Margetts v Bunnings Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Margetts v Bunnings Group Limited [2021] NSWPIC 410
APPLICANT:	Lisa Margetts
RESPONDENT:	Bunnings Group Limited
MEMBER:	John Wynyard
DATE OF DECISION:	5 October 2021 (amended 18 October 2021)
CATCHWORDS:	WORKERS COMPENSATION - Psychiatric injury accepted and section 11A of the Workers Compensation Act 1987 defence alleged re disciplinary action only; section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) named only discipline but quoted insurer medico-legal expert that other actions also nominated re promotion, employee benefits and transfer; evidence closed and written submissions ordered to complete oral submissions; respondent then sought leave under section 289A(4) of the 1998 Act to introduce the other named actions; Held - respondent application dismissed; authorities regarding re-opening after evidence closed considered; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services distinguished, although probably unhelpful to section 289A of the 1998 Act application in any case; on substantive case respondent unable to prove its actions regarding discipline were wholly or predominantly the cause of injury; respondent actions not found to be unreasonable; award applicant.
FINDINGS MADE:	1. The applicant suffered a psychological condition, namely a Persistent Depressive Disorder which occurred on a deemed date of 2 June 2020. 2. The respondent has not met its onus to prove that the applicant’s condition had been caused wholly or predominantly by its action taken or proposed to be taken with respect to discipline. 3. There will accordingly be an award in favour of the applicant.
ORDERS MADE:	1. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: (a) Date of injury: 2 June 2020 (deemed). (b) Matter for assessment: psychological or psychiatric injury. (c) Evidence: (i) Application to Resolve a Dispute and attached documents, and (ii) Reply and attached documents. (d) The assessment is suitable for video link.

STATEMENT OF REASONS

BACKGROUND

Lisa Margetts, the applicant, brings an action for weekly payments and lump sum compensation against Bunnings Group Limited, the respondent, with regard to a psychological injury sustained on a deemed date of 2 June 2020.
At the commencement of the hearing, by consent the application for weekly payments was discontinued.
Dispute notices were issued on 3 July 2020 and 16 December 2020. The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) has the respondent satisfied the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act) to prove that the applicant’s psychological injury was wholly and predominantly caused by its reasonable actions taken or proposed to be taken with respect to discipline?

PROCEDURE BEFORE THE COMMISSION

This matter was heard by way of video conciliation and arbitration conference on 30 June 2021. Mr Paul Stockley of counsel appeared for the applicant, instructed by Mr Matthew Forshaw from Messrs Carroll & O’Dea lawyers. Mr Dewashish Adhikary of counsel appeared for the respondent, instructed by Mr Robbie Elder from Messrs Bartier Perry lawyers.
Ms Nicole Leneve was also in attendance for the insurer. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

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

Oral Evidence

No application was made in regard to oral evidence.

FINDINGS AND REASONS

Ms Margetts made two statements dated 16 June 2020 and 8 March 2021 respectively. She was supported by her husband, Scot, who made a statement on 7 November 2020.

First statement 16 June 2020

The first statement of 16 June 2020 was taken by the insurer’s investigator. Ms Margetts has been married for over 30 years and lives at home with her husband, who is an aircraft engineer. They have two children, a son aged 29 and a daughter aged 28.
Ms Margetts commenced her employment with the respondent at its Nowra store on 11 November 2013. She initially started in Leisure but was moved up to Support in about 2014. Ms Margetts had been working a second job since October 2017, alleging that she had to cease in February 2018 when she was told she had to choose which employer to work for by one of the Bunnings managers, Mr Leon Harrington.
Ms Margetts said:
“I love my job, I do community projects, and I put my hand up to do other jobs, especially extra shifts.”

However Ms Margetts mentioned a number of “issues” that she had to deal with, usually about her hours and the manner in which she was called to do shifts. She said at [66]:
“…I had asked for a contract on 4 July 2014 for a permanent part-time
position. On 13 October 2014 I again asked for a contract for a permanent part-time position. Then on 15 December 2014 I again asked for a permanent part-time contract and again on 6 January 2015. I had been told that I needed to do the 5 keys before I could get a permanent part-time contract but the funny thing was Bunnings had started to do some recruiting and all the new people that came in were being offered permanent part-time positions or full-time positions pretty quickly yet I was still a casual and had to prove myself before I would be offered a permanent part-time position….”
Various episodes were referred to covering the entire time Ms Margetts had been working at Bunnings. She related various conversations with various employees about various incidents. She described an episode when a fellow worker, “Rachael” scanned Ms Margetts barcode to give a discount to a cleaner at the store. An enquiry followed Ms Margetts’ reporting the situation, which resulted in Rachael being dismissed. This episode cooled relations with another employee who had been a friend of Rachel, and Ms Margetts said that she was then bullied by this employee, who was the manager, Aaron Mott. Ms Margetts did not record the date this occurred.
Ms Margetts found herself being called to the office many times by Mr Mott over what she described as “stupid stuff”.
In early 2016 Mr and Ms Margetts moved to Newcastle as Mr Margetts was transferred.
Ms Margetts described the disappointment of not obtaining a job which she had been led to believe would be available in the Port Stephens store. She and her husband went overseas for Christmas in 2015 and the position she thought she had secured whilst still in Nowra she found had been given to somebody else. She and her husband returned to Nowra in late 2016 after Ms Margetts was told that her job was still available in the Nowra store.
The applicant returned to the Nowra store as a casual employee. She said that “things got worse” - particularly after Mr Mott left. Ms Margetts said that she and others had complained about him, and he was moved.
His replacement, Richard Jenkins, Ms Margetts said, was worse.
Ms Margetts said that she was bullied by Mr Jenkins, and discriminated against. This occurred particularly, she said, after Mr Jenkins had told her that she had done good work and that he liked her work ethic. When she told Mr Jenkins that she was “gunning” for a full time job, his attitude changed. Ms Margetts said she was thereafter treated unfairly and that Mr Jenkins treated her in a condescending tone and manner. She gave an example of being told to pick up pieces of paper of the floor when Mr Jenkins could quite easily have done that himself.
In 2017 Ms Margetts said she submitted an anonymous complaint about the bullying she had been subjected to by both Mr Mott and Mr Jenkins. HR had said that her complaints were not substantiated.
Ms Margetts then related an incident on 30 May 2019, where she enquired of a colleague how she could get promoted to a permanent part time position, as another colleague had just achieved. She said [at 83]:
“I have asked what I can do to put myself in a position where I could get permanent part-time and they always come back to me needing to make myself more available, checked bags more regularly which I do anyway, and do my ITP. The things that they want me to do I am doing but there’s things that I can’t do like the ITP training which
I need G4 to facilitate for me so I can’t do that training until I’m put up for it. ….”
Ms Margetts said that nobody knew of her work stress. On 1 May 2020 she discovered that Bunnings were employing more casuals and she felt overlooked again. She felt:
“… I was just a dog’s body and… I was never going to get a permanent part-time role.”
That night Ms Margetts said she took an overdose of tablets, and was surprised that she survived. She did not report the episode.
Ms Margetts then became involved in what she said was a misunderstanding over the behaviour of some of her colleagues when away from work. She said that in about 5 or 6 May 2020 a “lady rep” came into the store and started talking about three colleagues, who, Ms Margetts said, were known as “the girls”. The “lady rep” conveyed to her that she had heard the girls talking in the lunch room about the sex they had and the drugs they were taking. This conversation occurred in the presence of younger team members and “old John from leisure”.
As a result of what she had heard, Ms Margetts approached another colleague and passed on a rumour about drug taking that also inculpated a member of a family she had known for 40 years. If this person’s parents found out, Ms Margetts said, they would be devastated.
Ms Margetts’ involvement in the gossip resulted in her receiving many unsolicited texts from the girls involved, and the situation “just became bigger than Ben Hur”.
Ms Margetts was called to a meeting on 13 May 2020 with Mr Darryl MacPherson, Ms Leigh Burrows and Mr Jenkins. Ms Margetts was told that she would have to have a meeting with Ms Sarah Agland when Ms Agland returned from holidays.
Ms Margetts then referred to an earlier period in March 2020 when a new EBA was due which was “to give casuals a bit more leeway, and to find out why they were being overlooked all the time”. At some point Ms Margetts commented on a Bunnings social media site (which I infer to be the respondent’s intranet) to a post by the CEO, Mr Michael Schneider. Her comment was that “it was really sad because as long-term casual I would never know the real reason why I was being overlooked for a permanent part-time job…”
Ms Margetts messaged the CEO privately to say that she had been a casual worker for nearly seven years, and the reasons that she had not been offered a permanent part-time position were “pathetic or ridiculous, something like that”. On 18 March 2020, the CEO replied to her, saying to leave it with him, Ms Margetts said.
Ms Margetts was called to a meeting on 23 March 2020 with Mr Jenkins and the area manager, Ms Rebecca James. Ms Margetts realised that the meeting was concerned with her comment on the Bunnings intranet. Ms James questioned her about the number of shifts that Ms Margetts had refused in the last three months, and about the number of times she had been phoned in the same time to come in to work. Ms James asked her if she considered herself to be reliable, and Mr Jenkins appeared shocked when Ms Margetts told him that she kept a document at home with those details.
Ms Margetts pretended to Mr Jenkins and Ms James that she had another job in order to make it plain that she could work for other people and not only for Bunnings. The number of sick days that Ms Margetts had taken was then discussed and Ms Margetts broke down as she told them about her migraine headaches and at Ms James’s advice that Ms Margetts should work on fixing them.
Also discussed was an allegation that Ms Margetts did not have her courses up to date, to which she said that her request to be put into facilitated courses was always overlooked. She was told by Mr Jenkins that she had to “shine” to be considered for a permanent part-time role, to which she replied that there were some full-time team members who hid from customers, took extra long lunch breaks and made mistakes but were still employed full-time.
Ms Margetts said that she was “bawling my eyes out” for most of the meeting. She reminded Mr Jenkins of his change in attitude to her when they first met on her advising him that she was “gunning” for full-time work. Mr Jenkins did not react, Ms Margetts said.
Ms Margetts said that she felt “ambushed” and under duress. She was told that the problem was her, not them. She was also told that if she needed to complain she should speak to
Mr Jenkins or Ms Agland, and not the CEO.
On 19 May 2020 Ms Margetts had a meeting with Ms Agland on her return from holidays.
Ms Agland was unaware of the gossip episode and said she would make some enquiries. On 22 May 2020 Ms Agland told Ms Margetts that there was to be a meeting with her and
Mr Jenkins, and that she should bring a support person. Ms Margetts reacted to that information by fearing she was about to get fired. When she approached a work colleague, Ms Janese Dann, she learnt that Ms Dann had been interrogated earlier in the day. She then asked Ms Katie Green to be her support person, and the meeting commenced.
Ms Margetts described the seating at the meeting where Mr Jenkins was sitting on a “jacked up” chair, as were Ms Agland and Miss Green. Social distancing was not observed. During the discussion about the gossip episode Ms Margetts realised that her support person,
Ms Green, was involved in the episode. She said they should have stopped the meeting then.
Ms Margetts was then spoken to by Mr Jenkins, who indicated that there was a written statement that accused Ms Margetts of spreading the rumour about the girls. Ms Margetts told Mr Jenkins that was a lie and that she did not start any rumour. She became so distressed that she was crying, but Mr Jenkins “didn’t care”. She was told that one of the girls involved was going through a child custody battle, something that Ms Margetts was unaware of and she realised the identity of that person. She told Mr Jenkins he was breaching workplace privacy and she did not want to know that detail, in response to which Mr Jenkins “went bright red”. Ms Margetts thought the meeting lasted about an hour.
Half an hour later Ms Agland advised Ms Margetts that there would be a further meeting on 25 May 2020. Ms Margetts said she would bring her solicitor.
Ms Margetts then gave examples of conversations she had with Mr Jenkins, which she likened to bullying and threatening behaviour. On one instance, near the citronella candles, she said “I felt really angry because he was talking to me like I was a piece of shit in front of team members and customers”. On another occasion she was upbraided by Mr Jenkins for being in conversation with a customer for six minutes without socially distancing.
Ms Margetts again contacted the CEO, Mr Schneider, who offered her the services of a counsellor.

On 2 June 2020 the counsellor advised her not to go to work that day because Ms Margetts was so upset. Ms Margetts said that her current mental health problems were caused by
Mr Jenkins, Mr Harrington, Ms Agland and Ms James because of the way they had treated her, which she described as being “bullied and intimidated”. She particularly singled out the meeting about her rumour mongering that should have been stopped because she became so distressed at the presence of her support person, Ms Green.
Ms Margetts concluded by explaining that although she had problems with Mr Mott, and although she did try to report her issues anonymously in 2017, nothing came of it. Mr Mott she described as being “more of a jovial joking type of person” whereas Mr Jenkins she described as being aggressive - “it’s his way or the highway”.

Second statement: 8 March 2021

In her second statement of 8 March 2021, Ms Margetts explained her history of migraine and the fact that Bunnings were aware of her headaches and the treatment she had undergone for them.
Ms Margetts then described her relationship with the management at the Nowra store. She alleged that preferential treatment was given to those employees who were “in the clique”. She related a number of instances, going back to her first days with the respondent in November 2013, when she recalled being bullied. She said she enjoyed the customer service side of the work but that the “constant nitpicking by management slowly ebbed at my inner strength”.
Ms Margetts said that “cronyism was rife” when Aaron Mott was manager and she referred again to her anonymous email that she discussed in her first statement. She said that she would speak to other team members about why she was not being offered a permanent position, and was told that the members did not understand either.
Ms Margetts said that after there had been a few intakes of personnel who were offered a permanent position, she began to doubt herself. She attended community events and social events for team leaders without success. She would cancel plans in order to be available for the respondent, which had affected her friendship with her best friend. She said she was often rostered during the extremely busy periods, but never given public holidays. She was regularly called in on short notice, and if she turned down a shift, it came up during her appraisal.
Ms Margetts stated that it was because of the “Rachel incident”, and because she was a reliable casual employee, that she was never offered a permanent role.
Ms Margetts then referred to other incidents that she had recalled. She referred to some incidents in September 2017 regarding protocol and communication with a colleague named Mel Wormleaton who appeared to be senior to her. Ms Margetts recalled an incident in 2019 when she obtained but turned down a job with another employer as the respondent had gone to larger premises. Ms Margetts said she loved working on the self-serve registers in the new premises but that it was outside the office where Mr Jenkins worked. Mr Jenkins would “chip me” about something more often than not when leaving or returning to the office. She said that after the incident when she contacted the CEO, the bullying from Mr Jenkins became constant.
Ms Margetts recounted an episode about social distancing in which Mr Jenkins reprimanded her in front of customers. It is not necessary to recount any further the litany of individual accusations made by Ms Margetts about the duties she was required to do, and the manner in which she was treated by Mr Jenkins. Her second statement covered many instances over many years.
At the time of making her second statements, Ms Margetts had read the statements obtained from the respondent’s employees. She described the statements as “lies”. She said that two of the team members were “gossip mongers” but was shocked that Mr Joe Gould would lie, as she barely knew him. She said that the staff turnover had Bunnings was “huge” and she named a number of people whom she said left or were fired by the respondent.
Ms Margetts commented on each of the statements that she saw, giving her impressions of their conduct and motivations in their relationships with her.

Mr Scot Margetts

Mr Scot Margetts was the applicant’s husband. He said that he and his wife had been together for 34 years and that he had served in the Navy as a defence contractor. He said that Ms Margetts “loved working at Bunnings”. Her passion was to give the best customer service possible and she regularly received positive feedback from customers. He said that his wife had given up many family gatherings so she could work, often being asked in the last minute.

He noted that on numerous occasions Ms Margetts would return home after work upset, angry and sometimes in tears over the treatment she received from management. This had been occurring over the years and had caused damage in her relationship with her friends and indeed her family. He noted that Ms Margetts had become “very defensive, is self doubting and questions everything”. He described his wife as being “a long way from the trusting, caring, carefree individual she was prior to her employment with Bunnings”.

Respondent evidence

Statements were obtained by the respondent from Aaron Mott, Leon Harrington, Richard Jenkins, Darrell MacPherson, Rebecca James, Sarah Agland, Katelyn Green and Diane White.

Richard Jenkins

Mr Richard Jenkins was the Complex Manager at the Nowra Bunnings Store. On 22 June 2020 he stated that he first met the applicant when he started in the store in 2017. They both worked on the registers that day and Ms Margetts told Mr Jenkins that she was looking for a full-time job. Mr Jenkins said he felt like he was put on the spot as he had just started, and in any event that was not the way things were done with the respondent.
He did not, however, agree that their working relationship deteriorated as a result. He denied that he would speak to Ms Margetts in a condescending tone or that he would treat her unfairly. He also denied that he spoke to her angrily or had ever been nasty to her.
He did however observe that Ms Margetts was not open to feedback, and did not take feedback on board. He said:[1]
“I do not agree that Lisa has been overlooked for a permanent position. Lisa has not met expectations with her appraisals and when that is the case Bunnings do not reward team members with a permanent position. There has been two occasions in the last 2 years where there have been permanent positions available and Lisa has been asked why she didn't apply for those advertised positions. She has told me that they were not the right time for her to apply.”
[1] ARD page 178.
Mr Jenkins confirmed that he had a conversation with the applicant following her post in response to the CEO on the intranet. He said that there was an informal chat with
Ms Margetts and Ms James of about 10 minutes duration in order to “find out why Lisa felt the need to make that comment on the post”. He denied that Ms Margetts was crying during the meeting, but acknowledged that she did get upset. Mr Jenkins recorded that there had been some discussion at that meeting between Ms James and the applicant as to why the applicant was not available for shifts when she was called. He said:[2]
"I think Lisa gave stats of about 12 shifts that she had been asked and couldn’t work.”
[2] Ibid page 179.
Mr Jenkins recorded that Leon Harrington had been told by the applicant about her migraine headaches, and Ms Margetts alleged that Mr Harrington had not given her a permanent role because of the migraines.
The incident where the applicant’s team card had been used to give a discount was not discussed with Mr Jenkins, who said he did not deal with or address that issue.
Mr Jenkins said that in May 2020 he became aware of the rumour spread in the store that three team members were using drugs. He took no part in the investigation, but was present at the meeting on 22 May 2020. With regard to the height of the chair Ms Margetts was seated on, Mr Jenkins said:
“… If she had a problem with the height then she could have raised it.”
Mr Jenkins denied that there was any intention to intimidate the applicant. He said:[3]
“It was an informal meeting and Lisa was offered to bring a support person which
[3] Ibid page 181.
I frequently offer people when I asked to meet with them, just so they feel comfortable.”
Mr Jenkins said that the applicant knew the informal meeting would lead to a formal meeting, and he was aware that the applicant was not comfortable with him following their earlier meeting with Ms James.
Mr Jenkins disagreed with what he described as the applicant’s “perception” that he intimidated her, or condescended to her. He said that the applicant’s version of events was that “[the applicant] went to Katy Green to discover whether Matt Jenkin was on drugs”.
Mr Jenkins did not believe Ms Margetts was upset or crying during the meeting, and she returned to work thereafter. When she was advised there would be a formal meeting,
Ms Margetts said she would not attend unless she had a solicitor.
Mr Jenkins said:
“Every conversation that we have had with Lisa is off the back of her actions or behaviour. I don't believe she has been unfairly treated at any stage.”

The further meeting was set to accommodate Ms Margetts’s solicitor the following Monday. It was after this informal meeting that Ms Margetts made bullying allegations against
Mr Jenkins over that weekend (22 May 2020 was a Friday). Arrangements were altered by HR to allow Ms Margetts to get her notes together about the bullying complaint. Ms Margetts worked on 26, 27 and 28 May 2020. She was due to meet with HR, but went to her doctor and put in a workers compensation claim. Mr Jenkins had not seen her since.

Aaron Mott

Mr Mott is now the Complex Manager at the Wollongong Bunnings store. He had met the applicant and worked together with her at the Nowra store for about 12 months in 2013.
Mr Mott had no memory of discouraging the applicant from obtaining secondary employment. He said it was not common for that to occur and he had not been told by Ms Margetts’ immediate superior that she had a second job. He said at [19] of his statement of 19 June 2020:
“I know there are several team members that I worked with back then that had second jobs and we are very flexible to try and assist the team with their second jobs.”

With regard to the episode involving “Rachael”, Mr Mott denied that Ms Margetts had reported that “Rachael” had used her team member card to give a discount to cleaners. He said:
“What I recall is that it was discovered that Lisa handed her team member her card [sic] to Rachel and Lisa’s card was used to give a discount to a cleaner.”

Mr Mott recalled discussing the issue with the applicant, as it constituted a breach of team member card policy. As a result there was a meeting described as a “Record of Discussion” and Mr Mott was unable to recall whether the applicant got a formal warning, but he said she was performance managed. Ms Margetts had to redo the team discount card policy training. He said that Rachel was terminated, but not due to this incident.
Mr Mott denied either that he socialised with Rachel, or that he was a close friend of hers. He denied talking about Rachel to the applicant, or that he mentioned anything about Rachel relaxing at home. He said that the applicant’s assertion was “completely false”.
Mr Mott recalled Ms Margetts wish to become a permanent part-time team member. He said at [29]:
“… Due to the issues around the discount card being used she was not going to be rewarded with a permanent contract until she could prove to be a reliable and honest worker. I don’t believe that is unreasonable.”
Mr Mott said that the applicant was not “constantly overlooked for a permanent part-time position”. He said that the discount card incident was a breach of policy and affected her eligibility to become a permanent part-time employee, as it raised issues as to her integrity. He said at [30]:
“Team members that breach company policy don’t get rewarded with permanent part-time positions.”
Mr Mott further denied that he had been transferred because of complaints, and he set out the reasons that he moved, being concerned with family issues. He said at [33]:
“Anyone that is rewarded with a permanent or full time contract is based on
performance. There is opportunities in the store to go from casual to a permanent position but with Lisa's original performance and integrity issue in the beginning and then her taking leave over Christmas. which is our busiest time, then wanting a transfer and being away from the store for several months as a business decision Lisa wasn't offered a permanent contract.” (As written)

Mr Mott’s reference to Christmas related to 2015, when the applicant went overseas before her husband transferred to Newcastle, as she described.

Leon Harrington

Mr Harrington made a statement dated 23 June 2020. He was employed as a Lifestyles Coordinator at the Ulladulla Bunnings store, where he had been for about two years. He had been Operations Manager at Nowra and had known the applicant for at least seven years. He did not socialise outside the workplace with Ms Margetts.
He said that the applicant was employed as a casual employee, and that the respondent conducted annual performance reviews, which he conducted himself in the early years.
Mr Harrington recalled his last review with the applicant in which she became emotional, but agreed with Mr Harrington’s appraisal. That was in 2018 and Mr Harrington said that “it could have been” that the applicant did not meet expectations at that time.
Mr Harrington remembered that Ms Margetts was working also for Spotlight, and he denied that he had ever told her to choose between Spotlight and Bunnings. He said at [27]:
“I remember Lisa asking for a permanent part time position several times during her employment whilst I was working at Nowra. The reasons for her not being offered a permanent part-time position were performance-based as far as I can remember.”
Mr Harrington said that he interviewed a lot of team members, and he could not remember a meeting with the applicant and Sarah Agland on 6 January 2015, although he conceded that he may have had one with the applicant.
Mr Harrington did not see any indication that the applicant was being bullied by Mr Mott. He explained that if she had felt bullied there were a number of avenues to turn to, including going to HR, leaving an anonymous message on a help line run by Bunnings called “BeHonest”, approaching management, or the union. The applicant made no claim to
Mr Harrington that she had been bullied.
Mr Harrington also denied that he had bullied the applicant, or treated her unfairly at any time, nor had he seen any other team member do so.

Rebecca James

Ms James made a statement on 22 June 2020. She worked for the respondent as Area Manager, usually from Rhodes, but she also did some travelling in the south.
Her only interaction with the applicant came about in March 2020 as a result of Ms Margetts’ post on the Bunnings intranet. Ms James said that she had been contacted by Mr Schneider to follow-up on the applicant’s comment.
Ms James arranged for a meeting to be held at Nowra with Mr Jenkins and the applicant, and she went to Nowra on 23 March 2020. Ms James described it at [13] as “an informal meeting just to find out the reasons for her post”.
When the applicant told Ms James that she had not been considered for a permanent role after she applied in November 2019, Ms James asked what the feedback was for the applicant’s lack of success. Ms James said:
“… She said the feedback was that it was in relation to her leave requests. She indicated that she wanted to move to either Queensland or the Central Coast, I can’t recall exactly where, and that she had taken nine weeks leave to consider that move and then found that she couldn’t secure a position up there so she had to come back to Nowra.”

When asked by Ms James whether there was any performance issue that she was aware of affecting her application, the applicant replied in the negative. She told Ms James that she had been asked about 12 times to come in for a shift but she could only attend two shifts. When asked why she could not attend other shifts, the applicant explained, at [15];
“… that if she was shopping with her friends in Shellharbour then she shouldn’t have to drop everything to come in to work. I asked her if she thought that might affect her being considered for a permanent role and she said that she didn’t think that was fair.”
Ms James noted that the applicant became upset during the meeting as she thought it was a formal conversation but Ms James explained that it was her role to investigate after
Ms Margetts had flagged that she had been a casual member for seven years.
The applicant did not say that she felt ambushed and under duress during that meeting and Ms James stated that if anything like that had been said the interview would have ceased and counselling offered. Ms James said that she did not know anything about the integrity issue with the team card.
Ms James said that there was no conversation regarding any inability to complete facilitated courses. Ms James said that she was not there to talk about Ms Margetts performance, she was there to discuss the comments she had made about permanency. She said there was no outcome from the meeting as she was only there to find out why it was that a team member of seven years’ service had not been offered a permanent contract.
Ms James said that the applicant returned to work after the meeting and did not say that she felt ambushed and in a state of duress. She asked Mr Jenkins to “catch up” with the applicant and Ms Agland and to go through the previous appraisals and feedback to put a development plan together.

Sarah Agland

Ms Agland made a statement on 22 June 2020. She had worked at the Nowra store for 13 years and was currently the Operations Manager at the Nowra store. As Operations Manager Ms Agland was in constant interaction with the applicant. Ms Agland thought that the applicant was “okay” as a team member, but was not very good at self-development and knew very little about her role, or the store.
Ms Agland appraised Ms Margetts performance in 2019, noting that Ms Margetts had a lot of training but had not completed it. Ms Margetts told Ms Agland that “she never got a chance to jump online and do that training”. The uncompleted training was specific to the applicant’s role, as well as acting as a refresher training. It was done by the team member and did not need to be facilitated. In reference to the applicant’s allegations that she received no training from the G4, Ms Agland said that the G4 did not facilitate training. It was the learning and development team member that booked the facilitated training, which was Ms Agland’s role. The team member would book the facilitated training but the applicant had never asked
Ms Agland to facilitate or organise any of her outstanding training. Ms Agland disagreed with Ms Margetts assertion of being overlooked for training.
At [18] Ms Agland said:

“As far as I am aware Lisa is not very reliable as a casual team member. When we call upon casual team members we like them to come in but she takes maybe 40 or 50% of the shifts that are offered to her.”

Ms Agland’s last assessment was that the applicant met few expectations, mainly around her personal growth and keeping her training up-to-date. She was also not finding solutions to deliver best customer service. At [42] Ms Agland said:
“Lisa has asked me about a permanent role late last year, but then she decided that she would go on holidays for eight – 12 weeks over the Christmas period, which is our peak period. It didn’t suit the business to give someone a permanent role when we have a team member that takes the busiest period off.”
Ms Agland said that taking the applicant’s availability for only 40 - 50% of offered shifts was not compatible with a person being offered a permanent role. Candidates that take on more shifts are more suited, as they are more reliable.
Ms Agland then recounted that when she returned from leave on Monday, 18 May 2020 the applicant brought up the issue of a rumour that “the girls” were taking drugs. Ms Agland was told by the applicant that when she was off sick a week before, she had received a text from one of the girls that she, the texter, and two others were rumoured to be taking drugs. The applicant was asked to stop talking to people about it in the text.
At [44] Ms Agland said:
“… Lisa said that she had heard a female rep saying that the girls were in the lunchroom talking about being on drugs and having sex, and that she was disgusted. Lisa said the rep said there were young team members and old John in the lunchroom at the time…”

Ms Agland noted that the applicant felt she had been slandered, and was seeing her solicitor. Ms Agland conducted an enquiry, which revealed inconsistencies with what she had been told by Ms Margetts - particularly that there had been no female rep at the store at the time.
Ms Agland asked for an informal conversation with Ms Margetts on 22 May 2020, at which Mr Jenkins and Kaitlyn Green attended. After discussing the matter Ms Agland said at [53]:
“Lisa then said that she was concerned for Matt Jenkin because she knew his parents really well…. I then said to her that she had breached the respectful workplace policy and that we needed to catch up for a formal meeting. Lisa was quite upset and was asking if she was going to lose her job, and that she knew she had done the wrong thing.”

Ms Agland noted that the applicant had been upset and started to cry towards the end of the meeting, although she came to work the following day, a Saturday. The formal meeting was originally scheduled for 25 May 2020, but Ms Margetts did not attend. Daniel from HR advised that she was going to put in a bullying complaint. She thought a further meeting had been booked for 26 May 2020. She had not seen Ms Margetts since 22 May 2020.

Diane White

Ms White made a statement on 23 June 2020. Ms White has been employed as “G4” with the respondent for some six years at the Nowra store. She had known the applicant for that period of time and described their working relationship as “an everyday normal relationship where we are friendly”.

Ms White’s duties were to oversee the Support team, and Ms Margetts reported to her.
Ms White would give her instructions on duties to be performed within the store. Ms White thought that the applicant was competent in her role and that she demonstrated a clear understanding of the support mechanisms within the employer so far as workplace injuries or incidents were concerned.
Ms White said that she did not have any conversations during the time she worked with the applicant about Ms Margetts desire to be a permanent employee. Ms Wright said that had nothing to do with her but was a management issue. However Ms Margetts had never spoken to her about the subject.
At [28] Ms White said:
“It is not correct that a G4 needs to facilitate team member’s ITP training. That has to do with the in store trainers to facilitate, not the G4’s. The team member also does their own online training. There is a schedule of when in-store training is available. I don’t know that Lisa had any issues with not being able to do any specific training. I don’t recall Lisa asking me about any training…”

MEDICAL EVIDENCE

Dr Thomas Oldtree Clark

Dr Clark was retained as the applicant’s medico-legal expert. He reported on 20 August 2020. His opinion was based upon a history that Ms Margetts had suffered bullying at work, the chief bully there being her manager, who belittled and picked on her and who engineered frequent dismissals amongst the casual staff. This harassment Dr Clark understood to have caused an attempted overdose.
Dr Clark recorded that “everybody is on their toes at the moment” for fear of being sacked. Ms Margetts could not find any support from her fellow workers because they were “on the gag”.
Ms Margetts had been troubled with migraines all her life. Dr Clark said that intellectually
Ms Margetts was a bright woman and found that she was suffering a Persistent Depressive Disorder.

Wendy Church

Ms Church is a Psychologist who provided a report dated 29 June 2020 in response to a series of questions from the insurer.[4] Ms Church had two “sessions” with the applicant on 16 June 2020 and 24 June 2020.
[4] ARD page 289 (request) and page 291 (report).
Ms Church recorded a past history from Ms Margetts of insecurity resulting from parental neglect, noting that Ms Margetts had reasonable insight into her emotional life. Ms Church said:
“Ms Margetts does not have a personality disorder but perhaps a disorder of attachment making her more prone to anxiety and sensitive to rejection.”

Ms Church acknowledged that a Psychiatrist might have a different view. Ms Church said that under very stressful conditions such as those reported at work by the applicant,
Ms Margetts “could become a little inappropriate in her responses to stressful situations in a work setting”.
Ms Church noted that Ms Margetts thought that she had been discriminated against, as other casuals had been made permanent part-time whilst she had been overlooked after working hard. Ms Church noted that the applicant conceded that she had been inappropriate and unprofessional in some respects, such as publicly asking Mr Jenkins to promote her on his first day as manager. Ms Church said that Ms Margetts was unable to appreciate that she had been unprofessional and behaved inappropriately, until it was pointed out to her – presumably by Ms Church.

Dr Alice Neale

Dr Neale is a Consultant Psychiatrist and was retained by the respondent as its medico-legal expert. Dr Neale provided two reports dated 17 November 2020 and 1 December 2020 respectively.
In her first report, Dr Neale took a history that Ms Margetts started with the respondent in 2003 (the applicant in fact began in 2013), and was told that there was a prospect of her gaining a permanent position. Dr Neale took a history that was consistent with the applicant’s statement regarding the use of her store card in 2014 to give a discount and the subsequent firing of “Rachel” as a result of an investigation into the incident.
Dr Neale also took a history that was consistent with Ms Margetts’ narrative that Rachel and Mr Mott had been friends and that this had also affected her relationship with management. The applicant also related the 2015 incident where she told Mr Jenkins on his first day that she was looking for a full-time job. Ms Margetts also related an incident when she interrupted Mr Jenkins to tell what a good job he was doing, which also caused her to be disliked.
Dr Neale noted:[5]
“… over the years [Ms Margetts] had been applying for permanent positions and had been told that there was no positions available for her ‘the excuses were so varied.’”
(As written).
[5] Reply page 15.
Ms Margetts told Dr Neale that she had been prescribed Valium by her GP to assist her with managing the stress. Dr Neale then took a history of the incident regarding Ms Margetts’ comment on the intranet, and the subsequent meeting, which Ms Margetts misunderstood to be for the purposes of giving her a permanent position. Dr Neale recorded that the applicant became so distressed when she learnt the true purpose of the meeting that on 1 May 2020 she took an intentional overdose to end her life. She did not report that action to anyone.
Dr Neale then took the history of Ms Margetts’ involvement in the drug taking rumour. The history taken was:
“[Ms Margetts] returned to work thereafter and said that she had some interactions with colleagues in the tearoom in which she began to suspect that some of them were using drugs. She said she spoke to one of her colleagues and this led to rumours being started. She said she was accused of starting the rumour and said she was facing disciplinary action. She stated that she believed that if she attended the disciplinary meeting she would be sacked, so at the end of May she went off work and has not returned since.”
Dr Neale reported on the past history of the applicant, including that she self-harmed when she was 19 years old, and saw a psychiatrist when she was 23 years old, when her mother had cancer. She had suffered migraines since she was 13 years old. When her now 30-year-old child was born, Ms Margetts became addicted to opioids. She denied any ongoing addiction.
Dr Neale diagnosed a condition of Persistent Depressive Disorder (Dysthymia), in partial remission. Dr Neil noted the opinion of Ms Church that the applicant had a vulnerable personality due to a history of anxiety and interpersonal insecurity. Dr Neale thought that
Ms Margetts became more vulnerable after the incident where she put the manager “off side”.
Dr Neale said[6]:
“As a result of Ms Margetts’ personality vulnerabilities, it is my opinion that
thereafter she perceived her interactions with her manager as bullying, which increased her interpersonal sensitivity and vulnerability to perceiving all interactions with others in a negative light. Furthermore, her feelings of rejection by being denied a permanent parttime position were interpreted in this negative light, contributing to her distress.
“It is my opinion that Ms Margetts’ concern about being fired when she faced pending disciplinary action for reported rumour mongering as well as being again declined for a permanent position led to a psychological crisis and Ms Margetts going off work.
It is my opinion that it was a culmination of all of these factors which lead to
[6] Reply page 19.
Ms Margetts developing her Persistent Depressive Disorder.”

Dr Neale thought that the disorder began to develop throughout the course of her employment from 2013 due to “the negative interactions she had with her manager and some of her colleagues, which she perceived in a negative light due to her aforementioned personality vulnerabilities”. She said:
“It is my opinion that the disciplinary action was viewed in a similar negative and bullying light which led to Ms Margetts developing a psychological crisis and going off work. However, it is not my opinion that the disciplinary action was the whole or predominant cause of her development of Persistent Depressive Disorder.”

In her second report of 1 December 2020, Dr Neale responded to the following question:[7]
“On the balance of probabilities, weighing the cumulative causal factors contributing to the worker’s psychological condition, please consider whether the predominant cause of the psychological injury is employer action in respect of discipline, promotion, transfer and provision of employment benefits (fulltime/part-time employment)? Please give your reasons.”
[7] Ibid page 28.
Dr Neale repeated her earlier view that Ms Margetts was more vulnerable to interpreting her interactions in a negative light due to her personality. Dr Neale said:
“On reflection and on the balance of probabilities, it is my opinion that the predominant cause of Ms Margetts development of a Persistent Depressive Disorder was due to the actions by her managers in repeatedly rejecting her requests for a permanent position, and the pending disciplinary action regarding reported rumour mongering. These actions, as you have highlighted, do relate to aspects of section 11A (discipline, promotion, transfer and provision of employment benefits).”

The s 78 notices

The s 78 notice of 3 July 2020 relevantly claimed that following an investigation into the allegations of bullying by the applicant, the disciplinary actions of the respondent had been reasonable, and were wholly or predominantly the cause of Ms Margetts’ condition, thus triggering the defence afforded by s 11A. The notice summarised the respondent’s position, saying:[8]
“…GIO does not agree that you are entitled to compensation because your psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by your employer with respect to ‘discipline’ under section 11A of the Workers Compensation Act 1987.
Based on the current evidence, you were subject to disciplinary action in relation to a social media post regarding the EBA, you were also disciplined for breaching workplace policy in relation to a complaint against you about rumour you made.
Numerous meetings were held in March and May 2020 with you and management to discuss the complaint made against you. You were advised you had breached a workplace privacy policy and a formal meeting was to be held on 25 May 2020.
The meeting on 25 May 2020 did not eventuate because you subsequently obtained a certificate of capacity advising of a psychological injury.
Thus, based on the current evidence, we consider these matters fall within section 11A of the 1987 Act. Accordingly, no compensation is payable because the injury was wholly or predominantly caused by reasonable action by Bunnings with respect to discipline.”
[8] Reply page 3.
A further s 78 notice issued on 16 December 2020. It largely repeated what had been said in the earlier notice, but added a further paragraph between the second and third paragraphs reproduced above. This further paragraph said: [9]
“It is evident that you requested to be made a permanent member of staff on several occasions and that your request was refused. The reasons for refusing your request were based on the employer’s reasonable assessment of conduct and the availability of those positions.”
[9] Reply page 8.

The further dispute notice also referred to the opinion of Dr Neale. Relevantly, it said:
“Dr Neale, psychiatrist expressed the view in her reports dated 12 November 2020 and 1 December 2020 that you were suffering a Persistent Depressive Disorder which was p[predominantly [sic] caused by the employer’s action denying you promotion to a permanent full time position, and the disciplinary action taken by the employer in respect of rumor mongering by you. Dr Neale expressed the view that you perceived the employer’s actions in relation to discipline, promotion, transfer and provision of employment benefits as bullying, and you feared possible termination of employment.”

SUBMISSIONS

Mr Adhikary

Mr Adhikary acknowledged that the respondent carried the onus of proof in relying on s 11A of the 1987 Act.
Mr Adhikary noted that medical evidence was usually required where a respondent relied on the section, citing Hamad v Q Catering Ltd[10]. He submitted that that requirement was satisfied in this case by the reports of Dr Neale.
[10] [2017] NSWWCCPD 6 (Hamad).
Mr Adhikary submitted that Dr Neale had taken a comprehensive history from the applicant. Dr Neale said in her first report of 12 November 2020 that it was disciplinary action that had led to the onset of Ms Margetts’ psychological crisis, and which had been wholly or predominantly the cause. This opinion was confirmed in her second report of 1 December 2020, where she was asked to consider provisions of section 11A. However, Mr Adhikary noted that Dr Neale also included as causative, Ms Margetts’ perception that her failure to be given a permanent part-time role, which related additionally to promotion transfer and the provision of employment benefits.
Mr Adhikary referred to the allegations made by the applicant as to the cause of her psychiatric condition. He submitted that the following issues were raised by Ms Margetts:
(a)    the promotion of her status to permanent part-time;
(b)    the meeting following her post on the intranet;
(c)    the use of her card to obtain an unauthorised discount;
(d)    the training requirement, and
(e)    the meeting following her involvement in rumour mongering.
Mr Adhikary’s submissions then dealt with the actions of the respondent as revealed in the various statements regarding the steps taken regarding these issues. He submitted that the actions had been shown to be reasonable in all respects, including discipline.
The applicant had given an inconsistent statement to the preliminary meeting about the rumour mongering issue, and knew that she was facing a formal meeting, which was clearly disciplinary in nature. Ms Margetts thought she needed her solicitor at the meeting. She had been accused of violating the company policy by her actions.

Mr Stockley

Mr Stockley responded that questions of performance appraisal, promotion and employment benefits had not been raised in the s 11A notices and accordingly the only relevant issue was as to whether the allegation that the actions taken in regard to discipline were reasonable.
Mr Stockley said it was difficult to see how the applicant’s acknowledged complaints regarding her unrequited desire to become a part-time permanent could be seen as discipline. He said that the evidence regarding her wish to become a permanent part-time covered many years and involved meetings with various respondent witnesses.
Mr Stockley conceded that the issues named in the s 78 notice of 16 December 2020 concerned the post his client put on the intranet, and the rumour she was involved with, both of which concerned discipline. Mr Stockley agreed that the earlier s 78 notice of 3 July 2020 also maintained that the respondent’s actions had been reasonable in relation to discipline.
Mr Stockley submitted that it was difficult to see how Ms Margetts’ acknowledged complaints about not being afforded a permanent part-time or full-time employment could be classified as “discipline.” He submitted that the evidence generally showed that management was concerned only with explaining to her why she was not being promoted. Whether or not those actions were reasonable was not relevant, Mr Stockley contended. It defied logic and credibility in any event to describe those actions as reasonable in view of the fact of her long service with the employer, and that she was still being offered shifts. I understood
Mr Stockley to submit that if there was an element of discipline in those actions then
Ms Margetts would not have been offered any work at all.

Mr Stockley then referred to Dr Neale’s report of 12 November 2020, and her opinion that the alleged rumour mongering investigation was concerned with discipline. He submitted that
Dr Neale’s opinion did not support such a finding, let alone whether the respondent’s actions were reasonable or not.
Dr Neale’s next report of 1 December 2020, which was specifically in answer to questions about s 11A, confirmed her opinion regarding discipline, and that the relevant actions were both the rejection of her requests for a permanent position, and the pending disciplinary action. Mr Stockley submitted that the rejection of Ms Margetts requests was therefore seen by the respondent’s medical expert as a significant causal factor which was included as being a predominant cause for the applicant’s psychological condition.
Mr Stockley submitted that the respondent’s defence “fails at the first hurdle”, as Dr Neale’s opinion did not satisfy its onus to establish through expert evidence the particularity required regarding causation.
In that regard, Mr Stockley referred to the report of the Psychologist, Wendy Church of 29 June 2020. She had given a more nuanced assessment of causation Mr Stockley submitted, which contained some caveats. Ms Church described a “vicious circle” in which her increasing anxiety caused more conflict in the workplace to the extent that Ms Church’s opinion was that the applicant’s casual employment over a long period and the styles of management had been the main contributing factor to her condition. Within the entire context of Ms Margetts’ claim, Mr Stockley argued, one could “almost” get the impression that the respondent’s purpose in the actions it took was to counsel her how to be promoted into “high management” or a responsible full-time position. All Ms Margetts wanted, Mr Stockley said, was some permanent part-time work as a person at the lower end of “the industrial totem pole”. The applicant was managed in a completely unrealistic manner, Mr Stockley contended.
Mr Stockley referred to the report of Dr Clark, conceding that it was of no forensic value as to the particularity of causation. However he submitted that Dr Clark accepted that there was a causal nexus between Ms Margetts employment and her psychological injury.

Procedural matters

The transcript at page 15 shows that during Mr Adhikary’s address there had been a malfunction and Ms Margetts had not been able to hear the early part of his submissions.
Before Mr Stockley commenced his submissions the following appears in the transcript from page 48:
“MEMBER: Could I, before you start, firstly ask you this. You’ve advised the Commission that Ms Margetts has not been able to hear Mr Adhikary’s submissions. Do you have any application to make in regard to that?
MR STOCKLEY: If a transcript of what he has said can be produced that is the only procedural means that I can see of rectifying the technical difficulties we’ve encountered.”

The parties were duly supplied with a transcript.

Written submissions

Mr Stockley

Mr Stockley firstly summarised his oral submissions, emphasising that the respondent’s defence pursuant to its dispute notices had been confined to the issue of discipline.
Mr Stockley again referred to the 1 December 2020 report of Dr Neale and repeated that her opinion that the actions by management of repeatedly rejecting the applicant’s requests for a permanent position, and the pending disciplinary action regarding rumour mongering had caused her psychological condition. He submitted that, on its own case, the respondent’s evidence fell short of proving that his client’s injury had been caused wholly or predominantly by the pending disciplinary action.
Mr Stockley again referred to Hamad, submitting that Dr Neale’s opinion that the repeated requests for a permanent position were a predominant cause of the applicant’s injury meant that the respondent was unable to discharge its onus of proving that the injury was “wholly or predominantly” caused by its actions regarding discipline only.
Mr Stockley then considered the alternative ground advanced by Dr Neale regarding the alleged rumour mongering. He submitted that the conduct by the employer did not in any event constitute reasonable action regarding discipline. I was referred to Northern New South Wales Local Health Network v Heggie[11] as authority for the commonly accepted proposition that a broad evaluative judgement was required when considering the actions of an employer. I was also referred to the oft-cited dicta of Geraghty CCJ in Irwin v Director General of Education[12] that the question of reasonableness needs to take into account the rights of the applicant and the objectives of the employer, with the overriding criterion to be that of fairness.
[11] [2013] NSWCA 255.
[12] Unreported, Compensation Court of NSW, no 14068/1997.
Mr Stockley referred further to Heggie in submitting that an employer’s actions should be assessed taking into account the circumstances known at the time, and the relevant information that could have been obtained had reasonable inquiries been made and reasonable care exercised.
Mr Stockley referred to Ms Margetts’ statement regarding her account of the rumour mongering issue. Mr Stockley submitted that it was unclear how this could be a disciplinary matter or even a workplace issue. He contended that the use of the expression “bigger than Ben Hur” applied to the result of the employer’s failure to deal with the issue properly.
Mr Stockley submitted that the actions of the employer in seeking the intervention of
Ms Agland, the invitation to a meeting on 22 May 2020, and the suggestion that the applicant bring a support person were “heavy-handed and unnecessary”. This was, Mr Stockley said, because Ms Margetts had acknowledged her level of involvement in the issue and the nature of the complaint itself. Moreover, he submitted, the account given by Ms Margetts herself made matters even worse for the respondent, as the support person she selected for the meeting was a witness to the events being discussed. Ms Margetts was thus deprived of procedural fairness and the “uncomfortable interrogation” was thus unfair and unreasonable within the dicta of Irwin.
Mr Stockley submitted that the respondent had not satisfied its onus pursuant to s 11A in relation to the defence raised of reasonable action going to discipline for four reasons:

· the injury was predominantly the result of matters other than discipline (being the promotion to permanent part-time work). An alternative was argued that the respondent was unable to satisfy its onus that the discipline component was wholly or predominantly the cause of the applicant’s psychological injury;
· the rumour mongering issue was not any of the respondent’s business;

· alternatively in the event that the issue was a legitimate concern for the respondent, its response should not have been disciplinary action, and
· a succession of meetings with a “Star Chamber” flavour cannot constitute reasonable action.

Mr Stockley then made submissions regarding the post Ms Margetts had put on the respondent’s intranet. Mr Stockley thought it “astonishing” that this ground of denial been contemplated.
The evidence was referred to and Mr Stockley submitted that in the final analysis the meeting following the enquiry of the CEO could not be described as going to discipline. It was common ground that the meeting was an informal one, but management had used this incident as an opportunity to criticise Ms Margetts’ commitment and loyalty to Bunnings.
The only element going to discipline, Mr Stockley argued, was Ms Margetts’ own perception that she was being criticised in response to her continued failure to secure permanent employment.
Mr Stockley said that the employer’s response emphasised its readiness to chastise or rebuke Ms Margetts for not accepting all available shifts that were offered. Management also questioned whether she was a team player when she was unavailable over the Christmas period because she was on holiday. Mr Stockley said that she was not paid leave, and as a casual she accordingly was not subject to the needs and requirements of the employer.

Mr Adhikary

Mr Adhikary kindly provided the chronology which was discussed at the close of the hearing. It has been of considerable assistance.
Mr Adhikary commenced his written submissions by noting that he relied on his oral submissions. He then sought leave pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to amend the terms of the dispute notice dated 16 December 2020, at page 6 of the reply. Mr Adhikary submitted that “due to an administrative error”, the totality of the concepts sought to be relied on were not identified clearly. He said:
“The Respondent submits that….. it should be granted leave pursuant to section 289A of the Workplace Injury Management and Workers Compensation Act 1998 to rely upon the concepts found in section 11A of the Workers Compensation Act 1987 of ‘promotion, transfer and provision of employment benefits’, in addition to the concept of ‘discipline’, as part of its defence to the Applicant’s claim.”

Mr Adhikary cited Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[13] as authority for the proposition that I had a discretion pursuant to s 289A(4) to permit an amendment to the respondent’s defence regarding unnotified matters.

[13] [2007] NSWWCCPD 227.

The applicant by letter dated 22 July 2021 responded to Mr Adhikary’s application, submitting that it should not be entertained, but if it were, for the applicant to be heard in opposition. Further written submissions to the same effect were made by Mr Stockley on 1 September 2021.

DISCUSSION

Section 298A(4) application

The respondent relied on Mateus as relevant authority. Mateus was concerned with an application pursuant to s 289A(4) made during the hearing, not, as is the case here, after the evidence had closed. This application is to re-open the respondent’s case, in order to bring the s 289A application.
The terms of my direction issued on 6 July 2021 were as follows:
“I direct that a transcript of today’s proceedings be taken out and made available to the parties.
2. The applicant is to lodge and serve written submissions in support of her oral submissions by 14 July 2021.
3. The respondent is to lodge and serve written submissions in response by 23 July 2021.”

As I have indicated above, Mr Adhikary completed his submissions orally, but there was insufficient time for Mr Stockley to complete his oral submissions. The leave given to the respondent was to lodge and serve written submissions “in response”. There was no indication that this s 289A(4) application was being contemplated, and no application was foreshadowed that the respondent would seek to, in effect, mount a separate defence to that which it had already pleaded, and which it had maintained and pressed during the trial and during its submissions by counsel.
The direction was limited to Mr Adhikary’s right to respond to the oral and written submissions of Mr Stockley.
I am not satisfied that, even if the principles in Mateus were applicable, that they would aid the respondent’s application in any event. The evidence on which it now seeks to base its amended defence has been available through its own medico-legal expert , Dr Neale, since 1 December 2020. The only explanation given for its delay was ‘administrative error’, about which no details were given.
Moreover, the prejudice to the worker in these circumstances is quite apparent. She was entitled to believe that the insurer had competently assessed her case, and made an informed decision that the respondent’s actions regarding discipline were the whole or predominant cause of her injury. She was entitled to think that the stress involved in the litigation had ended, and that justice would be done on the case she had presented.
I do not accept Mr Adhikary’s submission that the applicant had no need to lodge any further evidence in the light of his application. That would be a decision that would abide the advice from her legal advisers. In that regard I note that Mr Stockley sought leave to re-open the case if leave were to be granted in terms of Mr Adhikary’s application.
I also do not accept Mr Adhikary’s contention that because Dr Neale’s report had been lodged, Ms Margetts’ legal advisors were aware of what “concepts” the respondent was referring to. The Arbitrator in Mateus was cited with approval by the learned DP when she said:[14]
“In my view, the obligation imposed by s 74(2)(a) of 1998 Act [the precursor to s 78] will not be discharged unless the reason/s the insurer disputes liability are clearly stated and the issues relevant to the decision particularised. A citation in the notice to another document does not in my view constitute disclosure of all issues addressed in that document for the purpose of s 74(2)(a). …….”
[14] Mateus at [36] and [45].
I was not referred to any statutory or other authority regarding the Commission’s power to
[15] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [88].
[16] [2021] NSWSC 168 (Cappello).
[17] [2010] NSWSC 788 (Gaskin).
re-open. Although s 43 of the Personal Injury Commission Act 2020 provides that the Commission is not bound by the rules of evidence, it does not release the Commission from the obligation to apply rules of law in arriving at its decisions.[15] At common law, applications to re-open have been the subject of much judicial attention. Where such an application is made after the case has been reserved, the relevant criteria have been considered in Cappello & Anor v Scrivener & Anor (No 2)[16] and Gaskin v Ollerenshaw[17] .
In Gaskin Garling J was dealing with an application to re-open after the evidence and submissions had concluded, and the judgement reserved. The applicable rules were under the Civil Procedure Act 2005, which for present purposes were similar to the objects and guiding principles provided by section 3 of the Personal Injury Commission Act 2020; that is, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
Garling J said at [21]:
“21 A clear exposition of the appropriate principles for the exercise of the discretion can be found in the judgment of Clarke JA (with whom Mahoney and Meagher JJA agreed) in Urban Transport Authority of NSW v Nweiser supra, at 478:
‘The principle which should guide the court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place ...’”
In Cappello Stevenson J was also dealing with an application to re-open when the matter was reserved for judgement. He said:
“46. The principles upon which the Court acts when faced with an application to reopen are settled. Those principles are that:
(a) the overriding question is whether the interests of justice are better served by allowing or refusing the application;
(b) the power to grant leave should be exercised with great caution having regard to the public interest in maintaining the finality of litigation and, generally speaking, should not be exercised unless the applicant can show that by accident without fault on his or her part, he or she has not been heard;
(c) classes of cases in which leave may be granted include, but are not limited to where:
(i) fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;
(ii) there has been inadvertent error;
(iii) there has been a mistake in the apprehension of the facts; and
(iv) there has been a mistaken apprehension of the law.
(d) the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the Court.
(e) nor is leave to be granted “simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put”;
(f) what must be shown is that the Court has “apparently proceeded according to some misapprehension of the facts or the relevant law and that that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing”; and
(g) where, as here, the case has been closed, and judgment reserved and delivered, exceptional circumstances must be shown.
47. It is implicit in all the cases considering this question, that some explanation must be offered as to why the evidence sought to be deployed was not tendered at the appropriate time.” (Authorities omitted)
In the present case there has been no misapprehension of either the facts or the relevant law. The respondent has pleaded that this situation has arisen because of inadvertent error. There is no evidence that supports that plea, only speculation.
Thus, once the evidence is closed, an additional discretionary consideration to those discussed by DP Roche in Mateus[18] is the emphasis on the public interest in maintaining the finality of litigation, and the concomitant requirement to show exceptional circumstances. The respondent has not shown that the issue was not heard by accident, and without fault on its part. It was aware of Dr Neale’s opinion, and it decided to rely only on its actions regarding discipline, when it could have earlier raised the issues it now seeks to agitate. The date of
[18] From [48].
Dr Neale’s report was 1 December 2020, and no adequate explanation as to the delay between then and 21 July 2021, the date of Mr Adhikary’s application – after the close of evidence – has been made.
It is accordingly not in the interests of justice to expose the applicant to the stresses of a further delay when she had every right to believe that the real issues in her case had been presented. There have been no exceptional circumstances.
The application to re-open is dismissed.

The substantive issue

This may be dealt with shortly.
Section 11A of the 1987 Act provides relevantly:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

In Hamad DP Snell said from [88]:
“88. 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.
89. This is particularly so, given that the available medical evidence …. was consistent with causes that in addition to matters alleged to constitute ‘discipline’.”
Hamad has been relied on by both sides, reflecting that the central issue is as to whether the injury had been wholly or predominantly caused by the disciplinary action of the respondent. For that, expert evidence is needed to satisfy the respondent’s onus of proof.
There are a number of causes for Ms Margetts’ condition, as was shown by Dr Neale in her reports. Disciplinary actions were expressly excluded in her first report of 12 November 2020, but in her next report of 1 December 2020 she altered her opinion and expressly included them, not only as being a possible cause, but as actually being the predominant cause of the injury. Her change of mind she explained by saying that she had reflected, and she had referred to the legal standard of proof.
Dr Neale’s reconsideration of her opinion may have been – quite unintentionally - influenced by the terms of the question she was answering, or even by the fact that she had been asked to reconsider her quite unambiguous opinion. In any event I found her explanation, such as it was, to be unconvincing.
I agree with Mr Stockley that Dr Clarke’s report was of little forensic value, due to its lack of detail.
Although Dr Neale’s credit has been affected by her unexplained change of opinion,
I nonetheless found that her original opinion in that regard, which was clearly expressed, considered and compelling, was of some relevance. It was the worker’s misperception of events that caused her injury, and there were many events which Dr Neale identified in her report.
Some of these events were concerned with promotion, some were concerned with transfer, and some concerned with simple misapprehension, as when Ms James came down to Nowra from Rhodes to discuss the worker’s intranet post. Some were concerned with discipline, such as the 2014 use of the worker’s discount card, and her involvement with the rumour mongering inquiry. Some were related to a misperception that Mr Jenkins was hostile to her following her inappropriate comment when he first joined the Nowra store in 2017.
Dr Neale’s original view was that, whatever the causative events had been, the disciplinary actions in particular, were not causative at all. Whilst that view is tenable, the marked inconsistency in Dr Neale’s two reports deprive her evidence of probative weight in any event. There were no adequate reasons advanced for her volte face, and accordingly I am far from persuaded that the respondent has met its onus to establish by expert evidence that disciplinary action was either wholly or predominantly the cause of Ms Margetts’ injury.
If I am wrong in that determination, then the question arises as to whether the respondent’s actions had been reasonable. As these reasons are meant to be brief, I would indicate simply that I am unpersuaded that the actions were unreasonable. Ms Margetts has been diagnosed as suffering a depressive disorder which has resulted in her misperceiving the events she experienced. The respondent witnesses described many events and discussions over many years which involved the worker. None of them in context were unreasonable. As indicated, the CEO even despatched a manager from Rhodes to travel to Nowra to talk to
Ms Margetts after she had drawn attention to herself on the intranet. That was a thoughtful action by the CEO but it was one of many of the respondent’s actions that Ms Margetts misinterpreted as bullying because of her medical condition.

The s 66 claim will be referred for assessment pursuant to the 1998 Act.

SUMMARY

I find that the applicant suffered a psychological condition, namely a Persistent Depressive Disorder which occurred on a deemed date of 2 June 2020.
I find that the respondent has not met its onus to prove that the applicant’s condition had been caused wholly or predominantly by its action taken or proposed to be taken with respect to discipline.
There will accordingly be an award in favour of the applicant.
I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases:
(a)    Date of injury: 2 June 2020 (deemed).
(b)    Matter for assessment: psychological or psychiatric injury.
(c)    Evidence:
(i) ARD and attached documents, and
(ii)Reply and attached documents.

(d) The assessment is suitable for video link.

On 11 October 2021 the parties notified the Commission that the claim for weekly payments, which I ruled on in this Statement of Reasons, had in fact discontinued. I have accordingly amended the decision by removing those paragraphs which considered that claim, being the relevant part of Order 1, paragraphs 183 to 191, and paragraph 196.

[2021] NSWPIC 410

5 October 2021 (amended 18 October 2021)