Lodge v State of New South Wales (Mid North Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Lodge v State of New South Wales (Mid North Coast Local Health District) [2023] NSWPIC 37
APPLICANT:	Patrick Lodge
RESPONDENT:	State of New South Wales (Mid North Coast Local Health District)
Member:	Paul Sweeney
DATE OF DECISION:	31 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; employer disputes liability to pay compensation for an accepted psychological injury on the basis of section 11A (1) (discipline); upon receipt of a grievance from a fellow employee of worker, employer initiated an investigation in accordance with its policy for managing misconduct with respect to that complaint and several separate, apparently unrelated, issues concerning the worker’s conduct; Held – the evidence established that the initiation of an investigation in relation to the grievance was reasonable; there was no satisfactory evidence that an investigation of the other issues was reasonable; State of New South Wales v Stokes applied; award for the worker for weekly compensation and section 60 expenses.
determinations made:	1. On and prior to 3 May 2022, the applicant suffered psychological injury namely a depressive disorder with aggravation of a pre-existing mood disorder arising out of and in the course of his employment. 2. The respondent has not established that the injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). 3. The deemed date of injury for the purpose of the 1987 Act is 14 March 2022. 4. As a result of the injury the applicant was totally incapacitated from time to time from 14 March 2022 to 30 June 2022; thereafter he had a current earning capacity whereby at all material times he was capable of earning in some suitable employment the sum of $800 per week. 5. At all material times the applicant’s pre-injury average weekly earnings were $2,230 per week. 6. Respondent to pay the applicant weekly compensation as follows: (a) $2,118.50 from 14 March 2022 to 17 March 2022, from 24 March 2022 to 1 May 2022 and from 4 May 2022 to June 2022 pursuant to s 36; (b) $1,694.80 from 23 June 2022 to 30 June 2022, and (c) $894.80 from 1 July 2022 to date and continuing pursuant to s 37. 7. Liberty to apply in respect of the above calculations. 8. Respondent to pay the applicant’s medical and hospital expenses pursuant to s 60. 9. Credit to the respondent for payments made.

STATEMENT OF REASONS

BACKGROUND

Patrick Lodge (the applicant) is employed by the Mid North Coast Local Health District (the respondent) in the substantive role of Senior Radiation Therapist (SRT). From time to time he has acted in the position of deputy Chief Radiation Therapist (ADCRT).
On 14 March 2022, he was invited to the office of the respondent’s Chief Radiation Therapist, Stewart Greenham, where he was told that there had been two complaints about his behaviour and that an investigation was to be undertaken into these complaints. He was told that he could continue to work in his substantive position. However, it is evident he could not fulfil the role of an ADCRT pending the outcome of the investigation.
The applicant left work following this conversation. On 15 March 2022, he attended his general practitioner, Dr Oliver, who certified him unfit for work for three days. The applicant attempted to return to work after this time but was unable to continue.
When he returned to work on 3 May 2022, the applicant was asked by Mr Greenham to come to his office so that he could hand him a letter. When he refused, Mr Greenham handed him a letter which was headed “Initial Advice of a Complaint for Concern”. The letter was signed by Ms Jill Wong, the respondent’s Director of Integrated Care, Allied Health and Community Services.
Following receipt of the letter, the applicant ceased work. He has been certified as unfit for work by Dr Oliver, a general practitioner. He has been referred to a clinical psychologist, Annette Summers, for treatment of a depressive disorder.
It is common ground that the applicant suffered a psychological injury arising out and in the course of his employment with the respondent. It is also common ground that he has been incapacitated for his pre-injury duties by his psychological condition to date. However, the respondent disputes that the applicant has an entitlement to compensation as it alleges that his psychological injury was wholly or predominantly caused by performance appraisal or discipline as those terms are used in s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly compensation from 14 March 2022 to date and continuing and an indemnity in respect of his medical expenses pursuant to s 60 of the 1987 Act. It is alleged that his incapacity and need for medical treatment is a disease injury deemed to have occurred on 14 March 2022.
The Injury Description in the Application to Resolve a Dispute (the Application) is as follows:
“The applicant worked for the respondent between 6 February 2010 and 9 May 2022. In order to undertake his duties, he was required to interact with patients and professional and medical staff. This occurred on a constant, daily basis. Over a period of time the interactions between the applicant and Mr Stewart Greenham, chief radiation therapist, became stressful for him. He perceived that he was being threatened, attacked and unfairly criticised by the above.
In addition, on 19 November 2021, 14 March 2022 and 3 May 2022 Mr Greenham had abrupt meetings with the applicant. These meetings resulted in him feeling unfairly criticised, attacked and demeaned. As a result of the above the applicant sustained an injury within the meaning of s 4(b)(i) and/or s 4(b)(ii) of the Workers Compensation Act 1987.”
When the matter came on for a conciliation conference and an arbitration hearing on 14 November 2022, Mr Tanner, of counsel, appeared for the applicant and Mr Perry, of counsel, appeared for the respondent. The conciliation and arbitration was heard audio-visually.
I was informed by counsel that the parties were unable to resolve the threshold issue of whether the applicant’s psychological injury fell within s 11A(1). I have used my best endeavours to bring about a settlement of the dispute. I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to reach a settlement but were unable to fashion a mutually acceptable resolution.
During the conciliation conference, I was informed that the parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $2,230. Mr Perry also raised the issue of the applicant’s incapacity. He stated that he would submit that following his consultation with Associate Professor Michael Robertson, a consulting psychiatrist, on 30 June 2022, the applicant was partially incapacitated for work. In the language of the current legislation, he had a current earing capacity after that date.
As I understand the position, Mr Tanner did not object to the applicant’s capacity being raised as an issue.
Unfortunately, submissions were unable to be completed during the time allocated on
16 November 2022. The matter was stood over for further hearing on 19 December 2022.
Mr Tanner’s submissions, and Mr Perry’s submissions in reply, occupied the entire three hours set aside to the matter.
At the conclusion of submissions, I directed that the parties provide a notation in respect of the paragraphs of the respondent’s Code of Conduct on which they relied. Those submissions have been received. They go well beyond the information sought by the Direction.

EVIDENCE

The documents before the Commission are:
(a)    the Application and the documents attached;
(b)    Application to Admit late Documents enclosing the respondent’s Reply dated 29 September 2022, and
(c)    an Application to Admit late Documents dated 4 November 2022.
There was no objection to the evidence referred to above. There was no application to adduce additional evidence.

SUBMISSIONS

The submissions of counsel are recorded and I do not propose to reiterate each of their arguments in these short reasons. I will however attempt to address the general thrust of counsels’ submissions in resolving the issue in dispute.
Mr Perry submitted that the evidence relevant to whether the respondent’s actions with respect to discipline were reasonable commenced with an email from Kim Waller, an SRT, to Mr Greenham of 18 November 2021. Ms Waller sought to implement a “level 2 Assisted Resolution Grievance” against the applicant “in relation to a professional email thread that commenced Wednesday 10 November and concluded Wednesday 18 November”. In the email Ms Waller stated that the applicant demonstrated a lack of respect for her work and made her feel that she was “publicly humiliated”.
This complaint, and subsequent enquiries undertaken by the respondent, led to a discussion between Mr Greenham and the applicant concerning mediation of the grievance on
19 November 2022. That, in turn, led to the discussion on 14 March 2022, when the applicant was told by Mr Greenham that complaints against him were being investigated, and, ultimately, to the letter from Ms Wong of 3 May 2022.
Mr Perry stressed that, in accordance with the respondent’s policies, the investigation undertaken went to whether the complaints required a response from the applicant. It had not been determined that there was any substance to the allegations. If there was, the applicant would be given an opportunity to respond. In these circumstances, the actions of
[1] [2013) NSWCA 255.
Mr Greenham and the respondent were objectively reasonable as envisaged by the reasoning in Northern NSW Local Health Network v Heggie.[1]
In respect of the issue of whether the respondent’s actions were the “whole or predominant” cause of the applicant’s injury, Mr Perry relied on the history provided by the applicant to
Dr Abhishek Nagesh, a psychiatrist qualified by the respondent’s insurer. Dr Nagesh recorded that when the applicant was told of the investigation of the complaint, he “had a breakdown on the way home”.
While there was one earlier entry, in 2014, in the records of Dr Oliver concerning stress at work, this evidence established that the relevant actions of the respondent in connection with the investigation were the predominant cause of the injury. Those actions were actions with respect to discipline.
On the issue of incapacity, Mr Perry submitted that I would prefer the opinion of
A/Prof Robertson to that of Dr Nagesh and find that from the time of that consultation the applicant was fit for some work and could earn $1,500 per week in suitable employment as that term is defined in s 32A of the 1987 Act.
Mr Tanner submitted that the respondent had not established that its actions with respect to discipline were the whole or predominant cause of the applicant psychologically injury. Rather, the applicant’s injury was attributable to his morbid relationship with Mr Greenham since 2013. Mr Tanner addressed on the many points of disagreement that had arisen between the two men over this time. The applicant’s role as a union official and his relationship with the deputy CRT may have engendered Mr Greenham’s dislike of the applicant.
Mr Greenham’s actions amounted to discrimination and, possibly, “persecution”. They had adversely affected the applicant’s career prospects. They were also evidence of a grossly dysfunctional workplace.
Those actions of the respondent which did relate to discipline had not been proven to be reasonable. Mr Tanner referred to the principles set out in several important cases including Bluescope Steel v Markovski[2] and Melder v Ausbowl Pty Ltd[3].
[2] [2013] NSW WCCPD 69 (17 December 2013).
[3] (1997) 15 NSWCCR 454.
While the applicant had effectively been suspended from undertaking the duties of an ADCRT, no risk assessment as required by the respondent’s code of conduct had been put into evidence. The applicant did not have the opportunity to secure the presence of a support person before the meeting on 14 March 2021. Mr Greenham had inappropriately handed
Ms Wong’s letter to the applicant in the view of the work colleagues. Even if the respondent had complied with the letter of its Code of Conduct, formal compliance could not relieve it of its obligation to act reasonably.
Prior to attempting to resolve the issues in dispute, it is necessary to summarise the respondent’s letter of 3 May 2022 on which some critical issues in the case turn, the evidence of the applicant, and of Mr Greenham. What follows is not intended to be a comprehensive account of this evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved the dispute.

Initial advice of a complaint or concern

Omitting formal parts, Ms Wong’s letter of 3 May 2022 read as follows:
“I am writing to advise you that the Mid North Coast Local Health District ('the District') has commenced a process to formally review concerns or complaints raised in relation to your conduct in the workplace.
The purpose of this letter is to provide you with an early notification of the concerns and advice about the process that is being undertaken to address these. In broad terms, the concerns raised against you relate to the following:
1.Inappropriate communication and conduct towards NSW Health employees under your management whilst in your acting capacity as Deputy Chief Radiation Therapist;
2.Behaviour that has been reported by a student and has been described as ‘unprofessional and rude’ leaving them aggrieved and submitting feedback to the management;
3.Your behaviour and conduct towards students that may have caused reputational harm as a result of such behaviour where students have indicated that they are ‘pre-warned’ of your behaviour before attending MNCCI;
4.The inequitable distribution of work for staff working from home compared to staff working onsite.
5.The inconsistency with decisions, appears some staff are favoured, efforts are made to accommodate needs of some and made difficult for others;
6.Your reluctance to cooperate with management in the resolution of a grievance submitted by Kim Waller;
7.Acting out of self-interest at the potential cost to patient care and safety;
8.Acting inappropriately and in a way that has been described as ‘bullying’ of a staff member who was exercising a workplace right;”
After advising the applicant that no conclusions had been reached as to the factual basis of these allegations, and that there was presently no requirement for a response, the letter continued:
“If the investigation determines that that there are matters requiring your response, you will be advised of particularised allegations in writing and the means by which you can provide a response. You will also be advised in writing if the investigation determines that there is no foundation to the concerns and no further action is required
Please be advised that management had decided to not make any adjustment or restriction to your role and its responsibilities at this point in the process however, we are seeking your cooperation in being mindful of the nature of the concerns raised by staff and that you are conscious of these in your communication and interactions with your colleagues in the workplace.
Policy framework
The investigation is being undertaken in accordance with NSW Health policy directives, specifically:
• PD2015_049: NSW Health Code of Conduct.
• PD2014_031: Managing Misconduct.
You can access copies of these documents from the District's Intranet or the NSW Health website at: .health.nsw.gov.au/pds/Pages/pdslanding.aspx”

The applicant

The applicant’s evidence is in the form of a signed statement dated 10 June 2022. He states that he was diagnosed with cyclothymic mood disorder in 1995 and suffered from it intermittently until 2006. He was treated with Prozac. In 2014, he saw a counsellor as he was struggling “to manage work and relationship stress in the context of an earlier investigation”.
The applicant says that he entered into a relationship with the DCRT in 2013. Thereafter,
Mr Greenham acted as his “direct manager”. He says that he was told by Mr Greenham that he was held to “a higher standard” at performance appraisals because of the relationship. He was also told that he was not promoted at the Cancer Institute because of his relationship with the DCRT which “could impact my work”. The applicant says that this made him feel “worthless and as if I was not competent at my job”.
In 2014, he was investigated by the Cancer Institute. He was cleared of a charge of breaching pecuniary interest in acting as an SRT but was found guilty of bullying a colleague at whom he had sworn.
The applicant says he was appointed to the position of SRT, after taking part in a recruitment process in January 2015. At this time or on a prior occasion he states that Mr Greenham said to him words to the effect:
“Congratulations you’re successful – it was a hard decision between you and the external candidate; you’re suited to a deputy or deputy chief’s job. I need to make sure you and Kirsty don’t become a power block and start to challenge me.”
The applicant says that this made him “upset, frustrated and distressed”. He states that
Mr Greenham’s behaviour “made it clear that he did not like me, nor the way I manage”.
In 2015, complaints were made by two nurses about the applicant’s conduct and, he, in turn made complaints against them. He says Mr Greenham was dismissive of his complaints. He perceived that he was not treated “equally”.
The applicant recounts that his partner formally complained to the Health Services Union (HSU) about Mr Greenham speaking to her in a “negative manner” and telling her that they were “held to a higher standard because of your relationship”. The applicant was an HSU representative.
The applicant recounts that he first applied for the position of ADCRT in November 2016.
Mr Greenham was the convenor of interviews for all roles. In September 2018, the applicant applied for the position of project manager as part of the respondent’s redevelopment team.
Then, in early 2019, he says that he was at an informal meeting with Mr Greenham and the director of the Cancer Institute. They were both angry that the HSU “became involved in the linac replacement project”. The applicant says that he “felt I was being attacked as I was the HSU representative, a role they knew I carried out”. Since he commenced that role,
Mr Greenham had behaved “more negatively toward me”.
Nonetheless, apparently with Mr Greenham’s consent, the applicant undertook the role of a project officer at the Cancer Institute in April 2019. He was told at around this time by
Mr Greenham that staff who did not work overtime would not receive development opportunities. He says he felt “pressured to work overtime” and “threatened and disrespected”.
On 14 June 2019, the applicant applied for the position of ADCRT. By 2019 he was told that he was successful. However, Mr Greenham told him that they were only “giving him a go for a short time” and that other candidates had been better. The applicant says that he applied again for the position of ADCRT on 5 November 2019. At around this time, when chatting with Mr Greenham, he was told that he was “not liked by staff” at the Cancer Institute at Port Macquarie and that another candidate for the position of ADCRT was “better” because of his superior knowledge of information technology.
The applicant says that this was “cruel and harsh” treatment which diminished his self-esteem. Then, on 15 January 2020, he was told by the manager of organisational arrangement that he had been the successful applicant for the position of ADCRT but that another candidate was “getting the role”. He says that Mr Greenham’s decision to give another candidate the role “was reversed” and he was put in the role.

The applicant subsequently applied for the positions of ADCRT and CRT. He also applied for the position of manager of integrated cancer services-innovation and development (MICSID). He was unsuccessful in obtaining these appointments. He says that on 15 January 2021, he was told by Mr Greenham that he did not want him in the job of CRT. He said that an independent member of the interview committee favoured him but it was his negative reference that persuaded her not to appoint the applicant. He allegedly said:
“Until you follow my vision you’ll be unsuccessful. You lack experience and you are not fit for the role. … I have seen and heard things I cannot unsee, I should not hold this against you, but I hold you to a higher standard. You’ll not get another opportunity, it is someone else’s turn.”
The applicant recited this conversation in an appeal to the Acting Manager Workforce Support.
In March 2021, the applicant was interviewed for the ADCRT role and was unsuccessful.
Mr Greenham told him that he had already been “given a chance” and he felt that he had been given “enough career opportunities to date”. The applicant says that Mr Greenham did not treat him the same as other members of staff who did not belong to the HSU. Subsequently, he was told that he would be unsuccessful in his application for that position “until you follow my vision”. He said this made him feel worthless.
The applicant’s appeal from his failure to obtain the CRT role was unsuccessful. In
April 2021, he applied for another project manager position with the respondent. He worked full-time then part-time as a project manager in July and August 2021. He says that he was told by his partner that Mr Greenham would make “an early attempt to end my contract as project manager”.
Then in November or December there was an email exchange between a group of staff at the Cancer Institute. The applicant says that he found the emails written by two members of the group to be rude. He says that these emails caused “an extreme deterioration in my mental health”.
On 19 November 2021, Mr Greenham came to the site where the applicant was working and told him that Ms Waller had lodged a grievance concerning his conduct. He said that he would follow the necessary grievance procedure. The applicant says that he told
Mr Greenham that he, “found Ms Waller and Ms Dower to be rude and offensive”.
The applicant recounts that Mr Greenham stated that he would hand over the grievance procedure to someone else. There followed a discussion as to why they had difficulty working together. The applicant told Mr Greenham that he thought that he was biased in the grievance between himself and Ms Waller “because he held me to a higher standard”.
On 14 March 2022, Mr Greenham approached the applicant, who was working at the Linac accelerator machine and told him that he had heard of two complaints about him. When the applicant asked him for the details, he was told that they were being “worked up”. There was a heated discussion between the two men. The applicant recounts that he was again distressed. He went home and saw Dr Oliver the following day.
When the applicant attempted to return to work working from home on 21-22 March 2022, his condition deteriorated. He next returned to work on 2 May 2022. On the following day,
Mr Greenham again came to the Linac machine where the applicant was working. When the applicant refused to go with him to his office he handed him the letter of Ms Wong. He said that, “If you want to talk, you can come into my office”. The applicant refused.
The applicant says that the letter was a “personal attack on me”. He says that he could not believe that the letter was handed to him while he was performing working in front of other staff. He asserts that this is an example of “bullying and harassment and the ongoing issues with Mr Greenham”. The applicant returned to work again on 9 May 2022. However, the following day he ceased work and has not returned.
For completeness, I should record that on several occasions throughout the applicant recorded that he felt threatened, disrespected, belittled or degraded during or after his conversations with Mr Greenham.

Stewart Greenham

Mr Greenham is the Chief Radiation Therapist of the respondent. He states that his reference to holding the applicant and his partner to “a higher standard” was as a result of managing and avoiding “any conflicts of interest that could potentially arise from their romantic relationship” and cause disruption in the workplace. He said his comments reflected clause 4.2.1 of the NSW Health Code of Conduct (HCC). He says he did not recommend the applicant’s promotion as he did not think at the time that the applicant was in a position to be promoted. He says that he does not believe that he would have said that the applicant would not be promoted because of his relationship with the DCRT.
Mr Greenham confirms that following the applicant’s interview for a temporary SRT position in 2013, a finding was made by an internal investigator that he and the applicant’s partner had “displayed a poor understanding of our responsibilities under the conflict of interests vision operative at the time”. He had allowed the applicant’s partner to sit on the selection panel. He states that it was regrettable that he had not taken “more steps to avoid that conflict of interest”. Following the finding, he was left with an awareness of the need to “manage and avoid further conflicts of interest going forward”.
The applicant says that the present policy in relation to conflict of interest had been available on the respondent’s intranet since 2015 and had been “highlighted” by the earlier investigation. He says:
“It is inconceivable that Patrick was unaware of or had not seen a Conflict of Interest Policy until 2020”.
In respect to the applicant’s allegation that he would need to take study leave on site, he says that was a routine practice and a form letter was utilised. The applicant “was not singled out”.
Mr Greenham says that he listened and undertook informal enquiries in connection with the complaints made by the applicant against various staff. He says that he found them “largely without foundation”. He says that:
“Patrick was reluctant to accept my feedback and advice on how his behaviour might have contributed to the poor encounters he was reported to have had with other staff.”
He thought the applicant was being unreasonable in his complaints made against Ms Daley and Ms Ford. Mr Greenham states that:
“When Patrick became HSU representative he seemed to change and increasingly take it upon himself to act like a policeman and closely monitor workload and staff entitlements and WH&S. Patrick seemed to become more self-important, confrontational and combative with myself and others.”
He says that the applicant working in a management role and also being a HSU representative added additional strain to their working relationship. He says that the applicant “openly and frequently” challenged his authority in meetings, attacked his efforts to find solutions to issues, and behaved in an unpleasant and disrespectful way towards him.
Mr Greenham denies that he told the applicant that staff who did not work overtime would not receive development opportunities. He states that no staff had lost such opportunities.
Mr Greenham acknowledges that he did indicate to the applicant that staff at Port Macquarie had provided negative feedback and it would be advantageous to attempt to improve his relationships when visiting Port Macquarie.
In respect of the allegation that he told the applicant that he was not suitable for the position of Acting Chief Radiation Therapist because of his lack of information and technology skills, Mr Greenham states that it was not his intention to be harsh or cruel. Rather, he was hoping to create circumstances where the applicant could “do well and develop his management and leadership skills without added workload” during his period in that senior position.
In respect of the applicant’s assertion that he had not been successful on his second CRT application because he did not wish him to have the job, Mr Greenham states that he does not “recall saying those comments”. He says that he had some conversation with Patrick about “visions and goals and how it was appropriate to be aligned with the vision of management”. He says that conversations with the applicant often seemed like a tug of war as the applicant “pushed for his vision to be the way forward”. He acknowledges however, that he had “given a negative reference” in respect of the applicant. He says that he thought that he had “management weaknesses and he would have expressed this in the reference”. He denies that he told him “he would not get another opportunity”.
Mr Greenham says that he is not a hostile boss. Rather, “hostility tends to come” from the applicant. He states that the selection process in March 2021 was “fair and unbiased”.
Mr Greenham then addresses the grievance initiated by Ms Waller against the applicant. He states:
“I attempted to initiate a resolution as per the relevant grievance resolution policy. I was going to step back from direct involvement in order to remove any perception of bias. Patrick showed no interest in or effort towards progressing a grievance resolution through that process. Immediately on hearing of the complaint Patrick wanted to initiate his own complaint against the complainant and another person.”
Mr Greenham says that he wanted to tell the applicant about the complaint by Ms Waller in his office. Unfortunately, this resulted in further conflict.
Mr Greenham acknowledges that he believed that the applicant was not a risk-taker. He says that the applicant “frequently played a role in delaying or complicating even simple projects”. He also states that he has concerns over “trusting Patrick to follow the roles and directions that I have set”.
Mr Greenham recounts that on 14 March 2022, he met with the applicant and told him “serious allegations have been made about him”. He says that Patrick was not demoted but was “simply to remain in his standard position”.
He says that he also asked the applicant to come into his office so that he could hand him the letter. When he refused, he said that he was “as discrete as possible” in handing the letter to him.
Mr Greenham reiterates that the applicant was provided with many opportunities for learning development and secondments in his employment at the respondent. He states that some staff felt that he was “not deserving of some of these opportunities”.
Mr Greenham also states that he doubts that the applicant’s current psychological state is due to bullying and harassment. He continues:
“If anything I felt like I had been subjected to an extended period of reverse bullying from him.”
He says that he has found it difficult to provide fair and reasonable management to the applicant due to “his personality” and his close relationship with the DCRT.

DICUSSION AND FINDINGS

The exposition of the law relating to s 11A (1) in Heggie provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan[4] the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous.
[4] [2003] NSWCA (24 September 2003).
In Irwin v Director-General of School Education (unreported, 18 June 1998) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. 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.”
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
The judgment in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd[5] . I see no reason why this is not such a case.
[5] [2001] NSWCC 167 (10 September 2001).
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.
Resolution of the issues in this case is more difficult as there are conflicting accounts of events and their interactions in the evidence of the applicant and Mr Greenham. Their evidence may, of course, be coloured by their respective roles in the respondent’s organisation and, probably, by a mutual animosity that has increased over the years.
I doubt some aspects of the applicant’s evidence. In particular, his assertion of systematic persecution by Mr Greenham does not appear consistent with objective facts including
Mr Greenham’s appointment of the selection committee and selection of the applicant for the position of SRT in 2013. Mr Greenham was subsequently criticised for potential bias in this process.
On the other hand, there is no reason to doubt that the relationship between the two men was dysfunctional. It is not the role of the Commission to attribute blame in the circumstances. Obviously, the relationship made for a stressful work environment for both men.

Wholly or predominantly

There is a long line of authority emanating from the Presidential Unit of the Commission that the word “predominantly” in s 11A can be equated to “mainly”: McCarthy v Department of Corrective Services[6].
[6] [2010] NSWWCCPD 7 at [157].
In See v The Commissioner of Police[7] Neilson DCJ noted that the word “mainly” is used in the 1987 Act in other contexts. In those circumstances, “predominantly” should be given a different gloss. At [138], he stated:
“Having reviewed the dictionaries and these authorities, I prefer to gloss ‘predominantly’ with the adverb ‘chiefly’. To me it means much more than merely 51%, which is where ‘mainly’ usually leads. To predominate something must eclipse each other factor and all other factors.”
[7] [2017] NSWDC 6 (3 February 2017).
It is unlikely that the distinction between “mainly” and “chiefly” will cause practical difficulties in determining the issue in this case.
The respondent argues that the relevant actions which caused or contributed to the applicant’s psychological injury commenced with an email chain initiated on
10 November 2021 and concluded on 18 November 2021. The subject of discussion was “soft tissue matching for prostate patients who do not have fiducial markers inserted”. The applicant was joined to that email chain.
In an email to Mr Greenham on 18 November 2021, Ms Waller stated that the applicant’s emails made her:
“feel like I was being publicly humiliated as the tone of his emails became more forceful and targeted.
As Patrick is currently an Acting DCRT role in Coffs Harbour I do not feel comfortable pursuing Level 1 Self Resolution and wish you as Area Manager to undertake assisted resolution and consult HR as required.”
Following his discussion with the applicant concerning this complaint in November 2021, on 7 December 2021, Mr Greenham, forwarded an email to him setting out Ms Waller’s concerns. He also attached a flowchart outlining the grievance process. The email concluded by asking whether the applicant was happy to be “a party to a facilitated discussion with Kim”. If so, Mr Greenham stated that he would “arrange for this to happen”.
When the applicant went off work following the advice from Mr Greenham on 14 March 2022 that the respondent was investigating complaint against him, the bundle of facts which caused or contributed to the applicant’s psychological injury was complete. Thus, the respondent argues that the applicant’s injury was wholly or predominantly caused by actions taken by or on behalf of the respondent between 18 November 2021 and 14 March 2002.
This is confirmed by the evidence of Dr Nagesh, who saw the applicant on
21 September 2022. Dr Nagesh recorded a history that the applicant had been “targeted by Mr Greenham since 2014” he also recorded that he was “ignored, threatened, belittled on multiple occasions by Mr Greenham”. He also recorded that after returning from five weeks leave in February 2022, the applicant was informed that his role as Acting DCRT was to be taken away as there were multiple complaints against him. The doctor opined:
“Mr Lodge alleges that this made him upset and anxious and he left that day early and had a breakdown on the way home.”
In response to a question posed by the respondent’s insurer, Dr Nagesh said this:
“I believe his psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance and discipline. My rationale for this is the claimant alleges to have experienced bullying, harassment, being ignored, belittled and humiliated by his supervisor since 2014. In spite of the alleged bullying, harassment the claimant was working at full capacity .The claimant went off work after he was informed that he would be stripped of the role of the deputy chief radiologist which he was in an acting role after his employer had received complaints of misconduct. Hence his reason for his incapacity is being stood down from the role of deputy chief radiologist and complaints against his misconduct.”
On this analysis, the personal interaction between the applicant and Mr Greenham before November 2021 is not material to the development of the applicant’s psychological injury. Similarly, the events after 14 March 2022 are irrelevant as they occurred after the applicant suffered his psychological injury. Thus, they could not have caused or materially contributed to the injury.

The applicant, of course, argues that his interactions with Mr Greenham after 2013 was the significant cause of his injury. Associate Professor Robertson provided a report to the applicant’s solicitors of 30 June 2022. His history is consistent with the applicant’s written evidence. He recorded that the applicant had been the subject of “relentless persecution” by Mr Greenham. He recorded that there were multiple instances where he had unreasonably denied leave or otherwise disrupted the applicant’s plans.
The doctor recorded that the applicant’s mental state “declined over the prolonged period of conflict”. Between May and December 2021, when he was off site on secondment “things improved”. He recorded that when the applicant returned to the Coffs Harbour campus,
Mr Greenham “reprised his reported persecution” which caused a significant decline in his mental state. He ceased duties in March 2022. The doctor, however, does not appear to have recorded a history of the disciplinary proceedings. The only history relevant to the disciplinary is oblique. The doctor records:
“Mr Lodge reports that he had attempted to return to work in May 2022 but was subject to further vexatious allegations with evidence of SG fomenting an expanded exclusionary alliance - he believes that at this point his career at the MNCCI is “effectively over”. He also fears that his career in radiation oncology has been irrevocably damaged and that he could not return to this given his ineluctable impression that SG is unlikely to modify his behaviour given the previous decade of workplace harassment.”
Both the opinions of A/Prof Robertson and Dr Nagesh are flawed. Without a specific history of the disciplinary actions and the applicant’s reaction to them, A/Prof Robertson’s opinion on “wholly or predominantly” is hardly compelling. On the other hand there is an ambiguity in
Dr Nagesh’s opinion. The fact that the applicant went off work following the conversation of 14 March 2022 does not necessarily lead to a conclusion that the events of the previous decade did not contribute to the applicant’s psychological illness.
Contrary to Mr Perry’s submission, I do not accept that the circumstances of delivery and the contents of the letter of 3 May 2022 can be dismissed as a cause of the applicant’s psychological illness. While he was off work prior to that date, he was able to return and was working at the Linac machine when Mr Greenham approached him and handed him the letter outlining the allegations against him. The applicant says that he regarded the letter as a personal attack on him. They are part of A/Prof Robertson’s history of the onset of psychological illness. The applicant specifically relies on the letter in his pleading. In contrast to Heggie, it cannot be excluded from the bundle of facts giving rise to injury in this case.
I have concluded that aspects of the respondent’s actions in respect of discipline have not been proven to be reasonable. In those circumstances, it is not strictly necessary to resolve the dispute between Dr Nagesh and A/Prof Robertson as to whether the respondent’s actions with respect to discipline were the whole or, alternatively, the predominant cause of the applicant’s injury.

Reasonableness of actions with respect to discipline

Assuming that the applicant’s injury was caused by the actions taken with respect to discipline by Mr Greenham and Ms Wong including the letter of 3 March 2022 are those actions reasonable? I have concluded that they have not been proven to be reasonable on the evidence before the Commission.
In different circumstances, in Whittle v State of New South Wales (Hunter New England Local Health District),[8] I held that the actions of a Local Health District in commencing an investigation against worker were reasonable. Underpinning the reasoning in that case, was my assumption that what constitutes reasonableness must be determined in accordance with the factual circumstances of each case. Slender evidence may be sufficient to prove the reasonableness of an investigation The evidence required to establish whether an investigation of one or a series of complaints is reasonable may not necessarily suffice to establish that it is reasonable, for example, to dismiss a worker.
[8][2021] NSWPIC 319 (1 September 2021).
Complaints made by employees may often necessitate an investigation. It would be inappropriate for an employer to decline to commence one in such a case. The purpose of the investigation in this case was to establish whether the complaints set out in the letter of
3 May 2022 were sufficiently credible to form the basis of subsequent disciplinary proceedings. There was no assertion of misconduct in the letter.
I doubt whether it is necessary for an employer to make provision for a support person in these circumstances. Equally, I doubt that the circumstances in which the letter was conveyed to the applicant were unreasonable. After all, he had refused to go to
Mr Greenham’s office where he could have received the letter in complete privacy. I also doubt that the respondent was in breach of its policy in requiring the applicant to remain in his substantive position pending the outcome of the investigation.
There is nothing to suggest that the complaint of Ms Waller was not genuine. Her email evidence and the evidence of Mr Greenham supports the conclusion that it was reasonable for the respondent to commence an investigation based on her complaints and the applicant’s refusal to comply with the respondent’s grievance procedure. However, it is quite plain that the allegations of concern raised in the letter of 3 March go well beyond the complaint of Ms Waller. Only two of the allegations outlined in that letter unequivocally relate to her complaint.
The remaining complaints range widely over the applicant’s conduct toward students, inequitable distribution of work to his staff, inconsistency in decision-making, favouring members of staff, and acting out of self-interest “at the potential cost to patient care and safety”. There is no satisfactory evidence that it was reasonable for the respondent to commence an investigation into these allegations. There are no witness statements, emails, memorandums, or other documents which would permit an inference to be drawn and a finding made that the respondent’s actions with respect to the investigation of these allegations was reasonable. It is settled law that an employer, who bears the onus of proof on the issue, must put before the Commission sufficient evidence to ground a finding that its actions were reasonable[9].
[9] State of New South Wales v Stokes [2014] NSWWCCPD 78 (26 November 2014) and Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 (17 December 2019).
It may be argued that there are aspects of Mr Greenham’s evidence that might indirectly support an argument that it was reasonable to investigate these allegations. Presumably, the allegations have their origin in complaints made by members of the staff of the respondent. While Mr Greenham’s statement touches briefly on some of the allegations, it does not identify with any precision complaints made by students, or about inequitable distribution of work, or inconsistency in decision-making. In any event, it might be argued that
Mr Greenham is not an objective source of information in respect of such allegations given the difficulties between him and the applicant over the years.
As I have concluded that the respondent has not proven that its actions with respect to discipline, which were causative of the applicant’s injury, were reasonable, its defence under s 11A (1) fails.

Incapacity

Associate Professor Robertson diagnosed a “work-related exacerbation of his episodes of a pre-existing mood disorder”. He thought there was a “high index of suspicion of Mr Lodge demonstrating an underlying bipolar illness”. In respect of work capacity he said this:
“Mr Lodge has partial work capacity. There is potential for him to return to employment consistent with his skills and experience but not with the NNCCI and certainly not under the supervision of his previous supervisor. Part of the focus of the management with his current presentation should be the identification of suitable alternative employment options.”
Associate Professor Robertson noted that the applicant was contemplating alternative work options at the time of his interview, although “these are speculative at present”. On his mental health examination, he found that:
“He demonstrated a restricted affect and dysphoric mood. I did not observe any features of current hypomania or significant mood instability. There were no signs of psychosis or dissociation. He did not present as being drug affected. He denied being suicidal. There was no evidence of recent injury.”
Dr Nagesh saw the applicant several months later and expressed opinion that he was totally incapacitated. That was because the applicant’s symptoms had “not resolved”. He thought that the applicant would be able to return to his preinjury work within six months.
In my opinion, the view of A/Prof Robertson as to the applicant’s work capacity should be preferred. It is consistent with his mental state examination. It is also consistent with the applicant’s contemplation of alternative work. While it is of little significance, it is also consistent with the applicant’s presentation over the two days of the arbitration in this matter. As A/Prof Robertson is a specialist psychiatrist, his views in this case should prevail over the other medical evidence in the applicant’s case.
While I accept that the applicant probably had a work capacity from 30 June 2022, it is equally probable that it would be for part time hours in less responsible work than the applicant performed over the last several years. Nonetheless, the applicant is well educated and would certainly be employable in clerical work in the public or private sector. Equally, he would be employable in medical sales and related work.
Mr Perry suggested that the applicant would have been able to earn $1,500 per week in suitable employment since 30 June 2002. Given my view that the applicant was probably only capable of part-time work, I have concluded that in suitable deployment after
30 June 2022 the applicant could earn the sum of $800 per week.
I intend to make the following findings:
(a)    On and prior to 3 May 2022, the applicant suffered psychological injury arising out of and in the course of his employment.
(b)    The respondent has not established that the injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline pursuant to
s 11A (1) of the 1987 Act.
(c)    As a result of the injury the applicant was partially incapacitated from time to time from 14 March 2022 to 30 June 2022; thereafter he had a current earning capacity whereby at all material times he was capable of earning in some suitable employment the sum of $800 per week.
(d)    At all material times the applicant’s PIAWE were $2,230 per week.
(e)    Respondent to pay the applicant weekly compensation as follows:
(i)$2,118.50 from 14 March 2022 to 17 March 2022 , from 24 March 2022 to
1 May 2022 and from 4 May 2022 to 22 June 2022 pursuant to s 36;
(ii)$1,694.80 from 23 June 2022 to 30 June 2022, and
(iii)$894.80 from 1 July 2022 to date and continuing pursuant to s 37.
(f)    Liberty to apply in respect of the above calculations.
(g)    Respondent to pay the applicant’s medical and hospital expenses pursuant to
s 60.
(h)    Credit to the respondent for payments made.

[2023] NSWPIC 37

31 January 2023