Lee v Toll Global Express Parcels

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lee v Toll Global Express Parcels [2022] NSWPIC 192
APPLICANT:	Frazer Lee
RESPONDENT:	Toll Global Express Parcels
MEMBER:	Rachel Homan
DATE OF DECISION:	2 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation in respect of psychological injury due to “bullying and harassment”; factual dispute as to alleged workplace events; whether adequate history provided to treating practitioners and applicant’s medicolegal expert; contemporaneous evidence of concurrent personal stressors, performance management action and possible workplace restructuring inadequately addressed in applicant’s evidence; lack of particularity as to events relied upon; Held- weighing the evidence, the applicant failed to discharge his onus of establishing that employment was the main contributing factor or a substantial contributing factor to the injury; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Mr Frazer Lee (the applicant) was employed by Toll Global Express Parcels (the respondent) as a truck driver. The applicant claims that he sustained a psychological injury due to instances of bullying and harassment in the course of his employment with the respondent.
Liability for the alleged 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 October 2021. That decision was maintained following internal review pursuant to s 287A of the 1998 Act on 19 November 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 24 November 2021. The applicant seeks weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 12 November 2021, on an ongoing basis.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 1 March 2022. The applicant was represented by Mr Craig Tanner of counsel, instructed by Mr Andrew Tohme. The respondent was represented by Mr Brendan Jones of counsel, instructed by Ms Mihaela Mitreva. A representative from the insurer was also present.
During the conciliation conference, the applicant sought to amend the ARD to include a claim for s 60 expenses by way of a general order. That application was opposed although it was agreed that a determination favourable to the applicant would entitle him to compensation in accordance with the terms of s 60 of the 1987 Act.
Agreement was reached that the applicant’s pre-injury average weekly earnings (PIAWE) figure was $1,390.11.
Determinations were made with regard to a number of late documents sought to be admitted by the parties including a desktop search and surveillance report lodged by the respondent. Ultimately, the admission of the late documents was not opposed on the basis that leave was granted to the applicant to adduce oral evidence in response to the late material. Leave was also granted to the parties to serve and lodge supplementary reports from their medical experts addressing the late material together with any supplementary written submissions. The parties were advised of the Commission’s intention to determine the dispute on the material before it at the conclusion of the timetable for written submissions.
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.

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 11A(3) of the 1987 Act, including whether employment was the main contributing factor to the injury for the purposes of ss 4(b)(i) and/or (ii);
(b)    whether any 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 performance appraisal, discipline and/or retrenchment pursuant to s 11A(1) of the 1987 Act; and
(c)    the extent and quantification of incapacity resulting from injury.

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)    document attached to the Application to Admit Late Documents lodged by the applicant on 29 November 2021;
(d)    documents attached to the Application to Admit Late Documents lodged by the applicant on 4 January 2022;
(e)    documents attached to the Application to Admit Late Documents lodged by the respondent on 8 February 2022;
(f)    wages schedule, dated 21 February 2022, lodged by the respondent on 1 March 2022;
(g)    documents attached to the Application to Admit Late Documents lodged by the respondent on 1 March 2022.
(h)    supplementary report Dr Kaplan, dated 6 March 2022, lodged by the respondent on 7 March 2022;
(i)    supplementary report Dr Khan, dated 1 March 2022, lodged by the applicant on 8 March 2022;
(j)    written submissions lodged by the applicant on 16 March 2022; and
(k)    written submissions lodged by the respondent on 23 March 2022.
Oral evidence was given at the arbitration hearing, under affirmation, by the applicant and his partner, Ms Taegen Baird.

Applicant’s evidence

Written evidence

In the ARD, the applicant described the injury as:
“… a psychological injury from instances of bullying and harassment. The Applicant psychologically decompensated and has been unfit for employment since his deemed date of injury. We refer you to the Applicant's statement for further details.”
Attached to the ARD was a statement signed by the applicant on 27 April 2021. The applicant stated that he was currently employed as a pick up delivery driver. The applicant had previously been employed as a dockhand by the respondent. Prior to commencing employment with the respondent, the applicant worked for Patrick Autocare taking delivery of cars coming off the wharf at Port Kembla.
The applicant’s duties included loading a truck with parcels to be delivered, delivering those items and collecting pickups to be taken back to the depot, then unloading the truck.
The applicant’s supervisor was Denis Tanner. The applicant recalled that another worker had asked the manager, Graham Perkiss to talk to Mr Tanner about the way he talked to people. Mr Perkiss responded that “some people are just like that, old school” but nothing was done.
The applicant said that in carrying out his duties, Mr Tanner and Mr Perkiss would push him to carry items up to 80 kg. On one occasion there was a whiteboard which was 2 m long and had been marked “team lift”. The applicant told Mr Tanner that he would not take it as it was too hard to carry on his own. The next day, Mr Perkiss instructed the applicant to take it. The applicant said that unless he had someone help him load the item, he would not take it.
The applicant said there were a lot of toolbox meetings about the safe performance of tasks but then the rules did not apply. After such meetings, management would tell the workers to forget what they had just been told and just lift the boxes.
The applicant said he was aware he could ask for assistance from other employees but that did not guarantee that assistance would be provided. The applicant referred to a fellow worker injuring his shoulder when he lifted a car motor into his truck. The co-worker had asked for assistance but was told to just put it in the truck.
The applicant said he would normally wear personal protective equipment at work consisting of hi viz shirts and safety boots.
The applicant said Mr Tanner and Mr Perkiss would talk down to him. They had said to the applicant on numerous occasions that his work was not good enough. They expected the drivers to drive like they were driving vans rather than trucks. Neither Mr Tanner nor
Mr Perkiss had a truck license and had never worked out on the road doing deliveries. They did not understand what it was like to drive a truck. The applicant pushed himself nearly every day but kept being told that if he “pulled his finger out” he could get the job done better.
The applicant said that Mr Perkiss called him a name at one point. The applicant could not recall the name but it was offensive. Nearly everything Mr Perkiss said to the applicant was offensive. The applicant’s partner was a correctional officer and Mr Perkiss once said to him that only a correctional officer would go out with him. The applicant said that events such as these happened at least on a weekly basis.
The applicant said that on about five occasions Mr Tanner had made him unload his truck after it had been loaded because another truck had broken down. The applicant was instructed to give his truck to the driver whose truck had broken down, instead of another empty truck being given to the other driver.
The applicant said that the previous year there had been a discussion about the company being finished and workers being made redundant. The applicant had three kids to look after and was wondering if he was going to have a job.
The applicant said that Mr Tanner picked on the applicant and the other two “brown guys”. The applicant said Mr Tanner targeted his brother and another bloke whom he called “a marshmallow”.
The applicant said that over the last month he had not been able to think properly. The applicant first consulted Dr Chahoud in November 2020 and felt he could speak to him about his problems. The applicant spoke to Dr Chahoud about his problems at work. The applicant had feelings of anxiety and depression and symptoms of diarrhoea. The applicant had been prescribed medication and was given a certificate of capacity stating the applicant had no capacity to work at all.
The applicant was referred to a psychologist, whom he had seen about three or four times. The applicant had also been referred to a psychiatrist at Wollongong.
The applicant said he had never suffered any similar condition prior to this happening.
The applicant said that he was not sleeping right and finding it harder to get out of bed. The applicant was getting very angry and couldn’t talk to his partner. The applicant was sometimes forgetful.

Oral evidence

The applicant gave oral evidence under examination in chief that he had not worked at any time since ceasing work for the respondent.
The applicant was referred to a surveillance report obtained by the respondent dated 23 February 2022 and in particular a passage in the report indicating that he was seen departing his house wearing an orange hi viz vest on 17 February 2022 at 5:18am. The applicant denied that the person seen was him. The applicant said that his partner might get up at that time but there was no way he would be getting out of bed at that time. The applicant said he had to take the children to school and he had no reason to be awake at that time of morning. The applicant said he could not see himself in the picture attached to the surveillance report. The applicant denied that he owned an orange hi viz vest.
The applicant gave evidence that his partner, Ms Baird, would sometimes get up early to perform her shifts for the Department of Corrections. The applicant said he and his partner both used both of their vehicles.
The applicant was referred to number of other photographs attached to the surveillance report and described them as showing him or members of his family driving to locations in his local area. The applicant confirmed that a photograph on 22 February 2022 depicted him entering a barber shop owned by Ms Baird. The applicant confirmed that his partner worked for the Department of Corrections as well as in her barber business.
Photographs taken later on the same date showed the applicant and members of his family including his mother, siblings and their partners attending Wollongong Collegian’s Rugby Football Club. The club was 15 to 20 minutes from the applicant’s home.
With regard to the desktop surveillance report, the applicant confirmed that deposits into his bank account from Sandy Cassidy, Alex Cassidy and Ben Lee were made by his mother, sister and brother respectively. The applicant confirmed that Kosa Brothers was his partner’s barber shop. The applicant confirmed that Kita Bros was a business owned by his uncle’s partner, Priscilla Ulukita. The applicant gave evidence that he received money from his family, including Ms Ulukita to assist with his bills and living expenses as he had no money coming in. Asked whether the payments were for work, the applicant responded that he was not working for any company and was in debt due to borrowing money to survive.
The applicant was referred to various items in his bank statements and gave evidence that on occasions he went to establishments including McDonald’s to get dinner for his children. The applicant said sometimes he could not get up to prepare meals for his children due to his injury.
Under cross-examination, the applicant confirmed his address. The only adults residing at that address were the applicant and his partner, Ms Baird.
The applicant confirmed that he did wear hi viz clothing whilst employed by the respondent. The applicant agreed that some days this would include a hi viz vest. The applicant confirmed that his partner wore a uniform for her work as a corrections officer but he had never seen her wear a hi viz vest as part of that uniform..
The applicant denied that he still had a hi viz vest from the time of his employment with the respondent. The applicant gave evidence that he had gotten rid of all of his Toll uniforms in around June 2021. Asked why, the applicant said he had stopped work and had taken a redundancy and so there was no need for him to keep any Toll uniform. The applicant said he had gotten rid of his hi viz vest two years earlier whilst he was still working for Toll, in mid-2020 because the vests generated heat and he didn’t like wearing them.
When it was noted that mid-2020 would have been in the colder months in Sydney or Wollongong, the applicant confirmed that the vests were too hot for him. The applicant said he suffered from eczema and his body was constantly hot. The applicant denied that he had to wear a hi viz vest for safety reasons.
The applicant said he did not know who was depicted in the surveillance wearing an orange hi viz vest and denied that it was him or his partner.

Taegen Baird

Ms Baird confirmed that she had resided with the applicant for approximately three years.
Ms Baird confirmed that she worked in two jobs, as a hairdresser and as a corrections officer. Asked how the family was coping financially, Ms Baird said they were struggling. They were behind on bills. Although rent was paid, food was tight. Ms Baird confirmed that the family was receiving support from family members including payments from Priscilla Ulukita, the applicant’s auntie. Asked why Ms Ulukita was making payments, Ms Baird said it was most likely to help them.
Asked whether the applicant owned a hi viz vest, Ms Baird responded “no”. Ms Baird denied ever having seen a hi viz vest in her home. Ms Baird said she did not believe that the person seen leaving their address at 5:18am on 17 February 2022 was the applicant. Ms Baird said the applicant struggled to wake up at 8am to get the kids ready for school.
Under cross-examination, Ms Baird said that she had seen the applicant leave for work whilst employed by the respondent wearing work T-shirts and grey pants. Ms Baird denied ever having seen the applicant wear a hi viz vest during their relationship although she conceded that he might have worn one previously. Ms Baird said she would be aware if the applicant had a hi viz vest as she did the laundry.
Ms Baird confirmed that she and the applicant were the only adults who resided at their address. Ms Baird said that the person seen leaving their address on 17 February 2022 wouldn’t be anyone other than herself.
Ms Baird said she did sometimes see the applicant during the day. Ms Baird denied that the applicant would help at her salon, saying he was not qualified to do so. The applicant might sometimes drop off lunch. Referred to a photograph of the applicant on 22 February 2022 at 11:34am, Ms Baird said she would have asked the applicant to bring in the barber flag so they could have lunch together. Ms Baird agreed that the applicant might do basic things for her if she asked but said the business was new and not overly busy.
Ms Baird said that generally speaking, the applicant would be present at home when she finished work.

Fiti Apulu

The applicant relies on a written statement prepared by Mr Fiti Apulu, dated 24 November 2021.
Mr Apulu said he was currently off work on workers compensation as a result of a physical injury. Mr Apulu was previously a truck driver and reported to Mr Tanner. Mr Apulu worked with the applicant a lot and their trucks were next to each other.
Mr Apulu said that on many occasions he and the applicant would report to Mr Tanner that they could not take heavy objects as they required a two man lift. Mr Tanner would constantly tell them that if they didn’t do the run he would find someone else to do the runs instead.
Mr Tanner had no regard for their safety and well-being and just wanted jobs done.
Mr Apulu recalled that in relation to some training that had been planned, the applicant was willing to do the training but was having issues with his kids and needed an appropriate time to attend the training.
Mr Apulu denied that Mr Tanner did as much as possible to help the applicant. Mr Apulu said he constantly witnessed bullying and verbal threats. Mr Tanner constantly threatened people with their jobs and constantly forced them to take pallets that were oversized and inappropriate for their trucks. If he or the applicant informed Mr Tanner that they required help he would say that they should just get up earlier and start work earlier to fit all the runs in.
If the applicant’s truck broke down, he would be told to unload his trucks and reload an inferior truck to complete the runs. These trucks had been labelled inappropriate for road use but were suddenly okay to use when a truck broke down.
Mr Apulu said that Mr Perkiss had called him a “marshmallow” and “refrigerator”. This was said to be an example of Mr Perkiss’ and Mr Tanner’s attitudes.
Mr Apulu said Mr Perkiss would constantly go up to the applicant questioning him as to why runs weren’t fully completed. A poster was on the wall for everyone to see how many items were delivered and how many stops were made in one day. If the targets were not reached, Mr Perkiss would harass them the next day.
The drivers’ hours were cut just over a year earlier but the number of stops would remain the same.
Dock hands only provided assistance to people with injuries or people on light duties.
Mr Apulu said the applicant told him that the treatment he was receiving from Mr Tanner and Mr Perkiss was taking a mental toll on him. Sometimes the applicant would be so depressed that he and the applicant’s brother Ben would have to calm him down. The treatment he received made him want to yell and scream at them. The applicant was the smallest built person and it was easy for Mr Perkiss and Mr Tanner to pick on him.

Mr Perkiss

The respondent relies on statements given by Mr Graham Perkiss, dated 31 March 2021 and 6 December 2021.
In his first statement, Mr Perkiss said his current position was Region Manager – South West New South Wales.
Mr Perkiss said the applicant was spoken to about absenteeism in September 2019. In December 2019, the applicant was placed on a performance improvement plan. The performance improvement plan was closed on 28 February 2020. On 19 January 2021, the applicant was issued with a final warning letter for attendance and punctuality. That was to be reviewed on 16 February 2021, however, the review did not take place because of the applicant’s ongoing absence and business activities.

On 23 February 2021, the applicant asked if he was going to be terminated after being questioned about his absences on 18,19 and 23 February 2021. A day of annual leave had been planned for 22 February 2021.
Mr Perkiss said he had a large volume of documents relating to the applicant’s mental health arising from his custody issues. The applicant had been offered the services of the Toll Employee Assistance Program and a counselling service, which the applicant declined.
Mr Perkiss said that on many occasions in the past 12 to 18 months the applicant’s work hours had been adjusted to enable the applicant to leave work early to pick up his children from school, attend court and attend to family business.
Given the number of absences, sick leave without pay and other leave without pay taken whilst working for the respondent, Mr Perkiss questioned whether the applicant had other income. Mr Perkiss said he had heard that the applicant did weddings with his Harley-Davidson motorcycle.
Mr Perkiss said he was acutely aware of his responsibilities to provide a safe workplace free from discrimination, bullying and harassment and had attended training in relation to such.
Mr Perkiss said that the applicant was aware he could request any assistance he may have needed. Dock hands were available to assist and extra staff were available if a delivery run was too much for one driver. Mr Perkiss said it was his practice to communicate with people every day with respect to their workload. The company provided personal protective equipment including hi viz clothing to staff.
Mr Perkiss said the applicant had never raised any issues regarding victimisation or racial vilification with him or any member of the management team previously. The allegations were very concerning given all the help Mr Perkiss had provided to the applicant with regard to his personal issues. Mr Perkiss found it alarming that the applicant perceived his current health situation was the result of his work environment and not his personal environment. The applicant never raised any work complaints with Mr Perkiss.
In 2018, the applicant was off work for three months after breaking his hand after a fight with his ex-partner’s boyfriend.
Mr Perkiss said that text messages between himself and the applicant indicated that the applicant was affected by a lot of personal issues in his life including battles with his ex-wife and her new husband, custody and care for his children and an inability to secure babysitters. The applicant once commented that he didn’t realise how difficult it was to be a father.
Mr Perkiss described it as “an absolute fabrication” that the applicant was not offered support through work. Mr Perkiss said several statements had been obtained from other drivers confirming that the company provided regular assistance.
Mr Perkiss stated:
“I am very surprised by Frazer's claims, I have tried to help him as much as I can. received a message from Frazer stating his doctor didn't want him to return to work due to stress from his personal issues, I have offered him a shift change to help with his child caring responsibilities but that was rejected. I have a messages from Frazer at 2235 at night advising his baby sitter can't look after the kids the next day, another where he could only work till 10am as he had no sitter for the remainder of the day,
I accepted this and Frazer only worked till 10am. My level of care for Frazer has extended to sitting with him in casualty post a workplace injury till he was released at 1030 on a Friday night and as he could not organise travel home, I drove him to his brother's residence where Frazer resided. I am honestly very concerned Frazer feels he doesn't receive adequate care from myself or the business.”
Mr Perkiss denied ever speaking down to the applicant and said he had never called the applicant any name other than his given name. Mr Perkiss rolled out and facilitated training on preventing discrimination, bullying and harassment in October and November 2020.
Mr Perkiss denied making any comments about the applicant’s partner being a corrections officer.
Mr Perkiss said he had been in the industry since 1985 and with Toll for 18 years. He had a background in driving trucks when he served in the military and knew what was required of a driver. Mr Perkiss said he had a great understanding of the requirements of the applicant’s role and had suggested to him on numerous occasions the benefits of using a 3 tonne van rather than a 4 tonne Pantech considering his run consisted of predominantly residential deliveries. The driver who had replaced the applicant was operating well in a 3 tonne Mercedes van.
In May and July 2020, the entire workforce and the Transport Workers Union were consulted regarding a workplace change. As the applicant was absent during the July 2020 consultations, Mr Perkiss consulted with the applicant over the phone. Mr Perkiss said:
“During the consult Frazer outlined his concerns with being a single parent and trying to play both mum and dad to his children, he asked during the conversation if he could be made redundant. I offered Frazer the Toll EAP and Chaplin services and advised
I would text him the Toll EAP for his use post our conversation. It was also during the conversation Frazer stated his doctor doesn't want him to come back to work but he has no leave, I did provide an offer if childcare during the day was an issue I may be able to make some shift changes so he may be able to work from Unanderra on the 2am shift, this offer was never accepted by Frazer.”
With regard to the applicant’s personal circumstances, Mr Perkiss said:
“The Claimant's private life has had a huge impact on his wellbeing. The custody battles, and the arguments with his ex-wife's boyfriend, The alleged firebombing of his current partners car by the boyfriend of his ex- partner. Abuse by his ex-partners boyfriend of his kids which I believe is currently before the courts. I recall Frazer coming and seeing my Operations Manager at the time Chris Lovell and myself regarding his concerns about him feeling he wasn't getting a fair hearing at court re custody of his children as he would get upset during the hearing due to the claims made against him by his ex-partner, Chis and I spent considerable time with Frazer that afternoon discussing how could approach the hearing to ensure he did not adversely affect the hearing.”
In his supplementary statement of 6 December 2021, Mr Perkiss stated that he had read the statement of Mr Apulu. Mr Perkiss said Mr Apulu had recently made a workers compensation claim that had been denied.
Mr Perkiss said that drivers had at their disposal trolleys to aid the delivery of consignments. The business had implemented a work health and safety rule, “right to refuse”, enabling drivers and/or dock hands the right to refuse an activity based on safety. The business conducted regular safety conversations and toolbox talks. All vehicles were maintained by the respondent and were in a roadworthy condition and fit for purpose.
Mr Perkiss said he was not aware of any claim raised by any individual or union representative regarding bullying and verbal threats made by Mr Tanner. Mr Perkiss denied ever referring to Mr Apulu as a refrigerator or marshmallow.
Mr Perkiss said that as part of his role he would question any driver’s productivity to understand what issues or influences may have impacted their results. This was to ensure service levels were maintained. There was no record of any disciplinary action or counselling of the applicant with regard to his productivity or on road performance. Rather there was a history of counselling regarding the applicant’s inability to attend work or on time. On many occasions the applicant was provided with support and counselling in the presence of a union delegate, Ryan Smith and the Toll Chaplain for personal issues outside of work.
Mr Perkiss reiterated that the applicant’s private life had a huge impact on his well-being.

Mr Tanner

The respondent also relies on a written statement made by Denis Tanner, dated 29 March 2021. Mr Tanner stated that his current position was “AM Supervisor”.
Mr Tanner confirmed that the applicant was employed as a pickup and delivery driver and as such wore a Toll uniform including a hi viz shirt.
The applicant was responsible for a run that would carry on average about 50 to 60 deliveries per day but around Christmas might get to about 90. The applicant handled various sizes but items were generally in boxes and the maximum weight was around 50 kg with a trolley. Anything more than that would be put aside for a two man lift. The applicant had been told numerous times to ask for assistance if he required it.
Mr Tanner stated that the applicant had been counselled many times for various issues, but predominantly absenteeism.
Mr Tanner said the applicant never reported that anything relating to work was affecting him:
“The Claimant never reported to me that he had anything relating to work affecting him.
He did report other things to me. He was having serious problems with his ex partner’s boyfriend, who turned up at his house and burnt his current partners car. It was getting fairly ugly and around the same time, he was subpoenaed to go to court by the Police in relation to his ex-partners boyfriend, but he didn't tell me what that was about. He just showed me the subpoena. This all happened just before his brothers wedding, which was in February this year, and we have not seen him much since. I think the wedding was on the 21st, and he has only been here one day since then.
He rang me on the Monday after his brothers wedding and said there was a case of Covid in Wollongong, and should he come in. I told him that it was his decision, but everyone else that works here that was at his brothers wedding, is here. He came in that day I don't think he has been back since then.”
Mr Tanner said he first knew of the applicant’s claim when he received an email telling him that the applicant had submitted a claim for bullying and racism. Mr Tanner stated:
“I was shocked. I went out of my way to help this guy as much as I possibly could.
I thought he was kidding.
I would not have treated Frazer any differently to any other staff member. Certainly not bullied him or made racist remarks towards him.
He was having a problem with his ex-partners boyfriend belting one his kids, so he went through the courts to get custody of his kids.
Once he got custody then he had to look after them, and he was finding it hard to juggle work and take care of his kids.
I tried to help him out, letting him work 4 hour shifts, leaving early to look after the kids. He was having real trouble during the October school holidays and I had talked to him about planning for the Christmas period and how much busier we would be.
I even gave him some Saturday shifts, so that he would have money to buy the kids some presents at Christmas.
I could not believe he made this type of claim when I have really tried to help him.
I deny that I ever talked down to Frazer, I never talk down to anybody.”
Mr Tanner stated that he did not have a truck license but was a courier for five years and had been in the transport industry for 40 years.
Mr Tanner denied ever instructing the applicant to unload his trucks to be used by another driver. There had been times when a truck had broken down and he had re-allocated an asset and moved trucks across. Mr Tanner said he had never instructed a driver to unload his truck.
Mr Tanner denied picking on the applicant or calling him racist names:
“Both Frazer and his brother, Ben, often muck around calling themselves black, I have even said to Frazer and or Ben that they are not even brown. As for calling another man, Fiti, a marshmallow, that again is a lie. He is the biggest most gentle bloke you could ever meet.
It is an utter and complete lie that I pick on Frazer and his brother, or anyone else. That is slander, complete slander.”
Mr Tanner said he was of aboriginal background and not racist. Mr Tanner said when the applicant “had his head on” he was one of the best drivers in the yard. Mr Tanner stood with the applicant a lot on the belt and the applicant had never discussed any of these issues with him.

Respondent’s other witness evidence

Records of discussions between Mr Perkiss and a number of the respondent’s drivers, Senol Hosgorur, Darren Elliott, Temu Manuela, Tomas Higginson and Jim Stojanovski, dated in February and March 2021, are also in evidence.
In a discussion dated 26 February 2021, Mr Higginson and Mr Stojanovski were recorded to have stated that they provided support with heavy or bulky items and would be asked by
Mr Tanner to do runs in certain suburbs of overflowing or leftover freight. Similar evidence was recorded by the other witnesses.
Darren Elliott stated that he had been supporting the applicant’s run 97% of his time.
Mr Elliott said he had replaced the applicant or lightened the load for other drivers for parts of the run. Mr Elliott agreed that he had been asked by Mr Tanner to provide drivers with support for heavy or bulky items. Mr Elliott agreed that support was regularly provided to drivers.

Records from the employer

A record of discussion with the applicant, dated 6 September 2019, referred to a recent trend of unplanned absenteeism. The applicant was asked for an explanation as to the level of unplanned absenteeism and responded, “things going on in my life” and “family issues”. Asked what the company could do to assist the applicant with his unacceptable unplanned absences, the applicant responded that there was nothing but if needed he would discuss further.
Correspondence from Mr Perkiss to the applicant, dated 18 December 2019, referred to a discussion that day regarding punctuality and absenteeism. The letter stated,
“It is noted that during the period of 6 September 2019 - 6 December 2019 you have been absent from work on five (5) occasions and you did not provide a medical certificate for three (3) of these absences. During the same period you failed to clock on before official start time of 6.00am on thirteen (13) occasions. On 6 September 2019, you were spoken to regarding this issue. This has a significant impact on the work in the depot and is not acceptable.”
The letter set expectations moving forward. The applicant was advised that if there were any further issues with absenteeism and punctuality during the period of a performance improvement plan the employer may proceed with further disciplinary action including termination of employment.
A performance improvement plan for the period 1 January 2020 to 29 February 2020 is attached to the Reply.
On 14 May 2020, Mr Perkiss wrote a letter to the applicant with the subject, “Consultation On Workplace Change”. The letter noted the impacts of the COVID 19 pandemic on the business and two separate cyber attacks. These events required the business to take immediate action to address the situation and protect the business. The letter advised that several workplace change initiatives were being considered. One such initiative was the consolidation of the “Priority” and “IPEC” operations, meaning the closure of two worksites. This would also reduce the number of transport workers required. It was proposed that workers would be selected for redundancy based on skills, experience and performance. A final decision would be made on or around 21 May 2020.
On 1 June 2020, Mr Perkiss wrote to the applicant advising that after careful consideration, the changes proposed in the letter of 14 May 2020 would not be implemented. The business was in the very early stages of reviewing other options.
On 15 July 2020, Mr Perkiss wrote a letter advising that the business continued to experience significant financial challenges with a range of issues impacting results and profitability. Several options for addressing these issues were being considered and the applicant’s position had been identified as one which might be impacted by changes pending a final decision. The applicant was invited to raise any matters before a final decision was made by completing the feedback form, requesting a one-on-one meeting, emailing
Mr Perkiss, or passing on feedback through a representative. The applicant was invited to provide feedback by 20 July 2020 and advised of the next steps. The applicant was provided with information regarding the Employee Assistance Program.
On 29 July 2020, Mr Perkiss wrote to the applicant informing him that the period of consultation was to be extended and an update would be provided in due course.
Correspondence from Mr Perkiss to the applicant dated 19 January 2021 with the subject, “Final Warning Letter – Attendance and Punctuality”, referred to ongoing concerns in relation to the applicant’s attendance and punctuality at work. The letter noted that on 28 February 2020, the applicant was found to have met the expectations of a performance improvement plan, however, in the previous six months the applicant’s efforts with regard to attendance and punctuality had again decreased. In the period since August 2020 the applicant had been late to work on 13 occasions, absent on personal parental leave on 13 occasions and did not work his full shift on 17 occasions. This had a significant impact on operations. In July 2020, the applicant had been offered the opportunity to work on night shifts instead of day shifts to help with his personal commitments. The applicant declined this offer.
The applicant was advised that his attendance and punctuality would be monitored and reviewed in four weeks’ time. In the event of further incidents, the employer would consider further disciplinary action including termination of employment.

Text message correspondence between the applicant and Mr Perkiss

Text message correspondence between the applicant and Mr Perkiss attached to the ARD and Reply included an exchange dated 9 March 2020 as follows:
“Frazer
Did you provide
Andrew Anderson
With a certificate
For your Friday
absence? As you
were previously
advised your were
to provide certificates for any sick
leave absences.
Graham
Mate ill be totally
honest with you i
was in no state to
do anything or go
anywhere still not
feeling 100% but
am trying to keep
it all together so
no i haven't”
On 21 July 2020, Mr Perkiss wrote,
“Frazer
How are you, is
everything ok, I
note you have
had some time
off recently. Do
you require any
assistance?
Regards Graham
Not good at all
and no thanks i
will deal with it
Ok, let me know if
we can help. Also
I need to send you
some information
regarding recent
discussions, what
is your current
address
Thanks Graham”
The same exchange continued with the applicant asking whether it was true that “they were all going to be laid off”. Mr Perkiss responded that if the applicant was up to a call in the morning he would go through it with him. The applicant responded that he was able to chat then. Mr Perkiss later sent a screenshot of an information sheet regarding chaplaincy and employee support and stated:
“Frazer
Thank you for taking my
call, as mentioned I’m here if
you need support or even a
sounding board or someone
to vent too. I have attached
the EAP, the Chaplin is a great
avenue for support, Graham
Blok is a nice guy that is willing
to help if you need it and may
be able to provide advice on
financial support avenues”
Mr Perkiss sent a message the next day on 22 July 2020 asking the applicant how he was going today and asking whether he would like Mr Perkiss to organise for the chaplain to give him a call. The applicant responded that he was still “not in a good spot” and would call the chaplain if he felt the need to do so.
On 22 October 2020, Mr Perkiss sent a reminder regarding training. The applicant responded that he could do the training but would have his three children with him. Mr Perkiss responded that children were not allowed on site and they would need to make another time.
On 11 November 2020, Mr Perkiss wrote to the applicant stating that they hadn’t heard from him that day and asking if he was okay.

On 11 January 2021, Mr Perkiss asked the applicant to let him know when he would be in. The applicant responded that his car had broken down and he had no way of dropping his children off or getting to work. The applicant had organised a lift to work for the rest of the week and apologised for the inconvenience. Mr Perkiss responded,
“All good, just need
to know so we
can plan”
The applicant then replied that his babysitter had just messaged saying she could not look after the children tomorrow. The applicant was asked if he could work only four hours.
Mr Perkiss responded that he thought the applicant’s parents were back and all “was good” through the school holidays. Mr Perkiss said four hours was better than nothing.
On 18 January 2021, the applicant sent a text message saying,
“No worries as you all are aware at this time it is hard for me with being a full time father and trying to juggle work with 3 kids on school holidays also with minimal support to care for the childre whilst i work is poor but what can i do.I have also had a email this morning with a urgent court relisting to take place on the 28th of january instead of August.Talk to yous then”
On 1 February 2021, Mr Perkiss again attached the information sheet regarding chaplaincy and employee support and stated that he had confirmed that the chaplain was available to be contacted. The applicant was asked to let Mr Perkiss know if he wanted to take any annual leave.
On 12 February 2021, the applicant sent Mr Perkiss a copy of a referral to Dr Mario Malkoun in relation to left lower mandibular lump. Mr Perkiss responded,
“Thanks Frazer,
your jaw flared up
again, what are
they doing about it”
The applicant responded that he had booking with specialist and was currently still “in court”.
In February 2021, there were further exchanges in which was noted that the applicant had a number of further absences. The applicant asked whether his employment was going to be terminated. Mr Perkiss responded that this was not a topic for discussion by text and relevant discussions would be held in person at an appropriate time with the relevant support persons in attendance.

Email correspondence from Mr Perkiss

In an email sent to himself on 19 January 2021, Mr Perkiss referred to a discussion with the applicant regarding a final warning letter. The email said the applicant was asked if he had anything to contribute and responded,
“My partner works night shift Sunday, Tuesday and Wednesday night I don't know, I'm putting my family first, when the kids go back to school it will be a lot easier I have court on the 28th Jan, in relation to custody of my children which will be another day off No sitters on Monday The end of the day if I need to be terminated so be it, I'm doing what's right for my kids, I want my job but my family comes first.”
Mr Perkiss noted that the availability of counselling services was also discussed.

Surveillance material

The respondent relies on a desktop investigation report dated 9 February 2022 and a surveillance report dated 23 February 2022.
The desktop investigation report contained material obtained from various sources in relation to a barber shop business owned by Ms Baird named “Kosa Barbers”.
Documents relating to the company, “Kita Bros Pty Ltd”, indicated that Mr Thomas Ulukita was the sole director, shareholder and company secretary. A Facebook page for Kita Bros Pty Ltd indicated that it was a scaffolding business. Mr Ulukita’s wife, Priscilla Ulukita, was depicted in a video posted to the Facebook page working in the business.
The applicant’s bank statements showed 13 deposits into his account totalling $7,550 from Kita Bros between 13 November 2021 and 14 January 2022. Notable transactions included an entry on 24 November 2021 with the description ‘work vehicle repairs’. A deposit of $100 was made on 13 December 2021 for ‘fuel’.
The outcome of the surveillance report was summarised as follows:
“During surveillance the claimant left home in the early hours of the morning. On one occasion our agent arrived at the claimant’s home at 6.00 a.m. and found that the claimant had already left the residence. On another occasion the claimant was found leaving home at 5.18 a.m. wearing a HI VIS top; however, the claimant drove at high speeds and contact was lost. On other days, the claimant was also observed playing the poker machines; eating out with a large group of friends and visiting friends/family. The claimant appears to be laidback and happy and leading a normal active life. It is significant to note that towards the tail-end of enquiries heavy rain was experienced throughout Sydney and the south coast and that this would be prevented many building sites from operating.”
On 12 February 2022, the applicant was observed driving to Berkely Hotel, where he was observed to play poker machines for approximately 30 minutes.
Surveillance conducted on 17 February 2022 was described as follows:
“5:18 AM The claimant exited the house wearing an orange HI VIS vest. The claimant reversed the white Suzuki Swift Hatch out onto the road then returned inside the house. Video 6.
5:20 AM The claimant exited the house and departed driving the white Holden Commodore Sedan.
5:26 AM The claimant conducted a U-turn and returned to his house. He was seen entering the house.
5:33 AM The claimant exited the residence and departed at high speed, driving the white Holden Commodore Sedan. Contact was lost with the claimant due to driving at high speed around the back streets.
5:51 AM The claimant’s white Holden Commodore Sedan was located in the driveway at ….
6:52 AM A known female reversed the claimant’s vehicle out of the driveway in order to allow a second vehicle to leave the property. The female then reversed the claimant’s vehicle back into the driveway.
6:55 AM With no further sighting of the claimant, our agent ceased surveillance and departed the area.”
On 22 February 2022, the applicant was observed entering Kosa Barbers at 11:07am. At 11:34 am, the applicant was observed exiting the barber shop and then carrying the barber shop’s flag inside the store, before returning to his vehicle and departing the area. At 12:28pm on the same day the applicant and a group of other people arrived at Collegians Port Kembla Leagues Club. The applicant departed the club at 2:19pm.

Treating evidence

Clinical notes from Illawarra Medical Services, record that the applicant attended the practice for a mental health assessment on 1 June 2020. No causal factor for the applicant’s symptoms were noted.
On 21 July 2020 the applicant consulted the practice in relation to a migraine. It was noted that things had been “very stressful lately”.
A clinical note recorded by Dr Verman Dela Cruz on 10 September 2020 noted:
“Also has been experiencing depression and anxiety. Has some custody issues and now his courier company will be shutting down. Recommend counselling.”
A diagnosis of adjustment disorder with mixed anxiety and depression was recorded and a Mental Health Care Plan prepared.
On 4 November 2020, general practitioner, Dr Jaime Mercado recorded:
“Has been feeling depressed and anxious
Has been feeling this for a couple of weeks
partner advised him to see someone for medications
has been seeing psychologists lately under GPMHP
some TOSH but not planning
feeling overwhelmed
Feeling like he wants to disappear”
The applicant was prescribed sertraline.
On 23 February 2021, general practitioner, Dr Hazem Chahoud recorded a consultation as follows:
“problem W/C
august september started
by saying they will shut down
more delivery , more items to delver , heavy weight
everyday increase stress the way supervisor tlking was rude
vomiting every morning , cramps, diafrroea , palpitation of the hear abd all before going to work .. alI these disapear after calling them saying not to work
at home life becomming misarable , patient thinking always about next day will go to work and the same issue will happen again , bulling ,critisizing ,pushing to work harder and harder that is wy the patient can not sleep at night ,he always thinking , and also thinking how to feed his kids if he could not work , because he can not go to work sick
also this affected his relationship , between him and his partner , because of his sickness
she cannot put up with the situation any more
he is not interesting in life any more , he is so depressed
at work the boss and the superviisor put more pressure at frazer because he was sick could not go to work
plan councling refer to psychologist
valium tab to relax ... psychologist
on exam
pt agitated crying”
On the same date, Dr Chahoud issued a SIRA certificate of capacity certifying the applicant as having no current work capacity due to “anxiety, panic attacks, stress, depression”. The injury was said to be related to work as “stress triggered by poor management”. Certificates to the same effect continued to be issued by another general practitioner, Dr Alan Tran, until January 2022.
A report from psychologist, Ms Saima Khan, dated 9 May 2021, stated that the applicant was first seen on 18 September 2020 and attended follow-up appointments on 25 September 2020, 3 November 2020 and several dates in February, March and April 2021.
At the initial appointment, the applicant reported the onset of his current condition was caused by a combination of personal stressors related to the custody of his children and bullying and harassment by his manager at work. Ms Khan described the applicant’s symptoms resulting from injury although it is noted that much of the report referred to a patient named “Mr Keith”.
With regard to the applicant’s capacity, Ms Khan stated:
“Since commencing counselling Mr Lee has not reported any significant changes in his symptoms of depression and anxiety. Mr Lee has failed to attend some appointments reportedly due to not feeling well, he has reported he has been feeling extremely low recently and hence has not been up to having an appointment. It does not seem that Mr Lee will be able to continue to work pre injury duties with the same employer,
Mr Lee will benefit with a vocational assessment and or undergoing a retraining course later when his symptoms improve.”
A clinical record prepared by general practitioner, Dr Alan Tran, dated 28 May 2021 stated:
“Patient has a existing psychological claim. A brief background was that he has been working for this truck company for seven years approximately. Over the years. There are various instances of bullying and harassment which he gave some example from his senior boss. This has taken a psychological toll on him. Currently his getting counselling with a psychologist. He has taken an antidepressant, which did not work. Currently his taking diazepam. This was prescribed by his GP. His GP has moved to Sydney and another practice has taken over. He said that his antidepressant did not work.”
A “Discharge Treatment Report” was prepared by Ms Khan on 26 June 2021. Ms Khan noted that the applicant had changed his treating doctor, and the new doctor had recommended that he consult an alternate psychologist.
Psychologist Ms Susan Stern prepared a report, dated 29 July 2021, in which she recorded a history as follows:
“Mr Lee stated that it was the bullying and harassment of the two managers that caused him his psychological injury. He explained that over a five-month period his doctor had noticed that he was stressed and he himself had noticed changes in himself. He explained that he was reluctant to go on stress leave as he didn't know what it was and didn't realise that he would get paid, and he needed the money. Eventually his doctor told him that he was not going to send him back due to his severe signs of anxiety and depression. Mr Lee had said that he could not sleep at night and then fell asleep during the day and was constantly exhausted. Mr Lee stated did not know how workers compensation worked at that stage which was why he was very worried about stopping work, fearing he would not get paid and could not then support his family.”
Ms Stern gave the opinion that employment was a substantial contributing factor to the applicant’s psychological symptoms which rendered him unable to work. A diagnosis of an adjustment disorder was given. Ms Stern said,
“There are no other concomitant stressor factors contributing to Mr Lee’s psychological injury.”
The applicant had, at the date of her report attended 10 sessions with Ms Stern. Ms Stern gave the prognosis:
“He has stated that, coming from a transport industry and he has thought of this at length and realises that this will be a hard road for him to get back into a truck and focus on driving. He stated at present he does not feel he will cope on a construction site or in a factory as this might be a risk as he does not feel that he is ready or able to focus sufficiently. He had loved his job and doesn't know what he will do or will be able to do in the future. At this stage I do not feel he is ready to return to work.”

Dr Khan

The applicant relies on medicolegal reports prepared by consultant psychiatrist, Dr Abdal Khan, dated 4 November 2021, 27 November 2021 and 1 March 2022.
In his first report, the applicant was reported to have experienced difficulties during his employment in late 2020. The applicant was bullied and intimidated by his manager
Mr Perkiss and supervisor, Mr Tanner. The applicant reflected on numerous incidents where Mr Perkiss and Mr Tanner made inappropriate comments including reference to the applicant’s partner being correctional officer. There were also racist comments made including an incident a toolbox meeting when Mr Perkiss commented that he “doesn’t hire ex-convicts”. The applicant said Mr Perkiss would repeatedly pressure him to deliver items faster as if the truck was a van and would make condescending remarks about the applicant’s work.
The applicant said Mr Perkiss would repeatedly pressure him to deliver items which required more than one person to lift. The applicant described an occasion in January 2021 when he was told to load whiteboard on his own. Mr Perkiss eventually arranged for a colleague to assist the applicant. Mr Perkiss reportedly harassed the applicant about this incident.
The applicant described incidences when Mr Tanner would make the applicant unload his delivery truck and load his items into another delivery truck so that a colleague could load their items onto the applicant’s truck.
The applicant said Mr Perkiss would repeatedly make comments about approved leave. The applicant was subjected to performance management and disciplinary action in relation to alleged absenteeism but the applicant maintained that his leave had been preapproved.
On the last day that the applicant worked, Mr Perkiss reportedly made a comment about how if he took another day off work, “It’ll be the last day you ever have off”. The applicant was threatened with the termination of his employment.
As a result of these work-related stressors the applicant experienced a gradual deterioration in his mental state. The applicant continued to experience pervasive symptoms of depression and anxiety impacting on his functioning.
The applicant was being treated by his general practitioner on average every week. The applicant was seeing a psychologist twice a week and had been referred for psychiatric treatment with one consultation to date. The applicant had been prescribed psychotropic medications.
The applicant denied any pre-existing past psychiatric history or symptoms.
With regard to any psychosocial stressors, Dr Khan noted:
“Mr Lee has experienced longitudinal challenges with the custody of his children but these challenges are not contributing to his current presentation. He denied any other significant recent psychosocial stressors.”
Dr Khan diagnosed a major depressive disorder with anxious distress in accordance with DSM-V diagnostic criteria. The applicant had also developed a comorbid alcohol use disorder.
Dr Khan said that the applicant’s employment was “the substantial contributing factor to” the psychological injury. The applicant had not suffered an aggravation of a pre-existing condition.
With regard to the applicant’s capacity for work, Dr Khan stated:
“Since the date of injury to date, Mr Lee has suffered a total incapacity to work. Mr Lee remains totally incapacitated to work with this ongoing incapacity arising wholly as a result of the subject psychiatric/psychological injury that he sustained during the course of his employment as a pick-up delivery driver with Toll Holdings Limited.”
Asked for an opinion as to whether the applicant’s condition was caused by reasonable action adopted or proposed to be adopted by the employer, Dr Khan responded:
“Mr Lee’s psychological injury was not due to any reasonable action adopted or proposed to be adopted by his employer. His psychological injury was due to unreasonable action adopted by his employer whereby he was bullied, harassed, intimidated and threatened. Further details of the cause of Mr Lee’s psychological injury have been provided in the ‘History of Presentation’ section of this report.”
Asked to comment on a report prepared by the respondent’s medicolegal expert, Dr Kaplan, Dr Khan stated:
“Dr Kaplan relies on the statements of the alleged perpetrators of Mr Lee’s workplace psychological trauma and presumes them to be credible yet acknowledges that as a psychiatrist, he is unable to determine the verity of these statements.
Dr Kaplan’s conclusions are inaccurate. He formulates the opinion that Mr Lee’s version of events is largely retrospective. This conclusion is disproven by the fact that Mr Lee engaged in mental health treatment with his general practitioner and psychologist, Dr Saima Khan, well before he lodged his workers compensation claim.
I do not agree with Dr Kaplan’s conclusions. I am of the opinion that Mr Lee has sustained a work-related psychiatric/psychological injury due to protracted workplace psychological trauma that he endured during his employment as a pick-up delivery driver with Toll Holdings Limited. I have diagnosed Mr Lee with major depressive disorder with anxious distress. I am of the opinion that Mr Lee is totally incapacitated to work due to his a work-related psychiatric/psychological injury.”
In his report dated 27 November 2021, Dr Khan was asked to comment on a supplementary report from Dr Kaplan. Dr Khan expressed disagreement with Dr Kaplan’s opinions stating,
“I do not agree with Dr Kaplan’s opinion that personal problems and disciplinary issues at work explain Mr Lee’s need to seek mental health treatment. My conclusion is based on my assessment of Mr Lee as well as the assessment of Ms Khan who had the opportunity to assess Mr Lee at the time of his mental health difficulties emerging.”
Asked for an opinion as to whether ‘non work related stressors’ caused the applicant’s psychological decompensation, Dr Khan responded:
“The non-work-related stressors have not caused Mr Lee’s psychological decompensation. These nonwork-related stressors had been ongoing for some time and had not caused Mr Lee to experience pervasive impairment in his functioning. Most importantly, there is no evidence to indicate that these nonwork-related stressors caused Mr Lee to stop working with Toll Holdings Limited. There is, however, evidence to indicate that work-related stressors caused Mr Lee to stop working with Toll Holdings limited, including Ms Saima Khan’s report dated 9 May 2021 as noted earlier and
Dr Hazem Chahoud’s clinical progress note (dated 23 February 2021)…”
In relation to whether disciplinary issues related to absenteeism were the whole or predominant cause of the applicant’s condition, Dr Khan stated:
“It is acknowledged that Mr Lee had a record of disciplinary issues and absenteeism from work; however, the temporality of the work-related stressors in relation to bullying, harassment, intimidation and threats from management and the subsequent deterioration in Mr Lee’s mental state serves to highlight that these work-related stress pertaining to bullying, harassment, intimidation and threats from management were the predominant cause of Mr Lee’s current psychological injury.”

Dr Khan commented that the statement of Mr Apulu “added verity” to the history given by the applicant and raised concerns about the verity of the statements made by Mr Tanner and
Mr Perkiss.
In the supplementary report of 1 March 2022, Dr Khan was asked to consider the desktop investigation report and surveillance report. Dr Khan gave the opinion that there was insufficient information in these documents to indicate any significant changes in the applicant’s functioning to reflect that he had any capacity for employment. Dr Khan stated,
“In order to obtain and sustain employment, Mr Lee would require an intact mental state, intact cognition, intact coping mechanisms, intact self-confidence and intact trust in interpersonal relationships. These documents do not provide any information to indicate that Mr Lee’s functioning in these domains has improved to the extent that he has capacity for employment.”
Dr Khan was asked whether travelling to various places, visiting family, attending a wedding and visiting a hotel and playing poker machines suggested the applicant had any capacity for employment. Dr Khan responded:
“In the Desktop Investigation dated 9 February 2022 and the Surveillance Report dated 23 February 2022, there is an indication that Mr Lee has left his home on various dates to make purchases and he has been observed socialising with some people, including attending a wedding, playing poker machines at a club and having meals at another club. If these people are Mr Lee’s relatives, which has been indicated in your letter of instruction dated 1 March 2022, then it would be reasonable to conclude that such activity would reflect some improvement in Mr Lee’s mental state to enable him to engage in more activities outside his home. That said, from a psychiatric perspective, there is no correlation between capacity to travel and capacity for employment.”

Dr Kaplan

The respondent relies on medicolegal reports prepared by a forensic psychiatrist, Dr Robert M Kaplan, dated 6 October 2021, 9 November 2021 and 6 March 2022.
In his first report, Dr Kaplan noted that the applicant claimed that his condition arose from poor management, bullying, harassment and racial discrimination at work. Dr Kaplan referred to the allegations of bullying by his manager Mr Perkiss and supervisor Mr Tanner in his statement.
Dr Kaplan noted that the applicant was counselled due to unacceptable unplanned absenteeism and punctuality in September and December 2019 and place on a performance improvement plan in January 2020. Dr Kaplan noted that the applicant learnt of changes in the business and plans to consolidate and restructure the business in May 2020. The applicant was sent a final warning letter regarding attendance and punctuality in January 2021.
The applicant said his doctor had told him he should not go back to work and take stress leave. The applicant reported ruminating about his experiences at work which kept him awake till the early morning. The applicant could not drive long distances and dwelled on the job he had. The applicant’s concentration and memory was disrupted.
Dr Kaplan noted that the applicant shared custody of his children with his former partner. Her partner allegedly assaulted his son and at one stage there was a custody dispute which was largely resolved and the applicant’s favour. There was an incident involving the ex-boyfriend in respect of which the applicant went to court and he was later jailed in April 2021.
The applicant was taking medication and had changed to see psychologist Susan Stern in July 2021.
Dr Kaplan made a diagnosis of adjustment disorder with depression and anxiety but then stated,
“Noting his presentation at interview and other comments, the only restriction to Mr Lee finding other work since termination is his attitude and motivation. This is not a psychiatric matter.”
Dr Kaplan gave the opinion:
“No, Mr Lee does not have a psychiatric injury in which his employment was the main contributing factor. The claim that he was subjected to bullying appears to be retrospective, his employers were within their rights in following approved steps to warn him about his performance and the other problems in his life, which are ongoing, are listed above.”
Dr Kaplan suggested that statements made by Mr Perkiss and Mr Tanner appeared credible compared to the applicant, whose complaints were largely retrospective.
Dr Kaplan stated, “Mr Lee had an aggravation of a psychological injury due to reasonable actions by his employer”.
Dr Kaplan stated that there was no psychiatric reason why the applicant could not work as a pickup and delivery truck driver.
In his supplementary report of 9 November 2021, Dr Kaplan was asked to comment on the report of Dr Khan dated 4 November 2021. It was noted that Dr Khan was not provided with the witness statements of Mr Perkiss and Mr Tanner. Dr Kaplan responded that he had a difference of opinion with Dr Khan and was satisfied with the conclusions in his previous report.
Dr Kaplan was asked to comment on the applicant’s consultations with Ms Saima Khan and the clinical record referring to depression and anxiety due to custody issues and his courier company shutting down, dated 10 September 2020. Dr Kaplan responded:
“That Mr Lee sought psychological help before the listed date of injury does not change my findings. Both his personal problems and the disciplinary issues at work could explain the need to seek help.”
Dr Kaplan reiterated his view that the applicant did not have a work-related injury that would render him unfit for work. Whilst the applicant might benefit from treatment this was not required for a work-related injury.
In his final report, dated 6 March 2022, Dr Kaplan was asked to comment on the desktop investigation report, surveillance report and a transcript of the oral evidence given by the applicant and Ms Baird at the arbitration hearing on 1 March 2022. Dr Kaplan responded,
“When I saw Mr Lee in October, he was spending most days at home looking after the children when his partner was working, but also going out to see family and friends, fishing and occasionally riding his motorbike. The activities revealed in the surveillance video show that his behaviour is less restricted by the Adjustment Disorder than he had stated at the examination.”

Respondent’s submissions

The respondent referred to the description of injury in the ARD noting that the applicant alleged instances of bullying and harassment but provided no particularity as to the facts. The ARD simply referred to the applicant’s statement for details of the injury.
The respondent noted the witness evidence provided by Mr Apulu and submitted that whilst on its face that statement was supportive of the applicant’s case, on more careful analysis, it was of no assistance. Mr Apulu referred to events and comments not directly affecting or directed to the applicant. Mr Apulu referred in general terms to bullying and verbal threats without providing any facts as to what was said. With regard to being directed to load items from one truck into another a truck, the respondent submitted that this could not be regarded as unreasonable. Mr Apulu’s evidence suggested that there was no one delivery that the applicant could perform unaided. Mr Apulu’s evidence suggested that asking why a job for which the applicant was paid was not done was bullying.
Although conceding that the rules of evidence did not apply in Commission proceedings, the respondent submitted that the evidence of Mr Apulu would be given no weight insofar as it contained numerous unsupported statements and hearsay. The respondent noted that
Mr Apulu had made his own workers compensation claim against the respondent which had been disputed.
Referring to the applicant’s statement evidence, the respondent noted that no dates, times or examples were provided. The applicant’s suggestion that he was required to lift 250 kg was said to be illogical. The applicant described being talked down to but provided no substance of the conversations in question. The applicant described being offended by being called a name but could not remember the name. The applicant’s evidence suggested that nearly everything said to him was offensive without providing any details. The applicant’s evidence was inconsistent with that of Mr Apulu in that he did not refer to being forced to repack goods into an inferior truck. The respondent submitted that the Commission would not be satisfied that the events relied on by the applicant as causative of his injury were real.
The respondent submitted that there were differences between the applicant’s evidence and the history provided to Dr Khan. Dr Khan referred to racist comments not mentioned in the applicant’s own statement. Dr Khan also referred to comments regarding “ex-convicts”. There was no evidence that such comments were directed to the applicant and they were not referred to in the applicant’s statement evidence. Dr Khan also referred to issues regarding approved leave in respect of which documents from the employer were in evidence. The respondent submitted that the text message correspondence from the employer demonstrated genuine concern for the personal circumstances of the applicant.
The respondent submitted that it beggared belief that the seemingly important events described by Dr Khan were not addressed or disclosed in the applicant’s own evidence.
The applicant’s evidence with regard to his treatment at the hands of Mr Perkiss and
Mr Tanner was contradicted by their statement evidence. Read as a whole, the respondent’s witness evidence was consistent with the contemporaneous material and employer records and would be preferred to the applicant’s own evidence.
The respondent submitted that it could not be said that Dr Khan’s opinion was given in a fair climate.
The respondent referred to the employer’s summary of leave taken and noted that the correspondence with the applicant provided details of support and counselling given to the applicant. That correspondence demonstrated a genuine concern and attempt made by the employer to assist the applicant. The applicant was provided with the details of a counsellor or psychologist. The applicant’s correspondence made reference to having to attend court, and specialist treatment for a jaw condition. The evidence demonstrated a genuine concern for the applicant in the context of continued absenteeism issues with punctuality and non-work-related stressors. No reference was made in any of the correspondence to the applicant experiencing any workplace stressors.
The respondent submitted that the evidence confirmed that the applicant was aware of the process for reporting an injury in the context of a previous workplace injury to the lumbar spine.
With regard to the possible restructuring of the employer’s business, the evidence demonstrated consultation with staff about their employment.
The respondent submitted that the Commission would not be satisfied that the events complained of by the applicant actually occurred given the general and unspecific nature of the applicant’s evidence. To the extent that events in the workplace related to performance appraisal, discipline or retrenchment were causative of a psychological injury, the respondent’s actions were reasonable.
The respondent noted that the applicant had denied any previous mental health conditions. The respondent submitted that this evidence was not consistent with the contemporaneous clinical records. The general practitioner’s notes showed a consultation in June 2020 in which a mental health assessment was conducted. No detail was provided as to the precipitating events although there was reference to restructures at work.
In a consultation on 10 September 2020, the clinical notes referred to psychological symptoms in the context of headaches and pains in the abdomen. The applicant also referred to custody issues and the company shutting down.
A workers compensation claim was not made until February 2021. On 23 February 2021, a new history was provided of bullying and harassment in the workplace. Although acknowledging that the Commission would take a cautious approach to clinical records, the respondent submitted that the general practitioner’s notes suggested that a precipitating cause of the applicant psychological symptoms was the prospect of losing his job. In February 2021, the notes showed the invention of other problems in the workplace described as bullying and harassment.
The respondent drew attention to the applicant’s evidence about his current functioning. The applicant described being withdrawn from family and friends, no longer riding his motorbike, struggling with travel and experiencing anxiety and avoidance when he left his home. The applicant described tensions in his relationships with his partner and friends struggling to focus on driving and being easily distracted. The applicant reported to Ms Stern in May 2021 that he was staying at home in his pyjamas.
This evidence was contrasted with the surveillance material showing the applicant out and about in the community, driving and engaging in social interactions. The applicant’s bank records showed the applicant was leading a social and active life. The applicant had travelled to Sydney, attended a number of restaurants or eateries, done shopping and visited the Dapto Leagues Club. The surveillance material and bank statements indicated that the applicant was far from spending his days in home in his pyjamas.
The respondent submitted that the surveillance material and bank statements raised issues as to the credibility of the applicant’s evidence. Although the applicant had denied working and provided evidence explaining the transactions going into his account, the respondent described the applicant’s oral evidence as unconvincing. The applicant’s evidence with regard to finding his hi viz vest being too hot even in winter months, did not sit comfortably with the evidence from Mr Perkiss and Mr Tanner regarding the use of personal protective equipment including hi viz clothing in the respondent’s warehouse environment. The respondent suggested that in an attempt to distance himself from the surveillance material showing an occupant of the applicant’s house leaving at 5:18am wearing hi viz clothing, the applicant had concocted a story about discarding his vests two years earlier. The respondent submitted that it could not positively say that the applicant was working but submitted that the applicant’s evidence lacked credibility.
The respondent noted that the evidence of Ms Khan suggested an onset of psychological symptoms due to personal stressors relating to custody as well as bullying and harassment in the workplace. Ms Khan’s evidence suggested that other factors were relevant. Those, non-work-related factors were not properly engaged with by Dr Khan, Ms Stern or the doctors issuing the applicant’s certificates of capacity. The histories taken by Dr Khan and Ms Stern did not sit easily with the general practitioner’s notes or the evidence of other stressors in the applicant’s personal life. The respondent submitted that workplace events were not a substantial contributing factor to any psychological condition. To the extent that workplace events contributed to a psychological condition, those events fell within the criteria in s 11A(1) of the 1987 Act.
The employer’s conversations with the applicant with respect to performance appraisal and discipline were perfectly reasonable. The respondent also referred to the contemporaneous letters with regard to the possibility of retrenchment set out in the Reply and the statements of Mr Purkiss and Mr Tanner.
The respondent submitted that although the applicant had consistently been certified as having no current work capacity, those certificates paid no regard to the multifactorial issues in the applicant’s life. Similarly, Ms Stern simply noted the causal factors of bullying and harassment described to her at the initial consultation. That history did not sit easily with the general practitioner’s notes and evidence of stressors in the applicant’s personal life.
The respondent submitted that Dr Kaplan took a more fulsome history of the stressors in the applicant’s personal life. Dr Kaplan was not satisfied that there was a work related psychological history. Non-work related factors were the main contributing factor to any psychological condition. Although the opinion expressed by Dr Kaplan relevant to s 11A(1) could be clearer, Dr Kaplan did enough to grapple with the issue.
The respondent submitted that the Commission would not accept that the workplace events relied on by Dr Khan actually occurred. Even if they did, they related to actions described in
s 11A(1) of the 1987 Act.

Applicant’s submissions

The applicant submitted that the preponderance of medical opinion confirmed that the applicant sustained an injury in the course of employment. The applicant’s medicolegal expert, Ms Khan, Ms Stern and the general practitioners who issued the applicant certificates all gave the opinion that the applicant had work-related psychological injury.
The applicant submitted that Dr Kaplan’s reports were difficult to make sense of. Insofar as the respondent asserted a defence pursuant to s 11A(1) of the 1987 Act, Dr Kaplan’s reports were not of assistance.
The applicant submitted that the respondent failed to make submissions with regard to the particular events relied on for the purposes of s 11A(1). This was said to be significant as the respondent bore the onus of satisfying the Commission that the condition was caused by one of the relevant categories of managerial action. This was a matter requiring medical evidence consistently with the decision of Hamad v Q Catering, which Dr Kaplan did not provide.
Dr Khan provided an opinion that the applicant sustained a psychological injury due to poor management, bullying and harassment and racial discrimination. Although the relevant causative events were described by the applicant in those terms. It was not necessary for the Commission to find that the events satisfied some definition of bullying and harassment or discrimination. It was sufficient that there were real events perceived by the applicant in that way.
Dr Kaplan made a diagnosis of adjustment disorder but considered employment was not the main contributing factor on the basis that the claims of bullying were retrospective. Contrary to Dr Kaplan’s opinion, the respondent submitted that a history of ill-treatment at work had been contemporaneously reported early on to Ms Khan and the general practitioner.
Dr Kaplan had engaged in advocacy by arguing the case for the respondent. Dr Kaplan gave a view as to the applicant’s credibility that was not it within his purview to give. The Commission would have great reservations in drawing assistance from Dr Kaplan’s report.
Dr Kaplan’s medical opinions were given without explanation or a balancing of causative factors.
The opinions given in Dr Kaplan’s second report also failed to engage in an evaluation of the competing factors. The fact that the applicant elicited medical help before the date of injury was not fatal to the applicant’s case. There was no evidence that the applicant’s personal problems were incapacitating. Dr Kaplan failed to consider the evidence of the applicant’s adverse interactions with Mr Tanner and Mr Perkiss. The applicant’s evidence that he experienced adverse interactions in the workplace was corroborated by the evidence of
Mr Apulu.
The respondent’s reliance on a defence pursuant to s 11A(1) was inconsistent with
Dr Kaplan’s opinion that the applicant did not have a work-related injury. Dr Kaplan expressed the view that employment was not the main contributing factor to the injury but his opinion was unreliable and of no assistance.
The applicant referred to the evidence of Ms Khan and noted that the applicant had been receiving treatment for psychological symptoms well before the applicant received final warning from the employer.

The applicant referred to the evidence from Ms Stern including her diagnosis of a psychological condition to which employment was a substantial contributing factor. Ms Stern considered that bullying and intimidation described by the applicant left the applicant in immense psychological distress and unable to work. Ms Stern gave the opinion that the applicant was not ready to return to work.
The applicant submitted that the general practitioner’s clinical notes recorded that the applicant was experiencing physiological symptoms of depression and anxiety including headache and digestive issues. Although there was a reference to concerns about the company shutting down, the respondent had failed to make out a case that the injury was wholly or predominantly caused by retrenchment. No opinion of that nature was given by
Dr Kaplan. The respondent also failed to make a case that its actions were reasonable.
Stress related to the applicant’s supervisors was noted in the clinical notes as well as in the history taken by Dr Khan. The applicant compared the detail in Dr Khan’s report with the more brief reports from Dr Kaplan. The applicant submitted that Dr Khan’s reports contained sufficient detail as to provide a proper factual foundation for the opinions expressed therein.
The applicant submitted that although there may be some discrepancies between the history recorded by Dr Khan and the evidence of the applicant, the histories were materially similar. Any minor distinctions were not material. The applicant’s evidence was also consistent with the evidence from Mr Apulu. Although Dr Khan made a different diagnosis to Dr Kaplan depression was a feature of those conditions. Dr Khan said the prognosis was guarded and the applicant had a total incapacity for work.
The applicant noted that Dr Khan dealt with Dr Kaplan’s report and expressed the view that it was not possible to determine the veracity of the respondent’s witness statements. In his second report, Dr Khan found no evidence that non-work related stressors had caused the applicant to stop working.
Dr Khan was aware of issues relating to discipline and absenteeism but formed the view that the temporality of the work-related stressors of bullying and harassment highlighted that those were the predominant cause of injury.
The applicant’s own evidence identified concerns with regard to workplace health and safety including being unreasonably expected to lift and carry heavy items. The applicant’s evidence described a fellow worker sustaining a physical injury due to performing such tasks demonstrating a pattern of pressure of the kind described by the applicant.
In so far as the tone of the applicant’s interactions with his supervisors was disputed by them, the applicant submitted that this was unsurprising. The Commission would be guided by the corroboration of the applicant’s evidence by Mr Apulu. The applicant submitted that it was plausible that the kinds of pressures described by the applicant to make deliveries would be placed on drivers. The applicant’s supervisors did not understand what it was like to drive the truck. The applicant’s evidence was credible and corroborated by Mr Apulu.
The applicant submitted that Mr Apulu’s evidence consisted of a record of mistreatment of himself and the applicant together.
It was not necessary for the applicant to establish that directions given to him were unreasonable. There were clear tensions between what the applicant was able to do and the manager’s interests. Mr Apulu provided evidence of co-workers noticing that the applicant was upset and offering support. There is no evidence from the respondent to contradict the applicant’s lay evidence.
The applicant noted that Mr Tanner’s statement preceded Mr Apulu’s statement. No response to Mr Apulu’s statement had been given by Mr Tanner and the respondent had not called any of its witnesses for cross examination.
Although Mr Perkiss addressed Mr Apulu’s statement in his second statement, the suggestion that Mr Apulu had given false evidence because he was aggrieved about his own workers compensation claim was unsupported and would need to be the subject of cross examination.
The applicant submitted that the surveillance material was unreliable. The Commission could not be satisfied that anyone wearing an orange hi viz vest could be seen leaving the applicant’s address. The Commission would not be satisfied that the correct address was being monitored. The applicant had given oral evidence that he would not be leaving the house at that time and the applicant’s evidence was corroborated by his partner Ms Baird. The applicant was subjected to cross examination and had provided evidence under affirmation.
The applicant noted that no video footage of the surveillance had been lodged. The applicant had given clear evidence that he did not possess a high viz vest at the time and had not worked since ceasing employment for Toll. The applicant’s partner had confirmed that he was not working and spent most of his time at home. No countervailing evidence had been provided.
The applicant submitted that the medical evidence from Ms Stern and the WorkCover certificates demonstrated that the applicant had no capacity for employment. Dr Kaplan did not deal with the issue of capacity in isolation.
The applicant sought an order for weekly payments from 12 November 2021 pursuant to s 37 of the 1987 Act based on the agreed PIAWE rate. The applicant also sought a general order pursuant to s 60 of the 1987 Act.

Respondent’s submissions in reply

The respondent noted that the applicant’s doctors had provided opinions based on an assumption that there was systematic and ongoing harassment and intimidation of the applicant. The applicant’s own evidence, however, only identified some individual comments alleged to have been made.
The suggestion that there was a temporal connection between the commencement of
Mr Perkiss and Mr Tanner’s employment with the respondent and the onset of the applicant psychological symptoms was misplaced. The evidence suggested that they had been employed for several years prior to complaints of psychological symptoms having been recorded. The only temporally related event to the reporting of symptoms in mid-2020 appeared to be the prospect of the applicant losing his job.
The respondent noted that a number of records of discussions had been obtained from other workers regarding the availability of assistance in the performance of the applicant’s work.
There was a paucity of explanation as to how Dr Khan arrived at his conclusions. Dr Khan did not explain why employment was a substantial contributing factor to the condition in the context of the applicant’s other personal problems.
The respondent submitted that the transfers from Ms Ulukita for work vehicle repairs had not been put to the applicant for comment. Payments, seven days apart, of a consistent sum had been made to the applicant. Although the respondent could not say positively that the applicant was working. This evidence raised issues as to the veracity of the applicant’s own evidence. The respondent noted that Ms Ulukita was not called upon to give evidence.

Applicant’s further submissions in reply

The applicant submitted that the respondent’s submission in reply had suggested for the first time that the applicant was working and that the payments from Ms Ulukita were remuneration for work. The respondent had the opportunity to cross examine the applicant and put to him that he was working or cross examine him in relation to those payments but had not done so. It was not appropriate for the respondent to now seek to open up an argument that those payments were evidence of work.
The applicant had given evidence that he was not employed. Ms Baird also gave evidence that the applicant was not employed. The applicant had given evidence explaining those payments.

Applicant’s written submissions

In written submissions prepared on 16 March 2022, the applicant submitted that Dr Khan’s final supplementary report confirmed that the surveillance material provided no basis for conclusion that the applicant had any capacity for work. The activities shown involved no responsibility, requirement to comply with authority or instructions and no requirement for sustained concentration. Dr Khan had noted that there was no correlation between capacity to travel and engage in social activities and capacity for employment. Dr Khan had also noted that gambling was pathological behaviour consistent with the applicant’s condition.
The applicant submitted that Dr Kaplan’s report of 6 March 2022 took the respondent’s case no further. At its highest, Dr Kaplan’s opinion was that the applicant’s symptoms had improved. The applicant submitted that that opinion provided no foundation for a finding that the applicant had any capacity to work.
The applicant noted that the respondent had provided no evidence identifying any real jobs the applicant was able to do, consistently with Wollongong Nursing Home Pty Ltd v Dewar[1]
[1] [2014] NSWWCCPD 55.

Respondent’s written submissions

In written submissions prepared on 22 March 2022, the respondent noted that Dr Khan had in his most recent report not engaged with the fact that the surveillance showed the applicant to be more active and uninhibited than he had asserted. The underlying assumptions on which Dr Khan’s opinion was based were flawed. Dr Khan did not explain why the additional material did not alter his opinion with respect to injury and capacity for employment.
Dr Kaplan noted that the observed behaviour was greater than he had been told.
The tension between the activity shown in the surveillance and the applicant’s reported limitations, favoured the rejection of the applicant’s evidence or it should at least be treated with caution.

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[2] (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.”
[2] [2010] NSWWCCPD 76.
Further at [54]:
“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.”
The medical evidence before me establishes that the applicant has sustained a diagnosable psychological condition. The applicant’s expert, Dr Khan, has diagnosed a major depressive disorder. The respondent’s expert, Dr Kaplan, diagnosed an adjustment disorder. The treating medical evidence confirms that the applicant has received a diagnosis, been prescribed medication and has accessed psychological treatment over a period of time commencing from around mid-2020.
Where the evidence diverges is on the question of the contributing factors to the applicant’s psychological condition.
There is no suggestion in the evidence that the applicant had a pre-existing psychological condition.
It is the applicant who bears the onus of establishing that employment was the main contributing factor to the contraction of the psychological condition in so far as the condition is a disease injury pursuant to s 4(b)(i). The applicant made no submissions on this point, but to the extent that the injury was alleged to have been caused by a series of microtraumata in the workplace in accordance with s 4(a) of the 1987 Act, it would be necessary to establish that employment was “a substantial contributing factor” to the condition pursuant to s 9A of the 1987 Act.
The applicant’s medicolegal expert, Dr Khan gave the opinion that his psychological condition was caused by “unreasonable action adopted by his employer whereby he was bullied, harassed, intimidated and threatened”. The injury described in the ARD and elsewhere in the applicant’s evidence was also one caused by “bullying and harassment”.
The applicant has submitted, and I accept, that it is not necessary for the applicant to establish that the workplace events complained of satisfy some definition of “bullying” or “harassment”. It is, however, necessary for the applicant to demonstrate on the balance of probabilities that real events occurred in the workplace which were perceived by him as offensive or hostile, giving rise to psychological injury.
Details of the events relied on by Dr Khan in giving his opinion were set out in the history taken by him in his first report. These included:
(a)    “bullying and intimidation” by Mr Perkiss and Mr Tanner;
(b)    numerous incidents where Mr Perkiss and Mr Tanner made inappropriate comments including reference to the applicant’s partner being correctional officer;
(c)    racist comments made including an incident a toolbox meeting when Mr Perkiss commented that he “doesn’t hire ex-convicts”;
(d)    being pressured repeatedly by Mr Perkiss to deliver items faster as if the truck was a van;
(e)    Mr Perkiss making condescending remarks about the applicant’s work;
(f)    Mr Perkiss repeatedly pressuring the applicant to deliver items which required more than one person to lift;
(g)    an occasion in January 2021 when the applicant was told to load a whiteboard on his own and was harassed about this incident;
(h)    incidences when Mr Tanner would make the applicant unload his delivery truck and load his items into another delivery truck so that a colleague could load their items onto the applicant’s truck;
(i)    Mr Perkiss repeatedly making comments about approved leave;
(j)    being subjected to performance management and disciplinary action in relation to alleged absenteeism despite his leave being preapproved;
(k)    Mr Perkiss making a comment about how, if the applicant took another day off work, “it’ll be the last day you ever have off”; and
(l)    the applicant being threatened with the termination of his employment.
It is necessary, however, to consider whether the history on which Dr Khan’s opinions were based is sufficiently supported by the other evidence. In other words, whether there is a “fair climate” for the expression of Dr Khan’s opinions[3].
[3] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
In his own statement, the applicant described:
(a)    Mr Tanner and Mr Perkiss talking down to him;
(b)    being pushed to carry items weighing up to 80kg;
(c)    being asked to carry a whiteboard that was 2m long;
(d)    workplace health and safety rules being ignored;
(e)    being told on numerous occasions that his work was not good enough despite pushing himself nearly every day;
(f)    being called an offensive name by Mr Perkiss on one occasion;
(g)    offensive comments being made on at least a weekly basis including a comment made by Mr Perkiss about the applicant’s partner being a correctional officer;
(h)    being forced to unload his truck on about five occasions to give his truck to another driver;
(i)    discussions about the company being finished and the applicant being made redundant; and
(j)    being picked on as a “brown guy”.
There is support for the applicant’s evidence in the written statement prepared by Mr Apulu. Mr Apulu generally corroborated the applicant’s claim that he would be pressured to take heavy or large objects without regard for his safety and well-being. Mr Apulu said he constantly witnessed bullying and verbal threats and Mr Tanner constantly threatened people with their jobs and forced them to take pallets that were oversized and inappropriate for their trucks. Mr Apulu said Mr Perkiss would constantly question the applicant as to why his runs were not completed and harass the applicant if his targets were not reached. Mr Apulu said he had been called names such as “marshmallow” and “refrigerator”. This was said to be an example of Mr Perkiss and Mr Tanner’s attitudes.
Mr Apulu said he had witnessed the treatment the applicant was receiving from Mr Tanner and Mr Perkiss taking a mental toll on him.
A very different picture of the workplace is painted by the respondent’s witness evidence.
Mr Perkiss has given evidence that he was acutely aware of his responsibility to provide a safe workplace, free from discrimination, bullying and harassment and had recently facilitated training in relation to these issues. Mr Perkiss said the applicant was aware that he could request assistance and that dockhands and extra staff were available to assist if deliveries were too much for a driver.
Mr Perkiss described the company’s right to refuse policy and regular safety conversations and toolbox talks.
Mr Perkiss said he had a good understanding of the applicant’s role, having worked in the industry since 1985.
Mr Perkiss denied ever speaking down to the applicant or calling him a name other than his given name. Mr Perkiss denied making comments about the applicant’s partner being a correctional officer. Mr Perkiss denied referring to Mr Apulu as a refrigerator or marshmallow. Mr Perkiss denied being aware of any complaints about bullying or verbal threats by
Mr Tanner.
Mr Perkiss said it was an ordinary part of his role to question drivers as to their productivity to understand what issues or influences may have impacted their results. Mr Perkiss said there was no record of disciplinary action or counselling of the applicant with regard to his productivity or on-road performance.

Mr Tanner said the maximum weight the applicant would be asked to carry was 50kg with a trolley. Anything more than that would be put aside for a two man lift. The applicant was told numerous times to ask for assistance. Mr Tanner said the applicant never reported that anything at work was affecting him and said that when he “had his head on” the applicant was one of the best drivers in the yard.
Mr Tanner denied ever instructing the applicant to unload his truck so it could be used by another driver although agreed that trucks were sometimes moved around if they broke down.
Mr Tanner denied bullying the applicant, picking on him or making racist remarks, noting that he was himself Aboriginal. Mr Tanner denied calling Mr Apulu a marshmallow and spoke positively of him. Mr Tanner vehemently denied picking on the applicant, his brother or anyone else.
Mr Perkiss and Mr Tanner’s evidence with regard to workplace health and safety issues and driver support was consistent with the records of discussions with other drivers relied on by the respondent.
There is, therefore, a factual dichotomy between almost all of the applicant’s claims and the respondent’s evidence. The only matters in respect of which the parties’ factual evidence aligns is with respect to there being discussions in the workplace with drivers as to their productivity and results generally. The respondent’s evidence confirms that there were communications with the applicant and other staff regarding possible restructuring of the respondent’s business and redundancies. The respondent’s evidence confirms also that there were discussions including warnings about the applicant’s absenteeism and he was placed on a performance improvement plan in relation to this issue.
In considering whether the applicant’s evidence should be accepted, I have given weight to the corroboration of the applicant’s claims by Mr Apulu. It is noted, however, that with few exceptions, the applicant’s evidence lacked specificity and detail, for example, with regard to the timing and location of relevant events and what took place. Details, such as the particular name the applicant alleged he was called by Mr Perkiss, are missing. Examples of the way in which Mr Perkiss and Mr Tanner were said to have talked down to the applicant, picked on him and made racist or offensive comments are lacking. The two examples of offensive comments that were provided, relating to Mr Apulu and the applicant’s partner, are specifically denied by both Mr Perkiss and Mr Tanner.
There is no documentary record of any contemporaneous complaints made by the applicant of the treatment he is alleged to have been subject to in the workplace. Both Mr Tanner and
Mr Perkiss suggest they worked closely with the applicant and were not aware of any concerns the applicant may have had with regard to their manner of dealing with him and other drivers or his workplace health and safety concerns.
The example given by the applicant and Mr Apulu of the applicant being asked to carry a 2m long whiteboard, indicates that after objecting to the job, the applicant was not required to lift the whiteboard. This is consistent with the evidence from Mr Perkiss of the respondent’s “right to refuse” policy. No details or examples of the manner in which Mr Perkiss is alleged to have “harassed” the applicant after this incident are provided.
Both Mr Perkiss and Mr Tanner denied holding any particular concerns as to the applicant’s productivity or on-road performance other than his repeated absenteeism. Both described the applicant’s performance in this regard in relatively positive terms, which is difficult to reconcile with the allegation that the applicant was constantly pressured to deliver items faster and that condescending remarks were repeatedly made about the applicant’s work.
I do accept, however, that general discussions and sharing of information regarding all drivers’ performance and results occurred.
It is relevant to consider the evidence of contemporaneous communications between the applicant and Mr Perkiss. The text messages and email correspondence in evidence indicate that enquiries with regard to the applicant’s welfare and offers of assistance were made on several occasions in the context of the applicant’s absences from work. The applicant’s responses were suggestive of mental health issues but no indication was given that these were causally related to events at work. The applicant referred to medical issues, car issues, family issues, having minimal support in caring for his children and a court listing in January 2021.
Mr Perkiss’ messages to the applicant are not appropriately characterised as offensive, harassing, intimidating, condescending or threatening. To the contrary, they suggest a supportive relationship and a willingness to accommodate the applicant’s personal issues on several occasions.
The contemporaneous correspondence between Mr Perkiss and the applicant does, however, suggest that the prospect of the applicant being terminated or made redundant was a matter of some concern for the applicant.
In considering whether the applicant has discharged his evidentiary onus, it is of note that there are some significant omissions in the applicant’s evidence. The respondent’s witness evidence and the records from the employer confirm that performance discussions regarding repeated absenteeism took place from September 2019 onwards. The applicant is recorded to have attributed his absenteeism to “things going on in my life” and “family issues”. There is no record of the applicant attributing his absenteeism to workplace events or stress.
The applicant successfully completed a Performance Improvement Plan in early 2020, however, in January 2021 was given a final warning in relation to attendance and punctuality. The applicant was advised that his attendance and punctuality would be monitored over the next four weeks and in the event of further incidents, disciplinary action including termination could be taken. This letter was sent to the applicant around a month prior to the cessation of work.
The applicant’s absenteeism and discussions in the workplace with regard to attendance and punctuality, including the Performance Improvement Plan and final warning are not addressed at all in the applicant’s statement evidence or the evidence of Mr Apulu. Given the temporal relationship between these events, the seeking of treatment for psychological symptoms and the cessation of employment, this omission is significant.
Whilst these matters were noted in general terms by Dr Khan, it appears to have been suggested to Dr Khan that the respondent’s actions were unreasonable or unfounded on the basis that the applicant had been given pre-approved leave. This is not borne out on the documentary evidence. Nor is it apparent that Dr Khan was aware of the degree of absenteeism, the contemporaneous explanations for the absenteeism or the particular actions taken by the respondent over time to address it.
The applicant’s statement evidence is also silent as to any personal stressors or his family life. In contrast, Mr Perkiss and Mr Tanner’s evidence and the contemporaneous records from the respondent suggest issues involving the applicant’s former partner, her new partner, childcare and custody matters, a court case and a medical condition had caused the applicant to take time off work and affected his mental health.
In particular, the text message and email communications with Mr Perkiss indicate that in the same month that the applicant ceased work, he had been required to attend court. No explanation of the nature of the court proceedings or the applicant’s involvement in them has been provided in the applicant’s statement evidence. Mr Tanner’s evidence suggested that there were issues involving the applicant’s current partner’s car being firebombed and his children being abused by his ex-partner’s new partner. Mr Tanner also recalled a conversation with the applicant about him becoming upset during court hearings in relation to the custody of his children.
There is no response from the applicant to the evidence of these significant and inherently stressful events.
Dr Khan did acknowledge that there were “longitudinal challenges” associated with the custody of the applicant’s children but denied that these challenges were contributing to the applicant’s current presentation. It is not clear what history Dr Khan was given in relation to these challenges or that he was aware of any court proceedings aligning temporally with the cessation of work. Dr Khan’s opinion that personal stressors were not impacting on the applicant’s current presentation is inconsistent with the evidence from the applicant’s first treating psychologist Ms Khan and the contemporaneous evidence from the employer.
In justifying his opinion that personal issues and disciplinary issues had not caused the applicant’s decompensation, Dr Khan said there was no evidence to indicate that non work-related stressors caused the applicant to stop working. In giving this opinion, Dr Khan failed to address the court proceedings apparently taking place in January 2021 and the final warning letter issued in the same month. Instead, he relied instead on a clinical note from the applicant’s general practitioner on 23 February 2021 and a subsequent report from Ms Khan.
The first two records of attendance on a general practitioner for mental health issues in July 2020 did not identify any causal factor.
On 10 September 2020, the applicant’s general practitioner noted that custody issues and now his company shutting down were causal factors to the applicant’s experience of depression and anxiety. The respondent’s evidence demonstrates that during this period, letters were sent to the applicant about possible restructuring. Significantly, the clinical record contains no reference to bullying, harassment, intimidation or workload pressures. It was on this occasion that the applicant was diagnosed with an adjustment disorder and a Mental Health Care Plan prepared.
A general practitioner was seen again in November 2020 with regard to ongoing symptoms, again without any reference to mistreatment or other events in the workplace.
The first reference to the claims relied on in these proceedings appeared on 23 February 2021 around the time the applicant stopped work. A note recorded by Dr Chahoud on that date referred to the possible restructure of the business, increased workload, heavy weights, the applicant’s supervisor being rude, bullying and criticising him as well as being pushed to work harder. Reference was also made to the applicant’s boss and supervisor putting pressure on him as he could not go to work due to being sick. A SIRA certificate of capacity was issued in relation to anxiety, panic attacks, stress and depression triggered by poor management.
Ms Khan wrote in a report, dated 9 May 2021, that the applicant was first seen in September 2020 for symptoms caused by a combination of personal stressors related to the custody of his children as well as bullying and harassment by his manager at work. No detail is provided by Ms Khan as to what “bullying and harassment” the applicant alleged at that time. It is noted that the applicant attended a number of consultations with Ms Khan after the cessation of work. No indication is given by Ms Khan as to whether the events complained of by the applicant changed over time.
The other treating medical evidence dated after the cessation of work is also consistent with the applicant’s claims. Psychologist, Ms Stern, recorded a history in July 2021 of bullying and harassment by two managers causing psychological injury. Ms Stern gave the opinion that work was a substantial contributing factor to the applicant’s symptoms but noted that there were no other concomitant stressor factors contributing to the psychological injury. It is not apparent from Ms Stern’s evidence that she was aware of the personal stressors reported to Ms Khan, the applicant’s general practitioners or described contemporaneously to Mr Perkiss and Mr Tanner. Ms Stern also does not address the action taken with respect to the applicant’s absenteeism or the correspondence regarding the possible restructuring of the respondent’s business.
Weighing against the applicant’s medical evidence are the reports from the respondent’s expert, Dr Kaplan. Dr Kaplan took a history of alleged bullying and harassment that was consistent with the applicant’s statement evidence and the history given to Dr Khan.
Dr Kaplan agreed that the applicant had a diagnosable psychological condition.
Dr Kaplan did, however, unlike Dr Khan, take a relatively detailed history of unplanned absenteeism and action taken with respect to that absenteeism. Dr Kaplan also referred in some detail to the custody dispute with the applicant’s former partner, an allegation that the former partner’s boyfriend assaulted the applicant’s son and an incident involving the boyfriend that went to court and resulted in him being gaoled in April 2021.
Dr Kaplan did not accept that employment was the main contributing factor to the applicant’s psychological condition. Dr Kaplan referred to the other events in the applicant’s personal life and the action taken by the employer with respect to the applicant’s unplanned absenteeism. Dr Kaplan expressed a personal view that the statement evidence of Mr Perkiss and
Mr Tanner appeared credible compared to the applicant’s evidence and suggested that his allegations of bullying and harassment appeared largely retrospective.
With regard to the applicant seeking psychological treatment from Ms Khan and his general practitioner in late 2020, Dr Kaplan gave the opinion that both his personal problems and the disciplinary issues at work could explain the need to seek help. Dr Kaplan reiterated his opinion that the applicant did not have a work related injury.
Having weighed the evidence as a whole, I do not feel a sense of actual persuasion that the majority of the events complained of by the applicant in his statement evidence and medical evidence actually occurred.
I am not satisfied that the applicant was bullied, harassed or the subject of intimidating, threatening, offensive or racist comments by Mr Perkiss and Mr Tanner. Whilst the applicant may have been subject to supervision and monitoring of his work performance, I am not satisfied that he was pressured repeatedly to deliver items faster or pressured repeatedly to deliver items requiring more than one person to lift. I am not satisfied that there were multiple incidences where the applicant was made to unload his delivery truck and load his items into another delivery truck so that a colleague could use his truck.
Whilst I do accept that the applicant was subjected to performance management and disciplinary action in relation to absenteeism, and that this absenteeism was the subject of regular discussion, I am not satisfied that this was unfounded, unwarranted or constituted a form of bullying or harassment. Nothing in the contemporaneous text message and email correspondence or the employer’s records of the action it took in relation to the applicant’s absenteeism appears unreasonable. The applicant’s own evidence does not suggest that such action was unreasonable, because it is not addressed in his own evidence.
The omissions in the applicant’s evidence and the histories recorded by his treating practitioners and medicolegal expert are significant.
There is inadequate detail of the instances of bullying and harassment described. There is a lack of evidence in relation to significant personal stressors that are temporally relevant and which the applicant described as causally related to his psychological symptoms and absences from work to his general practitioner, Ms Khan and his supervisors.
The impact of the performance management and disciplinary action the applicant was subjected to was inadequately addressed in the lay evidence and treating medical evidence and inaccurately represented in the history recorded by Dr Khan. The applicant also failed to address the impact of the possible restructuring of the respondent’s business in his own statement or in the history provided to Dr Khan despite this being a matter noted to be significant in the general practitioner’s notes on the occasion a psychological condition was first diagnosed.
Whilst I am prepared to accept that the applicant did find the possibility of being made redundant or terminated stressful and may have experienced psychological symptoms associated with coming to work in the late part of 2020 and early 2021, I am not satisfied on the evidence before me that employment was “a substantial contributing factor” or “the main contributing” factor to the contraction of his psychological condition.
Whilst aspects of Dr Kaplan’s reports appear inconsistent and lack clarity, and the preponderance of medical opinion indicates that the applicant sustained a work-related injury, for the reasons given above, following my own weighing of all the evidence, I agree with Dr Kaplan’s ultimate conclusion. I am not satisfied that that the applicant has sustained an injury which satisfies s 9A or s 4(b)(i). The applicant has not claimed to satisfy the definition of injury in s 4(b)(ii).
In view of this finding, it is not necessary to consider the respondent’s s 11A(1) defence, the evidence with regard to capacity or the ongoing effects of the applicant’s psychological condition. The condition is not one which is compensable.
There will be an award for the respondent.

[2022] NSWPIC 192

2 May 2022