Midcoast Council v Cheers - [2022] NSWPICPD 26

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Midcoast Council v Cheers [2022] NSWPICPD 26
APPELLANT:	Midcoast Council
RESPONDENT:	Paul Cheers
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W2240/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	5 July 2022
ORDERS MADE ON APPEAL:	1. The time for the respondent to file its Notice of Opposition to Appeal Against Decision of Member is extended to 18 January 2022. 2. The Member’s Certificate of Determination dated 9 November 2021 is revoked. 3. The matter is remitted to another non-presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – submissions made after the time period for doing so was closed – Bale v Mills [2011] NSWCA 226 applied – Member’s duty to provide reasons – rule 78 of the Personal Injury Commission Rules 2021 – failure to consider submissions made – Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Baran, counsel
BBW Lawyers
Respondent:
Mr C Tanner, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF MEMBER’S DECISION:	9 November 2021

INTRODUCTION AND BACKGROUND

Mr Paul Cheers (the respondent) was employed by Midcoast Council (the appellant) for a period of fifteen years, and, for five of those years, he worked as a team leader in Roads and Construction. The respondent alleged that, following a co-worker’s promotion to roads supervisor (alternately referred to as “works supervisor”) in about March 2019, he began to be unfairly treated, including being moved from the Roads and Construction team to the Parks and Gardens team, where he performed work in a lesser role. The respondent attributed that treatment to the fact that he had discovered and reported allegedly corrupt and inappropriate business activities undertaken by the new roads supervisor.
The respondent sought psychological assistance from about June 2019. He consulted his general practitioner on 4 December 2020, who provided him with a mental health program. He ceased work with the appellant because of his psychological condition, lodging a claim for workers compensation on 3 December 2020.
The appellant denied liability for the claim on 15 February 2021. The basis of the denial was said to be that any psychological injury suffered by the respondent was wholly or predominantly caused by reasonable actions taken by the appellant during 2019 and 2020 with respect to discipline, performance appraisal and/or transfer. The appellant asserted that, in accordance with s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act), the respondent was precluded from receiving compensation. The appellant also disputed that the respondent had no capacity for employment.
The respondent lodged proceedings in the Commission, seeking weekly payments and treatment expenses. The matter came before a non-presidential member, who heard and determined the matter. She concluded that she was not satisfied that the respondent’s psychological injury was either “wholly” or “predominantly” caused by actions taken by or proposed to be taken by or on behalf of the appellant with respect to transfer, performance appraisal and/or discipline. Further, she was not satisfied that those actions were reasonable. The Member also determined that the respondent had no capacity for work.
The appellant appeals that decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant notes that appeals are ordinarily determined ‘on the papers’ but submits that this matter is suitable for an oral hearing because of the enormity of the material, the authorities relied upon and the “complexity of the issues” requiring determination. The respondent initially indicated that the matter was not suitable for determination solely on the basis of the documents before the Commission, however in his amended submissions dated 25 January 2022, the respondent asserts that the matter could readily be determined on the papers.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties. The appellant’s written submissions total 36 pages consisting of 161 paragraphs, addressing four grounds of appeal. The appellant has referred to and discussed the authorities it relies upon and the relevant legislation. The appellant has also had the opportunity to address all of the submissions made by the respondent, including submissions made without leave. I do not accept that this matter involves issues that are any more complex than those that are usually before the Commission or that the extent of the evidence indicates that oral submissions are warranted.
I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and the time for filing the appeal pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 Act (the 1998 Act) have been met.

PRELIMINARY MATTERS

The respondent’s Notice of Opposition to Appeal Against Decision of Member (opposition) was not filed within the time set down by the President’s Delegate in his Direction dated 8 December 2021, which was by 17 January 2022. On 17 January 2022, the Commission received an email from the respondent’s legal representatives advising that their office had only on that day re-opened after the Christmas break and requesting an extra day in which to file his opposition. The appellant also wrote to the Commission on 17 January 2022, opposing the respondent’s application for an extension of time. The appellant provided reasons why the extension should not be granted.
On 18 January 2022, the Delegate of the President wrote to the parties, advising that the application for extension of time would be determined by the Presidential Member who was to be allocated the appeal. The Delegate invited the respondent to include in its proposed opposition any submissions it wished to make in response to the appellant’s objection to the extension of time.
The respondent filed its opposition on 18 January 2022 but did not respond to the appellant’s objection to the extension of time. The Delegate then issued a Direction dated 18 January 2022 directing the respondent to file submissions in response to the appellant’s objection, as well as amended submissions as to whether the monetary threshold to appeal had been met and whether the appeal was, or was not, against an interlocutory decision. On 25 January 2022, the respondent filed his amended submissions. The amended submissions went well beyond the ambit of the Direction issued by the Delegate and provided further (new) submissions in response to the appeal allegations but did not address the appellant’s letter dated 17 January 2022 or provide reasons for the application to extend time.
On 27 January 2022, the appellant wrote to the Commission, pointing out that the respondent failed to respond to the matters raised by it in its letter dated 17 January 2022. The appellant sought to have the issue of extension of time determined in the absence of such submissions. The appellant added that the respondent had included in his amended submissions dated 25 January 2022 additional substantive amended submissions going to the grounds of appeal that went beyond the scope of the Delegate’s Direction. The appellant asserted that it was improper to do so, that the appellant was prejudiced, and, in any event, the respondent had not offered any excuse as to why the opposition was filed out of time.
On 28 January 2022, outside of the time frame set down by the Delegate of the President, the respondent provided lengthy reasons as to why the opposition was filed out of time and asserted that the appellant would not be prejudiced by the lodgment of his submissions or by any delay in the determination of the appeal.
On 4 February 2022, the appellant wrote to the Commission seeking an extension of time in which to file its reply to the respondent’s opposition in the light of the late filing of the opposition and the additional submissions made without leave on 25 January 2022.
A Direction was issued by the Delegate on 7 February 2022, providing the appellant with an additional seven days within which to reply to the respondent’s submissions. On 14 February 2022, the appellant filed its submissions in reply in which it addressed all of the submissions made by the respondent.

Extension of time to lodge the opposition

The respondent’s submissions in favour of the application for an extension of time to lodge the opposition

The respondent’s counsel drafted the submissions going to the reasons for the delay and as to why the extension should be granted. The respondent refers to the Delegate’s Direction requiring the submissions to be lodged on or before 17 January 2022. He explains that he was aware that he would be unable to attend to the submissions until after the Christmas period because of his other commitments. He describes what appeared to be unforeseen domestic circumstances that resulted in his inability to attend to drafting the submissions in opposition to the appeal until 17 January 2022. He indicates that the appellant’s submissions were unexpectedly voluminous, and he formed the view that he may not be in a position to complete the respondent’s submissions that day. Consequently, his instructing solicitor applied to the Commission for an extension of the timetable.
The respondent advises that further submissions were lodged by him on 25 January 2022 “[f]ollowing the issue of Directions by the Commission.” He refers to the appellant’s objection to those submissions. The respondent’s counsel submits that the stance taken by the appellant is an attempt:
“to constrain the scope of the respondent worker’s submissions, and to prevent a fulsome ventilation of the matter on the merits … [with the] objective of limiting the contribution those representing the respondent might make in assisting the Commission and facilitating a just outcome.”[1]
[1] Respondent’s submissions dated 28 January 2022, [13].
The respondent contends that the appellant’s attitude is contrary to ss 42 and 43 of the 2020 Act and the Commission’s guiding principle, which is to provide a just, quick, and cost-effective resolution of the real issues in the matter and requires the matter to be determined in accordance with equity, good conscience and the substantial merits of the case. The respondent submits that the appellant is seeking to prevent the proper consideration of the matter. The respondent describes the appellant’s attitude as “extraordinary”[2] and submits that “the appellant’s pre-occupation with the timetable is at odds with the Commission’s actual practice”.[3] The respondent says that there is no prejudice because the appellant has a right of reply and the opportunity to seek an extension of time, which he will not oppose.
[2] Respondent’s submissions dated 28 January 2022, [19].
[3] Respondent’s submissions dated 28 January 2022, [22].
The respondent asserts that, on the basis of his calculations, it would be expected that the appeal would not be finalised until July 2022, so that the lodgment of further submissions will not delay the matter, and, in any event, it is the respondent who would be prejudiced if the matter is delayed because s 352(5A) of the 1998 Act operates to stay the decision appealed against.

The appellant’s submissions against the application for an extension of time to lodge the opposition

The appellant points out that it had 28 days within which to file the appeal, the appeal was served on the respondent on 7 December 2021 and the timetable set by the delegate of the President was served on 8 December 2021. The appellant submits that the respondent was aware of the requisite date and had 41 days within which to lodge its opposition, which was an extended period allowed by the Commission in order to accommodate the Commission’s close down period. The appellant asserts that the respondent had already been afforded fairness by the Commission extending the time frame and a further extension is not appropriate.
The appellant refers to the Court of Appeal decision in Yacoub v Pilkington (Australia) Limited,[4] and submits that the respondent has not identified any exceptional circumstances that might warrant the extension of time. The appellant asserts that the 2020 Act does not provide for the making of rules in relation to the extension or abridgment of any period in Part 9, Chapter 7 of the 1998 Act and there is no provision in the Personal Injury Commission Rules 2021 (the 2021 Rules) to allow for time to be extended.
[4] [2007] NSWCA 290 (Yacoub).
The appellant says that it has an obligation to be alert to the timeframe relevant to an appeal and submits that the respondent has the same responsibility. The appellant asks the Commission to reject the respondent’s application for an extension of the time within which to lodge his opposition.

Consideration

The application made by the respondent is for an extension of time for lodging the opposition to 18 January 2021.
Rule 69 of the 2021 Rules provides as follows:
“69    Fixing of time for applicable proceedings
(1)    An appropriate decision-maker for applicable proceedings may, by order, fix the time within which a thing is to be done in or for the proceedings, if the time is not fixed by—
(a) the PIC Act, or
(b) enabling legislation, or
(c) these Rules, or
(d) a decision or order of the Commission or President.
(2)     An appropriate decision-maker for applicable proceedings may, by order, extend or shorten a time fixed for applicable proceedings—
(a) by these Rules, or
(b) under Chapter 7, Part 9 of the 1998 Act, except the extension of time fixed under section 352(4) of the 1998 Act.
(3)     The Commission in Commission proceedings constituted as it was when it made a decision or order that fixed a period of time may, on the application of a party or of its own motion, extend or shorten the period.
(4)     Time does not run in relation to proceedings during a period fixed by order of the Commission in the proceedings or by a procedural direction.
(5)     The time of commencement of applicable proceedings is the time when the President registers the document lodged for the commencement of the proceedings by sealing the document.”
Rule 65 of the 2021 Rules defines “an appropriate decision-maker” for Commission proceedings as the Commission or the President. Section 8 of the 2020 Act provides that the Commission consists of various members including the Deputy Presidents.
The timetable within which the respondent was required to lodge his opposition was set by a Delegate of the President in accordance with r 69(1) of the 2021 Rules. The Delegate has the power to do so in accordance with Table B of the Table of Delegations published on the Commission’s website. As provided for in r 69(2), I have the power to extend or abridge the time fixed by the Delegate of the President. I reject the appellant’s submission that there is no provision in the 2021 Rules to allow for the time set by the Delegate of the President to be extended. Further, the appellant refers to the phrase “exceptional circumstances” as described in Yacoub. Rule 69 does not require exceptional circumstances to exist before the discretion can be exercised.
A decision as to whether to extend time under the 2021 Rules is a discretionary decision to be made by having regard to the circumstances of the case. The Commission’s primary obligation is to ensure fairness to both parties to the litigation.[5]
[5] Hamod v State of New South Wales [2011] NSWCA 375, per Beazley JA.
The reasons for the delay in lodging the opposition, which were also lodged by the respondent outside of the Commission’s time frame, are far from remarkable and are not compelling. The respondent did, however, communicate with the Commission and the appellant on the last day for filing the opposition, foreshadowing an application for extension would be made. The extension of time sought is limited to one day, and the appellant has had the opportunity of an extension of time in which it can respond to all of the respondent’s submissions. The appellant points to no actual prejudice if the extension of one day in which to file the opposition is granted. On the other hand, it would be entirely unfair if the respondent, who himself was not the direct cause of the delay, was precluded from the opportunity to defend the appeal.
I conclude therefore that, in order to ensure a fair trial, the time for filing the opposition should be extended to 18 January 2022 and the time is extended accordingly.

The respondent’s submissions dated 25 January 2022

The respondent’s submissions dated 25 January 2022 were said to be in response to the Direction issued by the Delegate of the President dated 18 January 2022. The Delegate’s Direction directed the respondent to file on or before 25 January 2022:
(a) any submissions in reply to the appellant’s objection to the extension of time within which to file the opposition, and
(b) amended submissions as to whether:
(i)the monetary threshold to appeal had been met, and
(ii)whether the appeal was, or was not, against an interlocutory decision.
The respondent included in its submissions extensive further (and new) submissions in respect of the substantive matters raised by the appellant in its appeal. The submissions were not in response to the Delegate’s Direction and the respondent did not seek leave to make those further submissions.
The time frame within which the respondent was to respond to the various allegations raised by the appellant and the matters raised by the Delegate had closed prior to the filing of those submissions. The filing of further submissions or material beyond the allowed time frame is not acceptable and, in the absence of leave being granted following an appropriate application being made, are not properly before the Commission and are not required be taken into account.[6] I therefore disregard those submissions.
[6] Bale v Mills [2011] NSWCA 226, [58]–[61].

THE EVIDENCE

It is not necessary for the purpose of this appeal to refer to all of the evidence before the Member. The following summary of the evidence is intended to assist in explaining the issues for determination by the Member but is not exhaustive.

The respondent’s statement evidence

The respondent made a statement dated 21 December 2020.[7] He stated that he was employed by the appellant as a team leader and was doing well in his role. He said that in February 2019, the position of roads supervisor became available, and he and Mr James Newell applied for the position. He advised that Mr Newell was successful and thereafter he was subjected to unfair treatment from Mr Newell. He added that in about March 2019 he became aware of Mr Newell being involved in corrupt and inappropriate business practices in the workplace, which he reported to Mr Jamie Condie, the operations manager, in confidence.
[7] Application to Resolve a Dispute (ARD), pp 3–14.
The respondent said that in, March 2019, he received a letter from Mr Condie which indicated that he was required to improve in 12 areas of his performance. He added that the twelfth point stated that if he ever made derogatory comments about a person in management without proof, his employment would be terminated immediately. The respondent explained that this related to the report he had made about Mr Newell.

The respondent stated that he was required to attend a meeting with Ms McMurtrie, employment relations adviser, and Mr Condie on 2 April 2019 and was accompanied by Mr Brad Newman, union representative. He indicated that, prior to the meeting, he had disclosed to Mr Newman the matters he knew about Mr Newell’s conduct. He said that a number of trivial matters were discussed at the meeting, but he was told that if he ever made unsubstantiated allegations against Mr Newell, his employment would be immediately terminated.
The respondent stated that in a conversation with Ms McMurtrie, he queried how he could move forward in his position and Ms McMurtrie replied that the appellant did not “know what to do with him.” He said he felt terrified that he would lose his job and felt targeted by the appellant.
The respondent said that he attended a further meeting about the points raised in the earlier letter, but the twelfth point had been deleted. The respondent said that he queried why the twelfth point was deleted and Mr Condie told him that the issue had been discussed and did not require further consideration at that stage.
The respondent said that, at about this time, his role as team leader was taken away and he was required to do traffic duties for several weeks, working under the supervision of his nephew. He advised that by then he was feeling down and worried about losing his job, so he took time off work. He said that when he returned, somebody had accessed his emails and diary.
The respondent stated that up until November 2019, he attended a number of meetings about his performance and was targeted for trivial matters, which had not been raised prior to March 2019. He said that Mr Newell would not speak to him directly. He added that, in about November 2019, he received a safety improvement notice for putting a team member’s life at risk, which was as a result of a task he had been directed to do. He said he became extremely anxious at this time.
The respondent advised that the workplace received a visit from the appellant’s governance team who spoke about the confidential manner in which inappropriate conduct could be reported. He said that, following that talk, in November 2019 he spoke with Ms Cathy Dugan over the telephone and reported the inappropriate conduct of Mr Newell, as well as complaining that Mr Condie did not take action because Mr Newell was his friend. He said that he was then moved to Parks and Gardens and signed a confidentiality agreement.
The respondent complained that he did not feel supported by Ms McMurtrie, as she had moved him into a lesser position in Parks and Gardens, which immediately made his co-workers suspicious. He said that Ms McMurtrie told him to tell his co-workers that he had been moved because he had made a complaint about his manager. He added that he felt very uncomfortable and remained in that position for a year without being allowed to discuss the investigation with anyone, and without any support from the appellant, despite having sent several emails seeking help from Ms McMurtrie.
The respondent said that during that time he underwent disciplinary action for disclosing information to Mr Barry Lorring by way of a text message that jeopardised the investigation. He said he felt that this was unfair that he was being reprimanded when he had spoken up about the actions of Mr Newell. He stated that he felt as though his employment was threatened. He added that a number of people were asked to make statements about the investigation, so that it was widespread knowledge.
The respondent indicated that he received a further disciplinary letter in relation to comments he had allegedly made about another employee. He said that he was unaware of what the allegations related to, so contacted Ms McMurtrie, who said that the allegations would be disclosed in the forthcoming disciplinary meeting. The respondent said that he then suffered a “breakdown,” went off work and consulted his general practitioner. The respondent denied any other factors in his life that contributed to his current condition and said he had not suffered any psychological conditions in the past.
The respondent provided a supplementary statement dated 17 April 2021.[8] He described the ongoing symptoms he was experiencing as a result of the issues in his employment. He added that he initially reported Mr Newell’s conduct to Mr Bill Towns, the safety officer, who was dismissive and told him it was a matter for the police. He said this was about one week prior to speaking with Mr Condie. He also referred to information he had discovered that Mr Condie had been involved in code of conduct breaches in 2012 in the employ of a different council.
[8] ARD, pp 15–18.
The respondent went into great detail to describe various incidents over the relevant time that caused him distress. He disputed that he was supported by the appellant over the period of the investigation. He spoke of a further meeting on 2 September 2020, in which Ms McMurtrie accused him of spreading rumours about Mr Newell. He denied being involved and explained that there were many people who were aware of the investigation into Mr Newell’s conduct.
The respondent made a further undated supplementary statement in response to statements from various employees of the appellant.[9] He disputed that:
(a)    Mr Condie had attempted to revisit with him the subject of Mr Newell’s conduct on any occasion;
(b)    he was the instigator of rumour and gossip, as alleged by Mr Bryce Haffner, and
(c)    he had ever received any negative reports about his performance prior to Mr Newell being appointed as the roads supervisor.
[9] ARD, pp 19–20.
The respondent maintained that:
(a)    he raised concerns with Mr Robert Scott about his mental health and well-being resulting from the investigation;
(b)    the workplace was plagued with a culture of fear and gossip, and
(c)    he felt unsupported by the Human Resources department after he made the public interest disclosure.

The respondent’s oral evidence

The respondent gave oral evidence and was cross-examined at the arbitration.[10] The subject matter of the oral evidence was limited to questions related to the respondent’s alleged failure to disclose his previous psychiatric history, including his drug use. The respondent provided reasons why he had not disclosed in his statements or to Dr Smith and Dr Bisht the correct prior history recorded in the treating doctors’ notes.
[10] Transcript of proceedings (T), Cheers v MidCoast Council [2021] NSWPIC 447, T 18.25–45.25.

Mr Noel Martin, union delegate

Mr Noel Martin provided an undated statement in which he set out what he understood to be the respondent’s workplace complaints.[11] He advised that he was involved in assisting the respondent in his claim for unfair dismissal from his employment. Mr Martin was of the view that the appellant was under an obligation to consult and discuss with the respondent in respect of the changes in the respondent’s role and to advise the respondent in writing of those changes.
[11] Application to Admit Late Documents (AALD) dated 16 August 2021, p 3.

Mr David Connell, co-worker

The respondent also relied upon a statement made by Mr David Connell dated 30 July 2021.[12] He advised that, not long after Mr Newell was appointed to the position of roads supervisor, the respondent told him that he had disclosed Mr Newell’s inappropriate conduct to Mr Condie. Mr Connell said that shortly after that discussion, he observed that there was a dramatic change in the way the respondent was being treated by the appellant and Mr Newell, including allocating lesser tasks to the respondent, and Mr Newell only speaking to the respondent when he was criticising the respondent’s work. Mr Connell was critical of the appellant’s conduct in failing to deal with the respondent’s disclosure about Mr Newell’s activities and in transferring the respondent to more demeaning roles. He said that the appellant’s and Mr Newell’s actions consisted of “targeting” the respondent. He added that he observed how, over the time the respondent was being treated badly, the respondent’s mood was deteriorating, and he was becoming more depressed, anxious and frustrated and “clearly struggling from a mental health perspective.”[13] Mr Connell said that he felt very strongly about what had happened to the respondent and that the appellant’s actions were completely wrong.
[12] AALD dated 16 August 2021, pp 7–10.
[13] AALD dated 16 August 2021, p 8.

Mr Bret Menser, co-worker and union delegate

Mr Menser provided a statement dated 2 August 2021.[14] He advised that the respondent approached him on or about 29 March 2019 in relation to Mr Newell’s conduct and at some stage after that the respondent complained to Mr Menser that he was being bullied and targeted by Mr Newell, who had become the respondent’s supervisor. Mr Menser added that he had always known the respondent to be a respected employee with positive performance reviews, so that he was surprised when the appellant raised performance issues. He said he suggested to the respondent that he should keep a diary of the issues and the respondent thereafter continued to complain of unfair treatment and bullying by Mr Newell. Mr Menser observed that the complaints against the respondent appeared to be fairly trivial in nature, and he formed the view that the respondent was being targeted and unfairly treated by Mr Newell.
[14] AALD dated 16 August 2021, pp 11–13.
Mr Menser remarked that the transfer of the respondent to a lesser role in Parks and Gardens seemed to him to be quite strange. He said that he was aware that the respondent was disciplined in respect of an unsavoury and inappropriate conversation with work mates, but the others involved were not sanctioned.
Mr Menser said that he was involved in assisting the respondent to lodge a grievance in respect of the allegation that the respondent allegedly made comments about another employee, but the respondent was not provided with the details of those allegations. Mr Menser said he was very surprised that the allegation resulted in a disciplinary letter and the respondent’s employment was terminated. Mr Menser commented that the appellant approached the notion of confidentiality in a particularly heavy-handed manner and that, in his view, the respondent had been treated unfairly.

Mr Jamie Condie, operations manager

Mr Condie provided a statement dated 11 February 2021.[15] He stated that the respondent was employed as a team leader and reported to the works supervisor (who, at the relevant time, was Mr Newell). Mr Condie said that the works supervisor in turn reported to the works engineer, who reported to Mr Condie. He said that the respondent had not worked in his team for about 18 months. Mr Condie explained that the respondent was transferred to the Parks and Gardens team.
[15] Reply to ARD (reply), pp 13–22.
Mr Condie indicated that, shortly after Mr Newell was appointed as the works supervisor, the respondent told him that he was aware of certain activities that Mr Newell was involved in that made him unsuitable for the position. Mr Condie said that he asked the respondent to provide more detail, but the respondent declined to disclose any further information. Mr Condie asserted that he had attempted to raise this matter with the respondent on three further occasions, but that the respondent declined to provide further information. Mr Condie added that the respondent had not raised the issue until after he was unsuccessful in his application to be appointed to the position. Mr Condie said that a Mr Richard Pearce told him that the respondent had commented to him that Mr Newell possessed stolen property which he intended to sell.
Mr Condie advised that he met with the respondent (and a union representative) in March 2019 to discuss twelve issues in relation to the respondent’s performance and, during that meeting, he raised the issue of the respondent’s comment to Mr Pearce with the respondent. He said that the respondent again indicated that he did not want to discuss the matter. Mr Condie said that he advised the respondent that, if he was aware of stolen material, he could report it to the police. He explained that he was concerned that the respondent was inappropriately discussing such matters with other employees and that the respondent may have been aware of important information that he was refusing to disclose to the appellant. Mr Condie asserted that it was impossible to investigate the matter because he was given no information about the alleged conduct. Mr Condie asserted that the performance issues raised in the meeting had been occurring over a period of time, he had become more aware of them towards March 2019, and he had discussed other performance issues with the respondent in the past.
Mr Condie said that in about October or November 2019, he was advised that the respondent was to be transferred and that Mr Condie was not to make contact with the respondent. He added that he and Mr Newell had a working relationship and that they did not socialise or have contact outside of work. He denied that the respondent was punished or targeted for speaking up about Mr Newell.
Mr Condie denied that the respondent ever disclosed that Mr Newell was involved in corrupt conduct and that he had ever told the respondent that if he made unsubstantiated comments about Mr Newell, the respondent’s employment would be terminated. He said that he and Mr Newell met with the respondent on 14 May 2019 to discuss further performance issues which Mr Newell had raised in an email to the respondent. He said that the meeting was requested by the respondent. Mr Condie described it as a positive meeting which focussed on those issues.
Mr Condie advised that over the following months, the respondent’s performance did not improve, and further issues arose, so the respondent was placed on a performance improvement plan. He said that he, together with Ms McMurtrie, met with the respondent again on 2 October 2019 and discussed matters included in the performance improvement plan. He said that some, but not all, items had improved. He added that item 12 of the original list, which related to the respondent discussing unsubstantiated issues in respect of Mr Newell’s conduct with other employees, was removed. Mr Condie said that it was removed because at the first meeting, the respondent had indicated that he wished to withdraw anything he had said about Mr Newell.
Mr Condie provided a further statement dated 3 June 2021.[16] He denied subjecting the respondent to scrutiny at work or targeting the respondent, or “nit-picking.” He further denied that he had ever referred to the respondent as his “favourite son,” or publicly humiliated the respondent or spoken to him in a derogatory manner.
[16] Reply, pp 64–67.

Ms Kellie McMurtrie, industrial/senior employment relations adviser

Ms McMurtrie provided a statement dated 27 January 2021.[17] Ms McMurtrie said that she, and Ms Julie Roose, first met with the respondent on 6 June 2019. She said that the respondent told her that he believed that Mr Newell had been targeting him ever since he was appointed as the works supervisor. She said that the respondent gave as an example that Mr Newell had spoken to an apprentice about the work to be done, instead of speaking to him and that he had been required to attend meetings with Mr Newell and Mr Condie about his work performance, which he felt was unfair.
[17] Reply, pp 23–36.
Ms McMurtrie stated that she advised the respondent that he could access the Employee Assistance Program (EAP) counselling services and that she would enquire into his concerns. She said that she discussed the respondent’s concerns with Mr Condie, and formed the view that the actions taken by Mr Newell were reasonable. She said she then discussed the matter with her manager, Mr Paul Martin, who also agreed that the actions were reasonable. Ms McMurtrie stated that she discussed the outcome of the matter with the respondent and invited him to provide her with examples of further incidents, which he did not do.
Ms McMurtrie said that in about August 2019, the respondent contacted her in relation to his annual performance review, which had resulted in a score of “not meeting expectations,” and him being placed on a performance improvement plan which precluded him from a wage increase. Ms McMurtrie discussed the issues raised by the respondent with Mr Condie, who told her of some of the matters (which she described) that were the subject of concern. She said that, based on that information, it appeared to her that the performance improvement plan was warranted.
Ms McMurtrie advised that a meeting was arranged to formalise the performance improvement plan in late August or early September 2019. She said that the respondent attended with a union representative, who indicated that the respondent had been unaware that Mr Newell would be present and did not want to attend the meeting with Mr Newell present because Mr Newell bullied him. She said that she re-scheduled the meeting to a week later so that the respondent could be better prepared. She advised that she also sought information from the respondent about specific incidents or examples of bullying by Mr Newell, but he added no new complaints.
Ms McMurtrie indicated that, in a meeting in October 2019, the respondent again raised with her his concerns about Mr Newell and indicated that he felt that those concerns had not been addressed. She stated that the respondent revealed that he had submitted a public interest disclosure against Mr Newell. Ms McMurtrie said that Mr Martin then advised her that the appellant had made the decision to transfer the respondent to Parks and Gardens. She indicated that the respondent had previously made several requests for a transfer, which could not be accommodated because there were no suitable vacancies. Ms McMurtrie said that the respondent was happy with the transfer arrangements.
Ms McMurtrie stated that, when the respondent was formally warned in respect of the confidentiality breach, she and Mr Robert Scott met with him and reassured him that his employment would not be terminated. She said that the respondent accepted the seriousness of the breach.
Ms McMurtrie also referred to a subsequent complaint against the respondent brought by a co-worker in November 2019 and the respondent’s response to that complaint. She said that the respondent went off work and submitted a workers compensation claim.
Ms McMurtrie denied that;
(a)    the respondent was ever advised that his employment would be terminated if he raised unsubstantiated allegations against Mr Newell;
(b)    she had ever told the respondent to say that his transfer was because he submitted a complaint about his manager or supervisor;
(c)    the respondent had sent her emails seeking support after he was transferred to Parks and Gardens, and
(d)    she had ever commented that the appellant did not know what to do with him.
Ms McMurtrie stated that she regularly checked on his well being and offered him support and all her interactions with him were professional and courteous.

Mr Robert Scott

Mr Robert Scott, Director of Infrastructure and Engineering Services, provided a statement dated 27 January 2021.[18] Mr Scott said that the respondent was transferred to Parks and Gardens after the respondent raised complaints about Mr Newell. Mr Scott said that during the investigation of Mr Newell’s conduct, he became aware that the respondent had breached a confidentiality agreement by discussing the investigation with a number of staff members, including by using a work mobile telephone. Mr Scott said that he met with the respondent and the union delegate to discuss the breach. He said that on 20 October 2020, he met with the respondent again to discuss the outcome of the earlier meeting, which was that the respondent had breached the appellant’s code of conduct. Mr Scott said that the respondent was given a formal written warning, which was explained to him. He said that the respondent did not raise any concerns or dispute the warning. Mr Scott added that he thanked the respondent for raising concerns about Mr Newell’s conduct, he advised the respondent of the opportunity to access EAP counselling and also advised the respondent that he could return to his old team when he felt comfortable to do so.

The treatment providers

[18] Reply, pp 37–42.

Ms Fay Keegan, social worker

The respondent was referred to Ms Fay Keegan, social worker, by Dr Enrique Avedillo, general practitioner. Ms Keegan reported to Dr Avedillo on 23 May 2008.[19] Ms Keegan referred to a history of the respondent being abusive to his wife and experiencing anger. She noted that the respondent and his wife were attending relationship counselling but that it was put on hold while the respondent sought treatment for his abusive behaviour.
[19] ARD, pp 68–69.

Dr Qing Shen, general practitioner

Dr Qing Shen, general practitioner, referred the respondent to Mr Greg Wilcox, psychologist on 4 May 2015 for the purpose of the respondent receiving psychotherapy.[20] Dr Shen reported the history that the respondent suffered from long-standing depression and issues with frequent anger, as well as the potential to exert physical action against his partner.
[20] ARD, p 70.

Ms Mini Felber, psychologist and EAP counsellor

The clinical notes recorded by Ms Mini Felber for consultations from 4 February 2019 were in evidence.[21] The consultations on 4 February 2019 and 8 March 2019 recorded that the respondent was struggling with personal issues. On 5 June 2019, the respondent complained of anxiety as a result of feeling bullied and harassed at work by his superiors. Ms Felber recorded that:
(a)    the respondent had been issued with three improvement notices in the previous few months;
(b)    several co-workers had been retrenched, and
(c)    the respondent wanted to change his position.
[21] ARD, pp 105–113.
The respondent consulted Ms Felber again on 19 May 2020 following a referral by the EAP counsellor. Ms Felber noted that the respondent was experiencing feelings of anxiety and was:
“Apprehensive due to a corruption investigation coming to [an] end. Moved from Roads to Parks and Gardens due to making a report to the Governance department for being bullied. Uncomfortable as he has had to lie to his colleagues at Roads to keep things confidential while waiting for an outcome of the investigation.”[22]
[22] ARD, p 110.
On 30 November 2020, Ms Felber recorded:
“[The respondent] disclosed experiencing serve anxiety and he maybe terminated from his job due to a colleague alleging he had spoken in a demeaning manner about [the appellant] and some colleagues who work in Parks and Gardens. [The respondent] has involved the Union to support him for his meeting on Wednesday. Remains in limbo relating to the outcome of his whistle blowing regarding Roads department. Relationship with Jackie ended and began another with a woman for 3 months. Has been drinking at night and smoking some cannabis.”[23]
[23] ARD, p 109.

Dr Emily Kong Kam Wa, general practitioner

The respondent attended Dr Emily Kong Kam Wa, general practitioner between 28 November 2020 and 5 January 2021.[24] At the first consultation, Dr Wa recorded the history of worsening stress and anxiety in the context of several colleagues having been dismissed by a new company which had taken over the appellant. Dr Wa noted that the respondent was:
“- Drinking at least 6 sd/night + has done cocaine and marijuana
- Has seen Mini Felber under MHCP in the past and has found It very helpful”.[25]
[24] ARD, pp 99–104.
[25] ARD, p 99.
On 1 December 2020, Dr Wa recorded the further history of bullying at work which commenced 18 months previously, when the respondent applied for a role which was given to another worker. Dr Wa noted that the respondent was aware that the new appointee had been engaged in illegal conduct and had raised the matter with the appellant’s operations manager. Dr Wa further noted that the respondent received a letter a few days later in which the respondent was told not to discuss the issue with anyone, although the respondent did speak with a friend. Dr Wa recorded that the respondent was moved to a different position in November 2019 and that the respondent was offered no support in the new role, which made him stressed and uncertain about his future.
The appellant wrote to Dr Wa, general practitioner, on 4 December 2020, seeking further information in relation to the respondent’s injury. Dr Wa responded on 10 December 2020.[26] She provided a diagnosis of generalised anxiety which was severe in nature. Dr Wa noted that the respondent complained of having to keep quiet about the illegal practices of a work colleague, that he was transferred into a different department, was not offered any support in that role, which caused worsening anxiety. Dr Wa opined that the work events from at least 2 September 2020 were likely to have contributed to his symptoms. Dr Wa advised that the respondent had suffered previous psychological symptoms and received psychological treatment for depression and stress in 2008 and in relation to the recent events.
[26] ARD, pp 75–77.
Dr Wa referred the respondent to Ms Elise Wynyard, mental health counsellor, on 5 January 2021.[27] She provided a history of the respondent experiencing worsening low mood and anxiety “precipitated by problems at work.” Dr Wa referred to the new company taking over the appellant and dismissing workers, which was causing the respondent distress. Dr Wa mentioned that the respondent was drinking at least six beers each night and had used marijuana and cocaine in the past.
[27] ARD, p 72.

Ms Elise Wynyard, psychologist

The respondent consulted Ms Elise Wynyard on 11 January 2021. Ms Wynyard recorded that the respondent made the following complaints:
“Midcoast Council … for 15 years. Prior to amalgamation – no black marks against my name. May/June 2019 applied for supervisor role + lost to a corrupt applicant. I complained about wrong things other guy had done. Then I was targeted. I was threatened with dismissal.
Nov. 2019. Governance Council gave a talk about whistleblowing. This led to an investigation (14 months ongoing) which resulted in the other applicant leaving. My claims were supported.
I was moved from roads + construction to parks + gardens (12 months no calls from HR in support) (demotion but not financially) I wasn’t allowed to tell them why I was changed work role. HR said to say I made a complaint against a manager.
I emaile [sic] governance council to ask what was happening. Meeting to discuss final outcome (Rob Scott). I was accused of exposing information that put investigation at risk + gave me a warning letter re non disclosure.
That was nearly the breaking point.
Then asked to attend a disciplinary meeting for making defamatory alleged comments about my supervisor. At that point I broke down. Union put me on to a barrister. Walked out 10/12/20.”[28]
[28] ARD, pp 114–115.
Ms Wynyard also provided a report dated 23 July 2021 directed to the respondent’s solicitors.[29] Ms Wynyard provided a history consistent with that recorded in the clinical note dated 11 January 2021. She added that after applying unsuccessfully for the roads supervisor position, the respondent was not offered any support in his new role in Parks and Gardens. Ms Wynyard indicated that:
(a)    she agreed with Dr Smith that the respondent suffered from a major depressive disorder;
(b)    in her opinion, the condition had developed over the past 18 to 24 months, and
(c)    the main contributing factor was the “unreasonable behaviour directed towards him at his workplace.”

Forensic medical reports

[29] AALD dated 16 August 2021, pp 178–180.

Dr Yajuvendra Bisht, psychiatrist

Dr Yajuvendra Bisht was requested by the appellant to examine the respondent and provide an opinion on causation. He reported to the appellant on 10 February 2021.[30] He took a long history of the respondent’s complaints of adverse treatment from his superiors between June 2019 and November 2020 and the onset of psychological symptoms after mid-2019, which worsened. He noted a past medical history of the respondent’s father dying 20 years earlier and the respondent being divorced a few years later, following which he was prescribed antidepressants for a period. Dr Bisht recorded that there had been no past history of childhood or teenage trauma. Dr Bisht recorded that the respondent denied any other family, relationship, substance or alcohol abuse or any other issues over the prior few years that could have contributed to his mental state.
[30] Reply, pp 213–223.
The history of injury recorded by Dr Bisht was that for a period of 18 months the respondent was:
(a)    feeling stressed at work and concerned about losing his job;
(b)    harassed by his supervisor and the operations manager;
(c)    transferred to a different department without being able to explain to other workers the reason for the transfer, and
(d)    subjected to inappropriate disciplinary actions during 2020, including receiving an allegation in November 2020 that he had spoken poorly about a manager.
Dr Bisht recorded that the respondent had disclosed to the operations manager that the newly appointed supervisor was involved in illegal activities, and the unfair treatment commenced shortly thereafter.
Dr Bisht was of the view that there were no indications that the respondent was exaggerating, or that his history was unreliable or inconsistent. He diagnosed the respondent as suffering from an adjustment disorder with mixed anxious and depressed mood. He took the view that the respondent’s employment was the main contributing factor to his condition because there was no history of other stressors or any pre-existing condition or of substance abuse. Dr Bisht concluded that, based upon the respondent’s description of the stressors and the timeline of worsening symptoms, the respondent’s “current psychological injury was predominantly caused by actions taken, or proposed to be taken, by the [appellant], in 2019 and 2020 with respect to ‘discipline’, ‘performance appraisal’ and ‘transfer’.”[31]
[31] Reply, p 221.

Dr Glen Smith, psychiatrist

The respondent’s legal representatives arranged for the respondent to be medically examined by Dr Glen Smith, consultant forensic psychiatrist. Dr Smith provided a report dated 30 April 2021.[32] Dr Smith provided a list of the material forwarded to him, which he said he had reviewed. Those documents included the clinical notes and reports from the respondent’s treatment providers discussed above, as well as the witness statements made by the respondent, Mr Scott, Ms McMurtrie, Mr Condie, Mr Haffner and Mr Spicer.
[32] ARD, pp 47–67.
Dr Smith recorded a past history of the respondent suffering from anxiety and depression after a breakdown in his marriage in 2009, requiring medication and psychological intervention, and of the respondent accessing two sessions of EAP counselling in about 2015 in relation to work issues.
Dr Smith took a history of the respondent’s application for promotion to roads supervisor and that in early 2019, Mr Newell was appointed to the role. He recorded, however, that the respondent was aware of information that indicated that Mr Newell was not suitable for the position. Dr Smith noted that the respondent spoke with Mr Condie about the matter, but this caused the respondent difficulties because Mr Condie and Mr Newell were friends. Dr Smith further noted that the respondent was transferred to a lesser position, was ridiculed and subject to derogatory comments by Mr Newell and was told that his employment would be terminated if he spoke about another employee. Dr Smith recorded that the respondent began to experience symptoms of anxiety and distress, and was ruminating about the work events, so sought assistance from Ms Felber, the EAP counsellor in February 2019 and took sick leave from mid-2019. Dr Smith noted that the respondent continued to receive adverse treatment and was further distressed when he was asked to change his sickness certificate. Dr Smith recorded that the respondent lodged a public interest disclosure in November 2019 about Mr Newell’s conduct, following which he was transferred to a different department without any explanation. Dr Smith said that the respondent complained of being treated badly by his co-workers, who were suspicious of him, and for 12 months the respondent worked in that department without any assistance or support from the Human Resources department, who had told him he was not to discuss the matter with anyone. Dr Smith noted that the respondent remained anxious and depressed and continued to consult Ms Felber. Dr Smith added that, in November 2020, the respondent received a letter from the appellant in which it was alleged that he had been overheard making comments that he should not have made, but he was given no details of the substance of the complaint. He became emotionally distressed, his psychological condition deteriorated, and his alcohol consumption escalated.
Dr Smith took the history that the respondent had used cannabis, amphetamine and cocaine as a teenager but denied recent substance abuse and last used cannabis about 12 months previously. Dr Smith added that the respondent denied a history of childhood physical, emotional or sexual abuse.
Dr Smith performed a mental state examination and reviewed the documentary information provided to him. He diagnosed the respondent as suffering from a major depressive disorder with anxious distress. He noted the earlier history of psychological symptoms. He added that the respondent described the development of anxiety and depressive symptoms in early 2019 in the context of workplace stressors, including being ridiculed, being addressed by his supervisor in a derogatory manner, and given menial tasks. Dr Smith observed that the respondent sought treatment for those symptoms from early 2019. He noted that the respondent lodged a public interest disclosure in late 2019, following which the respondent was transferred to a different department, where the adverse treatment continued. Dr Smith further noted that the respondent suffered a breakdown following receipt of correspondence alleging that he had made inappropriate comments to co-workers, without explanation of the details of that allegation. Dr Smith said that this caused the respondent to consult his general practitioner, who prescribed antidepressant medication, and to seek psychological intervention.
Dr Smith diagnosed the respondent as initially suffering an adjustment disorder, that deteriorated to a major depressive disorder with anxious distress, which arose as a result of his employment with the appellant and was a disease of gradual process to which the employment was the main contributing factor. Dr Smith considered that the respondent suffered from milder symptoms of anxiety and depression in 2009 and that the current condition should be considered as an aggravation of the pre-existing symptoms. Dr Smith referred to the contrary statements provided but observed that the respondent:
“provided a consistent account of feeling distressed and overwhelmed by the events in the workplace over an extended period of time and not just related to the allegations about the alleged overheard conversation in November 2020.”[33]
[33] ARD, p 65.
Dr Smith provided a further report dated 6 August 2021 in which he addressed the opinion of Dr Bisht, as well as the supplementary statements from Mr Condie, Ms McMurtrie and Mr Scott.[34] He referred to his earlier report and advised that his further opinion should be read in conjunction with his conclusions in that report. He noted the respondent’s history as recorded by Dr Bisht. He further noted Dr Bisht’s conclusion that, based on the respondent’s description and the timeline of worsening symptoms, the respondent suffered from an adjustment disorder which was predominantly caused by the appellant’s actions taken in respect of discipline, performance appraisal and transfer in 2019 and 2020.
[34] AALD dated 16 August 2021, pp 183–188.
Dr Smith also referred to Ms McMurtrie’s statement in which she disputed that the leave taken by the respondent was an attempt by him to seek relief from a toxic and unsafe work environment created by the appellant. Dr Smith said he disagreed with Dr Bisht’s opinion. He observed that the history recorded by Dr Bisht was largely consistent with the history he had taken. Dr Smith said that the respondent suffered significant distress prior to the disciplinary matters that occurred in 2020, for which the respondent sought psychological treatment in early 2019. He added that the respondent had provided a clear history of “feeling ridiculed, spoken about in a derogatory manner and harassed in the workplace.”[35]
[35] AALD dated 16 August 2021, p 187.

THE MEMBER’S REASONS

The Member summarised the medical evidence as well as the lay evidence, including the oral evidence given by the respondent. The Member referred to the submissions of both parties.
The Member noted that it was not disputed that the respondent suffered a psychological injury in the course of his employment. She observed that the appellant relied upon s 11A of the 1987 Act as a defence to the claim, in particular that the injury was wholly or predominantly caused by its reasonable actions in respect of transfer, discipline and/or performance appraisal. She noted that the onus of proof rested on the appellant.
The Member said that for the purpose of s 11A, firstly the injury must be wholly or predominantly caused by those actions and secondly, if those actions were the cause of the injury, the appellant’s actions must be reasonable. The Member referred to Hamad v Q Catering Limited[36] and the requirement for medical evidence to address the question of causation. The Member remarked that, in accordance with St George Leagues Club Ltd v Wretowska,[37] an injury can have multiple causes. The Member further referred to State Transit Authority of NSW v Fritzi Chemler[38] as authority to say that a perception about real events can be sufficient to establish an injury.
[36] [2017] NSWWCCPD 6 (Hamad).
[37] [2013] NSWWCCPD 64.
[38] [2007] NSWCA 249.
The Member observed that the respondent’s evidence was that, prior to Mr Newell being appointed as the roads supervisor and before the respondent complained to Mr Condie about Mr Newell, the respondent was performing well as a team leader. The Member noted that although Mr Condie said he arranged the meeting in March 2019 to address performance issues that had been occurring for some time, it was only after the respondent made the complaint that Mr Condie raised a number of areas in which the respondent was required to improve, the respondent underwent an unfavourable performance review and was then placed on a performance improvement program. The Member said that despite Mr Condie denying that the respondent was targeted or punished or subjected to disciplinary action, the respondent consistently reported that, following the complaint about Mr Newell, he was poorly treated and his psychological health deteriorated.
The Member noted that Mr Connell had worked for the appellant for 11 years and noticed a significant change in the manner the respondent was treated after the respondent spoke with Mr Condie about Mr Newell, the adverse treatment escalated, following which the respondent’s psychological health deteriorated. The Member also referred to the evidence of Mr Menser, who said that the respondent complained to him in late March 2019 that he was being targeted. She noted that Mr Menser had also said that he was surprised that the respondent was having performance issues.
The Member said that it was clear that the respondent raised concerns about Mr Newell’s conduct at the meeting with Ms McMurtrie and Ms Roose on 6 June 2019. She added that it was relevant that Ms Felber had noted on the day prior to the meeting that the respondent was suffering from anxiety because of bullying and harassment at work and had been issued with three improvement notices over the past few months. The Member said that the evidence was unclear as to whether the respondent had in fact been issued with three such notices but that the appellant’s “timeline” indicated that, following the appointment of Mr Newell, the respondent had been required to attend:
(a)    a performance meeting with Mr Condie on 29 March 2019;
(b)    a performance discussion with Mr Condie and Mr Newell on 14 May 2019, and
(c)    a performance review on 29 May 2019 with Mr Condie and Mr Newell in which he was rated as “not meeting expectations.”

The Member observed that it was also apparent from the notes of the meeting on 6 June 2019 with Ms McMurtrie and Ms Roose that the respondent felt pressured, was nervous, anxious and frightened about working under Mr Newell’s supervision, and wished to be transferred.
The Member concluded that she was satisfied that the respondent gave a consistent history to his treating doctors and to Ms McMurtrie and Ms Roose of a deterioration in his psychological health after Mr Newell became his supervisor in early 2019. The Member referred to the history noted in the clinical notes of Dr Wa recorded on 28 November 2020 and 1 December 2020 and that of Ms Wynyard on 11 January 2021.
The Member formed the view that the respondent also provided a consistent history of his injury to both independent medico-legal experts, Dr Bisht and Dr Smith. She noted that Dr Bisht was of the opinion that the respondent’s injury was wholly or predominantly caused by actions taken or proposed to be taken by the appellant in respect of performance appraisal, discipline and/or transfer. She further noted that, on the other hand, Dr Smith was of the view that the respondent’s injury manifested in early 2019 in circumstances where the respondent felt “ridiculed, spoken about in a derogatory manner and harassed in the workplace.” The Member concluded that she preferred Dr Smith’s opinion because he had considered Dr Bisht’s opinion and provided reasons as to why he held a contrary view. Whereas, Dr Bisht had not commented on Dr Smith’s opinion.
The Member referred to the appellant’s submission in relation to the respondent’s failure to disclose his past history of psychological problems to both Dr Smith and Dr Bisht. The Member said that she had had the opportunity to hear the respondent’s oral evidence and observed that Dr Bisht had concluded that the respondent suffered an aggravation of a pre-existing psychological condition and thus, the failure to disclose the pre-existing mental health issues, which appeared to be historical, familial and personal in nature did not affect the probity of the evidence from those experts.
The Member took into account that, throughout 2019 and up to early 2021, the respondent consulted Ms Felber, who also provided the opinion that the respondent’s psychological injury resulted from the manner in which the respondent was treated by the appellant since March 2019. The Member considered that that treatment included the perceived bullying conduct of Mr Newell as roads supervisor.
The Member concluded that:
“Following review of the evidence as a whole and consideration of counsels’ submissions I do not accept the psychological injury sustained by [the respondent] was either ‘wholly’ or ‘predominantly’ caused by actions taken by or proposed to be taken by or on behalf of [the appellant] with respect to transfer, performance appraisal and/or … discipline, but rather it was sustained by [the appellant’s] management behaviour towards him after Mr Newell achieved the role of [roads supervisor] and [the respondent’s] discussion with Mr Condie about Mr Newell’s suitability for the role.”[39]
[39] Cheers v MidCoast Council [2021] NSWPIC 447 (reasons), [131].

The Member confirmed that she had determined that the respondent’s psychological injury was not wholly or predominantly caused by reasonable action taken on behalf of the appellant in respect of transfer, performance appraisal and/or discipline. The Member then proceeded to assess whether the actions with respect to transfer, performance appraisal and/or discipline taken by the appellant were reasonable, in the event that the injury was caused wholly or predominantly by the actions.
The Certificate of Determination issued on 9 November 2021 records:
“The Commission determines:
1.     By consent the Application to Resolve a Dispute is amended to claim medical or related treatment on a general order basis.
2.     The [respondent’s] psychological injury was not wholly or predominantly caused by reasonable action taken by the [appellant] with respect to transfer, performance appraisal and/or discipline.
3.     The [respondent] has had no current capacity for work since 1 December 2020 due to psychological injury.
4. The [appellant] is to pay weekly benefits to the [respondent] from 1 December 2020 to 2 March 2021 under s 36 of the Workers Compensation Act 1987 at the rate of $1,113.80.
5. The [appellant] is to pay weekly benefits to the [respondent] from 3 March 2021 to date and continuing under s 37 of the Workers Compensation Act 1987 at the rate of $937.94 (as adjusted).
6. The [respondent] requires medical or related treatment as result of the psychological injury he has sustained. The [appellant] is to pay the [respondent’s] medical or related treatment in accordance with s 60 of the Workers Compensation Act 1987.”

GROUNDS OF APPEAL

The appellant brings four grounds of appeal, expressed as follows:
(a)    Ground One: The Member erred in law, or committed jurisdictional error or a constructive failure to exercise jurisdiction, by merely reciting parts of the evidence and failing to make material findings of fact and resolve factual conflicts based on the evidence before her;
(b)    Ground Two: The Member failed to provide an adequate statement of reasons, thus failing to comply with r 78 of the 2021 Rules;
(c)    Ground Three: The Member erred in law by failing to engage or grapple with the competing cases presented by both parties in their submissions, and
(d)    Ground Four: The Member erred in finding that the respondent’s psychological injury was not wholly or predominantly caused by reasonable action with respect to the s 11A factors advanced at first instance.

LEGISLATION

Section 11A(1) of the 1987 Act relevantly provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(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.”
Rule 78 of the 2021 Rules provides:
“78    Statement of reasons for decision
(1)     This rule applies only in relation to the following applicable proceedings—
(a) Commission proceedings,
(b) merit review proceedings.
(2)     A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3)     Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

SUBMISSIONS

The first ground of appeal centres upon allegations of error on the part of the Member in respect of the factual contest between the parties relevant to the question of whether the appellant’s actions in relation to performance appraisal, discipline and transfer were reasonable. It is not clear why the appellant presented this as the first ground of appeal, when the first step to be undertaken in matters concerning s 11A of the 1987 Act, where psychological injury is admitted, is to determine the question of what was the whole, or predominant, cause of the injury.
The second ground of appeal alleges that the Member erred by failing to provide adequate reasons for her conclusions and thus failing to comply with r 78 of the 2021 Rules. The fourth ground of appeal asserts error on the part of the Member in finding that the respondent’s psychological injury was not wholly or predominantly caused by the appellant’s actions that fell within the areas of discipline, transfer and/or performance appraisal. Those two assertions of error encompass the Member’s deliberations and her conclusion in respect of the whole or predominant cause of the injury. It is thus more appropriate, therefore, to firstly consider the appellant’s second and fourth grounds of appeal.

Ground Two

The appellant’s submissions

The appellant submits that r 78 requires the Member to make findings on material questions of fact on the basis of the evidence or other material before her, her understanding of the applicable law and the reasoning process that led to her conclusion. The appellant says that the reasons are required to sufficiently expose the Member’s view in relation to each party’s case so that the party can understand why their case has been either accepted or rejected. The appellant contends that the Member’s reasons fail to meet that obligation, which constitutes an error of law.
The appellant asserts that the Member has a duty to disclose the steps taken in reaching the conclusions expressed and should not leave the party to speculate why the Member came to those conclusions. The appellant submits that a failure to satisfy those requirements can lead an appellate decision-maker to infer that the Member either overlooked the evidence or failed to give it consideration.
The appellant refers to the evidence that the respondent failed to disclose a true history of his past psychological health and drug use and the concessions the respondent made in oral evidence about that history. The appellant submits that the Member was required to determine whether that evidence, in the context of the respondent’s former denial of such a history, affected the respondent’s credibility and was relevant to whether the respondent’s evidence was reliable. The appellant says that the Member’s reasons were limited to expressing the view that she disagreed that the failure by the respondent to disclose a full history was a matter of concern because the prior mental health issues related to familial circumstances, were historical in nature and were personal to the respondent. The appellant contends that there was no medical evidence to support that view and the Member failed to properly deal with those inconsistencies. The appellant says that it was entitled to a full explanation of the path of reasoning and submits that, in this case, the Member’s reasons were inadequate and resulted in a miscarriage of her obligations.
The appellant contends that, in accordance with the relevant authorities, the error is of the type that requires appellate intervention. The appellant adds that the Member was duty bound to provide reasons why, when the respondent’s credit was in issue, she accepted the respondent’s evidence over that of the appellant. The appellant points to the various alleged inconsistencies about when the respondent disclosed the issue of Mr Newell’s conduct and whether the transfer to Parks and Gardens was made without consultation. The appellant also points to its submission that the evidence from Mr Connell and Mr Menser ought to be afforded little or no weight.
The appellant submits that the Member either failed to make material findings of fact, or, if she made those findings, failed to provide adequate reasons as to how she resolved the conflict in the evidence.

The respondent’s submissions

The respondent submits that the appellant’s assertion that the Member failed to give adequate reasons is without substance. The respondent says that the Member set out the evidence pertinent to the issues requiring determination and provided an explanation in support of her finding that the respondent’s injury was attributable to events since March 2019, which included the respondent’s perception of bullying treatment by Mr Newell. The respondent submits that the evidentiary basis for the respondent’s case was obvious, as it was for the Member’s determination. The respondent contends that the appellant cannot plausibly assert that the Member has failed to explain her findings and the appellant would not be surprised about those findings.

The appellant’s submissions in reply

The appellant asserts that the respondent’s submissions do not respond to the submissions made on appeal and do not mention the application of the principles and the law pertaining to the Member’s obligations to give reasons. The appellant contends that it must be accepted that the respondent’s submissions absolutely fail to challenge the appellant’s submissions in respect of this ground of appeal and the complaint that the Member failed to apply the applicable principles in arriving at her conclusions. The appellant says that it is not sufficient for the respondent to simply assert that the appellant cannot suggest that the Member failed to explain her findings. The appellant says that the respondent is required to point out why the Member did not commit error. The appellant maintains that the substance of the respondent’s submissions indicates that this ground of appeal is unchallenged.

Ground Four

The appellant’s submissions

The appellant asserts that there was substantial evidence that the respondent was not a witness of truth in respect of the critical parts of the history of his mental illness. The appellant says that, in particular, it was evident from the cross-examination of the respondent that he had not been truthful about that history to Dr Smith. The appellant submits that the Member ought to have rejected the respondent’s evidence where it was not objectively corroborated. The appellant contends that Dr Smith’s consideration of Dr Bisht’s opinion does not elevate Dr Smith’s opinion to the level of one which is based upon a reliable history. The appellant says that the temporal connection with the disciplinary action cannot be ignored.
The appellant queries why it was necessary for the Member to consider ‘perception’ as a factor, in circumstances where the psychological injury was admitted. The appellant submits that its case was that the injury was caused by the actions that fell within s 11A of the 1987 Act. The appellant asserts that Dr Bisht took into account the extensive material provided to him and gave reasons for his conclusion.
The appellant submits that, taking into account the respondent’s “complete lack of credibility” and that at the time the events occurred the respondent was experiencing personal problems which could be sufficiently causative of injury, the Member ought to have afforded the opinion of Dr Smith little or no weight. The appellant says that, had the Member based her conclusion on the evidence, the respondent’s “absolute denial” of prior psychological illness meant that Dr Smith’s opinion could not be accepted.
The appellant submits that, on that basis, the Member should have preferred the opinion of Dr Bisht. The appellant contends that on the basis of Dr Bisht’s evidence and the evidence of the appellant’s witnesses, as well as the temporal connection, the dominant feature causing injury was the actions taken by the appellant in respect of performance appraisal, discipline and transfer. The appellant asserts that the Member’s finding should have been that the whole or predominant cause of the respondent’s injury was the appellant’s actions in respect of those matters.

The respondent’s submissions

The respondent points out that the Member’s conclusion was that his psychological injury was attributable to the way he was treated by the appellant since March 2019, including the bullying behaviours of Mr Newell in his supervisory role. The respondent says that the finding was supported by the opinion of the respondent’s treating psychologist. The respondent submits that the absence of evidence from Mr Newell constituted a material weakness in the appellant’s case. The respondent asserts that the defence under s 11A of the 1987 Act is incompatible with the evidence of the onset and cause of the respondent’s psychological condition in March 2019.

The appellant’s submissions in reply

The appellant submits that presumably, the issue of the respondent’s credibility was entirely rejected by the Member. The appellant asserts that the respondent has failed to address the credibility issue and the respondent makes no submission about the conflict in the medical opinions.

Consideration of Grounds Two and Four

The appellant’s case as presented in oral submissions made to the Member in relation to the whole or predominant cause of the injury, was that:
(a)    the history of the respondent’s prior psychological issues was more significant than that reported by the respondent in his statement evidence and to the forensic medical experts;
(b)    the failure of the respondent to disclose that full history impacted the respondent’s credibility in respect of what actually occurred in the workplace;
(c)    given the extensive nature of the respondent’s prior history, which was not disclosed to either of the forensic medical experts, the opinion of Dr Smith as to causation should be rejected, and
(d)    it was the respondent who requested a transfer.[40]
[40] T 48.19–57.10; T 92.21–97.10.
In its reply to the respondent’s written submissions, the appellant further submitted that:
(a) the respondent did not disclose the details of Mr Newell’s conduct to Mr Condie until well after March 2019, which affected the evidence of the respondent that he was targeted from March 2019 in respect of such a disclosure, and
(b) the evidence of Mr Connell, Mr Menser and Mr Martin should be treated with caution and afforded no or little weight because of their positions as advocates, and/or because of the hearsay nature of their evidence.[41]
[41] Appellant’s submissions in reply dated 5 October 2021.

The Member’s reasons for determination in respect of the issue of the whole or predominant cause of the respondent’s injury were set out at [120]–[133] of her reasons. Those reasons are summarised by me at [98]–[108].
The Member took into account that:
(a)    prior to Mr Newell being appointed and the respondent’s complaint about him, the respondent was working well as a team leader;
(b)    it was only after the respondent complained to Mr Condie about Mr Newell that the performance issues were raised;
(c)    although Mr Condie denied that the respondent was being targeted or punished, the respondent consistently reported that after he made the complaint, he was poorly treated and suffered a deterioration in his psychological health;
(d)    Mr Menser stated that the respondent complained to him in March 2019 that he was being targeted and that he was surprised that the respondent was having performance issues;
(e)    it was clear that the respondent raised concerns about Mr Newell’s conduct in the meeting with Ms McMurtrie and Ms Roose on 6 June 2019, showed symptoms of anxiety and nervousness, and expressed a wish to be transferred;
(f)    the respondent had complained to Ms Felber on 5 June 2019 of anxiety because of bullying and harassment at work;
(g)    the history provided to Dr Smith, Dr Bisht, the respondent’s treatment providers and Ms McMurtrie was consistent, and
(h)    throughout 2019 and 2021, the respondent consulted Ms Felber, who was of the opinion that the injury resulted from the manner in which he was treated since March 2019.
It is clear from the authorities, including Hamad, that in the context of more than one potentially causative event, whether the events were causative of the psychological injury requires medical evidence. The Member was, therefore, required to determine the weight to be afforded to, and the acceptance or rejection of, medical opinions about causation, before she concluded what was, or was not causative of the injury. The Member accepted the opinion of Dr Smith over that of Dr Bisht because Dr Smith provided reasons as to why he maintained his view after reviewing the opinion of Dr Bisht. The Member referred to the issue of the respondent’s failure to disclose his earlier psychological problems and the effect that had on the probity of the medical opinions. She concluded that, as the past history related to other causes, they appeared to be of no concern in the context of Dr Bisht’s finding that the injury was an aggravation of a pre-existing condition. The appellant, however, submitted to the Member that the respondent’s failure to disclose his psychological history and drug use affected the respondent’s credit, so that the respondent’s factual assertions could only be accepted if they were corroborated by other objective evidence. The Member did not go so far as to address that submission.

The Member concluded that the injury was caused by the appellant’s behaviour towards the respondent after Mr Newell was appointed and the respondent had raised Mr Newell’s conduct with Mr Condie. There was a conflict in the factual evidence as to whether the respondent did disclose Mr Newell’s alleged illegal activities to Mr Condie prior to the appellant initiating performance management practices and before the respondent lodged a public interest declaration in October or November 2019. The appellant’s case was that while the respondent mentioned that he knew matters about Mr Newell, there was nothing concrete disclosed by the respondent in the meeting in March 2019, or in May 2019. In the appellant’s case, the first performance management meeting took place in March 2019, which the appellant maintained was well before the respondent raised issues with Mr Condie, or anyone else, about Mr Newell’s activities. The Member did not deal with the apparent conflict in the evidence as to whether the relevant actions took place before or after the respondent complained of Mr Newell’s conduct, before reaching her conclusion that the performance issues were not raised until after the respondent complained to Mr Condie about Mr Newell.
The reasoning by the Member that the respondent consistently reported that after he made the complaint, he was poorly treated and suffered a deterioration in his psychological health again relies upon the question of when the respondent did in fact complain about Mr Newell’s conduct. In addition, the reasoning relies upon the assumption that the respondent was being poorly treated, when the appellant’s case was that it was fairly dealing with performance issues and those actions had nothing to do with the respondent informing on Mr Newell. The Member found consistency in the evidence from Mr Menser and Mr Connell and the history recorded by Ms Felber. She did not, however, weigh the respondent’s evidence against that presented by the appellant in order to determine whether the facts asserted by the respondent were made out and the respondent’s evidence was sufficient to be accepted.
The Member also did not address the appellant’s assertion that the evidence of Mr Connell, Mr Menser and Mr Martin should be afforded little or no weight. The Member explicitly accepted the evidence of Mr Menser and that of Mr Connell without assessing the probative value of that evidence. It follows that the Member, in accepting that evidence on its face without considering the appellant’s argument, erred by overlooking a material submission made by the appellant.
As Kirby J observed in Dranichnikov v Minister for Immigration & Multicultural Affairs:[42]
“... in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.
Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction.”
[42] [2003] HCA 26 (Dranichnikov), [87]–[88].
The Member’s conclusion will constitute legal error if it amounts to a failure to deal with the appellant’s case on the evidence.[43] However, it was not necessary for me to be satisfied that an error of law is exposed because s 352(5) of the 1998 Act is engaged if I am satisfied that an error of fact, law or discretion had occurred. The Member either misunderstood the appellant’s case, or simply failed to address its submissions in relation to:
(a)    the credibility of the respondent’s evidence;
(b)    the lack of probative value of the evidence of Mr Menser and Mr Connell, and
(c)    the appellant’s allegation that the respondent did not disclose Mr Newell’s conduct to Mr Condie until well after the performance issues were raised.
[43] Dranichnikov.
The Member did not expose her reasoning for concluding that the appellant’s management behaviour towards the respondent commenced after the discussion with Mr Condie about Mr Newell’s unsuitability for the role.
The Member arrived at her conclusions without sufficiently engaging with the appellant’s submissions in relation to those matters. Rule 78(2)(c) of the 2021 Rules requires the Member to provide brief reasons, including the reasoning processes that led her to the conclusions made by her. Those omissions on the part of the Member are sufficient to show error on her part in her determination as to the whole or predominant cause of the injury and such error is of the kind of error required by s 352(5) of the 1998 Act.
Having established error on the basis of Grounds Two and Four of the appeal, it is thus not necessary to consider the remaining grounds of appeal.
The Member’s Certificate of Determination is therefore revoked, and the matter is remitted to a different Member for re-determination.

DECISION

The time for the respondent to file its Notice of Opposition to Appeal Against Decision of a Member is extended to 18 January 2022.
The Member’s Certificate of Determination dated 9 November 2021 is revoked.
The matter is remitted to another non-presidential member for re-determination.

Elizabeth Wood
DEPUTY PRESIDENT

5 July 2022