McLean v BGZ

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McLean v BGZ [2023] NSWPIC 689
APPLICANT:	Jason McLean
RESPONDENT:	BGZ
MEMBER:	Brett Batchelor
DATE OF DECISION:	20 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury suffered in the course of employment by the respondent; injury; section 4; reasonable action with respect to discipline; section 11A; capacity; section 33; entitlement to section 60 expenses in issue; applicant suspended for a period of five months in respect of investigations into his conduct, then immediately resuspended on the day of his return to work after this period in respect of further allegations of misconduct; Held – the resuspension was the predominant cause of the applicant’s psychological injury and that such action was not reasonable; both parties relied on what was found by Sackville ALA in Northern NSW Local Health Network v Heggie in respect of section 11A defence; finding that the applicant was totally incapacitated for work for a short, closed period and partially incapacitated for a closed period thereafter; awards made in favour of the applicant accordingly for weekly benefits and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained psychological injury arising out of or in the course of his employment, deemed to have occurred on 17 May 2022. 2. The injury was predominantly caused by action taken by the respondent with respect to discipline of the applicant. Such action was not reasonable. 3. The applicant was totally incapacitated for work from 17 November 2022 until 28 November 2022. 4. The applicant was partially incapacitated for work from 29 November 2022 until 2 May 2023. 5. The respondent is to pay the applicant weekly benefits as follows: (a) $1,092.50 per week from 17 November 2022 to 28 November 2022, and (b) $145.30 per week from 29 November 2022 to 2 May 2023. 6. Award for the respondent in respect of the claim for weekly benefits from 3 May 2023. 7. The respondent is to pay the applicant’s medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Jason McLean (the applicant/Mr McLean) seeks weekly payments of compensation, and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987Act), as a result of psychological injury deemed to have occurred on 21 May 2022 arising out of or in the course of his employment as a parking patrol officer by BGZ (the respondent/BGZ).
The applicant commenced work with the respondent in about January 2016, and claims that he had no psychological difficulties until a co-worker, BHX, commenced work with the respondent in January 2021 [sic, January 2020].
The applicant accepts that he was given warnings on 30 March 2020 and 21 December 2020 in respect of his conduct in the course of his duties. Mr McLean says that on
21 December 2020 he was placed on a performance improvement plan by the respondent, which required him to engage in respectful behaviour towards colleagues and customers. The applicant claims that he felt that this was entirely unjustified, for the reason that while he accepts that he can be assertive, he denies having been disrespectful, or abusive, or shouting or yelling at people.
The applicant commenced working with BHX on a day-to-day basis from January 2020. She was a member of his team, and after about six months he says that it became very difficult to work with her. BHX was later joined by a friend of hers, BJV who obtained a position in the same classification as BHX. Mr McLean says BJV joined in the same pattern of behaviour as BHX, reporting him for things that were completely unjustified or entirely trivial.
The applicant says that this behaviour of BHX and BJV resulted in him being isolated within the workplace, so that he felt that each time he went to work he was on his own and could not expect to be supported by his co-workers in relation to the work that he did.
On 27 April 2021 the respondent wrote to the applicant advising him of the commencement of an investigation involving him.[1] This was in respect of an incident which occurred on
10 February 2021 when Mr McLean was alleged to have sworn at a resident over the apparent issue of a parking penalty notice for illegal parking over a driveway. On
[1] See letter from the respondent to the applicant dated 23 June 2021, Reply p 61, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
[2] Application to Resolve a Dispute (ARD) p 44, Reply p 61.
[3] ARD p 42; Reply p 64.
23 June 2021[2] the applicant was informed of the outcome of the investigation, which substantiated the allegation made against him. On the same day, Mr McLean attended a meeting with BKT, the [redacted] of BGZ, and BLQ, the [redacted] of BGZ, and on 23 June 2021 was issued with a second written warning.[3] The letter advising of the warning was placed on the applicant’s personnel file.
On 1 December 2021 Mr McLean received by hand two letters of that date from BGZ, namely:
(a) a letter referring to an earlier letter dated 29 November 2021 in relation to allegations made against him. The letter of 1 December 2021 contained advice in relation to those allegations, detailed in that letter.[4] These allegations covered occurrences over the period from 23 October 2019 to 11 August 2021. The applicant was scheduled to attend a meeting on 8 December 2021 via Teams Video Conference to allow him to give a verbal response to the allegations, or alternatively given the chance to provide a written response, and
(b) a second letter headed “Suspension from work with pay pending a formal investigation”, the first four paragraphs of which were as follows:
“This letter is to advise you that BGZ is in receipt of allegations relating to
undertaking non BGZ activities during work hours which are in relation to illegal •substances.
We will engage Sparke Helmore Lawyers to undertake an independent investigation into the matter.
Work Arrangements
Due to the nature of these allegations, BGZ has made the decision to suspend you on full pay, effective 1 December 2021 while an independent investigation is
conducted, in accordance with clause 36 B(i) (a) of the BGZ Enterprise Agreement 2018.
[4] Reply p 53.
[5] Reply p 51.
During this time you are directed not to attend any site that is controlled, owned or operated by BGZ without approval from me. You are also directed not to make contact with any BGZ employee or BGZ contractor other than BMM ([redacted]) and BKT [sic] ([redacted]).”[5]
In his statement dated 5 July 2023 the applicant says that he remained off work until on or about 21 May 2022.[6]
[6] See applicant’s statement dated 5 July 2023 at [6], ARD pp 8-9.
On 2 March 2022, with a union representative, the applicant attended a meeting with
[7] ARD p 38, Reply p 44.
[8] ARD p 35, Reply p 48.
BKT and BLQ to discuss the outcome of the investigation into the allegations that he failed to comply with BGZ’s Code of Conduct and Drug and Alcohol Testing Policy in relation to investigation outcomes contained in a letter of the same date.[7] The applicant was also issued with a “Show cause” letter on 2 March 2022.[8] In that letter the applicant was asked by BGZ to provide a written response and show cause as to why the termination of his employment should not be considered. A meeting was scheduled for 9 March 2022 to allow Mr Mclean to provide a verbal response to the allegations made against him. Alternatively, should the applicant’s wish have been to provide a written response, the applicant was asked to provide such response by close of business on 8 March 2022.
Following the meeting on 2 March 2022 the applicant was handed a “Final Written Warning” on 11 May 2022, applied by BGZ:
“…as a means of disciplinary action as a result of the outcomes described above. This letter serves as confirmation of that Final Written Warning and you will return to your role effective 16 May 2022.”
The applicant was:
“…also be required to participate in BGZ's Alcohol and other drugs rehabilitation plan that will require you to undertake targeted and random drug and alcohol testing for a period of 12 months effective from May 2022.”[9]
[9] ARD p 33, Reply p 42.
The respondent wrote to the applicant again on 17 May 2022 advising that it was in receipt of an allegation in relation to an alleged breach of its Code of Conduct and confidentiality. BGZ advised that due to the nature of the allegations it had made a decision to suspend the applicant on full pay, effective 17 May 2022 while an external investigation was conducted, in accordance with clause 36(B)(i) of the BGZ Enterprise Agreement 2018.[10]
[10] ARD p 31, Reply p 40.
On 17 August 2022 the applicant provided a response to the respondent’s investigation which was considered, together with information received from other participants. On
14 September 2022, with a union representative, the applicant attended a meeting with BNH, [redacted] of the respondent, and BLQ.
The findings of the investigation were set out in a letter to the applicant dated
[11] ARD p 23, Reply p 35.
14 September 2022 and handed to him (the investigations outcomes letter).[11] There were five allegations made against the applicant listed in that letter, Allegation 1a – c, Allegation 2a, and Allegation 3a. These allegations were in respect of breach of confidentiality obligations, BGZ’s Code of Conduct obligations, and engagement in work outside BGZ without approval. Allegations 1a – c, and 2a were found to have been substantiated, which were found to be a serious breach of BGZ’s Code of Conduct and Respectful Behaviours Policy. Allegation 3a, engagement in work outside BGZ without approval, was partially substantiated, but did not amount to misconduct.
In the investigations outcomes letter the author thereof, BLQ, noted that over the previous two years that there had been a number of investigations which had found the applicant to be in breach of BGZ’s Code of Conduct and Respectful Behaviour Policy, which he listed. In consideration of those investigations, and of the current findings, he said that:
“…it has been determined that we require you to complete BGZ’s Show Cause process. BGZ will be inviting you to provide a written response and show cause as to why BGZ should not consider termination of your employment.
Any further breaches of BGZ’s Policies, Procedures or Commitment Statements, may lead to further disciplinary action.”[12]
BLQ also advised:
“All parties have been notified of the investigation's outcome. You are advised that this matter remains confidential and you may only discuss it with persons who were
[12] ARD p 27, Reply p 39.
relevant to this investigation, your representative or support person, BGZ's HR team or myself.”
On the same day, that is 14 September 2022, BLQ was handed another letter to the applicant bearing that date (the show cause letter) referring to:
(a) the meeting the applicant attended on 14 September 2022 with BNH,
BLQ, and a union representative to discuss the outcome of the investigation that he failed to comply with BGZ’s Code of Conduct and confidentiality in relation to the attached investigation outcomes letter (that is, the letter referred to in [13] above);
(b) the First Warning issued 30 March 2020;
(i) the Performance Improvement Plan issued 21 December 2020;
(ii) the Second Warning issued on 11 May 2022, and
(iii) the Final Written Warning issued on 11 May 2022.[13]
[13] ARD p 28, Reply p 32.
In the show cause letter the applicant was asked to attend a meeting on 21 September 2022 with a support person or representative, or provide a written response and show cause as to why BGZ should not consider termination of the applicant’s employment. As an alternative to the meeting, the applicant was asked to provide a written response to the allegations should he wished to do so.
The applicant’s response to the show cause letter was provided by the United Services Union (USU) on behalf of the applicant on 20 September 2022, and according to the termination of employment letter dated 16 November 2022 referred to hereunder, was taken into consideration.
On 5 October 2022 the respondent wrote to the applicant advising him of the outcome of the workplace investigation and findings referred to in BGZ’s letter to Mr McLean dated
[14] ARD p 13, Reply p 22.
29 November 2021, referred to in [7(a)] above, although the letter of 29 November 2021 does not appear to be in evidence. All 19 allegations were found “not substantiated.”[14]
On 16 November 2022 the applicant’s employment was terminated, effective from the date of the termination of employment letter (dated 16 November 2022), which was handed to the applicant. In that letter the respondent referred to the applicant’s response dated
[15] ARD p 11, Reply p 20.
20 September 2022 to the show cause letter (dated 14 September 2022), provided by the USU, and to its consideration of “…all information available in relation to breaches of BGZ’s Code of Conduct and Respectful Behaviours policy and the response provided on 20 September 2020.”[15]
The applicant’s employment was terminated in accordance with the BGZ Enterprise Agreement 2021-2022. The applicant indicated that the applicant would be paid any outstanding entitlements, plus five weeks’ wages in lieu of notice.
On 25 November 2022 the respondent issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in response to a claim for workers compensation lodged on 17 May 2022 alleging psychological injury due to “being stood down from December 1^st 2021 without being informed of the allegations for several months” (emphasis in s 78 notice). In the claim the applicant alleged that this took a toll on his mental health.[16]
[16] ARD p 3, Reply p 3.
In the s 78 notice the respondent referred to the independent medical examination of the applicant carried out by Dr John Albert Roberts, consultant forensic psychiatrist, on
[17] Reply p 8.
13 September 2022, and his report dated 22 September 2022.[17] In that report Dr Roberts confirmed that he found no evidence of any psychological injury, noting the absence of symptomatology reported by the applicant.
In the s 78 notice the respondent denied liability for the applicant’s claim relying on ss 4, 9A, 11A, 33 and 60 of the 1987 Act. In respect of the s 11A defence relied upon by the respondent the author of the notice observed that “Your claim appears to be based on reasonable action taken by BGZ with respect to discipline and/or performance appraisal.”[18] [sic]
[18] Reply p 5.
The applicant was independently medically examined by Dr Alyosha Jacobson, consultant psychiatrist, on 2 May 2023 who produced a report dated 16 May 2023.[19] Dr Jacobson diagnosed the applicant as suffering from major depressive disorder in partial remission, the primary contributing factor to which was the protracted period of approximately 18 months with no work, little communication, powerlessness and a fear of ongoing investigations and their consequences. The doctor said:
“This long period of time without work and with ongoing anxiety about the findings of the investigation have led to his Major Depressive Disorder, which has not quite recovered despite his work now recommencing.”
[19] ARD p 86.
In the ARD commencing the proceedings the applicant claimed weekly benefits from
22 May 2022, and medical expenses. At the commencement of the arbitration hearing referred to hereunder, counsel for the applicant noted that the applicant had been paid until 16 November 2022 and therefore suffered no compensable loss in that time, and accordingly amended the claim for weekly benefits in the ARD, without demur from the respondent, as follows:
(a) for the period from 17 November 2022 to 28 November 2022, on the basis of total incapacity for work, $1,092.50 per week (95% of agreed pre-injury average weekly earnings (PIAWE) of $1,150), and
(b) for the period from 29 November 2022 to date and continuing, on the basis of a demonstrated capacity to earn in suitable employment of $947.20 per week, $145.30 per week.
In lieu of the claim for medical expenses of $290.37 in the ARD, the applicant seeks a general order under s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did the applicant suffer psychological injury arising out of or in the course of his employment with the respondent (s 4 of the 1987 Act)?
(b)    If the applicant suffered such injury, is he prevented from recovering compensation because the injury was wholly or predominantly caused by reasonable action taken of proposed to be taken by the employer with respect to discipline (s 11A of the 1987 Act)?
(c)    Does the applicant suffer incapacity for work as a result of injury (s 33 of the 1987 Act)?
(d)    Is the applicant entitled to an award for medical expenses (s 60 of the 1987 Act)?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 6 December 2023 conducted via video conference. Mr Morgan of counsel appeared for the applicant instructed by
Mr Lleonart. The applicant attended separately. Mr Adhikary of counsel appeared for the respondent instructed by Ms Kaur. A representative of the respondent did not attend.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Supplementary statement of the applicant dated 31 October 2023;
(c)    Reply and attached documents, and
(d)    Application to Admit Late Documents (AALD) dated 22 November 2022 with attachments commencing with the Drug & Alcohol Policy of the respondent dated 18 August 2020.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary they are as follows.

Applicant

On the issue of injury, the applicant notes that the report of Dr Roberts dated
[20] Reply p 8.
20 September 2022[20] was commissioned by Sparke Helmore Lawyers, the same firm who conducted the investigations into the applicant’s conduct on behalf of the respondent, and which was acting for the respondent in the proceedings before the Commission. The applicant questioned this approach in the respondent’s dealings with allegations made against him.
The applicant refers to the opinion of Dr Roberts under “SUMMARY AND OPINION” in his report, with the reference therein to allegations of an unspecified nature being made against him, being suspended, a return to work, and being resuspended as constituting significant stressors.[21] The applicant poses the question as to why, in the context of him being confronted with a series of further allegations on his return to work, a worker would not be exposed to considerable stress.
[21] Reply p 17.
The applicant notes the opinion of Dr Roberts that, while he considers that Mr McLean was upset by the circumstances in which he found himself, he (Dr Roberts) did not consider the applicant had reached the level of symptomatology that would permit a DSM diagnosis. The applicant submits that this displays a degree of internal inconsistency in the doctor’s opinion.

The applicant submits that he presented to his general practitioner, Dr Charteris, on
[22] AALD 23.11.23 p 52.
[23] AALD 23.11.22 p 54.
23 May 2022 complaining of anxiety, reporting a lot of stresses at work, and faced with new allegations after being back at work for one day.[22] The applicant also points to another attendance on a general practitioner, Dr Pandit in the same practice, on 20 June 2022 where anxiety, depression and insomnia are recorded.[23]
The applicant refers to the diagnosis of Dr Jacobson in her report dated 16 May 2023,[24] the undated report of Dr Charteris to Carrol & O’Dea containing a diagnosis of “Anxiety/Depression/insomnia”,[25] and the Certificates of Capacity issued by Dr Charteris commencing 23 May 2022 containing a diagnosis of work based psychological illness.[26]
[24] ARD p 86.
[25] ARD p 93.
[26] ARD pp 95 – 128.
The applicant submits that he suffered psychological injury in May 2022 as pleaded in the ARD.
In respect of the respondent’s defence to his claim based on s 11A of the 1987 Act, the applicant notes that the onus is on the respondent to show the reasonableness of its actions. The applicant notes that there is no evidence of what investigations were conducted, how any such investigations were conducted, and why further disciplinary proceedings were considered appropriate. There is no evidence from BHX or BJV, the persons named by the applicant whose behaviour was alleged by the applicant resulted in him being isolated within the workplace, and could not expect to be supported by his co-workers.
The applicant refers to the letter of 11 May 2022, referred to in [10] above, which contained an instruction to return to work, effective 16 May 2022, then to the letter of 17 May 2022 pursuant to which he was suspended again effective from that date, on full pay, while an external investigation was conducted. In the letter of 17 May 2022 the applicant was confronted with a further series of allegations.
The applicant notes from [6] of his statement dated 5 July 2023 that he, to the best of his recollection, returned to work on or about 21 May 2021, when he felt in an entirely isolated position and felt he couldn’t continue at work.
The applicant submits that the elements to his case are:
(a)    when he was told of allegations made against him in the letter of
1 December 2021 and stood down from that date;
(b)    there was no outcome from the investigation commenced in December 2020 for six months, and
(c)    that he was then immediately stood down on his return to work in May 2021.
The applicant questions why he was ‘held in limbo’ for a period of six months from
December 2021, away from the respondent’s premises, and asks why the investigation could not have been carried out with him being at work.
The applicant submits that, in May 2022 when he had been off work for six months, it would be natural for him to speak to his co-workers, particularly in the context of him being told that a number of the allegations against him had been found to be unsubstantiated.
The applicant submits that the actions of the respondent in requiring him return to work on
16 May 2022, then immediately confronting him with further allegations in relation to an alleged breach of BGZ’s Code of Conduct and confidentiality, constitutes extraordinary conduct on the part of the respondent. There was no evidence from the solicitor who carried out the investigation, or from co-workers with whom the applicant is alleged to have had contact. The outcome of that investigation, and the details of the allegations against the applicant, were not made known to him until September 2022.
The applicant submits that the respondent has failed to discharge the onus on it to demonstrate the reasonableness of its conduct giving rise to any psychological injury that he may have suffered as a result of such conduct.

Respondent

In respect of the issue of injury, the respondent submits that, whilst that there is no evidence other than that of Dr Roberts to support its contention that the applicant has not suffered psychological injury, nevertheless relies on the expertise and specialised knowledge of the doctor in tendering his opinion. Dr Roberts expressed his opinion, which included reference to a cluster of activities such as domestic duties, cooking, cleaning, gardening and refereeing touch football, and concluded that Mr McLean has a work capacity which was not impacted upon by the circumstances under consideration. The doctor then answered specific questions, noting the non-applicability of s 11A of the 1987 Act due to there being no finding of injury.
In respect of the s 11A defence, the respondent refers to the evidence of Dr Jacobson in her report dated 16 May 2023, and her reference to the applicant’s stress particularly becoming heightened when he was asked to take time off work during the investigation. Dr Jacobson expressed the opinion that the primary contributing factor to the applicant’s condition was the prolonged period of approximately 18 months with no work, little communication, powerlessness and a fear of ongoing investigations and their consequences. This led, according to Dr Jacobson, the applicant’s major depressive disorder from which the applicant had not quite recovered despite work recommencing.
The respondent submits that the predominant, if not the whole, cause of the applicant’s condition was the disciplinary process of the respondent.
The respondent referred to the case of Geraghty J in Irwin v Director General of School Education,[27] noting that the question of reasonableness is one of fact, weighing up all relevant factors. The test is less demanding that the test of necessity, but more demanding than a rest of convenience. It is an objective test.
[27] NSWCC No 14068/97, 18 June 1998, unreported.
The respondent submits that the applicant was investigated in respect of matters commencing from 2019, citing the first outcome letter emailed to the applicant on
[28] ARD p 63.
6 February 2019,[28] and that in that matter the allegation had been addressed by the respondent fairly, appropriately, and reasonably, having regard to the fact that a lot of the allegations against the applicant were quite serious, and they affected, at the very least, the reputation of the respondent.
The respondent submits that for example in May 2022 the allegations go beyond breach of confidentiality, but address allegations of the applicant making threats about other employees.
The respondent submits that, in multiple circumstances, it appropriately and fairly investigated allegations made against the applicant, and advised where allegations against the applicant were not substantiated. In each and every investigation the respondent submits that the applicant was advised of the process, given the opportunity to respond verbally or in writing, advised the applicant of the Employees Assistance Programme (EAP), and advised of the applicant’s entitlement to have a support person at meetings to discuss the allegations. The respondent submits that that its conduct of the investigations has been transparent, and that this is not a case where the applicant does not know of the allegations against him, or of the course that the respondent chose to take.
The respondent submits that in respect of the time period between the letters of
1 December 2021 when the applicant was suspended, and the outcome letter of
2 March 2022 and the show cause letter dated 11 May 2022, this period was not excessive. It was shorter than that alleged by the applicant. The respondent expresses the belief that the applicant was not suspended for the whole of this time.
The respondent then refers to a series of letters to the applicant, commencing with that of
[29] ARD p 63.
6 February 2019, in which the applicant was advised of the outcome of an investigation which commenced on 4 February 2019 in respect of a claimed breach of confidentiality when the applicant overheard a conversation about a staff member being suspended, then phoned the staff member to ask why he/she had been suspended. That allegation was not substantiated.[29]
The respondent then refers to the following correspondence to the applicant advising of notification of workplace investigation allegations and the outcomes of such investigations:
(a)    27 February 2020 and 30 March 2020 in which an allegation of an interaction with a female driver who had parked in a no parking area was substantiated and found to be a serious breach of BGZ’s Code of Conduct and Respectful Behaviours Commitment Statement. The applicant was issued a formal First Written Warning on 30 March 2020;[30]
(b)    12 May 2020, a notification of a workplace investigation allegation in respect of the issue of a notice for an allegedly illegally parked trailer, the result of which does not appear to be in evidence;[31]
(c)    10 September 2020 and 1 October 2020 in respect of allegations of use of a personal phone to listen to a podcast with inappropriate content in the course of employment which was partially substantiated, and the manner in which the applicant referred to a co-employee’s name, which was not substantiated;[32]
(d)    23 June 2021 (x2) in respect of the outcome of workplace investigation and findings arising out of an incident involving improperly parked vehicles and interactions with members of the public, an allegation which was substantiated, and as a consequence the applicant was issued with a second written warning,[33] and
(e)    letters 1 December 2021 (x2) that listed 19 allegations in respect of the applicant’s conduct in various workplace situations covering the period from
[30] ARD pp 60 and 57.
[31] ARD p 54.
[32] ARD pp 51 and 47.
[33] ARD pp 44 and 42.
[34] Reply pp 53 and 51.
[35] Reply pp 44 and 48.
21 November 2019 to 3 November 2021, and in relation to illegal substances, and suspending the applicant from work pending a formal investigation,[34] and letters 2 March 2022 (x2) providing the outcome of an investigation into allegations that the applicant failed to comply with BGZ’s Drug and Alcohol Testing Policy, and inviting a response as to why BGZ should not consider termination of the applicant’s employment.[35]
The respondent submits that in each of those cases it followed the same procedure as outlined in [53] above.
The respondent relies on what is said by Sackville AJA at [62] in Northern NSW Local Health Network v Heggie[36] as to the manner in which the reasonableness of an employer’s action for the purpose of s 11A(1) of the 1987 Act is to be determined.
[36] [2013] NSWCA 255 (Heggie).
The respondent submits that, in respect of the investigation arising as a result of the correspondence of 1 December 2021, a period of just over three months elapsed until the outcome of an investigation was made known to the applicant on 2 March 2022, and that this was not unreasonable having regard to the matters that had to be investigated, the nature of the allegations, and the time of year with Christmas intervening. The respondent rejects the submission that the applicant was not aware of the allegations against him in that period as Mr McLean related to his doctor, or that an unreasonable period elapsed between the commencement of the investigation and notification to the applicant of the outcome thereof.
The respondent submits that it acted reasonably in then issuing a final written warning to the applicant on 11 May 2022, and then in taking the action to again suspend him on
17 May 2022 when it learned that Mr McLean had breached BGZ’s confidentiality policy in discussing the outcome of the investigation with other employees of BGZ, and in making threats about other BGZ employees.
The respondent submits that as a result of the alleged breach of confidentiality by the applicant which was partially sustained, and the allegations against the applicant over the previous two years, the respondent was justified in issuing the show cause notice to the applicant on 14 September 2022.
In respect of capacity to work, the respondent submits that that applicant has been fit for work since the date when compensation was originally claimed by him, that is 22 May 2022. Dr Jacobson expresses the opinion that Mr McLean can work full time, that he was working 25 hours a week, and that although he had been promoted to Team Leader, there was little full time work available. The respondent also relies on the opinion of Dr Roberts in respect of the applicant’s capacity for work.

Applicant in response

The applicant points out that the medical certificates (the Certificates of capacity/fitness) issued by Dr Charteris, and the undated report of Dr Charteris addresses to Carroll & O’Dea, which from the text thereof was probably written in early 2023 speak for themselves. The applicant submits that the applicant is fit for part-time work.
The applicant submits that the findings in the outcome of workplace investigation and findings letter dated 2 March 2022 indicate that all complaints listed in that letter except one were found to be unsubstantiated, and there is no explanation from BGZ as to why in view of this, that a show cause letter inviting him to provide a written response as to why termination of employment should not be considered, was issued.
The respondent then issued to the applicant on 11 May 2022 a final written warning letter of that date, and the applicant remained off work until 16 May 2022. He was then suspended from work on 17 May 2022. The applicant submits that there is no explanation from the respondent as to why this happened.
The applicant also refers to Heggie, submitting that there is to be an objective analysis of an employer’s actions with respect to discipline when determining the reasonableness or otherwise of such actions.

FINDINGS AND REASONS

Injury

The applicant was suspended from his employment with the respondent on
1 December 2021, and did not learn of the outcome of at least some of the allegations against him until receipt by hand of a letter dated 2 March 2022. He attended a meeting on that day with BLQ and BOK, accompanied by a USU organiser as a support person. He was issued a “Final Written Warning” on that day, and instructed to return to his role with the respondent effective 16 May 2022. He was required to participate in BGZ’s alcohol and other drugs rehabilitation plan that would require him to undertake targeted and random drug and alcohol testing for a period of 12 months, effective from May 2022.
The applicant says in his statement dated 5 July 2023 that he remained off work suspended on pay until he returned to work, to the best of his recollection on or about 21 May 2022. This precise date does not appear to be correct, as on 17 May 2022 the applicant was issued with another letter headed “Suspension from work with pay pending a formal investigation”, referred to above at [11]. The investigations outcomes letter (dated 14 September 2022), referred to above at [13], refers to two conversations the applicant had with BPF on Monday 16 May 2022 near the latter’s desk, and in the lunchroom at BGZ’s office in Plumpton. There is also reference to a telephone conversation at approximately 9.30 am on Tuesday 17 May 2022 between the applicant and BMM, when the applicant asked BMM what was going on in relation to his suspension from work pending an investigation into his conduct, and read out the contents of a letter hand delivered to him earlier that morning.
It is clear from this correspondence that the applicant returned to work on 16 May 2022 and was suspended the next day after of the interact/ions between him on the one hand, and
BPF on 16 May and BMM 17 May 2022 on the other, which are dealt with in the investigations outcomes letter.
In the clinical note recording the attendance on Dr Charteris on 23 May 2022 referred to above at [36] the following is recorded:
“was stood down at BGZ. works as ranger. had allegations against him that were found untrue 2 weeks ago. Is in the union. Back to work one day and new allegations.\put off again. anxiety etc.”
Dr Charteris issued a Certificate of capacity/fitness on 23 May 2022 containing a diagnosis of “work based psychological illness” with a stated date of injury of 17 May 2022. Similar such certificates were issued by Dr Charteris or other doctors in the same practice up until the date of the last Certificate of capacity/fitness in evidence dated 2 August 2023.[37]
[37] AALD 23.11.23 p 128.
In the clinical note recording the attendance on Dr Pandit on 20 June 2022 referred to above at [36] the history recorded includes “on workers comp lower back anxiety, depression – BGZ”, and reason for contact “depression insomnia”.
I accept the applicant’s submission that there is a degree of inconsistency apparent in the report of Dr Roberts dated 20 September 2022 in that, while he notes the fact that
Mr McLean faced allegations of an unspecified nature, was suspended, returned to work and was resuspended which would constitute stressors, because of his ability to engage in a number of other cluster activities to which he refers in his report including domestic and sporting activities, he does not consider that at any stage Mr McLean reached the level of symptomatology that would permit a DSM diagnosis. I note that Dr Roberts examined the applicant on 13 September 2022 via telehealth, about four months after Mr McLean claims he suffered psychological injury.
The opinion of Dr Jacobson, who also examined the applicant via telehealth, is contained in her report dated 16 May 2023. Dr Jacobson had the benefit of having Dr Roberts’ report before her. She diagnosed Mr McLean as suffering from major depressive disorder in partial remission, generally meeting the DSM V criteria which she lists in the report. Dr Jacobson is of the opinion that the primary contributing factor to the applicant’s illness is the protracted period of approximately 18 months with no work, little communication, powerlessness and the fear of ongoing investigations and their consequences. This diagnosis must be looked at in the context of the fact that Dr Jacobson’s examination took place on 2 May 2023, about 11 -12 months after the date on which the applicant claims he suffered psychological injury.
Dr Jacobson comments on the report of Dr Roberts and does not accept his opinion. She said:
“He stated that because he had no physiological symptoms of anxiety, therefore he could not have anxiety nor multiple other conditions including adjustment disorders and dysthymic states. This is his opinion, and he uses a textbook by Kaplan and Saddock as a reference. However, it is not a fact. I respectfully disagree. DSM V also does not concur with this. MDD, adjustment disorders and even anxiety disorders can be primarily cognitive and without physical symptoms.
He stated that because Mr McLean was still playing touch football and doing domestic and childcaring duties and infrequently playing golf, he could not be depressed and would be able to work. I do not agree. MDD requires a persistent low mood or loss of interest or pleasure. Playing a sport intermittently and looking after one’s children do not preclude having a persistent low mood or reduction in pleasure. Being able to do domestic work is not the same as an external occupation
where issues with anxiety, motivation, interpersonal difficulties, level of function and concentration are more likely to be an issue.”
The undated report of Dr Charteris to Carrol & O’Dea is referred to in [37] above. This is not particularly helpful as the letter to which Dr Charteris is responding is not in evidence, and the doctor suspects that the date of that letter “18/2/22”, is incorrect as it contains reference to events occurring in June 2022. With reference to Mr McLean, Dr Charteris refers to “Work and his co workers” as being “the direct cause of his symptoms.” The applicant complains of difficulties with his co workers BHX and BJV, and those complaints cannot relate to events “occurring in June 2022.” It is more likely that they relate to events occurring in June 2021, so the date “June 2022” is more likely to be the incorrect date appearing in the letter from Carroll & O’Dea to Dr Charteris.

This letter must also be considered in the context of the attendance of the applicant on
Dr Charteris on 23 May 2022 and the issue of the Certificate of capacity/fitness issued by him on that day, referred to in [71] above.
There is also in evidence a referral dated 20 June 2022 by Dr Pandit to “Dr Tim Ho” at “Norwest Bella Vista NSW 2153”.[38] Dr Pandit records the applicant as presenting:
“…with longstanding pain, anxiety and depression for which he has been taking temazepam and nurofen plus. He would benefit from your expert opinion.”
[38] ARD p 94.
This referral is again of limited assistance, as there is no evidence as to the expertise of
Dr Ho. However the reference to anxiety and depression is significant, and the referral should be looked at in the context of the attendance of the applicant on Dr Pandit on
20 June 2022, referred to above at [72].
Having regard to the foregoing evidence, I do not accept the opinion of Dr Roberts that the applicant did not suffer a psychological injury in May 2022 arising out of or in the course of his employment with the respondent. Based on the evidence of Dr Charteris, Dr Pandit and Dr Jacobson, I find that he did. I accept the diagnosis of Dr Jacobson that Mr McLean was suffering from major depressive disorder in partial remission when she examined him.
I find that the predominant cause of that injury was the action taken by the respondent from December 2021 to May 2022 with respect to discipline. This is consistent with:
(a) the attendances of the applicant on Dr Charteris on 23 May 2022 and on
Dr Pandit on 20 June 2022, and the Certificates of capacity/fitness issued by those doctors, and other doctors in the same practice, in evidence, and
(b) the opinion of Dr Jacobson.
Dr Charteris in the undated report referred to in [37] and [76] above refers to “Work and his co workers” as being the direct cause of the applicant’s symptoms, and the applicant himself in his statement complains of the behaviour of BHX and BJV resulted in him being isolated within the workplace, such that he felt that each time he went to work he was on his own and could not expect to be supported by his co workers in the work that he did. He also says that the pattern of conduct of these two persons in reporting on him were in respect of things that were either completely unjustified or entirely trivial.
However when the evidence of Dr Charteris and Dr Pandit is considered along with that of
Dr Jacobson, notwithstanding the fact that Dr Jacobson attributed the applicant’s condition to the “protracted period of approximately 18 months with no work,” and the other factors referred to in [74] above when she assessed him, I think that the weight of evidence supports a finding that the predominant cause of the psychological injury suffered by the applicant was caused by the disciplinary action taken by the respondent with respect to discipline.

Section 11A of the 1997 Act

At [61] in Heggie Sackville AJA said that in his opinion the better view is that the reasonableness of an employer’s action for the purposes of s 11A(1) is to be determined by the facts that were known to the employer at the time or could have been ascertained by reasonably diligent enquiries. He said that the language of the subsection:
“ …does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
The respondent relies on what his Honour then said at [62] (with reference to the facts of that case):
“62. Such a construction would open the way to an inquiry that shifts the focus from the reasonableness of what the employer actually did at the time, to a hypothetical analysis of what action should have been taken in the light of circumstances that could not have been known to the employer when the decision was made. Many actions with respect to discipline, such as suspension on full pay while serious complaints are investigated, are necessarily taken without the employer having the opportunity to establish the full facts. Particularly is this so where an employer has to take into account the safety and well-being of staff, as required by one of the Policy Directives in the present case (New South Wales Policy Directive ‘Criminal Allegations, Charges and Convictions Against Employees’ (‘PD 2006-026’))”
The applicant also relies on what Sackville AJA said in that case at [59]:
“59. 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.”
The applicant was suspended from 1 December 2021 and attended a meeting on
2 March 2022 when he was informed of an outcome of an investigation involving him in a letter dated 2 March 2022 which was handed to him, referred to in [9] above. The allegations which were investigated, and the outcomes, are summarized as follows:
(a)    Allegation 1a – conduct during work hours – substantiated, however contextual and does not disclose misconduct;
(b)    Allegation 1b – whilst in uniform and on duty engagement in discussion with a member of the public about the use or purchase of illicit substances – substantiated;
(c)    Allegation 1c – travelling outside specified areas in order to, with the assistance of another person, purchase an illicit substance – unsubstantiated;
(d)    Allegation 2a – failure to devote time and attention to work duties – unsubstantiated, and
(e)    Allegation 3a – falsification of run sheets – unsubstantiated.
As noted in [10] above the applicant was issued with a final written warning dated
11 May 2022 and directed to return to his role effective 16 May 2022.
The response to the letter dated 1 December 2021 particularising allegations covering occurrences over the period from 23 October 2019 to 11 August 2021 referred to in [7(a)] above was given on 5 October 2022, as referred to in [18] above. All 19 allegations were found “not substantiated.”[39]
[39] ARD p 13, Reply p 22.
The applicant returned to work on 16 May 2022 and was then stood down the following day for discussing matters in respect of his suspension and return to work, namely, two conversations the applicant had with BPF on Monday 16 May 2022, and a telephone conversation with BMM on 17 May 2022. Details of these interactions, and the outcomes of the investigations into the allegations against the applicant, are set out in the investigations outcome letter (dated 14 September 2022).
The applicant submits that it was quite natural to discuss matters in respect of the outcome of investigations into his conduct, and his return to work following suspension, particularly in the context of what BPF says that Mr McLean said: “I was told by HR that nothing had been substantiated and I was right to return to work.” The applicant admitted that he said to BPF that he could come back to work, but denied indicating that he was told by HR that nothing had been substantiated.
The respondent submits that at all times in multiple circumstances, it appropriately and fairly investigated allegations made against the applicant, and on each occasion followed the same procedure which was fair and reasonable. The respondent may well have suspended the applicant from 1 December 2021 having taken into account the safety and well-being of staff, particularly if that suspension was for the reason that the applicant, whilst in uniform and on duty engaged in discussion with a member of the public about the use or purchase of illicit substances (Allegation 1b). That was the only allegation that was found to be substantiated, apart from Allegation 1a in respect of the applicant being rostered on duty to patrol Areas 2A and 2B which was substantiated, but found to be “contextual and does not disclose misconduct.”
It is not the stand down in December 2021 that the applicant claims, and I have found to be, the predominant cause of his psychological injury. It is the return to work on 16 May 2022 and the stand down the following day, 17 May 2022. That is the date nominated by
Dr Charteris, and other doctors in the same practice as the date of injury on the Certificates of capacity/fitness issued by them. It is consistent with the opinion of Dr Jacobson as being the “primary contributing factor” to Mr McLean’s major depressive disorder, although the doctor does refer in his report dated 16 May 2023 to, among other factors, the period of approximately 18 months with no work, which would date back to about December 2021.
The reason for the stand down on 17 May 2022 was the breaches of confidentiality alleged in respect of the conversations between Mr McLean, BPF and BMM, and threats allegedly made by Mr McLean to BPF in respect of other workers. Irrespective of whether these constituted such breaches, I do not think that the welfare of BPF or BMM would have been placed in jeopardy or adversely affected by speaking to the applicant. The suspension appears to have been an immediate reaction to a claimed breach of BGZ’s requirements of its employees. As noted by Sackville AJA in Heggie, it is the reasonableness of that action that must be assessed. In the context of this case, it is the suspension of the applicant on 17 May 2022 after being back at work for one day since 1 December 2021 that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
Having regard to the opinion on causation of injury expressed by Dr Jacobson, consideration should also be given as to how long it was before the applicant was informed of the outcome of investigations into his conduct following his suspension on 1 December 2021. The meeting of 2 March 2022 between BKT, BLQ, the applicant and a union representative is relevant.
On 2 March 2022, with a union representative, the applicant attended a meeting with
BKT and BLQ to discuss the outcome of the investigation into the allegations that he failed to comply with BGZ’s Code of Conduct and Drug and Alcohol Testing Policy. The applicant was handed a letter of that date. That is the letter referred to in [87] above. The applicant was therefore aware on 2 March 2022 of the outcome of the investigation carried out by Sparke Helmore Lawyers that he failed to comply with BGZ’s Code of Conduct and Drug and Alcohol Testing Policy. One only of the allegations against the applicant was found to be substantiated.
The outcome into the investigation of the matters contained in the other letter dated
1 December 2021 in respect of allegations covering occurrences over the period from
23 October 2019 to 11 August 2021 was not known until 5 October 2022. None of these allegations were found to be substantiated.
For completeness I mention the outcome of investigations into the conduct of the applicant on 16 and 17 May 2022 in speaking to BPF and BMM on those days. The outcome of that investigation was made known to the applicant by way of letter dated 14 September 2022.[40] Four of the allegations listed in that letter were found to have been substantiated. As a result of that outcome and other investigations over the previous two years the applicant was required to complete BGZ’s Show Cause process, which led to his dismissal on
[40] ARD p 23.
16 November 2022.
The applicant was therefore unaware of the outcome of the inquiry into allegations that he failed to comply with BGZ’s Code of Conduct and Drug and Alcohol Testing Policy until 2 March 2022, a period of three months. He was unaware of the outcome of the other inquiry instituted on 1 December 2021 until 5 October 2022, a period of 10 months.
The applicant was unaware from 17 May 2022 to 14 September 2022 of the outcome of the inquiry into the occurrences of 16 and 17 May 2022.
Four of the allegations in respect of the interaction between Mr McLean, BPF and BMM on 16 and 17 May 2022 were subsequently found to be substantiated and are relevant to the finding of reasonableness or otherwise of the respondent’s actions in
May 2022. Allegation 2 was found to be a breach of BGZ’s Code of Conduct clauses 3.9 and 3.11 in respect of a threatening remark about other employees. The applicant admitted to speaking with BPF but denied the threatening remark. It is not known about whom the applicant is alleged to have made the threatening remark. It may have been
BHX or BJV, in respect of whom the applicant had experienced difficulty in working with, but this is speculation.
It is not the applicant’s dismissal from the applicant’s employ that was the predominant cause of his psychological injury. It was the action of the respondent in suspending the applicant from work on 17 May 2022, one day after he returned to work after having been off work since 1 December 2021, because he contacted BPF and BMM on 16 and 17 May 2022 to discuss his situation. That was the predominant cause of his psychological injury. In my view, suspension in that circumstance was not reasonable.
The applicant denies having made a threatening remark to BPF about other employees but admits speaking to him. Details of the investigation are not in evidence. It appears that the respondent accepted the findings of the investigation into the conversation between the applicant and BPF at approximately 12.30 pm on 16 May 2022 when the words “they know who they are, they have got theirs coming” are alleged to have been said by the applicant. No other persons were either present when this conversation took place, or if they were, have not given evidence about it. If that is the case, and in the face of a denial by the applicant of a threat made about other employees, the word of BPF appears to have been accepted in preference to that of the applicant.
The applicant submits that in respect of all of the enquiries into the applicant’s conduct there was no evidence of what investigations were conducted, how any such investigations were conducted, and why further disciplinary proceedings were considered appropriate. That submission may be too wide in so far as evidence as to what investigations were conducted. However evidence as to how investigations were conducted is sparse, as is evidence from the persons with whom the applicant spoke on 16 and 17 May 2022 and to whom the alleged threat was made in respect of other employees. There is no evidence from any witnesses on behalf of the respondent as to why the further stand down from work on 17 May 2022 was considered appropriate.
It was a drastic step for the respondent to immediately stand down the applicant on
17 May 2022 after having been directed to return to work the previous day. In the circumstances, it was not reasonable conduct on the part of the respondent. I do not think that the respondent has discharged the onus on it to show that its conduct was reasonable.
I find that the action taken by the respondent with respect to discipline of the applicant which was the predominant cause of psychological injury suffered by the applicant was not reasonable.

Capacity

The respondent submits that the applicant has had capacity for work since the date from which weekly benefits were claimed in the ARD, 22 May 2022. The applicant now claims benefits from 17 November 2022 as outlined in [25] above. That submission relies on the opinion of Dr Roberts, which is in the context of a finding by the doctor that Mr McLean did not suffer a psychological injury arising out of or in the course of his employment with the respondent. The respondent also relies on the opinion of Dr Jacobson, who believes that
Mr McLean can work full time. She says that this is likely to lead to a further gradual reduction in the applicant’s symptoms of the major depressive disorder, in partial remission, from which the applicant suffers.
The continuing certification in the Certificates of capacity/fitness in evidence that Mr McLean has no current work capacity for any employment is not consistent with Mr McLean having returned to work on 29 November 2022. The latest such certificate dated 2 August 2023 is in respect of the period from 1 August 2023 to 1 September 2023. The applicant nevertheless submits that, having regard that certification and other evidence, in accordance with the doctrine of continuity it should be accepted that the applicant has a continuing partial incapacity for work.
After the termination of his employment with the respondent on 16 November 2022, the applicant says in his statement that he found alternative work on a casual basis commencing on 20 November 2022, earning some $600 to $650 per week on average gross working between 20 – 30 hours per week. He says that he is doing very basic work in which he does not have to concentrate very much, simply doing traffic control not requiring any real interaction with staff other than in relation to traffic control. He does not see himself as being able to do any other work as at the date of his statement, 5 July 2023. It is, according to the applicant, a low stress job.
This history contrasts with the history recorded by Dr Jacobson on 16 May 2022 that:
“Since late December 2022, he had had a casual traffic management job, working 25 hours per week. He felt that his functioning was reasonable at work. He was doing ‘well,’ and had been promoted to Team Leader, but there was little full time work available.”
Dr Jacobson recorded that Mr McLean said that his attitude to work had really changed, he tried to avoid any possible confrontation, found it more difficult to work with others because he did not trust them, and was especially anxious when working with young women. He was anxious about his financial commitments, and came home and drank because of worry about them. He was trying his best to find a full time job, which he needed to financially.
The ability of the applicant to engage in a cluster of activities including domestic duties, cooking, cleaning, gardening, and also leisure activities of refereeing night touch football and playing golf is recorded by Dr Roberts. The doctor gives his opinion that the applicant’s activities, including refereeing touch football for which he receives payment, constitute a cluster of activities that equate with work and clearly indicate that Mr McLean has a work capacity which was not impacted upon by the circumstances under consideration.

The applicant has demonstrated his work capacity by commencing his current employment in November 2022. That capacity is inconsistent with the certification of no current work capacity for any employment.
Dr Jacobson is of the opinion that Mr McLean can work full time which is likely to lead to a further reduction in his symptoms. He says that the prolonged period of waiting, indecision and not working has led to the applicant’s depression, which has been easily improved by a return to work. Dr Jacobson does however recommend that the applicant sees a psychologist every two to four weeks for six to ten sessions, continues to see his general practitioner and reviews his ongoing function. Dr Jacobson does not place any restrictions on the type of full time work in which the applicant can engage. This lack of restriction on the type of work is supported by the non-work activities in which Mr McLean engages, noted by Dr Roberts.
Having regard to this evidence in respect of capacity for work, and the amendment to the claim for weekly benefits noted in [25] above, I find that the applicant was totally incapacitated for work for the period from 17 November 2022 to
28 November 2022, during which he is entitled to an award in his favour of $1,092.50 per week. For the period from 29 November 2022 until the date of assessment by Dr Jacobson on 2 May 2023, I find that the applicant was partially incapacitated for work, having demonstrated an ability to work in suitable employment and earn $947.20 per week. He is entitled to an award in his favour of $145.30 per week for this period. From 3 May 2023 I find that the applicant can work full time without restriction.

SUMMARY

The applicant sustained psychological injury arising out of or in the course of his employment, deemed to have occurred on 17 May 2022.
The injury was predominantly caused by action taken by the respondent with respect to discipline of the applicant. Such action was not reasonable.
The applicant was totally incapacitated for work from 17 November 2022 until
28 November 2022.
The applicant was partially incapacitated for work from 29 November 2022 until 2 May 2023.
The respondent is to pay the applicant weekly benefits as follows:
(a) $1,092.50 per week from 17 November 2022 to 28 November 2022, and
(b) $145.30 per week from 29 November 2022 to 2 May 2023.
Award for the respondent in respect of the claim for weekly benefits from 3 May 2023.
The respondent is to pay the applicant’s medical and related expenses pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 689

20 December 2023