Li v Hamilton Island Shared Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Li v Hamilton Island Shared Services Pty Ltd [2024] NSWPIC 11
APPLICANT:	Tieshan (David) Li
RESPONDENT:	Hamilton Island Shared Services Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	9 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly and medical expenses following psychological injury on 31 January 2023; respondent relied on a section 11A defence in respect of performance appraisal, discipline and dismissal; Held – events on 31 January 2023 were not the whole or predominant cause of the applicant’s injury and events on 30 December 2022 and 12 January 2023 were causative workplace stressors as well as the events on 31 January 2023; respondent failed to discharge the onus to establish a section 11A defence; award for the applicant for weekly benefits and medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. By consent, amend the Application to Resolve a Dispute (ARD) to add a claim for a general order for s 60 expenses. 2. Respondent to pay the applicant weekly compensation from 13 July 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act), based on a pre-injury average weekly earnings rate of $1,290 periodically adjusted in accordance with s 82A of the 1987 Act. 3. Respondent to pay the applicant’s reasonably necessary s 60 expenses on production of accounts, receipts and /or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

The applicant, Tieshan (David) Li (Mr Li), was employed by the respondent, Hamilton Island Shared Services Pty Ltd (the respondent). Mr Li alleged that he sustained a primary psychiatric injury in the course of employment as a trade reservation consultant. The date of injury was 31 January 2023. The respondent was insured by Employers Mutual (NSW) Limited (the insurer) at all relevant times.
The respondent disputed liability in respect of the claim for weekly benefits in the s 78 Notice dated 28 June 2023 and the s 287A Review Notice dated 20 September 2023.
These proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) on 20 July 2023. The applicant sought weekly compensation from 8 June 2022 onwards.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) was Mr Li’s injury the result of reasonable action with respect to performance appraisal, discipline and/or dismissal (s 11A of the Workers Compensation Act 1987 (the 1987 Act))?
(b) Whether Mr Li had an entitlement to weekly compensation due to partial or total incapacity for work from 13 July 2023 to date and ongoing.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via the video platform TEAMS on 7 December 2023. Mr Li was represented by Mr Jarryd Malouf, who was instructed by Mr Dawod of Law Partners Personal Injury Lawyers. The respondent was represented by Mr Andrew Combe, who was instructed by Ms Magan of Bartier Perry Lawyers. Ms McMahon from the respondent company attended the conference.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter was part heard on 7 December 2023. The respondent had made oral submissions during the arbitration concerning the issues in dispute. The applicant was directed to file written submission by 14 December 2023 and the respondent to file any submissions in reply by 20 December 2023. I requested the Personal Injury Commission (Commission) to send to the parties the recording of the hearing on 7 December 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

FINDINGS AND REASONS

During conciliation, Mr Li requested that the Application to Resolve a Dispute be amended to include a claim for a general order under s60 of the 1987 Act. The respondent consented to the amendment.

Submissions

The submissions of the respondent during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons. However, the respondent submitted that the reasonable actions of the respondent in respect of performance appraisal, discipline and/or dismissal on 31 January 2023 were the whole or predominant cause of Mr Li’s ’s psychological injury.
Mr Malouf made written submissions dated 14 December 2023. He submitted that the respondent failed to make out a defence pursuant to s11A of the 1987 Act as it could not prove that the injury was wholly or predominantly caused by the respondent’s actions on 31 January 2023. Mr Malouf submitted that in the oral hearing, the respondent clearly advanced a case that Mr Li’s injury was caused wholly or predominantly by the events of the meeting and/or show cause letter on 31 January 2023.
Mr Combe made written submissions in reply dated 19 December 2023. He submitted that Mr Li complained of symptoms after the meeting on 31 January 2023 and therefore on a common sense basis the the whole or predominant cause of Mr Li’s injury was the meeting on 31 January 2023. He submitted that the actions of the respondent on this date were reasonable as complaints had been made against Mr Li and he was provided with the opportunity to respond which he did. Mr Combe argued that Mr Li was the subject of multiple complaints by co-workers which resulted in the meeting on 31 January 2023 and the issuing of the show cause letter dated 31 January 2023 and this was reasonable conduct by the respondent as employer.

Evidence of Tieshan Li – statement 23 March 2023

In a statement dated 23 March 2023, Mr Li said that he commenced employment with the respondent on 10 August 2022. He stated that he had a few weeks of training by Adele Gemmell (Ms Gemmell) and then he started training with the assistant team leader, Maria. Mr Li thought that he did that training with Maria for a couple of weeks three days a week and on the other days he would get training from Ms Gemmell and other staff members. He described the training as very general. He stated that he reported to Mr Kelly.
Mr Li stated that on 31 January 2023 he was invited to a meeting by Fiona Le Claire, (Ms Le Claire), Reservations Operations Manager and by Sarah Stegeman, (Ms Stegeman) Human Resources Advisor. He said that their emails indicated that the meeting was to discuss his employment with Hamilton Island, as it was towards the end of his probation period and they suggested that he bring a support person with him.
Mr Li said that he arranged for the Director of Marketing, Courtney Berry, to be his support person. He said he had a chat with Ms Berry in her office and told her about the two complaints he had reported to the Reservation Centre Manager. He stated that one complaint was against his Team Leader, Mr Kelly, concerning events on 30 December 2022 and the other one was about the team member Mary Jane (MJ) West (Ms West) in an incident on 12 January 2023.
Mr Li stated that in the meeting, Ms Le Claire noted that his employment was based on a six month probation period. He said Ms Le Claire stated that management had some concerns in the past six months and as a result, they were strongly considering the termination of his employment within probation. Mr Li said he was given a hard copy of the show cause letter issued by Ms Le Claire and was given 48 hours notice to get back to Ms Stegeman with his response in writing.
Mr Li stated that he gave some feedback concerning the first three concerns in the letter.
Mr Li said the first concern was the expectation that trade consultants have an average of seven minutes for a phone call and his time was currently averaging 12 minutes per call. Mr Li responded by saying he had never been advised of this and the first time he got to know his average duration time was 12 minutes was when he read the letter. He said that Ms Le Claire argued that he should be able to see the duration of each phone call in the system, but Mr Li said that was the time for each individual phone call and not an average time of all of his phone calls.
Mr Li said that the second concern was the expectation that the trade consultant action 40 emails per day. Mr Li responded by saying that before the meeting he did not receive any formal performance review about actioning less emails or not meeting key performance indicators (KPIs). He also stated that before January, the KPI was to action 30 emails on average per day but on 13 January 2023 the team leader emailed the team new KPls for January 2023 requiring 40 class emails to be actioned every day. Mr Li said he had raised his concerns with his team leader, Mr Kelly, on 17 January 2023. He said that Mr Kelly told him that it was management's decision to increase the daily email count in January 2023, but it was still on a base of average, although this was not stated in the document. Mr Li said that Mr Kelly also mentioned that the management would consider the actual workload during January 2023, when many staff were on leave so there was a greater workload for staff still working. Mr Li stated that Mr Kelly emphasized that he did not have to worry about his KPIs at that stage.
Mr Li said that Ms Le Claire responded by saying that the KPI had always been for emails to be actioned. Mr Li told Ms Le Claire that was not true, because she mentioned in her email to him on 5 January that ideally, it was 30 emails per day that a consultant should be able to action.
Mr Li stated that the third concern was that he had not demonstrated to be open to receiving training, coaching and constructive feedback from his team members. Mr Li responded by saying that he had always had a friendly, professional and appreciative approach towards colleagues who provide him with their support through training, coaching and offering constructive feedback.
Mr Li then referred to the incident with Mr Kelly on 30 December 2022. Mr Li wrote:
“53. That experience was extremely unpleasant due to what I perceived as Ben's unprofessional behaviour. He gave me completely different instructions about the same booking on different occasions. I have reported what happened on the day to the Reservation Centre Management, and they forwarded to HR on my behalf.
54. I believe I gave detailed information about what happened. And Fiona replied to my email and told me that because Rebecca was on leave Fiona and Rebecca Nable would discuss with me to get to the bottom of it, but nothing happened. Neither Fiona nor Rebecca spoke to me. None of them gave me any update or any feedback about these incidents.”
Mr Li said that the fourth concern was what happened on 12 January 2023 with Ms West. He wrote:
“55… I reported to both Rebecca and Fiona, via email. I only got that reply from Fiona in regard to the incident between Ben and me. In that email, Fiona said they will discuss further and get to the bottom of it. But I didn't hear anything from either of them. Then I think I got a phone call from Sarah, the HR staff on 19 January 2023. And Sarah touched base of follow up or wanted to get more information about what happened with MJ West. I believe it was at that time I realized the centre managers forwarded complaints to HR. I didn't hear from either Rebecca or Fiona”.
Mr Li stated that he believed that Ms Le Claire was referring to the incident on 30 December 2022 in her show cause letter and he thought that was totally unfair because he had made a complaint and “now they were accusing me of wrongdoing. And they did not address me or get back to me with any of their feedbacks. So I don't think it's fair at all. She needs to provide more evidence to prove her concern listed in this letter”.
Mr Li stated that the first time he checked with Mr Kelly, he was told that he did not have to leave notes in that booking. He said that on the second occasion, when Mr Kelly came across that booking again, and Mr Kelly could not work out what was happening with that booking, he noticed that Mr Li had accessed the booking before and so he asked Mr Li, what was happening with this booking. Mr Li said that he did his “research” and found out what happened to this booking and told him. Mr Li wrote: “I thought I helped him solve a problem, but he blamed me that I didn't leave notes in this booking”.
Mt Li said that he had never came across a procedure like that before in regard to a booking. He said that he did everything according to Mr Kelly’s instruction and did double check with him if a note was needed and Mr Kelly said no. He said that he received two totally different instructions. Mr Li said that he was upset with Mr Kelly when Mr Kelly was blaming him for not leaving notes for this booking on 30 December 2022.
Mr Li said that he received a phone call from Ms Stegeman in Human Resources (HR) on 19 January 2023, and on the next day went on annual leave for 10 days. Mr Li said he was fine, because in the phone call with Ms Stegeman on 19 January 2023, she told him “everything was fine” with him so he thought that everything was settled. He said that prior to 31 January 2023, he was happy.
Mr Li said that after the meeting on 31 January 2023, he spent the time at his desk to finish the tasks he was doing for the day. He said that he then saw the fourth concern in the letter and was shocked and overwhelmed.
Mr Li said that on 12 January 2023, he was dealing with an urgent phone call from a guest who was on the ferry to Hamilton Island. He said that the guest was complaining and wanted a refund for his fees for the ferry to the island because he believed he was misinformed by a colleague that the ferry was complimentary. Mr Li said that he was trying to calm the guest down and chatted with him and at the same time he was on TEAMS with Mr Kelly to work out a solution for the guest. He said that Mr Kelly was working from home and had to get the approval from Ms Le Claire for a resort credit for these guests. Mr Li said that Ms Le Claire was attending a farewell party of the General Manager and they had to wait for her in order to respond. Mr Li stated that as a result, it took a while for him to get the solution.
Mr Li said that Ms West started to talk to him when he was checking in with Mr Kelly and she had wanted to transfer to him he call she was dealing with.
Mr Li wrote:
“67… As I had the guest on the phone on hold and I was chatting and awaiting Ben to give me the solution so I told MJ West multiple times that I was on the phone with a guest. I was chatting with Ben on teams at the same time. It was an emergency. And I couldn't talk to her. So this went on for a while from my memory.
68. The customer was on the phone. And I started to chat with Ben on teams. But shortly after I started to chat with Ben, MJ West started to talk to me. And this incident kept going for five to 10 minutes.
69. During that time, I had to tell MJ West multiple times that I was on the phone with a guest and I was chatting with Ben, on teams. It was an emergency, and I couldn't talk to her. Unfortunately, MJ kept asking me why I was still on the phone, why it took me so long. Then she started to raise her voice and shouted at me and said you don't speak to me like that. You are very rude, or that's very rude. I'm trying to help you. And it was at that time I told her she had to leave me alone. She was not helping me. And she was harassing me. She had to stop it. I didn't say shut up to MJ or anyone else. As I mentioned she had to leave me alone. She was not helping me. She was harassing me. She had to stop it…”
Mr Li said that he had been engaged with an urgent inquiry and the customer was on hold. He said that he needed to keep the customer updated as he was waiting for the solution from the team leader. Mr Li said that he had to focus on his “duty of care for the guest” and also his duty as a consultant, but what she was doing to me, she was “stalking me to perform as my role”.
Mr Li stated that Ms West reported this to Ms Le Claire, who called him to a meeting shortly after that and told him that he was very rude and aggressive with Ms West. Mr Li said that he tried to give his side of the story to Ms Le Claire but she didn't want to listen as she had already taken sides. He wrote: “In this meeting, Fiona told me that I might be handed with a warning letter. I cannot remember what kind of like a warning, but she did mention I could get a warning for one”.
Mr Li said that after the meeting with Ms Le Claire he accessed the group chat and realised that before Ms West tried to talk to him about transferring her inquiry to him, she had asked Mr Kelly about the enquiry and Mr Kelly gave her the answer straightaway. Mr Li said that he then forwarded the screen shots to Mrs Le Claire and said that Mr Kelly had answered the question and asked why Ms West had tried to transfer the call to him.
Mr LI stated that he reported both incidents, one with Mr Kelly, and the second one with Ms West, to Ms Le Claire and Ms Nable. Mr Li said that it appeared that the allegations in the letter of 31 January 2023 were “being fast forwarded to assuming guilty and wrongdoing against me. This show cause process appears to have come about as a part of retaliation against me after I exercise my workplace rights to complain”.
After the meeting on 31 January 2023, Mr Li returned to his desk to finish the tasks he was supposed to do on the day. He then told Ms Le Claire that he couldn't go back to work for the next two days and she said that it was fine for him to have these two days off.
Mr Li said that after researching responses to a show cause letter on 1 February 2023, he realized the seriousness of a show cause. He said that he started to feel the anxiety attacks and the stress kicked in. Mr Li then attended Dr Julian Lai based at Carlingford Medical Centre on the next day.

Supplementary Statement – 21 August 2023

In a supplementary statement dated 21 August 2023, Mr Li said that his duties included answering phone enquiries from travel agents and guests, providing quotes and solving booking issues and processing emails under Trade Reservations. He stated that in the early stages of his employment he was subjected to discrimination and bullying by his team leader, Mr Kelly. Mr Li described an incident on 30 September 2022 with Mr Kelly which had strong impact on his job performance and overall wellbeing. He said that as a result, he could not continue to perform his job that day.
Mr Li said that on 30 September 2022, he had helped a travel agent to hold in five reservations which included different room types/requests through one phone call. Mr Li said this was a huge challenge for a new consultant to put them together. He said that he informed Mr Kelly exactly what he was doing for the agent in the beginning of this phone call and did seek assistance from Mr Kelly. He wrote:
“To my surprise, after I finished that phone call, Ben approached me and kept telling me the call was too long and it should have been kept around seven minutes without giving any positive/constructive feedback in regard to my efforts and how to reduce the call time in the future despite knowing it was only the second week I started to work solo on the phone. His expectation was totally unreasonable/unfair at that stage of my employment. It was impossible for me, or even for an experienced consultant, to finish that call around seven minutes due to the complications of the call. I was frustrated by Ben’s behaviour and reported what happened to the reservation manager Ms Rebecca Nable straight away on the spot and had to be off the phone for the rest of the day.”

Mr Li said that the incident was reported to the company HR department by the reservation centre management. The reservation centre operation manager Ms Le Claire asked me to report to her instead of Mr Kelly. Mr Li said that he was not avoiding Mr Kelly during that time. Mr Li stated that there was a meeting between the reservation manager, Ms Nable, Ms Le Claire, Mr Kelly and him on 11 October 2022. Mr Li said that they all decided to move on from what happened and start fresh at the end of the meeting. He said that he was happy with the result and sincerely hoped both he and Mr Kelly could work together closely. He said that he had been actively seeking assistance, support and training from Mr Kelly with work related enquiries ever since.
Mr Li said that there was a second incident with Mr Kelly on 30 December 2022 and another one with team member Ms West on 12 January 2023. He stated that after those incidents, he was subjected to unfair management and disciplinary action, which caused his psychological injury.
Mr Li said that on 30 December 2022, his Team Leader, Mr Kelly, asked me about a booking that showed in the system as cancelled on booking.com while confirmed in Host with full payment. The booking in Host showed that Mr Li charged the payment on 28 November 2022. Mr Li said that Mr Kelly kept asking him multiple times if he had cancelled the booking or if he cancelled it by error without being aware. Mr Li said that he had to keep telling him he did not as no one ever told him that they could cancel a booking on the booking.com website. Mr Li sated that Mr Kelly gave him the impression that he thought Mr Li had made the mistake and cancelled the booking. Mr Li said that this was not fair as there were other team members who had accessed this booking. Mr Li said that he was upset that Mr Kelly was accusing him of making the mistake when Mr Li did not even know how to cancel the booking.
Mr Li said that shortly after, Mr Kelly called him back as he found in the Change Log that it was Ms West who cancelled the booking. Mr Li then recalled he did speak with the guest over the phone, reinstated the booking and charged the payment. He said that on the day, he informed Mr Kelly what happened with this booking after the guest had called and did everything as Mr Kelly instructed after the phone call. Mr Li stated that as instructed, he put the trace in Host to follow up so that the booking would not be cancelled by the system after the reinstatement. He said that he also asked Mr Kelly if there was anything else that needed to be done other than just leaving the trace and Mr Kelly said no. Mr Li stated that as it was the first time he had to solve this type of issue, and he followed Mr Kelly’s instructions precisely.
Mr Li stated that he was surprised that right after they had figured out what happened with this booking together, Mr Kelly started to blame him for not leaving a note in the booking on the day, which was the reason they had to waste time to figure out what happened. Mr Li said that he told Mr Kelly that he did not advise him to leave note in the booking on the day. Mr Li stated that Mr Kelly said he could not tell Mr Li everything and a note should have been left in the booking. Mr Li responded that as “new staff,” he had no idea how to fix that booking and did everything Mr Kelly asked him to do. Mr Li stated that Mr Kelly as team leader should have given him clear and accurate instructions each time to make sure the right procedure was followed for each booking.
Mr Li said that he was disappointed that Mr Kelly did not apologise but said that he was trying to say that Mr Li should make sure notes were left in bookings. Mr Li stated that what had happened made him deeply concerned as Mr Kelly had given him completely different instructions and as a new team member, he found it extremely confusing and felt unsupported.
In relation to the meeting on 31 January 2023, Mr Li wrote:
“23. I was shocked by the allegations and felt extremely distressed as these matters had never been addressed with me previously. I was confused and thought perhaps there had been a misunderstanding or miscommunication. These allegations came from nowhere, and so soon after I had raised my complaints about the workplace. I felt like I was being targeted for raising my concerns with Ben Kelly and MJ. Especially I was assured by HR advisor Sarah Stegeman everything was fine with me during our conversation over the phone on 19 January 2023. I believed everything was solved and went on happily for my annual leave for ten days but was served with the show cause on the second day I returned to work.
24. My anxiety and stress began to escalate after received the show cause letter. I advised Fiona Le Claire that I could not work on the phone for the rest of my shift during our meeting which I was served the show cause and I didn’t have a chance to read through the show cause letter on the spot. Later that afternoon, I told Fiona I was not fit for work for the next two days after I read the letter at my desk and realized how unfair the show cause was. It became even worse the next day as I was trying to prepare my response to the show cause and came across an article about show cause letter. It was then I got to know what a show cause letter is and how serious it is and required legal advice to respond it. I had to justify my actions and summarise my perspective in two days which put me under massive pressure and no access to any legal support at all. I was feeling more and more dumbfounded by the unreasonable allegations. I felt anxious about the threatened termination and could not understand how I got into this situation. I started to worry about my mental health condition and overall wellbeing”.
Mr Li stated that in his discussion with Mr Kelly on 17 January 2023, Mr Kelly had assured him that he was “on top of his KPIs” and would have received the bonus in his pay. Mr Li stated that he checked his pay slips and he had received bonus payments three months in a row between 19 October 2022 and 3 January 2023 by achieving his KPIs. Mr Li stated that as a new staff member there were no KPIs for the first two months. Mr Li said that the new KPIs were not advised until halfway through January and it was unreasonable to expect that the new monthly KPI could be achieved with two weeks left in the month.
In terms of training, Mr Li stated that an email dated 5 January 2023 demonstrated that he had requested further training and asked for a training plan to be established.
In relation to the meeting on 31 January 2023, Mr Li wrote:
“None of the concerns were raised before and no adequate and proactive support from the team leader was given to me to improve. I do not agree the conduct as alleged has occurred as alleged. Nor does the behaviour alleged amount to a breach of the workplace policies. Indeed, I was the person who raised complaints after the incidents occurred and none of my complaints have been addressed in the show cause letter”.

Statement of Fiona Le Claire

In a statement dated 17 April 2023, Ms Le Claire, reservation operations manager with the respondent, stated that she managed the team leaders including Mr Kelly. She stated that in October 2022 Mr Li made a complaint to her about Mr Kelly wanting Mr Li to shorten the time of his calls. She said that Mr Li told her he felt that this showed a lack of trust in his ability to do his job and he got upset. Ms Le Claire said that Mr Li stressed to her that “he is the victim and has been harassed and bullied by Ben” and that Mr Li took this behaviour very seriously. Mr Li also stated that Mr Kelly did not know how to do his job properly.
Ms Le Claire stated that she arranged a meeting on 11 October 2022 between herself, Mr Kelly and Mr Li. She said that Mr Li stated that he felt discouraged by Mr Kelly, did not like Mr Kelly's approach and that he was good at his job and at customer service and all the agents loved him. Mr Li also told them that he was very happy in his job and that he had learnt a lot from Mr Kelly during their training together, however thought Maria's training got him to where he is today. Mr Li further mentioned that he would not like Mr Kelly to be a “dictator” and to be more encouraging and pat him on the back for job well done.
Ms Le Claire stated that she advised Mr Li to take any future heated discussion off the floor if something like this happened again, as it made other staff members very uncomfortable. She said that she and Mr Kelly explained to Mr Li that part of learning in any new role is to be open to receive constructive feedback from Team Leaders and managers in order to grow and learn. She wrote: “In my opinion, Tieshan never accepts responsibility for his side of things and doesn't take direction or show willingness to listen to feedback and learn”.
Ms Le Claire stated that there was another incident in January 2023 when Mr Li sent an email on 3 January 2023 concerning what happened on 30 December 2022 between Mr Kelly and him. She stated that Mr Li reported a cancelled booking on booking.com and Mr Kelly blaming him for not putting notes in the booking. She wrote: “He felt that he was mistreated, bullied and abused by Ben and that Ben's behaviour is ‘not acceptable and fair to me and everyone else who had to witness it’ and ‘Ben has to change and he has to promise that similar incidents cannot happen again’ which ‘clearly indicates Ben has not learnt his lessons from previous complaints’ ".
Ms Le Claire stated that putting notes in the booking was the most basic thing learnt extremely early on during training and they reiterated this to staff regularly.
Ms Le Claire stated that on 11 January 2023 she had a meeting with Mr Li as he was claiming bullying, harassment and abuse. She said that she told him that she would need to get HR involved because of his claims, and she suspended the meeting. Ms Le Claire then sent an email to Ms Stegeman, HR Advisor.
Ms Le Claire stated that on 13 January 2023 she sent another email to Ms Stegeman informing of another incident involving Mr Li on 12 January 2023.
Ms Le Claire wrote:
“On 12 January 2023 Mary Jane West approached me asking for a chat. She advised Tieshan yelled at her and told her to leave him alone when Mary was offering to assist him with a booking. This is when Tieshan became frustrated and raised his voice at Mary telling her to 'shut up and leave him alone', which was overheard by five staff members in the office”.
Ms Le Claire stated that on 12 January 2023 she then met with Mr Li and told him about the discussion with Ms West and informed him that he “cannot talk to his colleagues in this manner as it is inappropriate”. She said that Mr Li kept trying to deflect the conversation to the difficult booking he was working on at the time and was not taking her feedback. She wrote: “I advised Tieshan that I have noticed on several occasions that he struggles with constructive feedback and we are trying to help him as a team so that he can be the best consultant possible.”
Ms Le Claire said that Mr Li kept telling her that it was Ms West who was rude to him and that he was very good at his job and they should appreciate his work. She wrote:
“He feels the culture here is not good for him and he does not understand why people don't like him. I suggested that Tieshan should apologise to Mary and she would apologise and Tieshan said under no circumstance he would be apologising to Mary. Tieshan emailed me later that night admitting that he did tell Mary to leave him alone and stop harassing him”.
Ms Le Claire stated that Mr Li was on his probation during this time. She said that on 17 January 2023 Mr Li sent an email to Ms Nable and herself requesting a follow up on the conversation on 12 January 2023. She said that all of the above issues were reported to HR, which led to the performance management meeting on 31 January 2023.
In response to Mr Li’s allegations concerning the meeting on 31 January 2023, Ms Le Claire stated that Mr Li was offered a support person and he brought Ms Barry as a support person. She said that she read the contents of the letter to Mr Li and then handed a copy of the letter to him. Ms Le Claire stated that he immediately got very defensive. She stated that he was given 48 hours to read their concerns and respond in writing.
Ms Le Claire stated that Mr Li attempted to defend himself against some of the noted points, but they requested he take the 48 hours to read the letter and provide his feedback in writing before a follow up meeting once he had responded. She stated that Mr Li had not returned to work so there had been no chance to attempt to work with him on these performance issues.
Ms Le Claire stated that the meeting was conducted to raise concerns about Mr Li’s behaviour in the workplace over the past few months which was not appropriate and they needed him to understand the severity of this and why they were having these concerns. She stated that Mr Li was on probation at this time and his probation period was meant to end on 7 or 8 February 2023 but he went on workers compensation leave after the meeting.
In relation to Mr Li’s statement that the show cause letter was a huge surprise to him as he had made the complaint before, Ms Le Claire stated that management was concerned with Mr Li’s poor performance and inappropriate behaviour in the workplace. She stated that even though they tried to work with him in bettering himself, he did not respond at all to constructive feedback. She stated that when he started to become verbally unkind and tension started to build between him and his team members and resolutions were not reached amicably, it became difficult to maintain a cohesive team environment.
Ms Le Claire stated that she was aware that Mr Li was not formally performance managed however they did hold a meeting with him to raise concerns about his behaviour.

Statement of Rebecca Nable – 17 April 2023

In a statement dated 17 April 2023, Ms Nable, reservations manager with the respondent, stated that Mr Lai was provided with initial induction by Ms Le Claire, and then training by Ms Gemmell. She stated that training was conducted over three to four weeks and then Mr Li was buddied up with a Senior staff. She stated that there was always ongoing training provided particularly in the first six months.
Ms Nable stated that on 23 September 2022, Mr Li reported to Ms Le Claire that Mr Kelly made him feel like he was not good at his job and that Mr Kelly did not know how to do his job. Ms Le Claire replied that is not the case and there is a miscommunication. She stated that Mr Li requested to be moved to a new team or he reports through to “Maria” but this was denied as Maria had no team leader experience. She stated that after this Mr Li stopped going to Mr Kelly, which stopped Mr Kelly from coaching Mr Li and getting him to a level he needed to be at. She said that when Mr Li started making comments that he was being bullied, HR became involved in order to resolve the conflict.
On 11 October 2022 a meeting was held between Ms Nable, Ms Le Claire, Mr Kelly, and Mr Li. During the meeting Mr Li said he could have acted a little better but was not apologetic. Mr Li said he did not feel encouraged by Mr Kelly, while Mr Kelly believed his role as Team was to ensure Mr Li was moving in the right direction. She said that Mr Kelly mentioned that there was a goal for Mr Li to work on to bring his phone calls to a shorter time and that he wanted to assist in this area. She stated that Mr Kelly's concern was Mr Li would not respond well to constructive feedback and this might lead to another outburst. She said that Mr Kelly and Mr Lee agreed to move forward and be more careful in their choice of words towards one another.
Ms Nable noted that the average phone call time was eight minutes and Mr Li's average phone call time was 15 minutes.
Ms Nable stated that in October 2022 there was a call which took Mr Li 50 minutes and Mr Kelly could see that Mr Li was struggling with the call. Ms Nable said she asked Mr Kelly to listen to the call recording and identify bullet points of where needed more training was required. Ms Nable stated that she also listened to the call recording for a short time and Identified that Mr Li was not taking down notes and was not referring to availability in the true sense. She said that when Mr Kelly listened to the call, he identified the need to write down notes, be definite about room availability, and not use the term "request" instead of confirming. Ms Nable stated that when Mr Kelly discussed the phone call recording with Mr Li, Mr Li got upset and raised his voice. She stated that was when Mr Li spoke to Ms Le Claire.
Ms Nable stated that on 12 January 2023 there was an incident between Mr Li and Ms West, who then approached Ms Le Clare in the afternoon and requested a meeting. She stated that on the same day Ms Le Claire had a meeting with Mr Li and told him that he could not talk to colleagues in this manner. She stated that Mr Li told Ms Le Claire that it was Ms West who raised her voice and was rude to him.
Ms Nable stated that after five months of seeing no improvement in Mr Li’s behaviour, HR decided to hand Mr Li a show cause letter on 31 January 2023.
Ms Nable stated that she was on leave on 30 December 2022 but in all of the training, they reiterated that notes must be left on all bookings and Mr Li would have been very well aware of this.
Ms Nable stated that the business has been performance managing Mr Li since September 2022, when he was six weeks into his employment. She stated that Mr Li’s behaviour also affected Mr Kelly, Ms West and other team members.

Statement Benjamin Kelly – 1 May 2023

In a statement dated 1 May 2023, Benjamin Kelly (Mr Kelly) stated that he was employed by the respondent as team leader of the Trade and Asia Team. He said that he had known Mr Li since the end of September 2022 and that he was Mr Li’s team leader.
Mr Kelly described an incident at the end of October 2022 when Mr Li was on a phone call that went for over an hour when the average call was between seven to ten minutes. Mr Kelly said that he approached Mr Li who said he was on a long call because he was booking multiple rooms.
Mr Kelly wrote:
“When I told him that we will get him down to the average phone call times, out of the blue Tieshan responded aggressively. I do not remember his exact words but he said something along the lines that I was putting too much pressure on him. I tried to calm him down and told him it was a long term goal. I then put my hand on his shoulder to calm him down and he again shouted at me and told me not to touch him. I then asked him to go into a meeting room as his voice was escalating however he refused to go into the meeting room and his words were, ‘I am not going anywhere with you’".
Mr Kelly stated that Mr Li went to speak to Ms Nable, who sent Mr Li on an extended lunch which took three hours.
Mr Kelly wrote:
“Sarah Stegeman from HR stated that Tieshan has alleged that I had bullied him. Although I was cleared of any wrongdoing, I was made to read through the bullying and harassment policy”.
Mr Kelly stated that he then had a meeting with Ms Le Claire, Ms Nable and Mr Li to go over the incident. He said that Mr Li did not see his reaction as inappropriate and he basically told them that he did not want any negative feedback and wanted to receive positive feedback. Mr Kelly said that from that time on he found it difficult to work with Mr Li, and if he tried to give him feedback Mr Li would defend himself by saying that he was new. He said that for the majority of the time, he started providing Mr Li feedback in a roundabout way by addressing or sending emails to the whole team.
Mr Kelly noted that Mr Li’s injury was alleged to be the result of a result of a number of incidents at work and provided the following comments:
(a) in relation to the incident on 12 January 2023, Mr Kelly said that he was working from home and talking to Mr Li via MS Teams. Mr Kelly said that Mr Li had a guest on the phone who wanted a refund which required Ms Le Claire’s approval. Mr Kelly wrote:
“Later I received a message from Mary Jane West stating that Tieshan had gone off at her however she did not elaborate on it. I then rang Fiona to find out what happened.
When I came into work the next day, I heard about the incident. From what I have heard, Mary had another call that was meant for Tieshan and she was trying to find out how long he would be. Mary then offered to help and Tieshan rejected it in a strong manner and I heard he shouted at her to leave him alone and there was a bit of tension between them”.
(b) In relation to the incident on 30 December 2022, Mr Kelly stated that they had a procedure at work that anytime you made a change to a reservation, you made a note. He said that on this occasion a booking was cancelled and then reinstated. Mr Kelly wrote:
“In our system it showed Tieshan make the changes. I asked Tieshan if he remembered what happened with the booking. Immediately Tieshan got defensive. I said to him we are trying to get to the bottom of this booking and said to him there are no notes.
Tieshan responded saying, ‘you didn't tell to leave notes’ to which I responded, ‘I should not have to tell you to leave notes, it something you should do’. Tieshan then became upset and said he did not know he had to leave notes. By this point Tieshan was raising his voice and getting emotional. I said to him to forget about this one but for the future to leave notes and he told me he would do his best. The conversation ended there”.

Mr Kelly stated that he was aware that Mr Li was being performance managed. He wrote:
“We had a performance meeting with Tieshan about a guest complaint and we talked about his future role as Tieshan was having trouble remembering their procedures. Management and HR then had a meeting with Tieshan, they gave Tieshan two days to respond to their concerns”.

Statement Mary Jane West – 17 April 2023

In a statement dated 17 April 2023, Ms West stated that she had always offered to help Mr Li when he started work with the respondent.
She stated that in relation to the incident on 12 January 2023, she asked Mr Li if she could transfer a call to him as he had dealt with this agent previously. She stated that she could see that Mr Li was not wearing the headset so she put the call on hold and asked him if she could transfer a call to him.
Ms West wrote:
“Instead of answering me, he gave me the filthiest look. I then messaged Tieshan on TEAMS chat and he did not respond to my message.
I then tried to help the agent and when I could not find the booking, I again ask Tieshan and copied Benjamin Kelly via chat if he can remember a conversation with the agent in regard to the booking if he can advise me the confirmation number so I can have a look so I can assist the agent? Ben responded and said it was a historical booking however Tieshan did not respond.
I then check Teishan if he's still on the phone since he is not wearing, he’s [sic] headset I assumed that he is off the phone so I spoke to Tieshan and ask if I can I transfer this call, and he said, ‘I am busy, leave me alone’. So, said I didn't realise you are still on phone? I then said, ‘how come you are still on the phone, can I help you?’ and he yelled at me ‘leave me alone’. I ask him, ‘David why are you being rude, I am trying to help you’. He then yelled at me again and said, ‘leave me alone you are rude’. And I answer him ‘no David you are being rude I am offering help here?’ And he continued yelling at me to shut up! Shut up! Shut up now! I was very upset and then walked away…
I believed I did not do anything wrong to Teishan and do not deserve to be treated in a hostile manner. I reported Tieshan's behaviour to Ben and Fiona”.

Show Cause letter and other documents

In a record of conversation between Ms Le Claire, Ms Nable, Ben Kelly and Mr Li on 11 October 2022, headed “Conversation between David Li and Ben Kelly to resolve conflict”, Ms Le Claire noted that Mr Li did not feel encouraged by Mr Kelly and that Mr Kelly had not considered the amount of work involved in the 50 minute call. Ms Le Claire noted that Mr Kelly was concerned about Mr Li shouting at him and being very rude and not responding well to any form of negative feedback. The meeting concluded with both Mr Li and Mr Kelly agreeing to move forward Ms Le Claire noted that both Mr Li and Mr Kelly would take more care in their choice of words when interacting with each other.
In a record of conversation between Ms Le Claire and Mr Li on 12 January 2023, headed “Incident between David Li and Mary Jane West”, Ms Le Claire noted that Ms West had approached her and said that Mr Li had yelled at her and told her to leave him alone when she offered to help him with a booking. Ms Le Claire stated that she told Mr Li that he could not talk to colleagues that way but he tried to deflect this, referring to the difficult booking he was dealing with. Mr Li told Ms Le Claire that it was Ms West who had raised her voice and was rude. Ms Le Claire suggested that Mr Li think about his interactions of late and it would be nice if he apologised to Ms West but he said he would not apologise.
Ms Le Claire noted that Mr Li had sent her an email that evening attaching a chat history which he said showed that Mr Kelly had answered Ms West’s question but she had to keep on asking him if he was free, why he was still on the phone and wanted to transfer the call to him. Mr Li said he told Ms West he was on a call and chatting to Mr Kelly on TEAMS at the same time but Ms West did not stop and then she raised her voice and said she was trying to help him. Mr Li then told her to leave him alone and stop harassing him.
In an email to Ms Le Claire and Ms Nable dated 3 January 2023, Mr Li complained about how Mr Kelly had treated him on 30 December 2022 concerning booking. Mr Li stated that after they had worked out what had happened with the booking Mr Kelly started to blame him for not leaving a note about the booking on the day. Mr Li stated that he told Mr Kelly that he had asked him what to do and Mr Kelly had not told him to make a note. Mr Li then made more general criticisms of Mr Kelly’s management and accused him of mistreating him, bullying him and abusing him.
In an email dated 4 January 2023 Ms Le Claire stated that as Mr Kelly was on leave she would address the matters the following week and would speak to both Mr Kelly and Mr Li.
In an email dated 5 January 2023, Ms Le Claire checked about the workload, noting it was relatively quiet the previous day on the phones and Mr Li’s email count was low. She suggested 30 emails a day be actioned and that he keep an eye on the length of calls.
In the show cause letter dated 31 January 2023, Ms Le Clair wrote:
“As discussed with you in the meeting today, Tuesday 31 January 2023, HIE has significant concerns regarding your performance throughout your probationary period of your employment. Throughout your probationary period we have not seen sufficient improvement in the following areas.
•       It is expected that Trade Consultants average 7 minutes per phone call. You are currently averaging 12 minutes per call.
•       It is expected that Trades Consultants action 40 emails per day. You do not consistently reach this expectation.
•       You have not demonstrated being open to receiving training, coaching and constructive feedback from your team members.
•       You have not demonstrated respect to your team members when they are attempting to assist you. The most recent example of this occurred on 30 December 2022 where your colleague reported that they attempted to transfer a call to you and you allegedly told them to 'shut up' repeatedly and explained to them that you were busy. It was reported that you communicated this in an aggressive manner.
As outlined to you in our meeting today, the above concerns demonstrate a lack of ability to demonstrate the inherent requirements of your role outlined in the Position Description or your role as well as breaches to Hamilton Island's EEO, Bullying and Harassment policy.”
In his undated response to the show cause letter, Mr Li sated that he was concerned about the reason the show cause letter was issued. He wrote:
“I wonder if there has been a misunderstanding or miscommunication involved? It was very distressing to receive a show cause letter, much of which raised matters that had not been addressed with me previously, so shortly after I raised my workplace complaints. I felt like I was being victimised for raising my concerns, which to the best of my knowledge have remained unaddressed to date”.
In his response, Mr Li stated that before the meeting on 31 January 2023 he had no idea about what his average phone duration time in the last six months had been and he did not consider it fair to commence serious disciplinary proceedings against him on the basis of information he was previously not aware of. He believed that he should have been given an opportunity to improve his average call times to meet expectations and KPIs.
In relation to the number of emails actioned daily, Mr Li responded that he had always understood that the KPI was on the basis of an average of 30 emails per day before January 2023. He said that in January 2023 on 13 January 2023, Mr Kelly emailed the team advising that 40 plus emails were to be actioned daily and not on an average basis. Mr Li stated that the new KPI was only provided half way through January and when the office was short of staff during the festive season. He said that there were more daily tasks to be performed and that some of the tasks such as arrivals were very time consuming which meant staff had little or no time to action emails. Mr Li thought that the increase to 40 emails per day was not reasonable and spoke to Mr Kelly about this on 17 January 2023. He said Mr Kelly stated that it was still an average of 40 emails and management would consider the workload in January. Mr Li wrote:
“Ben also assured me that I have been being on top of the KP ls as I received the bonus in my pay as a result of achieving KPIs and I didn't get any reminder or warning at all for actioning less emails on a daily basis. He emphasized that I didn't have to worry about my KPls at that stage.”
Mr Li stated that he had never been made of any lack of performance or shortfalls in meeting KPIs prior to the meeting on 31 January 2023.
In relation to training, coaching and constructive feedback, Mr Li stated that Mr Kelly had never organised any formal training for him after the initial training, and queries were answered on a case by case basis. He stated that this could be difficult if the team leader was away or working from home. He stated that he had requested additional training.
Mr Li then addressed the incident on 12 January 2023 with Ms West which he noted the show cause letter had stated occurred on 30 December 2022). He said that he had made a complaint about Ms West’s aggressive and intimidating behaviour. He recalled that he spoke to Ms Stegman on 19 January 2023 and he had provided her with more information about what had occurred with Ms West and with Mr Kelly. He wrote:
“Sarah assured me that it was fine with me and relevant actions would be carried out with the other parties while I would not be updated due to privacy concerns. It appears now these allegations are being fast forwarded to show cause thereby assuming guilt and wrongdoing against me. The show cause process appears to have come about as a part of retaliation against me after I exercised my workplace rights to complain”.
In relation to Position Description, Mr Li said that he appreciated his initial training. He described a brief one on one with the team leader Mr Kelly in September/October last year, when Mr Kelly said he was doing a good job in Trade. Mr Li said there was another catch up with whole Trade and Asia team later on, but Mr Kelly didn't address any issues within the team and recognised everyone was doing a good job. Mr Li noted that other than the above two occasions, there were no other regular performance reviews conducted by the team leader or centre management.
In relation to Harassment and Bullying Policy, Mr Li expressed concerns as to whether this was relevant as he considered that he was a victim of workplace harassment, discrimination and bullying.
He did not regard any of the issues raised in the show cause letter as serious enough to warrant termination. He wrote:
“None of the concerns were raised before and no support was given to me to improve. I do not agree the conduct as alleged has occurred as alleged. Nor does the behaviour alleged amount to a breach of the workplace policies. Indeed, I was the person who raised complaints after the incidents occurred and none of my complaints have been addressed in the show cause letter.
Instead, out of the blue, the reservation centre management turned around to issue the show cause letter to me and offered an extremely short notice, 48 hours, to respond to the letter.
This was unreasonable and caused a severe anxiety attack and massive stress on me”.
In a letter to the insurer dated 26 May 2023, Ms McMahon, the respondent’s Workplace Health and Safety Manager, noted that call time records showed that the average call time for Mr Li was 00:10:34.

Medical reports

Medico-legal reports

In a report dated 29 August 2023, Dr David Kumagaya, consultant psychiatrist, noted that Mr Li first experienced problems in his workplace in December 2022 when his team leader asked him to clarify the status of a booking that he had made in November according to the team leader’s instructions. Mr Li said that the team leader initially told him that he did not have to leave notes in the booking but then later blamed him for not leaving notes. Mr Li described another incident on 12 January 2023 when he was addressing a disgruntled customer and try to get approval from his team leader for a resort credit. Dr Kumagaya noted that Mr Li said that another team member started to talk to him wanting to transfer a call she was dealing with to him.
Dr Kumagaya wrote:
“Mr Li stated that he informed this team member that he was unable to engage in a conversation with her owing to the urgency of the situation at hand, and because he was already liaising with two people at the same time. Mr Li stated that this team member subsequently started yelling at him, making statements to the effect of, ‘You don’t speak to me like that’, ‘You are very rude’, and ‘I’m trying to help you’. Mr Li stated that this team member subsequently made a complaint about him, and he was required to attend a meeting with his manager. During this meeting, Mr Li stated that he attempted to relay his version of events, although his explanations were dismissed”.
Dr Kumagaya noted that Mr Li was then required to attend a meeting on 31 January 2023 and during that meeting he was advised that the respondent was strongly considering the termination of his employment within probation. Mr Li told Dr Kumagaya that he was given a show cause letter stating he had not met KPIs and was given 48 hours to respond in writing. Dr Kumagaya noted that Mr Li disagreed with the accusations and said he had received a bonus for meeting KPIs every month from October to December and that he had not been made aware of certain KPIs that he was being assessed with, such as the average duration of calls and average number of emails being actioned per day.
Dr Kumagaya wrote:
“In the context of such workplace stressors, Mr Li described the onset of depressive and anxious symptoms. Such included low mood, decreased interest and engagement in activities, sleep disturbance, concentration difficulties, decreased energy levels, generalised anxiety, and restlessness.
Such was Mr Li’s mental state deterioration, that he had been unable to return to work since 31 January 2023”.
Dr Kumagaya diagnosed Mr Li as having a major depressive disorder with anxious distress. He considered that Mr Li was in full remission of psychological symptoms of stress by the beginning of 2022 following relationship stressors between 2019 and 2022 and his mental state was stable, he was asymptomatic and in good health psychologically. He considered that Mr Li’s psychological injury was most accurately considered as a de-novo psychiatric condition arising out of his employment with the respondent.
Dr Kumagaya expressed the opinion that Mr Li was not able to resume his pre-injury occupation and it was unlikely that he would be able to return to any work role in keeping with his education, training and experience in the foreseeable future.
Dr Kumagaya stated that he disagreed with the insurer’s findings that Mr Li’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, and discipline. Dr Kumagaya wrote:
“The causative workplace stressors for Mr Li’s psychological injury were not confined to the apparent actions of his employer on 31 January 2023 with respect to performance management, but rather, encompassed events in November and December 2022, when he was unreasonably blamed by his team leader, as well as
on 12 January 2023, when he was screamed at by his colleague, who subsequently made a complaint about him.
The events of 31 January 2023 were not causative of Mr Li’s psychological injury, but served to destabilise his already unstable mental state”.
In a report dated 2 May 2023, Dr Karthik Modem, consultant psychiatrist, noted that Mr Li stated that he made two complaints to management, one on 30 December 2022 involving Mr Kelly who had blamed him for not leaving notes in a booking when he had followed Mr Kelly’s advice when making the booking. The second complaint concerned Ms West on 12 January 2023. Mr Li said that he was trying to deal with an irate client and also talking to Mr Kelly to get approval for a resort credit, when Ms West asked him why he was on the phone and finally raised her voice. He told Dr Modem that Ms Le Claire was biased and said she would take it to HR and he would be warned. Mr Li said that he checked the team chat history and forwarded that to the mangers, but nothing happened following his reporting of the two incidents. Mr Li said he was then requested to attend a meeting on 31 January 2023 a week before he finished his probation. Mr Li told Dr Modem that he was given a show cause letter and given 48 hours to respond.
Dr Modem made a diagnosis of an adjustment disorder with mixed anxiety and depressed mood.
Dr Modem was asked:
“Please provide your clinical opinion, do you believe the whole and predominant cause of Tieshan's injury is due to the reasonable actions of the employer surrounding the serious misconduct and performance management actions that took place. If no, please explain”.
Dr Modem responded:
“Based on the history provided, and the documentation review, considering the timeline of the events, it appears that Mr Li had raised concerns and complained about certain behaviours at the workplace. As a result, he saw his GP mid-last year and sought psychological assistance. I believe his psychological symptoms worsened after receiving the show-cause letter. He was shocked that instead of addressing his complaints, he was served a show cause notice. Therefore I do not think that the employer's actions are the whole and predominant cause of Mr Li's psychological injury”.
Dr Modem noted that Mr Li was motivated to return to work but recommended treatment to aid in recovery and facilitate a return to work.
In a report dated 21 June 2023, Dr Modem noted that Mr Li reported issues and strains in his marriage for many years and considered that Mr Li had brief periods of psychological distress which responded to treatment. Dr Modem noted that Mr Li reported having difficulties in his marriage for many years and his mother suffering from renal failure. Dr Modem noted that in addition, COVID added stress to the already strained relationship. Dr Modem formed the opinion that based on the limited history, Mr Li may have suffered from an adjustment disorder due to psychosocial stress and relationship issues and it was in this context that he had sought psychological support in August of 2022. However, Dr Modem believed that this had no bearing on the psychological injury he suffered at work.
Dr Modem did not believe that Mr Li suffered an aggravation of a pre-existing condition. He wrote:
“I believe that Mr Li sustained a psychological injury from work due to his perception of alleged bullying/retaliation to his complaints about Mr Kelly and Ms West. I would say that the real events at work which caused the injury are as follows:
·The show cause letter on 31 January 2023.
·The incident with Mr Kelly on 30 December 2022
·The incident with Ms West on 12 January 2023.
Despite the overwhelming evidence from all the statements, Mr Li believes that there has been no wrongdoing on his part and that everyone else is painting him in poor light. He alleged that Mr Kelly lied about not leaving a note for the booking. He also believes that the show cause letter and the reasons in the letter contradict what he was told. His perception of bullying, harassment, mistreatment, and the show cause letter, was the main contributing factor to his psychological injury”.
Dr Modem expressed the view that Mr Li had no capacity to return to preinjury duties as he reported ongoing interpersonal conflict at work and felt threatened and unsupported. Dr Modem considered that any return without resolving the conflict would exacerbate his psychological injury and hinder recovery and return to work.

Records and reports of treating doctors

In his reply dated 16 February 2023 to a questionnaire sent by the insurer, Dr Zhen Lin made a diagnosis of an adjustment disorder with emotional and behavioural symptoms from specific stressors. Dr Lin noted that Mr Li reported that he had an unpleasant experience with a colleague and had an anxiety attack after unreasonable management action on 31 January 2023 because of Mr Li’s complaint about his team leader and colleague.
In a referral to Mr Wei Lu, psychologist, dated 20 February 2023, Dr Lin noted that Mr Li reported that he had an anxiety attack after unreasonable management action against his complaints about his team leader and a team member on 31 January 2023.
The clinical notes of Carlingford Medical Clinic, contained the following entries:
(a)    an entry dated 2 February 2023 Dr Julian Lai recorded:
“Patient has been feeling very stressful and anxious with work issues
Patient reported that he has an unpleasant experience with a colleague resulting management report and internal investigation which resulted in suspension of employment and may lead to termination of employment
- not sleeping well in the last 2 days, woke up early in the morning about 4am
No suicidal ideation
History of depression and anxiety
Examination:
Patient has been teary intermittently while relating his story
Active listening and counselling provided
Plans:
-        psychologist/counsellor review
-        follow up in 1 week to check progress.”
(b)    In an entry dated 3 February 2023, Dr Lai noted he had a telephone consultation with Mr Li who reported that he was unable to contact his previous psychologist/counsellor and wanted to contact another psychologist. Dr Lai made a referral to Ms Constance Hui.
(c)    In an entry dated 7 February 2023, Dr Lin wrote:
“Patient reported that he has an unpleasant experience with a colleague resulting in management report and internal investigation
Resulted in suspension of employment and may lead to termination of employment
3/2/2023 Letter for termination received
Sleep disturbance and wake up early in the morning
Under stress and more anxiety
BG of long term mental issues
Depression and anxiety under psychology follow up
Patient has been feeling very stressful and anxious with work issues
Nil suicidal ideation
Urgent review by psychologist Dr Wei Lu last weekend
Feeling better but still struggling sometimes
Poor concentration and less energy
Not fit for work.”
(d)    In an entry dated 10 February 2023, Dr Lin noted:
“Reason for visit:
Worker's Compensation certificate
Patient reported that he has an anxiety attack after unreasonable management action against his complaints of his team leader and a team member on 31/12023.
Sleep disturbance and wake up early in the morning
Under stress and more anxiety
Mood fluctuation
BG of long term mental issues but much settled since late 2022
Nil suicidal ideation
Urgent review by psychologist Dr Wei Lu last weekend
Feeling better but still poor concentration and less energy
Not fit for work from medical point of view
Advice to continue review with psychology.”
In the NSW SIRA – Certificate of Capacity dated 28 March 2023, Dr Lin certified
Mr Li as having no current work capacity for employment from 16 April 2023 to 28 April 2023. Dr Lin made a diagnosis of work related stress, anxiety and adjustment disorder with the date of injury being 31 January 2023. Dr Lin noted: “Patient reported that he has an anxiety attack after unreasonable management action against his complaints of his team leader and a team member”.

Discussion

Section 11A defence

The issue to be determined is whether the actions taken by the respondent in respect to performance appraisal and/or discipline and/or dismissal were reasonable in all the circumstances of Mr Li’s employment.
There was no issue that Mr Li suffered injury, that is, an adjustment disorder with mixed anxiety and depressed mood, this being a recognised psychiatric condition. In making this finding I have relied on the evidence of Dr Kumagaya, Dr Lin and Dr Modem.
The respondent contended that Mr Li’s injury was caused by reasonable action taken by the respondent with respect to performance appraisal and/or discipline and/or dismissal.
Section 11A (1) provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The onus of proof of establishing any of the matters under s 11A falls upon the employer: Department of Education & Training v Sinclair [2004] NSWWCCPD 90 at [23] and Pirie v Franklins Ltd (2001) NSWCCR 346. Basten JA stated in Jeffery v Lintipal Pty Ltd [2008] NSWCA 138] at [33] that it is not necessary for the claimant to succeed that the action be demonstrated to be “unreasonable” but rather that the section provides that compensation will not be payable if the action were “reasonable”.
The test of reasonableness is an objective one. In Commissioner of Police v Minehan [2003] NSWCA 239 Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education (unreported 18 June 1998):
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
In State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (Chemler) Spigelman CJ said a perception of real events, which are not external events, can satisfy the test of injury. Chemler also made it clear the eggshell skull rule applies in a general sense and in psychiatric cases, in particular, with Spigelman CJ using the phrase “’eggshell psyche’ principle”.
Handley ADP in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 considered the proper construction of s 11A with particular attention given to the meaning of the word “predominantly”. Handley ADP stated that the word “predominantly” meant “mainly or principally caused”.
In Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith) the arbitrator made a finding that the subject injury was “wholly” or “predominantly” caused by action taken by the respondent employer. Snell ADP considered the meaning of the term “predominantly” as it appears in s 11A(1) and said at [31]:
“I accept ‘mainly or principally caused’ is the meaning that should be ascribed to the word ‘predominantly’ in section 11A(1). The test on causation to be applied, as was observed in Temelkov, is the test enunciated in Kooragang Cement Pty Limited v Bates.”
Snell ADP also said at [62] that the concepts “wholly” and “predominantly” were different concepts and if such findings were to be made “it needed to be one or the other”.
In Hamad v Q Catering Ltd [2017] NSWWCCPD 6, Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
The respondent was required to establish that the action with respect to performance appraisal and/or discipline and/or dismissal was the whole or predominant cause of Mr Li’s psychological injury and that the actions with respect to performance appraisal and/or discipline and/or dismissal were reasonable.
The first matter to be determined was whether the action with respect to performance appraisal and/or discipline and/or dismissal was the whole or predominant cause of Mr Li’s psychological injury.
In Mr Li ‘s statements, dated 21 August 2023 and 23 March 2023, he gave evidence about a number of incidents at work.
The first incident was on 30 September 2022 concerning a conversation with Mr Kelly about the length of a call in which a reservation for multiple rooms was requested. Mr Li stated that this incident had a strong impact on his job performance and overall wellbeing and that as a result, he could not continue to perform his job that day.
Mr Li said after he finished the call, Mr Kelly approached him and kept telling him the call was too long and it should have been kept around seven minutes. Mr Li said that Mr Kelly provided no positive or constructive feedback concerning his efforts and how to reduce the call time in the future, despite knowing it was only the second week Mr Li had started to work solo, and he was frustrated by Mr Kelly’s behaviour and reported this to Ms Nable.
Mr Kelly stated that when he told Mr Li that they would get him down to the average phone call times, Mr Li responded aggressively and said something along the lines that Mr Kelly was putting too much pressure on him. Mr Kelly said that he put his hand on Mr Li’s shoulder to calm him down and Mr Li again shouted at him and told him not to touch him.
Mr Li said that the incident was reported to company HR department, and a meeting was held between Ms Nable, Ms Le Claire, Mr Kelly and him on 11 October 2022. Mr Li said that they all decided to move on from what happened and start fresh at the end of the meeting.
The second incident was on 30 December 2022 and involved interactions with Mr Kelly concerning a booking. Mr Li described this incident as extremely unpleasant due to what he perceived as Mr Kelly's unprofessional behaviour. Mr Li stated that Mr Kelly had given him completely different instructions about the same booking on different occasions. Mr Li stated that what had happened made him deeply concerned as Mr Kelly had given him completely different instructions and as a new team member, he found it extremely confusing and felt unsupported and unable to trust Mr Kelly.
Mr Kelly stated that in relation to the incident on 30 December 2022, there was a procedure at work that any time a change to a reservation was made, a note was made. He said that on this occasion a booking was cancelled and then reinstated, and the system showed that Mr Li had made the changes. Mr Kelly said that he asked Mr Li if he remembered what happened with the booking and Mr Li responded saying, "you didn't tell to leave notes". Mr Kelly then said “I should not have to tell you to leave notes, it something you should do". Mr Kelly stated that Mr Li became upset, said he did not know he had to leave notes, and was raising his voice and getting emotional. Mr Kelly told Mr Li to leave notes in the future and Mr Li said he would do his best.
Ms Le Claire stated that Mr Li had sent her an email on 3 January 2023 in which he wanted to share what had happened on 30 December 2022 between Mr Kelly and him. She stated that Mr Li reported an incident about a cancelled booking and about Mr Kelly blaming him for not putting notes in the booking. She stated that Mr Li felt that he was mistreated, bullied and abused by Mr Kelly and that Mr Kelly’s behaviour was not acceptable or fair to him.
Mr Li reported what happened on the day to the Reservation Centre Management, who forwarded it to HR. Mr Li stated that he believed he had given detailed information about what had happened. He said that Ms Le Claire had replied to his email and told him they would discuss it with him to get to the bottom of it, but nothing happened.
Mr Li stated that he received a call from Ms Stegeman on 19 January 2023 in which he was asked about what had happened with Mr Kelly and Ms West. Mr Li stated that Ms Stegeman was happy with the information he had provided and advised him that he was fine with both incidents and actions would be taken with the other parties. He stated that Ms Stegeman also told him that due to the privacy concerns, he would not be advised about the details of the actions with other parties.
The third incident was on 12 January 2023 and involved Mr Li and Ms West. Mr Li stated that Ms West was questioning him about a booking while he was on a call dealing with a dissatisfied client. Mr Li said that he told her many times that he was on the phone with a guest but she kept wanting to transfer the call to him and then she shouted at him and said he was rude. Mr Li stated that he then told her to leave him alone and to stop harassing him.
Mr Li stated that he felt that Ms West harassed him and behaved in an aggressive and intimidating manner towards him. He said that he had just responded to her aggressive and intimidating behaviour.
Ms West stated that she asked Mr Li on a number of occasions about a booking and asked if she could transfer the call. She said that Mr Li replied that he was busy and “leave me alone”. Ms West said that she did not realise he was still on the phone and then said, "how come you are still on the phone, can I help you?” She stated that he yelled at her "leave me alone” and she asked him why he was being rude, as she was trying to help him. She said that he then yelled at her again and said, "leave me alone, you are rude".
This incident was reported by Mr Li to reservation centre management. Mr Li spoke to Ms Stegeman about the incident on 19 January 2023. It appeared that no further contact was made with Mr Li after the call with Ms Stegeman on 19 January 2023 until the meeting on 31 January 2023.
The final incident was the meeting on 31 January 2023 when Mr Li was given a show cause letter and a meeting was held. Mr Li was asked to respond to the issues in the show cause letter within 48 hours.
It was significant that in his statements Mr Li referred to the unreasonable conduct of the respondent on all of the above occasions, and not just to the events on 31 January 2023.
Mr Kelly, in his statement, did not deny that he had not told Mr Li to take notes but simply said that he “should not have to”. Mr Kelly accepted that Mr Li was emotional at that time.
Ms West, in her statement, did not deny that she had yelled at Mr Li.
Mr Li attended Dr Lai on 2 February 2023, that is, a couple of days after the meeting on 31 January 2023. In his clinical notes, Dr Lai took a history that referred to “work issues”. He noted Mr Li reported an unpleasant experience with a colleague resulting in management report and investigation. It was clear that this experience was prior to the meeting on 31 January 2023 and the issuing of the show cause letter.
On 10 February 2023, Dr Lin, in his clinical notes, noted that Mr Li reported that he had an “anxiety attack after unreasonable management action against his complaint of his team leader and a team member on 31/1/2023”.
In a report dated 21 February 2023 Dr Lin, in answer to a question about a psychological injury due to employment, said “Patient reported he had an unpleasant experience with a colleague and had an anxiety attack after unreasonable management action because his complaints of his team leader and a team member on 31/1/2023.”
Mr Li relied upon the medical report of Dr Kumagaya dated 29 August 2023. Dr. Kumagaya reported that Mr Li first experienced problems in his workplace in December 2022 when his team leader asked him to clarify the status of a booking that he had made in November according to the team leader’s instructions. He noted that Mr Li said that the team leader initially told him that he did not have to leave notes in the booking but then later blamed him for not leaving notes.
Dr Kumagaya reported that Mr Li described another incident on 12 January 2023 when another team member started to talk to him, wanting to transfer a call she was dealing with to him. He noted that Mr Li told the team member he was unable to assist as he was talking to a client and also to his team leader at the same time. He noted that Mr Li stated that this team member subsequently started yelling at him, making statements to the effect of, “You don’t speak to me like that”, “You are very rude”, and “I’m trying to help you”. Mr Li stated that this team member subsequently made a complaint about him, and he had to attend a meeting with his manager. Dr Kumagaya noted Mr Li stated that during this meeting, he attempted to relay his version of events, but his explanations were dismissed.
Dr Kumagaya reported that the third incident was on 31 January 2023 when Mr Li attended a meeting during which he was advised that the respondent was strongly considering the termination of his employment within probation. Dr Kumagaya noted that Mr Li was given a show cause letter stating he had not met KPIs and given 48 hours to respond in writing. Dr Kumagaya reported that Mr Li disagreed with the accusations and said he had received a bonus for meeting KPIs every month from October to December and that he had not been made aware of certain key performance indicators that he was being assessed with such as the average duration of calls and average number of emails being actioned per day.
Dr Kumagaya reported that Mr Li described the onset of depressive and anxious symptoms in the context “of such workplace stressors”.
Dr Kumagaya expressed the opinion that the causative workplace stressors for Mr Li’s psychological injury were not confined to the apparent actions of the respondent on 31 January 2023 with respect to performance management, but rather, encompassed events in November and December 2022, when he was unreasonably blamed by his team leader, as well as on 12 January 2023, when he was screamed at by his colleague, who subsequently made a complaint about him. Dr Kumagaya was of the view that the events of 31 January 2023 were not causative of Mr Li’s psychological injury but served to destabilise his already unstable mental state.
The respondent relied upon the reports of Dr Modem who took a history of Mr Li making two complaints to management, one concerning the events on 30 December 2022 when Mr Kelly blamed him for not leaving notes in a booking when he had followed Mr Kelly’s ’s advice when making the booking. The second complaint concerned Ms West on 12 January 2023, when Mr Li was trying to deal with an irate client and at the same time talking to Mr Kelly to get approval for a resort credit, and Ms West asked him why he was on the phone and finally raised her voice. Mr Li said that he checked the team chat history and forwarded that to the managers, but nothing happened following his reporting of the two incidents. Dr Modem noted that Mr Li attended a meeting on 31 January 2023 and was given a show cause letter and given 48 hours to respond.
Dr Modem expressed the opinion that it appeared Mr Li had raised concerns and complained about certain behaviours at the workplace. Dr Modem believed Mr Li’s psychological symptoms worsened after receiving the show cause letter and Mr Li was shocked that instead of addressing his complaints, he was served a show cause notice. Dr Modem did not think that the respondent’s actions in relation to “serious misconduct and performance management” were the whole and predominant cause of Mr Li's psychological injury.

Dr Modem had noted that Mr Li reported issues and strains in his marriage for many years and considered that Mr Li had brief periods of psychological distress which responded to treatment. Dr Modem formed the opinion that based on the limited history, Mr Li may have suffered from an adjustment disorder due to psychosocial stress and relationship issues and it was in this context that he had sought psychological support in August of 2022. However, Dr Modem believed that this had no bearing on the psychological injury he suffered at work and did not believe that Mr Li suffered an aggravation of a pre-existing condition.
Dr Modem believed that Mr Li sustained a psychological injury from work due to his perception of alleged bullying and retaliation to his complaints about Mr Kelly and Ms West. Dr Modem considered that the real events at work which caused the injury were the show cause letter on 31 January 2023, the incident with Mr Kelly on 30 December 2022 and the incident with Ms West on 12 January 2023. Dr Modem noted that Mr Li’s perception of bullying, harassment, mistreatment, and the show cause letter, was the main contributing factor to his psychological injury.
No doctor supported the submissions made by the respondent during the hearing and in written submissions that the whole or predominant cause of Mr Li’s psychological injury was the meeting on 31 January 2023 where Mr Li was presented with a show cause letter. Both Dr Kumagaya and Dr Modem expressed the opinion that it was the incidents on 30 December 2022, 12 January 2023 and 31 January 2023 that were the causative workplace stressors.
The respondent did not argue during the hearing whether the events on 12 January 2023 and 30 December 2022 were reasonable actions taken by the respondent in respect of performance appraisal, discipline and dismissal. The respondent’s case appeared to be limited to the submission that the whole or predominant cause of Mr Li’s injury was the meeting and show cause letter on 31 January 2023. However, for completeness, it is necessary to consider whether the earlier events on12 January 2023 and 30 December 2022 can be regarded as reasonable actions taken by the respondent in respect of performance appraisal, discipline or dismissal.
I do not accept that the interaction between Mr Li and Ms West on 12 January 2023 could be described as action taken by the respondent in respect of performance appraisal, discipline or dismissal. It was interpersonal conflict between two work colleagues. The events on 30 December 2022, in my view, could be described as part of normal work duties, including instruction and training between an employee and his team leader as opposed to action taken by a team leader in relation to performance appraisal or discipline.
Ms Le Claire stated that Mr Li was not formally performance managed but there was a meeting with him to raise concerns about his behaviour. Ms Le Claire did not identify when that meeting occurred, although it may be the meeting on 12 January 2023 after the exchange between Mr Li and Ms West. Mr Kelly stated that he was aware that Mr Li was being performance managed and they had a performance meeting with Mr Li about a guest complaint and talked about his future role and then management and HR had a meeting with Mr Li and gave Mr Li two days to respond to their concerns. The meeting with management and HR was, I assume, the meeting on 31 January 2023. There appeared to be no record of another meeting about a guest complaint and discussion about Mr Li’s future role. Ms Nable stated that the business had been performance managing Mr Li since September 2022, when he was six weeks into his employment. However, she provided no details of any performance management process and whether Mr Li was advised about that process. It appeared that there was no formal performance appraisal process and that, in my view, what Mr Li was actually undergoing was training as opposed to performance appraisal. It was also inconsistent, in my view, for an employee to be paid monthly bonuses yet be under performance management at the same time. I am satisfied on balance that there was no performance appraisal process before the incident with Ms West on 12 January 2023.
A further cause of the psychological injury, in my view, was Mr Li’s perception that the respondent had failed to deal with the complaints that he made concerning Mr Kelly and Ms West. Dr Modem believed that Mr Li sustained a psychological injury from work due to his perception of alleged bullying and retaliation to his complaints about Mr Kelly and Ms West. The failure by the respondent to deal with Mr Li’s complaints was not action taken by the respondent in respect of performance appraisal, discipline or dismissal.
I accept that the meeting on 31 January 2023 could be described as action taken by the respondent in respect of performance appraisal, discipline or dismissal. Whether such action was reasonable is another matter. However, in the absence of any medical evidence to support the meeting on 31 January 2023 as being the whole or predominant cause of the psychological injury, the section 11A defence must fail. There were a number of causative factors in this case and the medical evidence did not establish that the meeting on 31 January 2023 was the whole or predominant cause of the psychological injury.
The respondent argued that Mr Li’s incapacity only occurred after the meeting on 31 January 2023 and therefore the whole or predominant cause of the injury was the meeting on 31 January 2023. I accept that Mr Li was not incapacitated for work until after the meeting on 31 January 2023, but it does not follow that the meeting on 31 January 2023 was the whole or predominant cause of the psychological injury. Both Dr Kumagaya and Dr Modem considered that there were a number of causative factors which resulted in the psychological injury and I accept their opinions as to causation.
I find that the psychological injury sustained by Mr Li was sustained as a result of the incidents at work on 30 December 2022, 12 January 2023 and 31 January 2023, and the perceived failure by the respondent to address the complaints made by Mr Li. I am not satisfied that the events on 31 January 2023 were the whole or predominant cause of the psychological injury. Further, I am satisfied that the events on 12 January 2023 and 30 December 2023 and the perceived failure to address his complaints concerning Mr Kelly and Ms West were significant causative factors in Mr Li’s psychological injury.
Because of the findings made above, it is not necessary for me to decide whether the action of the respondent on 31 January 2023 were reasonable. However, for completeness, I will address this.
In order for the respondent to discharge its onus, however, it is not sufficient that it was reasonable for performance appraisal, disciplinary or dismissal action to be initiated. The process itself must be reasonable.
There were, however, aspects of the disciplinary process which Mr Li has suggested were unreasonable. Mr Li suggested that it was unreasonable for him to be required to attend the meeting when the respondent had done nothing material about Mr Li’s earlier complaints, despite having taken steps in relation to an earlier complaint of 30 September 2022. It was entirely unexplained as to why his complaints were not advanced or investigated and this was unreasonable, especially where the next thing that occurred was that Mr Li was given a show cause letter. Mr Li said that he was the person who raised complaints after the incidents occurred, but none of his complaints were addressed in the show cause letter. Mr Li described being shocked by the allegations made against him.
The show cause letter raised issues concerning insufficient improvement in average call times and the number of emails that he was expected to action per day. However, Mr Li stated that until he received the show cause letter, he had no idea about what his average call time was. Mr Li gave evidence that when he started work with the respondent the number of emails to be actioned was an average of 30 per day but that was increased in mid-January 2023 to 40 each day. Mr Li stated that he had spoken to Mr Kelly about this increase on 17 January 2023, and Mr Kelly had assured him that he was “on top of his KPIs” and would have received the bonus in his pay. Mr Li stated that he checked his pay slips and he had received bonus payments three months in a row between 19 October 2022 and 3 January 2023 by achieving his KPIs. Mr Li argued that he was not informed about the new KPIs for actioning emails until halfway through January and it was unreasonable to expect that the new monthly KPI could be achieved with two weeks left in the month.
The show cause letter stated that Mr Li was not open to receiving training. Mr Li in fact requested further training and contacted Ms Le Claire seeking additional training in an email dated 4 January 2023.
Mr Li’s evidence with regard to these issues raises real questions around whether it was reasonable to raise these issues in the show cause letter for effectively the first time when Mr Li was paid bonuses for meeting KPIs and when some KPIs had been changed mid-way through January. It would appear that Mr Li was not given a real and meaningful opportunity at an earlier stage to respond to the allegations concerning improvement in the areas identified.
The performance appraisal, disciplinary process and dismissal action did not need to be perfect, only reasonable. It is the respondent’s onus to demonstrate that its actions which were causative of the injury were objectively reasonable. In light of the concerns raised by Mr Li, the respondent’s evidence was lacking in relevant detail.
After careful consideration of the documentary evidence and the parties’ submissions, I am not satisfied that the defence in s 11A(1) of the 1987 Act was made out. In those circumstances, Mr Li’s psychological injury was one which was compensable.
In my view, the respondent has not established, on the basis of probabilities, that the action taken or proposed to be taken by the employer with respect to demotion or provision of employment benefits was reasonable. The section 11A defence was not made out.

Capacity

The respondent did not dispute that Mr Li was entirely incapacitated for work.
Dr Kumagaya noted that Mr Li did not have the capacity to be able to resume his pre-injury occupation and considered that it was highly unlikely that Mr Li would be able to return to any work role that was in keeping with his education, training and experience in the foreseeable future.
Dr Modem expressed the view that Mr Li had no capacity to return to preinjury duties. He recommended further treatment to assist in recovery and facilitate a return to work.
Dr Lin, Mr Li’s general practitioner, issued various State Insurance Regulatory Authority Certificates of Capacity between 1 and 20 June 2023 in which he certified Mr Li as having no current work capacity for work for periods up until 18 July 2023.
I am satisfied that in the period from 13 July 2023 to date Mr Li has had no current capacity for employment as a result of his compensable psychological injury.
I am satisfied that Mr Li is entitled to weekly compensation in accordance with s 37(1) of the 1987 Act.
Mr Li’s pre-injury average weekly earnings (PIAWE) rate was agreed between the parties at $1,290. That rate will be subject to periodic indexation in accordance with s 82A of the 1987 Act. The parties agreed that PIAWE was indexed as at October 2023 to $1,320.
There will be an award in Mr Li’s favour in respect of the claim for weekly compensation.

Section 60 expenses

In view of the findings made above, a general order will be made for s 60 expenses.

Summary

Respondent to pay the applicant weekly compensation from 13 July 2023 to date and continuing pursuant to s 37 of the 1987 Act, based on a PIAWE rate of $1,290 periodically adjusted in accordance with s 82A of the 1987 Act.
Respondent to pay the applicant’s reasonably necessary s 60 expenses on production of accounts, receipts and /or Medicare Notice of Charge.

[2024] NSWPIC 11

9 January 2024