unsigned statements are of little or no probative value. The applicant also submits that his evidence should be accepted because:
(a)    the witnesses nominated by him were not interviewed by the investigator;
(b)    Dr Kaplan apparently had access to the Procare report and the witness statements referred to therein, and found him to be a credible witness whose version of events was internally consistent, and
(c)    Dr Kaplan interviewed him in person rather than remotely.
[10] Reply p 21.
[11] Reply p 33.
The applicant draws attention to the two file notes of Adam Burton dated 15 December 2019[12] and 8 January 2020[13]. The contents of these file notes support the consistency of the applicant’s complaints as to his treatment by the respondent and correlate with the finding by Dr Kaplan that he is a credible witness. The email from Mark Moutsos to Adam Burton and Nathan Wall dated 10 March 2020[14] also corroborates the consistency of the applicant’s complaints as to his treatment, and his issues with co-employee Laisani.
[12] Application p 117.
[13] Application p 121.
[14] Application p 126.
The applicant notes his treatment by psychologist Breanna Georgiadis, whose reports are attached to the Application (undated and 27 January 2021[15]), and who treated him for high levels of anxiety, stress and depression, and who diagnosed him as suffering from intense anxiety in the context of complex trauma which stemmed from the experiences in the workplace. The applicant also complained to his general practitioner, Dr Nguyen, in respect of the abuse and ridicule he suffered at work.
[15] Application pp 58 and 59.
In conclusion the applicant submits that he raised issues with his managers over a period of time from at least December 2019 onwards, to the point where he went off work in August 2020. Dr Kaplan had the Procare factual investigation before him when he prepared his original report and explained his conclusion on the cause of the applicant’s injury in that report. The applicant’s injury is not wholly or predominantly caused by what occurred in August 2020. His injury was cause by his perception that he was sexually harassed by
co-employee Laisani (Rokotavaga) and then mistreated by his colleagues over a period of time. The applicant submits that the attempt by Dr Kaplan to remedy his conclusion in his supplementary report is not supported by any explanation as to why the doctor changed his opinion.

Respondent

The respondent submits that what was held in Hamad is that where there are multiple causes of injury, it is necessary to have a medical report that in fact attributes causation to one or more of those causes. In this case there are not multiple causes of the injury, and it is not necessary to have a medical report that deals with which of the causes that in fact result in the applicant remaining unfit for work.
The respondent submits that the applicant’s claim is that the essential cause of his injury is in respect of what he saw, heard and experienced in the workplace. There is a factual dispute as to whether what he complains of were actually real events in the workplace. There has been an investigation by Procare, which is not of the allegations made by the applicant but deals with what occurred when the applicant went off work at a particular time.
The respondent reviews the history of the applicant’s work with the respondent from the commencement thereof, noting that he was initially employed as a labourer, and in March 2020 offered the role of a maintenance assistant, responsible for cleaning the workshop, stripping machines and other ad hoc duties as required. The respondent submits that whilst not relying on this transfer of roles which occurred in March 2020, a transfer of roles within a workplace constitutes a “transfer” and provides the basis for a s 11A defence. The respondent relies on the decision of the Court of Appeal in Manly Pacific Hotel Pty Ltd v Doyle[16] in support of this submission. What occurred to the applicant following the meeting with Nathan Wall and Wayne Hanson on 20 August 2020, when he was returned to his previous role of labourer, was a transfer sufficient to enliven the s 11A defence.
[16] [1999] NSWCA 465 (Doyle).
The respondent notes that in respect of the applicant’s submission that a person he nominated as a witness to his complaint about the behaviour of Laisani to him, namely Naseem Polka, was not interviewed, Procare was instructed not to interview that witness. Rather it was instructed to rely on notes that were taken and the investigation findings of the allegations made by the applicant. The respondent submits that the sexual harassment allegations of the applicant were not substantiated on investigation, but what was substantiated was Laisani’s expectation that the applicant should do her work. Laisani was disciplined for this.
The respondent deals with the statement evidence of its witnesses including that of Nathan Wall, the respondent’s operations manager, and what he says about the role of maintenance assistant that was offered to the applicant in March 2020, and the competencies to be achieved in that role. The respondent also refers to the warnings and counselling given to the applicant in July, September and December 2019, and the allegations raised by Mr Kurido related to claimed sexual harassment.
The evidence of Nathan Wall in respect of the August 2020 incident, including the applicant’s refusal to take instructions from Cameron Thompson, is recounted. The respondent submits that this incident forms the basis of the respondent’s defence under s 11A with respect to discipline.
The respondent relies upon the statement evidence of Amanda Da-Pra, Cameron Thompson (unsigned), Wayne Hanson, and Michael Coleman (unsigned) in respect of the tasks that the applicant was asked to perform, and to which he took exception.
The respondent submits that the way in which the applicant was dealt with on 20 August 2020 at the meeting with Nathan Wall and Wayne Hanson, and the subsequent transfer of roles of the applicant dictated by Wayne Hanson, constitutes “discipline” for the purpose of
[17] (2002) 23 NSWCCR 339 (Kushwaha).
s 11A of the 1987 Act. This submission is in accordance with the definition of that term by Neilson CCJ in Kushwaha v Queanbeyan City Council[17]. The applicant was refusing to follow the directions of Cameron Thompson and was dealt with by Nathan Wall and Wayne Hanson at the meeting on 20 August 2021 and on the following day when he returned to work and was told of the transfer back to his former role. This conduct was reasonable in respect of discipline.
The respondent submits that it was what occurred on that day which caused the applicant to go off work and suffer the psychological injury and resulting incapacity for work of which he complains. In this regard the respondent relies on the contents of the Worker’s injury claim form signed by the applicant and dated 19 October 2020[18]. In that form the applicant states that he first noticed his injury/condition, psychological injury, on 20 August 2020 and reported it to his employer in 21 August 2020. The respondent does not rely on the events of 2019 and early 2020, referred to above at [26] as part of its s 11A defence, but relies on that material by way of background to what occurred between the applicant and the respondent’s employees and contractor (Cameron Thompson) on 20 August 2020.
[18] Application pp 11-17.
The respondent notes the treatment received from Ms Breanna Georgiadis, clinical psychologist, over the period from 26 August 2020 referred to in her reports, undated and 27 January 2021[19], noting that she certifies the applicant as having been unfit for work since 24 August 2020.
[19] Application pp 58 & 59.
The respondent also refers to the report of the treating general practitioner, Dr A Nguyen, dated 2 September 2020[20], and what is recorded therein as to the dismissal of the applicant on 20 August 2020 and the reason for such dismissal.
[20] Application p 61.
The respondent submits that, notwithstanding that Dr Kaplan does not in his report dated 21 December 2020 refer to actions with respect to transfer as the whole or predominant cause of the applicant’s injury, such action by the respondent on 21 August 2020 could still provide a basis for the s 11A defence relied upon. The transfer was part of the disciplinary process.
The respondent does not make any submissions in respect of the applicant’s incapacity as a result of injury and acknowledged pre-injury average weekly earnings (PIAWE) as $1,494.07, 80% of which is $1,195.26. Any award to which the applicant may be entitled would be pursuant to s 37 of the 1987 Act from 21 January 2021, the applicant having received weekly payments until 20 January 2021.

Applicant in response

The applicant submits that the clinical notes of Dr Nguyen corroborate his evidence of bullying and abuse at work, noting the report of Dr Nguyen to QBE dated 2 September 2020 referred to above at [32] and the doctor’s clinical notes[21]. On 25 October 2018 Mr Kurido complained to Dr Nguyen of being verbally and sexually harassed by a senior female staff at work[22] and what the doctor says at [9] of the report dated 2 September 2020. That is the applicant’s symptoms seem genuine and are consistent with the alleged abuses reported. The applicant’s complaints are also corroborated by the report of the treating psychologist, Breanna Georgiadis, dated 27 January 2021. The applicant submits that what occurred on 20 August 2020 was the culmination of a long period of humiliation at work.
[21] Application p 97.
[22] Application p 112.

The applicant submits that when Dr Kaplan prepared his initial report dated 9 December 2020 he had before him the Procare factual investigation which provided a basis for his opinion expressed in that report as to the causation of the applicant’s psychological injury. However, the applicant submits that the supplementary report dated 21 December 2020 does not provide a basis for the change in opinion in respect of causation of injury in accordance with the principles set out in Hancock v East Coast Timber Products Pty Ltd[23].

FINDINGS AND REASONS

[23] [2011] NSWCA 11; 80 NSWLR 43 (Hancock).

Injury

The respondent does not dispute that the applicant has suffered psychological injury, but submits, on the basis of the supplementary report of Dr Kaplan dated 21 December 2021, that it was predominantly caused by action taken by or on behalf of the respondent with respect to discipline. Although Dr Kaplan does not also mention transfer in that report, the respondent submits that, having regard to the whole of the evidence, the transfer of the applicant to his former role as a labourer ordered by Wayne Hanson when Mr Kurido returned to work on 21 August 2020 following the disciplinary meeting the previous day, was part of the disciplinary process.
The applicant submits that his psychological injury was not wholly or predominantly caused by the alleged disciplinary process which occurred on 20 and 21 August 2020, but that it resulted from a long period, commencing in 2018, of bullying, harassment including sexual harassment, ostracism, abuse and degrading and demeaning comments to which he was subjected by his supervisor and co-workers. What happened on 20 August 2020 was simply the culmination of what had occurred since 2018. The applicant therefore submits that the respondent’s defence under s 11A of the 1987 Act cannot succeed.
The applicant had been the subject of disciplinary notices issued by the respondent on 30 July 2019 (absenteeism), 26 September 2019 (misconduct – failure to improve attendance and abide by the conditions previously agreed to) and 8 November 2019 (in respect of duties at work resulting in loss of product). A written warning relating to his conduct was issued on 4 December 2019, and a file note prepared by Adam Burton on 5 December 2019 recording a discussion he had with Mr Kurido in the presence of Ian Wilson in respect of the disciplinary notices. The disciplinary notices and file note are attached to the Reply[24]. In the discussion with Adam Burton, Mr Kurido opened up about personal and work related matters, including:
(a)    perceived sexual harassment by “Epi”;
(b)    feeling being victimised due to his work ethics, being made fun of by co-workers, being made the butt of jokes and being called upon to do the hard work when other capable persons were present were present;
(c)    inappropriate workplace behaviour within his team with discriminatory remarks being made about him and his race, and reference to a You Tube video called “The Educated Monkey”;
(d)    sexual suggestions made to him by Lasani [sic, Laisani] that her daughter would be available to him;
(e)    feeling sick before work, and
(f)    struggling with being separated from his child in Melbourne and his mother who was overseas.
[24] Reply pp 43-50.
There is a further file note prepared by Adam Burton dated 8 January 2020[25] in respect of the applicant’s failure to return to work on Monday 6 and Tuesday 7 January 2020 after the year end shut down. Adam Burton discussed this matter with Mr Kurido on his return to work on 8 January 2020 when a doctor’s certificate was produced certifying unfitness for duty on 6 and 7 January. Because of concerns about his fitness for work on that day, he was sent home. The file note concluded with the note that the applicant was currently on a written warning for absenteeism.
[25] Reply p 52.
The next relevant item of evidence produced by the respondent is an email dated 10 March 2020 from Mark Moutsos, the production manager, to Adam Burton and Nathan Wall concerning the “suspension of Laisani and Idris tonight”. That email records discussions which Mark Moutsos had with both the applicant and Laisani, and documents differences and complaints alleged by one against the other, in respect of occurrences at work during the shifts on which they were both engaged. The applicant complains about Laisani always picking on him and gives as the reason for this that:
“…because when I first started here she told me that I can have her daughter but before I have her daughter I will have to come through-the back door and try her first and if you're good enough I will give you to my daughter".

This caused Laisani to dissolve into tears and claim that Idris was lying. A number of other issues were discussed at length. After a call from Mr Moutsos to Adam Burton, it was decided that both the applicant and Laisani would be suspended. Mark Moutsos drove the applicant home at 10.15 pm and returned to the respondent’s premises to check on Laisani.

The respondent investigated the applicant’s claims of being bullied and harassed, including being sexually harassed. Nathan Wall, the respondent’s operations manager, was engaged to carry out the investigation on 10 March 2020 and produced a report dated 1 April 2020[26]. Pending the outcome of the investigation Laisani Rokotavaga was suspended on 10 March 2020. The outcome of the investigation is set out in Appendix 1 of the Report. The allegations of bullying and harassment and sexual harassment were found to be unsubstantiated. The documents referred to in Appendices 2 (correspondence), 3 (discussion records) and 4 (DuluxGroup Company Policies) are not in evidence. Notwithstanding the findings, the Summary of Findings includes the following:
“In summary, this investigation has found being Bullied/ Harassed and Sexually Harassed to be unsubstantiated . As such, disciplinary action is recommended to hold a verbal counselling session with Laisani Rokotavaga in line the current Enterprise Agreement.”
Reference is then made to contents of Appendix 1.
[26] Reply p 92.
On 7 April 2020 Adam Burton wrote to the applicant advising him of a change of his employment conditions as follows:
“Further to our discussion, I confirm in writing the change of reporting line for you. Effective 30 March 2020 your position will report to Wayne Hanson.
We confirm this change in line manager in addition to the shift change from Afternoon shift to Day shift. This change comes with the removal of your afternoon shift allowance.
This change will be monitored and reviewed in 6 months. The change will also be subject to flexibility across shifts if required.
All other terms and conditions of your employment remain unchanged.
Please contact me should you have any questions.”
This move to day shift was in accordance with the applicant’s written request dated 30 March 2020 which included an acknowledgement that he would lose the shift allowance[27].
[27] Application p 62.
Nathan Wall in his statement dated 18 September 2020[28] confirms that the applicant was offered the role on maintenance assistant, effective 30 March 2020 on a six months’ probation. He was to report to the maintenance manager, Wayne Hanson from that time.
[28] Reply p 21.
Mr Wall says that the applicant commenced a two level programme which detailed certain competencies including assisting fitters, stripping equipment (mechanical parts), monitoring equipment, problem solving issues with machinery and cleaning and rebuilding filtration systems among other tasks.
In his statement dated 23 September 2020[29] Wayne Hanson says that he did not really know Mr Kurido prior to him reporting in the workshop from March 2020. While reporting, he was a workshop trades assistant (TA) responsible for learning the disciplines of cleaning the workshop. He did a first class job of cleaning, and was also responsible for stripping machines, which is the same task that fitters do. The plan was to assess the applicant’s mechanical ability until Christmas 2000, such as learning basic hand tools, until such time as he would be moved to an adult apprenticeship. Mr Hanson does say that as the only TA in the workshop, he did more cleaning than his counterparts.
[29] Reply p 107.
There is some corroboration for the applicant’s complaints of bullying and harassment in the workplace from 2018 onwards. On 26 October 2018 Mr Kurido complained to his general practitioner, Dr Albert Nguyen, of “…being verbally/sexually harasses [sic] by a senior female staff at work…Stress ++…”[30]. In the file note of Adam Burton dated 5 December 2020 referred to above at [39], complaints of sexual harassment, victimisation and inappropriate workplace behaviour are recorded.
[30] Application p 112.
Nathan Wall in his Confidential Investigation Report dated 1 April 2020 referred to above at [42] found the applicant’s allegations of bullying, harassment and sexual harassment to be unsubstantiated. Nevertheless, if the applicant’s evidence is accepted that there was conduct in the workplace that he perceived to be bullying, harassment or sexual harassment, creating a hostile working environment, that is capable of providing grounds for a finding that psychological injury results from such conduct.
The applicant complained to Dr Nguyen on 3 July 2020 that he was abused and ridiculed at work by his supervisor and workmates, that he was upset but not depressed[31]. The next entry in Dr Nguyen’s clinical notes is dated 27 August 2020 where the following is recorded:
“Allegdly abused by the supervisor. Multiple episodes previously. A lot more severe recently and infront of many other colleagues
Patietn felt disorientated and felt off the stair when he was allegdly brutally discharge by the supervisor
Injured right ankle
Incident occured last Thursday”[32] [sic]
[31] Application p 106.
[32] Application p 105.

That attendance followed the events of 20 and 21 August 2020 to which further reference will be made hereunder.
In his report dated 9 December 2020 when asked if he agreed, having regard to the material contained in the factual investigation report (that is the Procare report), that the applicant’s alleged psychological injury was “wholly or predominantly” caused by action or action proposed to be taken by or on behalf of Dulux with respect to either “discipline” or “transfer” of his role, Dr Kaplan replied:
“Mr Kuridu's [sic] account is credible and has internal consistency. It is difficult to see any other cause for his injury. On that basis, it is not possible to show that his condition arises wholly or predominantly from action by his employers with respect to discipline or transfer.
This finding is based on the examination today; additional documents could lead lo
this being changed.”

Dr Kaplan changed his opinion in his supplementary report dated 21 December 2020, at least in respect of the matter of actions in respect of discipline being the predominant cause of the applicant’s injury. This was after he received the Barker Henley letter requesting a supplementary report.
Corroboration of the applicant’s evidence is not a requirement before it can be accepted. In Department of Home Ageing, Disability and Home Care v Findlay[33], Roche DP said at [37]:
“Nothing in Ireland suggests or implies that a worker cannot succeed without independent contemporaneous evidence to corroborate his or her complaints. In civil law, corroboration is not a legal requirement; a judge’s (and arbitrator’s) task is to decide cases on an assessment of the whole of the evidence (Chanaa v Zarour [2011] NSWCA 199 at [86]). While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a ‘requirement’ that must be satisfied before an arbitrator can feel actual persuasion about the existence of a fact in issue.”
The reference to Ireland is to The Department of Education and Training v Ireland[34] .
[33] [2011] NSWWCCPD 65.
[34] [2008] NSWWCCPD 134.
In Attorney General’s Department v K[35] Acting President Roche at [52], after a review of the authorities, set out the principles in respect of the causation of psychological injury in the workplace as follows (authorities omitted):
[35] [2010] NSWWCCPD 76 (A G v K).
“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;
(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;
(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;
(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;
(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’, 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.’”

At [54] the Acting President said:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’, as Ms Smuts has submitted.”
In Hamad Deputy President Michael Snell observed at [78]:
“The Arbitrator at [62] said that ‘an event, or a series of events having a cumulative effect, can be causative of a psychiatric condition which does not become manifest until a later time’. This is frequently so.”
In my view there is sufficient evidence to find that the applicant experienced events occurring in the workplace from 2018 onwards that he perceived created an offensive or hostile working environment. Mr Kurido:
(a)    complained to Dr Nguyen on 26 October 2018 of being verbally and sexually harassed by a senior female staff member at work. This may have been either “Epi” or Laisani, about whom Mr Kurido complained to Adam Burton on 5 December 2019 (see [39] above);
(b)    also complained to Adam Burton:
(i)of being victimised due to his work ethics and being made fun of by co-workers, and
(ii)of being the subject of inappropriate workplace behaviour within his team with discriminatory remarks being made about him and his race, and reference to a You Tube video called “The Educated Monkey”;
(c)    complained to Mark Moutsos on or about 10 March 2020 about always being picked on by Laisani and about comments of a sexual nature made by her concerning access to her daughter;
(d)    complained again to Dr Nguyen on 3 July 2020 of being abused and ridiculed at work by a supervisor and workmates, and
(e)    referred to multiple previous episodes of abuse by his supervisor in his consultation with Dr Nguyen on 27 August 2020 after the meeting with Nathan Wall and Wayne Hanson on 20 August 2020.

In his report dated 9 December 2020 Dr Kaplan found the applicant’s account to be credible and to have internal consistency. He said that it was difficult to see any other cause of injury, and on that basis, it was not possible to show that Mr Kurido’s condition arose wholly or predominantly from action by his employers with respect to discipline or transfer.
Having regard to the evidence I have summarised above, I find that the applicant’s account to be credible and to have internal consistency. This finding is notwithstanding the finding by Nathan Wall in his “Findings of Investigation” report dated 1 April 2020 that the applicant’s claims of bullying and harassment and sexual harassment were unsubstantiated. It was the applicant’s perception of the events that he experienced in the workplace the subject of the investigation report that had the potential to cause the psychological injury suffered by
Mr Kurido.

Section 11A defence

In Northern NSW Local Health District v Heggie[36] at [59], Sackville AJA set out the following propositions consistent with the statutory language and the authorities that have construed
s 11A(1) of the 1987 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.” (Emphasis in original)
[36] [2013] NSWCA 255; (2013) 12 DDCR 95 (Heggie).

Consideration must now be given to this defence relied upon by the respondent. It urges on the Commission that it was the events of 20 and 21 August 2020, at least with respect to disciplinary action against the applicant, that were the predominant cause of the psychological injury sustained by him. It relies on the opinion of Dr Kaplan in his supplementary report dated 21 December 2020.
The history provided to Dr Kaplan in the Barker Henley letter dated 18 December 2020 is as follows:
(a)    That although the applicant had made complaints in March 2020 about being harassed by a co-worker, Ms Rokotovaga, those complaints have been investigated and found to be unsubstantiated;
(b)    In any event, the applicant did not suffer any incapacity for work at the time he complained of being harassed by Ms Rokotovaga;
(c)    The applicant was originally employed by the respondent in the role of a labourer on 14 May 2018. In 2020 he was offered the role of a maintenance trades assistant with effect from 30 March 2020. There was a six month probationary period attached to that role. It was effectively an apprenticeship during which the applicant was provided with an opportunity to attend various training courses and was otherwise trained on the job;
(d)    As a trades assistant he was obliged to follow instructions from tradesmen on site in terms of his work duties;
(e)    On 20 August 2020 the applicant refused to follow instructions from one particular tradesman, Mr Cameron Thompson, claiming, amongst other things, that he believed that his own knowledge of the requisite work tasks was superior to that of Mr Thompson;
(f)    The plaintiff’s [sic] refusal to take instructions from the tradesman,
Mr Thompson, was brought to the attention of operations manager, Mr Nathan Wall. A meeting then took place between the applicant, Mr Wall, and the maintenance manager, Mr Wayne Hanson;
(g)    Mr Hanson denies that he swore at the applicant during the meeting which took place on 20 August 2020. Other witnesses present including Mr Michael Coleman and Mr George Cahuna also confirm that Mr Hanson did not swear either at or in the presence of the applicant during the course of the meeting which took place. On the other hand, the applicant himself swore and used offensive language during that meeting;
(h)    During the course of the meeting which took place on 20 August 2020 the applicant was reminded of his obligations, as a trades assistant, to follow directions from tradesmen in the performance of his duties;
(i)    The applicant was not dismissed from his employment either during the course of the meeting which took place on 20 August 2020 or at any other time. He was still within the probationary period put in place for the role of maintenance trades assistant at that time;
(j)    When he arrived for work the next day he was advised that he would no longer be working as a maintenance trades assistant and that he was to return to his previous role. He was not told that this transfer would be permanent. It was only at this point that he decided to cease work. He later sought medical attention from his local doctor, Dr Nguyen, on 27 August 2020;
(k)    Prior to the events which occurred on 20 August 2020 the applicant had been issued with warnings and had received counselling in relation to work attendance and performance issues. In particular, on 4 December 2019 he had been asked to attend a formal discussion in relation to his ongoing poor attendance at work and also his attitude. It was observed that he tended to have an “air of arrogance” towards others. He was issued with a written warning at that time.

Dr Kaplan responded with his opinion on the causation of the applicant’s psychological injury as follows:
“Yes, his psychological injury was predominantly caused by action
taken or proposed to be taken by or on behalf of the respondent
employer, Dulux, with respect to ‘discipline’ of his role.
I point out that Mr Kuridu [sic] also made allegations of sexual harassment and I have no way of determining which account about this is correct.”

The applicant submits that this opinion does not satisfy what was said by the Court of Appeal in Hancock. At [82]-[83] the Court said this:
“82 Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report . In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83 In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with
Dr Summersell's evidence in this case, so that is not the relevant error.”

The reference to Makita is to Makita (Aust) Pty Ltd v Sproules[37]

[37] (2001) 52 NSWLR 705.

The history of events between March and August 2020 set out in the Barker Henley letter is largely uncontroversial, although there are differences in the evidence between the various witnesses cited in respect of the use of offensive language and swearing. The applicant in his first statement says that Wayne Hanson often told him to “shut the f*ck up,” and the implication in his evidence is that this language was not always directed to him (see [14] of statement dated 9 September 2020 “…and colleagues walk away with their heads down.”) The applicant says that this term was also used by Wayne Hanson on 20 August 2020 when he was asked to clean a different area of the workshop, and thereafter when he was called to Nathan Walls’ office. Mr Kurido says that Nathan Wall told him “I’m not your f*cking boss” when he referred to him as such. These are examples of strong language alleged by the applicant to have been used against him.
Wayne Hanson in his signed statement dated 23 September 2020 denies using the language alleged against him by the applicant and does not recall Nathan Wall using such language. Nathan Wall, in his signed statement dated 16 September 2020, denies speaking to the applicant in the office meeting of 20 August 2020 in the way alleged by the applicant, but says that he did ask Mr Kurido who his boss was. He does say in that statement “We do swear as this is a factory environment, however I would not swear in the context of a formal discussion.”
There is an unsigned statement from Cameron Thompson[38], and unsigned “Witness – Notes of interview” dated 2 September 2020 documenting discussions conducted by an unknown investigator with Michael Coleman and George Cahuna[39], containing denials by both that Wayne swore at any point. Both Michael Thompson and George Cahuna allege that the applicant swore on 20 August 2020 when speaking to or about Cameron Thompson. George Cahuna admits swearing, in a joking fashion, when talking about the retrieval of gloves. Cameron Thompson alleges that the applicant swore at him on a number of occasions leading up to the applicant being told by Wayne Hanson to go to Nathan Wall’s office.
[38] Reply pp 33.
[39] Reply pp 111 and 113.
In his second statement dated 31 March 2021[40] the applicant gives evidence about becoming upset about the way in which he was spoken to by Wayne Hanson in the course of his work. He says at [15] that:
“…I felt really upset, anxious and nervous because of the constant name calling and constant bullying that I experienced. There were days when would come home from work and I felt heart would beat quickly. As I felt I had gotten through another day. I was also struggling to go to sleep as well.”

This evidence is corroborated by the entries in the clinical notes of Dr Nguyen dated 3 July 2020 and 27 August 2020 referred to above at [57(d) and (e)], noting that it was only after March 2020 that Mr Kurido had any interaction with Wayne Hanson when he started his new role.
[40] Application p 7.
In the final analysis and having regard to the conflicting accounts as to the use of inappropriate language, including the unverified evidence of Cameron Thompson, Michael Coleman and George Cahuna and that fact that the events in question took place in a factory environment, I find that such language was probably used by all parties, including the applicant, to the events of 20 August 2020, and also not infrequently in the day-to-day activities of the workers in the factory. I do however accept the applicant’s evidence as to the name calling, ridiculing and abuse to which he was subject in the course of his work in the factory, culminating in his refusal to take instructions from Cameron Thompson on 20 August 2020. That may have been an unreasonable refusal having regard to the respective positions of Cameron Thompson and Mr Kurido in the factory, but one which was perhaps understandable having regard to Mr Kurido’s perception as to how he had been treated by some of his co-workers. His evidence has a ring of truth about it.
The respondent relies on the contents of the Worker’s injury claim form dated 19 October 2020 referred to in [30] above in support of its submission that the applicant did not suffer injury until 20 August 2020, when he was sent home from work and told on the following day that he was to be sent back to his former position in the factory. That is the date from which the respondent submits that Mr Kurido suffered incapacity for work. However, as noted in Hamad referred to above at [56], the events of 20 August 2020 can be seen as the culmination of a series of events that took place over the course of the applicant’s employment with the respondent.
The problem with Dr Kaplan’s opinion in his supplementary report dated 21 December 2020 is that, in response to the Barker Henley letter, it focusses on the events leading up to and on 20 August 2020. Dr Kaplan does not explain why there has been such a dramatic change in his opinion from that expressed in his earlier report, when he found that Mr Kurido was anxious, distressed, depressed introspective and had difficulty sleeping. He diagnosed adjustment disorder with depression and anxiety. Having regard to the material contained in the factual investigation report, which included the statements signed and unsigned of Wayne Hanson, Nathan Wall, Amanda Da-Pa, Cameron Thompson, Michael Coleman and George Cahuna, Dr Kaplan said that it was not possible to show that the applicant’s condition arose wholly or predominantly from action by his employers with respect to discipline or transfer. In my view, for this reason, the opinion of Dr Kaplan in his report dated 21 December 2020 cannot be accepted. I do accept his opinion expressed in his earlier report.
I further find that, in accordance with what was said in Hamad at [88], that there is an absence of medical evidence to support the submission that the applicant’s psychological injury was caused wholly or predominantly with action taken or proposed to be taken by the respondent with respect to transfer. The meeting on 20 August 2020 was with respect to discipline, and the respondent relies on that issue with the support of the report of Dr Kaplan dated 21 December 2020. Mr Kurido was not informed of his transfer to his former role until the following day.
I find that the respondent has failed to discharge the onus on it to show that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by the respondent with respect to discipline or transfer. The injury arose out of or in the course of the applicant’s employment as a result of the treatment to which he was subjected in the course of that employment.
Having regard to this finding it is not necessary to make a finding as to whether the respondent’s action taken on 20 August 2020 with respect to discipline was reasonable.

Incapacity

The respondent does not put in issue the applicant’s capacity for work, noting Dr Kaplan’s opinion that he cannot return to work with the respondent, and that he would require a work hardening period before returning to full hours. Dr Kaplan found on 24 November 2020, the date of his examination of the applicant prior to preparation of his report dated 9 December 2020, that Mr Kurido’s present incapacity arose from his employment with the respondent.
Breanna Georgiadis in her reports found that the applicant had been unfit for work since 24 August 2020, noting that the first date on which the applicant saw her was 26 August 2020, and as at 27 January 2021 he did not have the capacity to return to work in his previous workplace. She believes that over time, Mr Kurido will have the capacity to return to similar employment.
The parties agree that the applicant’s PIAWE are $1,494.07, 80% of which is $1,195.26. The applicant was paid weekly benefits until 20 January 2021. Any award in his favour will be pursuant to s 37 of the 1987 Act.
There will be an award in the applicant’s favour for the weekly benefits claimed by him from 21 January 2021. The applicant is also entitled to an award in his favour for medical and related expenses in respect of the psychological injury pursuant to s 60 of the 1987 Act.

Injury to right ankle

In the s 78 notice issued by QBE on behalf of icare, the respondent’s insurer, on 18 December 2020[41] the respondent denied liability for the claim in relation to the applicant’s alleged injury to his right ankle on 20 August 2020. At that time, liability continued to remain accepted for the separate allegation of psychological injury. Liability for the “alleged primary psychological injury” was denied by the respondent in the s 78 notice dated 31 December 2020[42]. At the arbitration hearing the applicant did not pursue the claim in the Application claim for weekly benefits or medical expenses as a result of this alleged right ankle injury. No submissions were received from the applicant in respect of such injury.
[41] Application p 41.
[42] Reply p 141.
The applicant was assessed by Dr Raymond Wallace, orthopaedic surgeon, on 10 November 2020 who produced a report dated 13 November 2020[43]. His diagnosis was that Mr Kurido suffered a minor soft tissue injury to his right ankle that had by then resolved. He did not require any further treatment for the work-related condition in the right ankle and was currently then fit to resume his pre-injury duties at work as a full-time apprentice maintenance fitter without restriction.
[43] Reply p 134.
In his statement dated 9 September 2020 the applicant says that as he was leaving Nathan’s office on 20 August 2020, he was so upset, lost his balance and twisted his right ankle as he was walking down the stairs from the office. He does not know if there were any witnesses.
In his unsigned statement taken 15 September 2020 Cameron Thompson says that he saw Mr Kurido walking down the walkway of the factory at a time which appears to be after the meeting between the applicant, Wayne Hanson and Nathan Wall in Nathan Wall’s office. The applicant had his backpack on, and he did not see him again. He goes on to say:
“Idris did not appear to be walking with a limp and he was walking at a fast pace to leave. I did not see Idris walk down the stairs from Nathan’s office as the office is directly above where I was.”
The applicant complained to Dr Nguyen on 27 August 2020 that he had injured his right
ankle on 20 August 2020.

At the arbitration hearing on 1 June and 13 July 2021 the respondent formally put the claim in respect of injury to the right ankle in issue but made no further submissions thereon.
I find that the applicant suffered a minor soft tissue injury to his right ankle on 20 August 2020 that resolved by 10 November 2020. There will be an award in favour of the respondent in respect of the claim for weekly benefits and s 60 expenses as a result of injury to the right ankle on 20 August 2020.

SUMMARY

The applicant sustained primary psychological injury arising out of or in the course of his employment with the respondent, deemed to have occurred on 20 August 2020.
The injury was not caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or transfer.
The applicant has had no current work capacity since 21 January 2021.
The applicant’s PIAWE are $1,494.07.
The respondent is to pay the applicant $1,195.26 from 21 January 2021 to date and continuing pursuant to s 37 of the 1987 Act.
The respondent is to pay the applicant’s costs and expenses in respect of the primary psychological injury pursuant to s 60 of the 1987 Act.
The applicant suffered a minor soft tissue injury to his right ankle on 20 August 2020 which had resolved by 10 November 2020.
Award for the respondent in respect of the applicant’s claim for weekly benefits and s 60 expenses as a result of such injury.

[2021] NSWPIC 255

20 July 2021