Martin v Healthshare NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Martin v Healthshare NSW [2024] NSWPIC 353
APPLICANT:	Geoffrey Martin
RESPONDENT:	Healthshare NSW
MEMBER:	2 July 2024
DATE OF DECISION:	Rachel Homan
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in respect of a psychological injury; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal under section 11A(1); reasonableness of action; delay in disciplinary process; failure to put critical information to the applicant for comment; whether a pattern of behaviour was unreasonably taken into account; Held – the respondent failed to discharge its onus under section 11A(1); the applicant totally incapacitated as a result of injury; award in favour of the applicant for weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or dismissal of workers pursuant to s 11A(1) of the Workers Compensation Act 1987. 2. The applicant has had no current work capacity as a result of the injury from 26 September 2023 to date. 3. The respondent to pay the applicant weekly compensation from 26 September 2023 to date and continuing pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987, based on the agreed pre-injury average weekly earnings rate of $2,094.86, as periodically indexed in accordance with s 82A of the Workers Compensation Act 1987. 4. The respondent to have credit for any payments already made in the relevant period in accordance with the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Geoffrey Martin (the applicant) was employed as a duty manager by Healthshare NSW (the respondent).
The applicant claims to have suffered a psychological injury due to accusations being made against him by a co-worker and unreasonable action taken by the respondent in response to those accusations.
The claim for compensation was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 29 November 2023. The insurer determined that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal for the purposes of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 21 February 2024. The applicant seeks weekly compensation from 26 September 2023 to date and continuing.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 6 May 2024. The applicant was represented by Mr Greg Horan of counsel instructed by Mr Gerard Morson. The respondent was represented by Mr John Gaitanis of counsel instructed by Ms Emma Blackman. A representative from the insurer was also present.
During the conciliation conference, the parties reached agreement that the applicant’s pre-injury average weekly earnings (PIAWE) rate was $2,094.86, subject to periodic indexation.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal of workers under s 11A(1) of the 1987 Act, and
(b) the entitlement to weekly compensation from 26 September 2023 to date and continuing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Certificates of Capacity lodged by the applicant on 6 May 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 20 February 2024.
The applicant said that after commencing employment with the respondent in 2015 as a transport officer, he was later promoted to the position of duty manager.
Allegations were made against the applicant that on 5 May 2023 he acted unprofessionally towards a colleague. The applicant denied any wrongdoing and was assisted by the Health Services Union to dispute the allegations. The applicant’s employment was terminated as a result of the allegations on 26 September 2023.
The applicant commenced proceedings in the New South Wales Industrial Relations Commission (IRC) which resulted in all allegations being quashed. The applicant was permitted to resign from his employment.
The applicant said that although he accepted that the allegations needed to be properly investigated, the employer quickly discovered that the allegations were spurious but did not let him return to his usual duties.
The applicant’s employment was terminated on the basis of a pattern of misconduct. The applicant denied that any pattern existed.
The applicant said that bullying, harassment and lack of support from upper management were the main contributing factors to his psychological injury.
The applicant said he was under the care of his general practitioner, Dr Aldrin Tai, and was waiting to see a psychiatrist.

Letter to the Health Services Union (HSU)

An undated letter from the applicant to the HSU provides a chronology of the relevant events.
On 15 May 2023 the applicant was approached by acting operations manager, Mitchell Tullio, who asked to have a private discussion. The applicant brought a colleague to the meeting where he was advised that a complaint had been made against him in relation to comments made on 5 May 2023. The applicant recalled making a joking comment after his colleague, Ms Michelle Mortimer, had snarled at him. Mr Tullio said that the comments that followed were the problem. Mr Tullio indicated that there was a witness.
The applicant received a letter advising him of an investigation into the allegations on 23 May 2023 in his letterbox at home.
On 1 June 2023, the applicant emailed his response to the allegations. The applicant said he called the investigator and asked for a copy of the witness statement. The investigator told the applicant that the witness did not hear anything. The witness had been sitting within two metres of the applicant in a quiet office. The applicant said he had still not received any witness statements.
The applicant emailed the investigator asking for an update on 23 June 2023 and again on 18 July 2023 when there was still no response. The investigator replied on 19 July 2023 saying he had sent his findings on 7 June 2023 and had been asked to provide a further report, which he did on 26 June 2023. The applicant was not advised of the initial findings or why a review was requested.
The HSU emailed the investigator on the applicant’s behalf asking for an update on 14 August 2023. By now, 12 weeks had passed.
On 15 August 2023, the applicant received an email with initial findings and recommendations from Mr Garth Worboys. All three allegations were substantiated. The correspondence referred to a “pattern of behaviour”. No substantiated claims or final warnings had been made against the applicant previously. It appeared to the applicant that no other staff had been interviewed. The applicant expressed the view that Mr Worboys’ conclusion was based on his personal opinion rather than evidence.
The applicant provided a response to the initial findings and recommendations on 25 August 2023.
The HSU sent an email requesting the final outcome on 22 September 2023.
The applicant received a letter from Ms Carmen Rechbauer, terminating his employment, on 27 September 2023.

Relevant correspondence

A letter addressed to the applicant from Mr Douglas Jacks, dated 22 May 2023 advised the applicant that information had been provided to the Professional Standards Unit indicating that he may have engaged in misconduct. The applicant was advised that the matter required further investigation.
The allegations were that the applicant had acted in an unprofessional and disrespectful manner by making inappropriate and sexually harassing comments towards another staff member. The allegations were particularised as follows:
“Allegation 1:
It is alleged that at about 2.30pm on Friday 5 May 2023, at the Patient Transport Services Prestons HUB, you acted in an unprofessional and disrespectful manner towards staff member Ms Michelle Mortimer when you said to her: ‘Who is working with us today, is it Sarah, Sophia or Sam?’
When Ms Mortimer asked: ‘What are you on about?’
You replied: ‘Oh its Sarah the bitch today’
When Ms Mortimer replied asking: ‘Are you are calling me a bitch then?’
You replied: ‘No I said Sarah is a bitch’
Your comments made in the presence and hearing of another staff member and with the intention of harassing and belittling Ms Mortimer by implying she had mental health issues. Your conduct being contrary to the NSW Health Code of Conduct.
Allegation 2:
It is alleged that at about 2.30pm on Friday 5 May 2023, at the Patient Transport Services Prestons HUB, you acted in an unprofessional manner and sexually harassed staff member Ms Michelle Mortimer when you said to her: ‘This happens every 4 weeks and it’s that 4 week time again’
Your comments directed towards Ms Mortimers menstrual cycle.
Your conduct being contrary to the NSW Health Code of Conduct.
Allegation 3:
It is alleged that at about 2.30pm on Friday 5 May 2023, at the Patient Transport Services Prestons HUB, you acted in an unprofessional and disrespectful manner towards staff member Ms Michelle Mortimer when you said to her: ‘You remind me of myself, and I hate himself’
Your comments made in the presence and hearing of another staff member and with the intention of harassing and belittling Ms Mortimer.
Your conduct being contrary to the NSW Health Code of Conduct.”
The letter advised the applicant that, if proven, the misconduct would constitute a breach of the NSW Health Code of Conduct, NSW Health Core Values and policy on the prevention and management of workplace bullying.
The applicant was invited to make a statement in relation to the allegations within seven days of receipt of the letter. The applicant was advised of the next steps in the investigation. The applicant was informed that his current suspension from duty on full pay would continue. Details were provided for the independent employee assistance program provider.
An undated statement from the applicant to Mr Jacks provided a response to the allegations. With regard to Allegation 1, the applicant stated,
“On May 5th, approx 1430hrs, upstairs office, Prestons PTS. I sat down at my desk, directly to Michelle’s right. Michelle and I said hello etc. Michelle then asked me to look at something on her monitor. I said I couldn’t read the screen. Michelle then turned to my face, very closely and snarled ‘What the hell you are looking at’ this was very close to my face. I thought she was joking as she often does. I said, ‘who you today, Michelle or Sophie or Sue.’ Michelle said, ‘Why do the names begin with S’. We both laughed. ‘I said, I could be Geoff today or George or Gary next week.’
Michelle has made me aware of the mental health challenges that she undergoes. I have spoken to Michelle about my own anxiety and depression, and offered her my experience on how I have sought medical help. I offered her the name of my psychiatrist. Michelle often jokes and on this occasion I thought she was joking. I have lost my own brother to mental health.
The witness would have most definitely asked me to mind my language, if I used the word bitch. I don’t use this word as I consider it derogatory.”
With regard to Allegation 2, the applicant responded:
“I did not say these words. Michelle’s ‘menstrual cycle’ is none of my business. I find this allegation offensive. I have a daughter myself, who suffers cramps and headaches; I often support female staff members who are quite ill during this time. They confide in me. As part of my role, I will arrange leave, shift time changes and shift swaps. I am sure that they will confirm my professionalism and discretion.
Again, if the witness heard me say these comments, they would have, without doubt, confront me.”
The applicant responded to Allegation 3 as follows,
“I did not say this comment. I am trying to make sense of it. The word hate is powerful and one that I would not use to describe myself. I grew up with hate as my family is identified as indigenous. I have also had to confront hate, due to my wife of 33 years being of Chinese descent. Again, I am sure if the witness heard me make such a comment, the witness would have confronted me.”
A letter dated 26 September 2023, authored by Ms Carmen Rechbauer, Chief Executive, referred to correspondence dated 15 August 2023 from Mr Worboys. It was noted that the applicant was invited to make submissions in response to the findings of misconduct and the recommendation to terminate his employment. The applicant’s response of 24 August 2023 was acknowledged. The applicant was advised that Ms Rechbauer had accepted the findings and endorsed the recommendation to terminate the applicant’s employment. The letter stated,
“I am now writing to advise you that after carefully considering all the documentation presented to me, including your replies to questions in interview, witness statements, and your written submission, I have accepted the findings and endorsed the recommendation to terminate your employment.”
The applicant was again provided with the details of the employee assistance program provider.

Transcript of Industrial Relations Commission proceedings

Attached to the ARD is a transcript of proceedings before Commissioner O’Sullivan of the NSW IRC on 13 November 2023.
In that transcript, Mr White, appearing for the respondent, indicated that the decision to terminate the applicant’s employment was based upon a particular incident as well as a pattern of behaviour.
Commissioner O’Sullivan noted that there had been one positive finding made against the applicant in 2019 as well as that which was the subject of the present investigation, which had been challenged. Two other allegations had been made but not substantiated.
Ms Barker, who appeared for the applicant, observed that the allegation made against the applicant in September 2019 was also unsubstantiated due to a lack of evidence.

Factual investigation

The respondent relies on a factual investigation report prepared by M & A Investigations on 24 January 2024.
The factual investigation indicated that the applicant was alleged to have spoken to various staff in an inappropriate manner on four different occasions. The last allegation led to the applicant being stood down pending an investigation by the Professional Standards Branch. As a result of the investigation, a decision was made to terminate the applicant’s employment. There was a witness to the last allegation, Ms Leanne Hawkins, but she declined to provide a statement. The relevant documentation was held by the Professional Standards Branch and was unable to be released.
Three witness statements were attached to the report.

Mr Grubisic

Mr Dunko Grubisic, operational service manager, prepared a written statement on 12 January 2024.
Mr Grubisic said he was aware of four separate complaints lodged by female members of staff alleging inappropriate comments were made by the applicant. This resulted in four separate independent investigations. The applicant was stood down with full pay in May 2023 after the fourth allegation. As a result of that investigation, the applicant’s employment was terminated in September 2023. A registered nurse, Ms Hawkins, may have been a witness to the fourth allegation.

Mr Tullio

Mr Mitchell Tullio prepared a written statement on 12 January 2024. Mr Tullio said he was aware of previous complaints made against the applicant. Mr Tullio was involved in the last complaint which was an allegation of bullying bordering on sexual harassment. Mr Tullio said he interviewed the complainant.
A possible witness was identified. Mr Tullio made multiple attempts to obtain a statement from the witness but she said she had headphones on and did not hear anything.
The applicant was initially stood down and his employment later terminated. Mr Tullio served the relevant correspondence on the applicant. The applicant was afforded opportunities to respond to the letters although Mr Tullio was not aware of any responses. The applicant was provided with details of the employee assistance program and Mr Tullio made multiple phone calls offering assistance.

Ms Papasavva

Ms Kelly Papasavva, Human Resources (HR) business partner, made a statement on 17 January 2024.
Ms Papasavva said she was aware of allegations of inappropriate conduct made against the applicant in 2019 and on two occasions in 2021. Ms Papasavva became aware of the fourth complaint lodged against the applicant for inappropriate behaviour.
A risk assessment was undertaken and, due to previous similar matters, it was decided to stand the applicant down. This decision was approved by a delegate, the director of People Culture.
After an investigation was completed, the decision was made to terminate the applicant’s employment.

Investigation report

Attached to the Reply is a document titled, “Investigation Report – Geoffrey Martin”, completed by Mr Douglas Jacks on 6 June 2023.
The report documented extracts from a complaint lodged by Ms Mortimer on 10 May 2023 regarding an incident on 5 May 2023.
A record of a meeting between the applicant and Mr Tullio on 15 May 2023 was extracted,
“DM Geoffrey stated that he did make those comments, and that ‘yea I did say that but it was said them in good Humour, and Michelle was also laughing at the time’. DM Martin stated that ‘Michelle had yelled at him for looking at her computer screen after she had told me to look at something’
DM Martin stated that ‘I understand what you’re saying and that Michelle is upset, I’ll fix this and that I’ll apologise to her’.”
It was determined that the matter would be referred to the professional standards unit for investigation at a meeting on 16 May 2023.
The report observed that the applicant had no prior history of misconduct.
The report indicated that during the investigation process, statement evidence was obtained from the applicant, Ms Mortimer and Ms Hawkins.
Mr Jacks concluded that, on the balance of probabilities, none of the allegations of misconduct were substantiated. Mr Jacks recorded,
“There is a conflicting account of what was and wasn’t said between DM Martin and A/DM Mortimer with both parties presenting as credible witnesses and providing a reasonable version of events. In incidents of this nature, it would be normal to draw upon the evidence supplied by any witness either present at the time, or who could provide circumstantial evidence, to assist in determining where the balance of probabilities resides.
Both DM Martin and A/DM Mortimer have nominated RN Hawkins as the witness to the incident. RN Hawkins was seated about 1.5 to 2 meters away from them at the same desk and in close proximity to overhear their conversation and both parties would be aware of her ability, including previous incidents of her having done so. However, in her evidence RN Hawkins states, that although she was vaguely aware of them having a conversation:
‘I do not recall what was said between them. I cannot remember if I was on the phone at the time or was just working away and not paying attention to their conversation. I do know nothing occurred that drew my attention to them at that time, and there were no raised voices or anything else unusual that occurred.’
I am of the view it would be a reasonable assumption that if A/DM Mortimers full version of events occurred, that the topic, subject and words used by DM Martin would have attracted RN Hawkins attention, and therefore her lack of attention is more supportive of DM Martin’s version of events.”

Mr Jacks recommended that dispute resolution/mediation activities be initiated involving the applicant and Ms Mortimer and that a final decision be made that the applicant had not engaged in misconduct.
A signature block at the end of the report indicated that the initial decision was not approved by Ms Shubjeet Kaur and that clarifying details were to be obtained from Mr Tullio.

Further Investigation Report

A document titled, “Further Investigation Report”, prepared by Mr Jacks on 10 August 2023, indicates that his initial report was sent to the decision-maker, Ms Shubjeet Kaur, Director, Patient Transport Services on 7 June 2023. On 16 June 2023, the decision-maker requested that further enquiries be undertaken, specifically in regard to a conversation between the applicant and Mr Tullio on 15 May 2023.
The further report records that there was no prior formal record of sustained misconduct, however, a number of matters had been informally dealt with at the local level.
Mr Jacks recorded that he contacted Mr Tullio and obtained a statement on 16 June 2023. Mr Tullio described a conversation with the applicant on 15 May 2023 in which he informed the applicant about the complaint made by Ms Mortimer. Mr Tullio said,
“DM Martin replied to the effect: ‘Yes, I did say those things, but Michelle was laughing so I don’t know why this is an issue. It was meant to be funny’.
DM Martin further stated: ‘Michelle had yelled at me for looking at her computer screen after she had asked me to look at something’
I explained that Michelle was offended by his comments and that the matter had been escalated to HR
DM Martin replied: ‘I understand what you’re saying, and that Michelle is upset, I’ll fix this, I’ll apologise to her’ And ‘I’m in trouble aren’t I’.”
Mr Jacks expressed the opinion that, based on the evidence, on the balance of probabilities, the allegations of misconduct were all substantiated. Mr Jacks recommended:
“In consideration of sanction, I note that DM Martin has no prior history of sustained misconduct. However, his behaviour is a clear breach of his obligations and duty as a manager and has the potential to cause psychological damage to the health and wellbeing of HealthShare NSW employees. I am of the view a strong message should be sent to him that his misconduct is unacceptable.
I am of the view that, on the balance of probabilities, the alleged incidents of misconduct occurred and recommend the Decision Maker consider issuing DM Martin with a Formal Warning for his misconduct. DM Martin should also be reminded of the expectations of behavior in the workplace and the possible consequences should he engage in future proven like misconduct.”
A signature block at the end of the document indicates that it was reviewed by Mr Garth Worboys on 11 August 2023 and the recommendations changed to “termination”.

Final Investigation Report

A “Final Investigation Report” was prepared by Ms Julee Banks- Mackenzie, Manager PSU on 30 August 2023.
That report referred to the initial investigation conducted by Mr Jacks. It was noted that on 2 August 2023, Ms Kaur escalated the decision-making delegation to Mr Garth Worboys, Executive Director, System Service Delivery.
On 15 August 2023, the applicant was issued with the decision-maker’s findings of misconduct and the proposed sanction, being a recommendation of termination of employment. The applicant was given until 5.00pm on 29 August 2023 to make any submissions with regard to the findings and or proposed sanction.
It was noted that the applicant submitted a written response on 25 August 2023, which was extracted as follows:
“I have been working for PTS for 8 years now and I love my job. I am currently the single wage earner in my home. I have a mortgage, 2 vehicle registrations due next month, I pay for the shopping and I pay the household bills. My family are dependent on me to provide for them. Losing my income would have a catastrophic effect.
My family in my home consists of myself, my wife 64, my daughter 21 and my mother-in-law 87. All are concerned. None are working. I would not expect my wife to work and she had a brain tumour removed two years ago.
I would also respectfully like to address Mr Worboys to reconsider his initial decision for termination of employment. With all due respect for Mr Worboys, he states that it his ‘view’ and ‘there is what appears to be a pattern of behaviour.’ I ask Mr Worboys to consider the evidence solely.
I love my job and would never hurt anyone. I work hard to provide a safe workplace. The staff who are WHS representatives and the HSR will confirm that I am proactive in addressing issues in a professional and consultative manner. I do not want to lose my job and it would be devastating to myself, my family and the staff of PTS Prestons. I believe in the work that PTS does to transport some of the most vulnerable members of our society.
I would be willing to undergo training, supervision, or any other disciplinary action, instead of being terminated. I urge you to reconsider the proposed outcome.”
Ms Banks-Mackenzie recommended that consideration be given to termination of the applicant’s employment or, alternatively, that he be issued with a formal warning.
A signature block at the end of the document indicated that the final decision made by Mr Worboys was to terminate the applicant’s employment.

Treating evidence

Clinical records from Hurstville Medical Practice, included a reference to “stress” on 13 July 2019.
On 24 May 2021, general practitioner, Dr Michael Lo, recorded:
“…still stressed from work, claims made against him is still unfounded but enquiry will go ahead nevertheless, pt does not need this crap, perhaps look for other jobs with the same employer where he doesn't have to deal with lowlife scum.”
On 2 June 2021, Dr Lo noted:
“…still not been to work, same work stresses, work has not contacted him, people dealing with this matter are on leave also, been acused of something he didnt do, there is no evidence to charge him by, yet accusations remain & work has so far done nothing about it, however there has been no penalty or conditions placed on him, and no change to his work duties....”
On 27 September 2021, Dr Lo noted:
“…says another complaint against him by the same gp of people....received Email from HR...says the same gp of people caused trouble for other people....says his manager is on his side, went home today, needs time off, been feeling v v stressed as a result, just when he thought things were settling down.... sounds a little stressed & anxious over the phone”
At a further consultation on 4 December 2021 it was recorded,
“…working from home, has a meeting on Monday with his boss to sort things out, still stressed, says some woman who accused him of this & that was found to have baseless accusations, was accused of this & that, says his superiors are understanding, also will eventually be going back to onsight work, sleep is still a little off, Cipramil> effective, no S/E, appetite is OK, pt says he wants peace, does not want to go to court & fight, even though he has enough evidence to win, but does not want the stress of going to court”
On 11 December 2021 it was noted that the applicant was much improved,
“…will be going to work 5 days/wk, things more or less sorted out, feels positive, says there's a new manage, new HR, the troublemakers have ben sorted out (1 left, 1 transferred & the 3rd one had a talking to), hopefully no issues from now on…physically he's fine, he feels mentally he is OK now also, but will be on the alert, will not take any risks, also will not let himself be put into situation s where he'll be accused for things he has not done....”
On 21 June 2023, Dr Lo noted:
“…says there was another complaint against him, different person, a new worker who just started work there 6/12 ago, but says it's Ok, as it'll be sorted out soon”
On 7 August 2023 the applicant reported (unedited):
“…more issues with work, accused with saying something, being investigated, but noone kept him up to date...,investigation has been done, but awaiting outcome & verdict, pt has been stood down this whole time (with pay).....pt says the workplace has stuffed up & his collegues are with him.... keen now to see a counsellor, pt doesn't want to see mr Ma again for whaever reason, sleep isn;t the best, drinks 1 drink q4/7, appetite is so so”
On 9 August 2023, Dr Lo recorded that the applicant was still very stressed and not much was happening at the work front to resolve the issue. The applicant expressed the view that work was “stalling” as they “knew they were in the wrong”.
On 2 September 2023, Dr Lo recorded that there was still no progress at work. The applicant felt his boss wanted his own people in and wanted others to leave, the applicant being one of them.
On 4 October 2023, Dr Lo noted (unedited):
“…seeing work psychologist, who asked him to see Wellbee, pt has appt, not used any of his MHC/P sessions as yet, pt says now he's fighting unfair dismissal , says work is trying to get rid of a lot of people... says union & workmates are with him, alos a few collegues on stress leave, says work place is toxic, overall feeling OK ,more or less used to it, no new S,x sleep/ appetite: Ok, but is looking forwards to when it's all over, undeiced as to what he might do later on, but concentrating on the present...no new Sx, quality of life maintained”
Ongoing psychological symptoms were noted by Dr Lo throughout October and November 2023.
On 21 November 2023, general practitioner, Dr Aldrin Tai noted:
“…allegedly accused of misconduct at work, for certain actions he denied he was stood down from work in May 2023 received termination from employer healthshare In 26 Sep 2023 attended commissioner hearing, and he tells me he is cleared feels anxious, poor sleep and depressed.”

Respondent’s submissions

The respondent observed that the applicant had made concessions regarding discipline and/or dismissal being the whole or predominant cause of the applicant’s psychological injury during the conciliation phase of the proceedings. The primary issue was the reasonableness of the employer’s action.
The respondent submitted that there was no truth to the suggestion that the respondent’s actions were based upon a “pattern of behaviour”.
Although the clinical notes from Hurstville Medical Practice demonstrated that the applicant had previously reported stress, mostly in regard to complaints made against him by co-workers in 2021, the respondent’s three investigation reports recorded that there was no prior history of sustained misconduct. It was clear that the employer’s actions were based upon the most recent conduct only.
The respondent referred to the letter to the applicant advising him of the allegations and the applicant’s written submission in response. The alleged breaches of policy were identified. The allegations were serious in nature and arguably in contravention of the Sex Discrimination Act 1984.
The respondent went through the chronology of events and the documents described above.
In a meeting with Mr Tullio on 15 May 2023, the applicant conceded that he had made inappropriate comments. Mr Tullio’s evidence was considered in the further investigation report. The applicant’s admissions suggested that the complaints made by Ms Mortimer were reliable. There was no reason why Mr Tullio would have made this evidence up. The discussion took place early on and had been overlooked by Mr Jacks in his first report.
The further report acknowledged that there was no prior history. The report recommended findings that the applicant engaged in misconduct. There was a recommendation that the applicant be issued with a final warning, although the sanction ultimately adopted was for termination of employment.
The applicant’s response to the findings and proposed sanction were noted in the final report. The applicant did not deny having made the comments. There was a tacit acceptance of misconduct. Although the applicant suggested that other disciplinary action should be taken, the respondent’s decision to terminate employment was reasonable and appropriate. There was a clear breach of the respondent’s policies and arguably a contravention of the law.
The evidence established that the applicant was involved in the investigation.
Although the applicant denied any wrongdoing in his statement evidence in these proceedings, that denial was at odds with what he told Mr Tullio. Although the applicant’s evidence was that the allegations were false, the allegations were in fact substantiated.
The applicant was not terminated as a result of a pattern of behaviour as suggested by the applicant. The applicant’s statement evidence failed to address the allegations, simply calling them “false” or spurious. The applicant’s written statement in these proceedings was at odds with the other evidence before the Commission and the Commission would be satisfied that the comments were made.
The respondent submitted that the Commission would be satisfied that the decision to terminate the applicant’s employment was reasonable in all the circumstances. In considering whether the process leading to the decision to terminate the applicant’s employment was reasonable, the respondent referred to the comments of Judge Phillips in Van Vliet v Landscape Enterprises Pty Ltd.[1] The process did not have to be flawless or perfect. The interests of the applicant had to be weighed against the objectives of the employer. The respondent was a large organisation and responsible for the safety of its people at work. Four senior officers were involved in recommending and approving the decision. The respondent referred to the statement evidence from its witnesses. The Commission would be satisfied that the process was reasonable.
[1] [2022] NSWPICPD 49.
The respondent observed that the dispute notices did not raise any issue with regard to capacity or injury. The Commission would, however, need to be satisfied that the applicant had discharged his evidentiary onus before making an award for weekly compensation. The only evidence as to capacity were the certificates of capacity and the applicant’s statement evidence. No evidence was available from an independent expert or treating specialist.

Applicant’s submissions

The applicant submitted that there were four areas where the respondent’s conduct was not reasonable:
(a)    the decision to stand the applicant down from his duties;
(b)    the period of time taken to pursue to the enquiry into the allegations;
(c)    the failure to provide the applicant with an opportunity to respond to Mr Tullio’s evidence, and
(d)    the decision to terminate the applicant’s employment on the basis of a “pattern of conduct” which did not exist.
The applicant noted that a total of three months passed between the date on which the applicant was notified about the complaints and the correspondence asking him to show cause as to why his employment should not be terminated. The applicant submitted that that was an extraordinary length of time in circumstances where the allegations pertained to a short conversation in the afternoon of 5 May 2023.
The disciplinary process started as a “chat” but evolved into a formal meeting. Very little material needed to be canvassed. There were only three witnesses and yet it took three months to complete the investigation.
The applicant noted that the investigator, Mr Jacks, came to a decision in June 2023 which exonerated the applicant. He was then asked by Ms Kaur to interview Mr Tullio and submit a revised report. Shockingly, Mr Tullio’s evidence was not provided to the applicant, nor was he asked to respond to it. The applicant submitted that this was a clear violation of the principles of natural justice. The applicant submitted that it could not be contended that the further investigation was fair in these circumstances. Mr Tullio’s evidence changed the outcome of the investigation.
The evidence showed that the dismissal decision was made by Mr Worboys, who referred to a pattern of behaviour involving the applicant. This comment was quickly picked apart by the Industrial Relations Commissioner. In those proceedings, it was conceded that no substantiated allegations had been made against the applicant in the past. This was consistent with Mr Jacks’ findings.
Mr Worboys justified the decision to terminate the applicant’s employment rather than accept the recommendation for a formal warning on the basis of an alleged pattern of conduct which did not exist.
The applicant observed that his written response to Mr Jacks made clear that a conversation had happened, however, he denied the more serious allegations including the use of the words, “bitch”, “hate” and any reference to Ms Mortimer’s menstrual cycle.
The initial investigation exonerated the applicant and found that Ms Hawkins’ lack of attention to the conversation was more supportive of the applicant’s version of events. Ms Kaur requested further inquiries but it was never explained to the applicant why a review had been requested or what the reasons for the delay were.
The applicant’s correspondence with the HSU indicated that he was not aware of the initial findings, had not been provided with any witness statements and had not been told why a review was requested. Multiple inquiries were made as to the delay in the process.
The applicant observed that although the correspondence from Mr Worboys was described in the transcript from IRC proceedings and the applicant’s response to the show cause letter. It was clear that in changing the recommendation from a formal warning to termination, Mr Worboys was considering a pattern of behaviour that simply was not there.
Ms Papasavva’s statement evidence confirmed that a risk assessment had been made and the decision to stand the applicant down was made having regard to similar matters. No evidence of the content of that risk assessment had been made available. Ms Papasavva’s evidence confirmed that decisions were made in relation to the applicant with a pattern of behaviour in the mind. All of the previous allegations against the applicant were unsubstantiated. The decision to stand the applicant down and the final decision to terminate his employment were both unreasonable.
With regard to the extent of incapacity, the applicant relied on his statement evidence. There was no competing evidence of capacity. The clinical records from Dr Lo and Dr Tai demonstrated that the applicant was complaining of the delays in the process and uncertainty as to what happened. Stress related to the unfair dismissal proceedings was also reported.
The applicant submitted that awards for weekly compensation should be made in favour of the applicant on the basis of total incapacity.

Respondent’s submissions in reply

The respondent submitted that, having regard to the nature of the allegations, it was not unreasonable for the applicant to have been stood down pending the investigation, particularly given the proximity of his working relationship with the complainant.
With regard to the submission that there was an unreasonable delay, the respondent submitted that the documents demonstrated that the investigation was conducted in a fair and impartial manner. The process could not be rushed and the applicant was stood down on full pay while it took place.
The respondent submitted that the investigation process involved the weighing of evidence. It was appropriate for certain matters to remain confidential. The respondent was not required to inform the applicant of every step in the process. There was little utility in going back to the applicant after the further evidence from Mr Tullio had been obtained.
The respondent submitted that Ms Papasavva’s evidence simply indicated that she was aware of similar allegations. The evidence did not demonstrate that Mr Worboys unfairly brought those matters into consideration.
The respondent submitted that the IRC transcript was not relevant. There was no evidence as to what Mr Worboys actually took into account. Although the applicant’s response to the show cause letter referenced a pattern of conduct there was no evidence that this was in fact considered by Mr Worboys.

The investigation reports indicated that only Ms Mortimer’s complaint was considered.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
A psychological injury which meets the statutory definitions will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:
“(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.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[2]
[2] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Heggie, Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(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.”
There is no dispute between the parties that the events which were causative of the applicant’s psychological injury are appropriately characterised as action taken or proposed to be taken by or on behalf of the employer with respect to discipline and or dismissal. There is also no dispute that such actions constituted the whole or predominant cause of the injury. The case turns on the reasonableness of the employer’s actions.
The test of reasonableness is an objective one.[3] In Commissioner of Police v Minehan[4] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[5]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[3] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[4] [2003] NSWCA 239.
[5] (unreported 18 June 1998).
In the decision of Van Vliet, to which the respondent referred, Phillips P observed:
“The concept of reasonableness in s 11A(1) does not, with respect, require a counsel of perfection. It requires, consistent with the authorities (Heggie, Irwin), that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.
…
The Member found that the termination was imperfect, but in the circumstances reasonable.^[132] In terms of the Member’s fact finding, there is no error in this approach. The Member correctly considered all of the circumstances of the case, as the authorities require, in reaching a view about the reasonableness of the process adopted by the respondent. The member quite correctly noted the flexibility of the content of the obligation pertaining to procedural fairness,^[133] which stood in contradistinction to the inflexible approach urged upon the member by the appellant. In so doing the Member was involved in no error.”
The relevant actions in this case commenced with the decision to stand the applicant down pending an investigation into allegations made against him by Ms Mortimer. The applicant submits that this action was not reasonable because it was apparently made on the basis of a risk assessment and due to previous similar matters. This is revealed in the witness evidence from Ms Papasavva.
The respondent has not put before the Commission the risk assessment or the decision made by the delegate. No evidence has been provided from the delegate as to the considerations taken into account in making the decision to stand the applicant down. No detail has been provided as to what the “similar matters” were or why they were relevant to the more recent complaint.
It is apparent from the other material before the Commission that complaints had been made in respect of the applicant in 2019 and 2021. Reference is made to such complaints in the respondent’s witness evidence, the clinical records and the transcript of the IRC proceedings. There is, however, no evidence that the allegations previously made against the applicant were substantiated. In fact, the evidence set out in the IRC transcript indicates that they were not.
In its oral submissions, the respondent suggested that the decision to stand the applicant down was reasonable in all the circumstances having regard to the nature of the allegations, the seriousness of the misconduct if the allegations were found to be substantiated, and the close proximity in which the applicant worked with the complainant.
There is, however, no evidence that those were the considerations taken into account. Rather, the only evidence as to the basis on which decision to stand the applicant down was made suggests that the decision was made based on a risk assessment and potentially irrelevant “similar matters”, the details of which are unknown.
In these circumstances, I am not satisfied that the decision to stand the applicant down was reasonable in all the circumstances.
The process adopted by respondent for investigating the allegations otherwise commenced in a conventional and reasonable manner. I accept that it was reasonable and appropriate for an investigation to be conducted. The letter from Mr Jacks advising the applicant of the investigation dated 22 May 2023 provided a well particularised account of the allegations. The implications of the allegations, if found to be substantiated, were clearly explained to the applicant. The applicant was provided with a meaningful opportunity to respond to the allegations and advised of the next steps in the investigation. The applicant was provided with details of the independent employee assistance program provider.
The applicant provided a written response to Mr Jacks’ letter. The applicant’s response acknowledged that there was a conversation in which the applicant asked Ms Mortimer which person she was that day. The applicant gave context to the conversation indicating that Ms Mortimer often joked with the applicant and they had previously discussed their mental health challenges together.
Importantly, the applicant denied using the word “bitch”. The applicant also denied allegations two and three.
The initial investigation report prepared by Mr Jacks documented the applicant’s response, weighed the competing version of events, as well as the evidence from Ms Hawkins and Mr Tullio. Mr Jacks concluded that allegations were not substantiated and recommended that a form of dispute resolution be initiated.
It is apparent that Mr Jacks’ initial recommendations were not accepted and he was directed to obtain further evidence from Mr Tullio and submit a revised report.
At this point in the process, the applicant submits that the respondent’s actions became unreasonable.
The request for further evidence from Mr Tullio caused a delay of some two months in the resolution of the investigation. Given that Mr Tullio had already given evidence to the investigator and was apparently contacted for further details on 16 June 2023, it remains unclear why the further investigation report was not completed until around 10 August 2023.
The applicant’s letter to the HSU indicates that he emailed asking for updates on 23 June 2023 and 18 July 2023. The applicant said he received no response until he was told on 19 July 2023 that a further investigation report had been requested. The applicant was not informed of the outcome of the investigation until 15 August 2023, after third request for an update was made on behalf of the applicant by the HSU.
The psychological impact of these delays is evident from the clinical records. The clinical note recorded by Dr Lo on 7 August 2023 noted that the applicant reported that no one was keeping him up to date with the investigation, he was still awaiting the outcome and had been stood down this whole time. It was at this point that the applicant began to report psychological symptoms, including impacts upon his mood, sleep and appetite. The applicant said he wished to see a counsellor and a referral was prepared.
The applicant again reported to Dr Lo on 9 August 2023 that he was “very stressed” in the context of not much happening at work to resolve the issue.
The delay in completing the investigation is not, in my view, adequately explained on the evidence before the Commission. The multiple enquiries made as to the progress of the investigation by the applicant and the HSU on the applicant’s behalf ought to have made it clear that the timely resolution of the investigation was of importance to the applicant. I am not satisfied that the time taken to complete the investigation was reasonable in all the circumstances. I am satisfied that the delay was a significant contributing factor to the development of the psychological injury.
The applicant also submits that the disciplinary process was procedurally unfair owing to the failure to put to the applicant the further evidence from Mr Tullio. In fact it is not apparent that any of the evidence from Mr Tullio was provided to the applicant for comment prior to the determination that the allegations were substantiated.
The further evidence from Mr Tullio appears to have been critical insofar as it resulted in Mr Jacks altering his recommendations.
Although the summary of Mr Tullio’s evidence suggested that the applicant had admitted saying “those things”, it is not clear what “those things” were or how much detail of the allegations had been put to the applicant by Mr Tullio in their conversation on 15 May 2023.
The evidence from the applicant as set out in his letter to the HSU was simply that Mr Tullio advised the applicant that a complaint had been made in relation to “comments” made on 5 May 2023. The applicant recalled making a joking comment after Ms Mortimer had snarled at him. Mr Tullio then indicated that it was “the comments that followed” which were the problem.
When the allegations were properly particularised in the letter from Mr Jacks dated 22 May 2023, the applicant conceded making some of the comments but denied making others. As noted above, he denied using the word “bitch” and denied allegations two and three entirely.
Had Mr Tullio’s evidence and the inferences that could be drawn from it been put to the applicant, he may have been able to provide clarifying detail about the conversation on 15 May 2023 that could potentially have altered the outcome of the investigation.
I am satisfied that the failure to provide the applicant with an opportunity to comment on Mr Tullio’s account of the conversation on 15 May 2023 constituted a denial of natural justice.
The applicant also submits that the decision to terminate the applicant’s employment was unreasonable insofar as it took into account a “pattern” of conduct which did not exist.
The respondent observed that there was nothing in the three investigation reports to suggest that a pattern of conduct was taken into account. I accept that the investigation reports consistently and appropriately referred to there being no prior history of misconduct.
There is, however, reference to a pattern of behaviour in Mr Worboys’ correspondence to the applicant, dated 15 August 2023, advising him of the outcome of the investigation and inviting him to show cause as to why his employment should not be terminated. That correspondence appears in the clinical records and indicated that it appeared to Mr Worboys that there was a pattern of behaviour by the applicant which presented an identified and unacceptable risk to the welfare of other staff members.
The applicant expressed his concern about this reference to a pattern of behaviour in his letter to the HSU and written statement. The transcript of the IRC proceedings also suggests, consistently with the other evidence, that the decision to terminate the applicant’s employment was based, in part, upon a “pattern of behaviour”.
As noted above, the IRC transcript also indicates that although allegations had been made against the applicant in 2019 and 2021, none of them were substantiated.
No further evidence has been provided by the respondent as to the nature of the previous allegations or the outcome of any investigation into the previous allegations.
I am satisfied on the evidence that a pattern of behaviour was taken into account by Mr Worboys in recommending the termination of the applicant’s employment. Whether or not such a pattern was taken into account in the final decision to terminate the applicant’s employment, the evidence suggests that a potentially irrelevant consideration was taken into account when termination of the applicant’s employment was recommended to Ms Rechbauer.
In view of the denial of natural justice in relation to Mr Tullio’s evidence and a potentially irrelevant consideration being taken into account by Mr Worboys, I am not satisfied that the sanction recommended and ultimately imposed on 26 September 2023 was reasonable.
The treating evidence before the Commission suggests that the findings of the investigation and the decision to terminate the applicant’s employment were significant contributing factors to the development of the applicant’s psychological injury.
The defects in the disciplinary process described above were not minor or insignificant. They were material and, in my view, potentially undermined the process as a whole.
For these reasons, after weighing all of the evidence and submissions, I am not satisfied on the balance of probabilities that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or dismissal of workers.
The psychological injury is compensable.

Award of weekly compensation

The applicant claims weekly compensation from 26 September 2023, being the date his employment was terminated, to date and continuing.
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Section 36 of the 1987 Act provides:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37 of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
For the applicant to be entitled to weekly compensation pursuant to ss 36(1) and 37(1) of the 1987 Act, he must demonstrate that he has, during the relevant period, had “no current work capacity”. The expression, “no current work capacity” is relevantly defined in item 9 of Schedule 3 to the 1987 Act as follows:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”

The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i)  the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
In support of his claim, the applicant relies upon Certificates of Capacity issued by his general practitioners. Dr Aldrin Tai issued a Certificate of Capacity on 21 November 2023 certifying the applicant as having no current capacity for any employment from that date on onwards.
Further certificates to the same effect were issued by Dr Tai on 21 December 2023, 22 January 2024, 22 March 2024 and 2 May 2024.
The applicant had previously been issued with a certificate of capacity by Dr Lo on 4 October 2023, which certified him as having no current work capacity. The applicant was referred for counselling by Dr Lo on 12 August 2023. A mental health care plan was established and the applicant referred for psychological treatment on 4 October 2023.
The certificates issued by Dr Tai and Dr Lo are broadly consistent with their clinical records. There is no countervailing medical evidence to suggest that the applicant has at any time during the relevant period had greater capacity to engage in suitable employment.
I am satisfied that, in the period from 26 September 2023 to date, the applicant has had no current work capacity as a result of his psychological injury.
I am satisfied that the applicant is entitled to weekly compensation in accordance with ss 36(1) and 37(1) of the 1987 Act.
The applicant’s PIAWE rate was agreed between the parties at $2,094.86. That rate will be subject to periodic indexation in accordance with s 82A of the 1987 Act.
As there is some suggestion that the applicant may have been paid wages on or after 26 September 2023, it is appropriate that the respondent have credit for payments made in the relevant period in accordance with the legislation.

[2024] NSWPIC 353

2 July 2024