Mieth v Sydney Trains

[2021] NSWPIC 354

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mieth v Sydney Trains [2021] NSWPIC 354
APPLICANT:	Aaron Mieth
RESPONDENT:	Sydney Trains
MEMBER:	Deborah Moore
DATE OF DECISION:	16 September 2021
CATCHWORDS:	WORKERS COMPENSATION -  Applicant claimed as a result of behaviour “broadly classified as bullying, harassment, intimidation and interpersonal conflict with his manager” he suffered an aggravation of a pre-existing psychological injury; no evidence such bullying or harassment occurred; substantial evidence from the respondent in support of this conclusion; misperception of events is a manifestation of his underlying and pre-existing psychological condition; State Transit Authority of New South Wales v Fritzi Chemler, Townsend v Commissioner of Police  and Yeo v Western Sydney Area Health Service all considered; Held - award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Aaron Mieth, was employed by the respondent, Sydney Trains, as a customer service attendant.

2. He claimed that as a result of behaviour “broadly classified as bullying, harassment, intimidation and interpersonal conflict with his manager, Ms Finegan” he suffered an aggravation of a pre-existing psychological injury with a deemed date of injury of 11 June 2020 subsequently amended to 8 May 2020.

1. By an Application to Resolve a Dispute (the Application) registered in the Commission on 14 May 2021 he sought weekly benefits from 8 May 2020 to 18 January 2021 and s 60 expenses.

1. Liability was declined by the respondent (a self-insurer) in a s 78 Notice dated 23 July 2020 on the basis that the applicant had not sustained a psychological injury arising out of or in the course of his employment with the respondent and that any psychological condition was a manifestation of a pre-existing psychological condition.

1. The parties attended an arbitration hearing on both 5 and 25 August 2021.

ISSUES FOR DETERMINATION

1. The principal issue in dispute was whether the applicant sustained an injury within the meaning of s 4(b)ii of the Workers Compensation Act1987 (the 1987 Act) and incapacity.

PROCEDURE BEFORE THE COMMISSION

1. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

(a)     Applicationand attached documents;

(b)    Reply and attached documents;

(c)    Application to Admit Late Documents filed by the applicant on 2 August 2021;

(d)    Application to Admit Late Documents filed by the respondent on 2 August 2021, and

(e)    Application to Admit Late Documents filed by the respondent on 10 August 2021.

THE EVIDENCE DISCUSSED

The applicant's case

The applicant’s statements

1. In his initial statement dated 23 June 2020 Mr Mieth said:
   
   

   “I have been employed by Sydney Trains since 2012.

   Prior to commencing with the employer I was not diagnosed with anxiety or depression or any other psychological illness.

   I am located at Meadowbank, Beecroft and Normanhurst Stations on full time hours.

   We work on one-man stations and report to duty managers and the customer area manager.

   My claim relates to incidents of bullying and harassment, pressure to do unsafe things/tasks, and being made to feel I could not be part of the union by my customer area manager Christina Finegan.

   There are a number of incidents that have led to my psychological condition.

   The first incident occurred before I became union delegate. The incident related to me acting up at a higher grade, when I acted as a duty manager at Eastwood. This conversation I had with rostering was over the phone and occurred in around late June/July 2018. I was contacted by the rostering department to do an extension to my shift as they had no one to cover the management position at Eastwood. I asked was I allowed to do that as it was a safe working station (I did not have safe working and wasn't a duty manager). They said they could approve it but needed to get approval from My Customer Area Manager, Christina Finegan, first. Rostering rang Christina and then rang me back and said she has given approval. I then did the extension for 4 hours at Eastwood and completed my shift.

   I checked my pay two weeks later as under our Enterprise agreement I was entitled to a higher rate of pay when acting up…

   I then rang the union and spoke to the secretary about it. That was Terry Johnson. I think he then emailed Christina and there are emails back and forth with them…

   She said in an aggressive tone that she wished I had come to her instead of the union…

   She then said ‘anyway, what is it, it's only a couple of hundred dollars’ in a dismissive fashion. I was thinking that was illegal and she can't do that. This made me really uncomfortable, and that I should not have raised the pay issue with the Union.

   I called the Union Secretary and told him what Christina had said to me…

   I was eventually paid the correct rate.

   After that happened, I felt my relationship with Christina was strained, and it felt like the beginning of a declining relationship…

   There was another incident when I took the reducing time role at Beecroft. This was late 2018 and then throughout 2019. This issue related to issues around being required to help a vision impaired man with the expectation to leave the station with him. He would go to church on a Saturday or Sunday and the staff, including me, whoever was working the shift at the time, were asked to help him off the train, then off the Station and then escort him to a church at Beecroft. He would ring the station and request assistance to get off the station, and to walk to the church as he was vision impaired. This could take up half an hour due to his walking pace and the distance to the church. When I asked the duty managers at Epping if we were protected from getting into trouble when leaving the station unattended to assist him to the church, they would respond with ‘That's what Christina wants’.

   I was concerned about the ramifications for myself and the other CSAs of leaving the station unattended. I spoke to a former duty manager at Epping, Matthew Austin, about my concerns about this and his words were 'play the game' and ‘if anything happens I’ll back you’. Matthew had always helped me in the past as a duty manager, so I believed he was sincere at the time. I was mindful, however, that Matthew' s support may not have been enough to prevent adverse action against me. I also asked the other duty managers at Epping if we were protected to leave the station unattended and the response I would get was ‘that's what Christina wants’. They also wanted the male staff to do this and assist this customer as he had been known to inappropriately touch the female staff.

   The managers would never give us a straight answer. The offer to help this man ended up stopping at Beecroft.

   Then the same person started to come to Meadowbank Station as he wanted to go to Meadowbank TAFE. He then wanted us to walk up to the TAFE with him.

   He seemed very annoyed that others he had dealt with as well as I would not leave the station unattended to personally escort him to wherever he wanted to go. Christina would give those directions to the duty managers at Epping and we, as CSAs, were expected to follow it even though in doing so it was putting our employment at risk. In the past the duty managers would say that is what Christina wants. It was always verbal, and I did not feel protected by that response from middle management…

   I have been seeing my psychologist on and off for two years. That is Mary Ticinovic who is at different clinics…I was seeing her for anxiety issues relating to general health for about two years. I would rather not go into details about those issues. I was dealing with some personal issues and also some work-related things. I was not taking any medication for the non-work-related anxiety issues.

   I would have mentioned the work-related issues a few times on and off. When I started seeing her was for non-work-related stuff she was also helping me with the work issues too later on.

   In mid-2019, there was another issue relating to a car that was abandoned in a car park near Meadowbank Station but the car park is two streets away from the station. I was trying to get some information and guidance about whether the car park was our employers and what was the procedure to inspect it and leave the station, as I had to leave the station, cross two streets, where there is no pedestrian crossing, then go into the car park… For months I kept repeatedly asking Christina, without response. I asked the duty managers as well and they kept fobbing me off and saying they would get back to me or to speak to Christina. The interactions were mostly verbal however I was starting to get emails…These station emails were sent numerous times over the months… Under the constant stress of these emails I then asked Christina by email directly about this issue…

   She told me to call the Customer operations and tell them I was leaving the station in her words ‘Tell them you will be off station.’ There was no clear instruction in writing and no answer about being protected from any adverse action if I or other CSAs left the station…

   There was another incident in December 2019. We had a staff Christmas Party at Hornsby RSL with the CSA's and the duty managers and Customer Area Managers. There were around 40-50 people. Prior to that there had been complaints by the staff to me as there [sic] union delegate that they had not had their rosters released and had been placed as spare. I was elected as the Union delegate 18 months ago by the other CSAs in my area. There are not supposed to be spare rosters. We do have a section in our Enterprise Agreement which states Standby, not ‘spare.’ The staff had come to me as the union delegate and advised that they had gone to management and were not getting anywhere…

   It went to a dispute level 3... It seemed they were unwilling to address genuine staff concerns, which I was at the forefront of as the Union Delegate. In the context of this ongoing dispute, I felt very awkward on attendance at the Christmas Party. I felt that management were going to target me, and the party made it difficult to avoid them. I went straight to the other staff, so Christina would not catch me in a conversation and make another comment about my involvement with the Union.

   I was talking to some of the staff and catching up. I turned around there was Christina. Before I could react she went to shake my hand and she stood in very close to me… I felt very uncomfortable and humiliated. I tried to talk and to put on a brave face then made an excuse to go be able to get away from her. I believe it was a deliberate tactic and she had done this to put me on show and made a real point of doing that in front of everyone...

   My confidence was down and I felt humiliated by her behaviour as she used her position of power and gender. I continued to see my psychologist and told her about that incident…

   I was dealing with the non-work-related anxiety and was coping well with that as my psychologist stated and then all of Christina's actions towards me became too much. Her actions exacerbated my psychological condition, and made my symptoms unmanageable. My psychologist even wrote I was managing the anxiety well before these work events happened.

   On 23 March 2020, a CSA came into work sick and had flu like symptoms. This was during the COVID-19 Pandemic… I asked had she been tested for COVID and she said no. I said look you need to call the manager about that and let them know you are sick and I will call them as well. My shift finished at 2pm so I went home. I waited an hour or so to allow that person to call Christina. I then rang Christina and told her about what I have just mentioned… She went quiet. I said she could infect passengers and other staff and I could be infected. She still said nothing. I said we're in a unprecented [sic] global pandemic… Her response suggested that she did not care about the about the or the safety of our team, customers and the government regulations… I asked if she was ok with me returning to work tomorrow or should I go visit my gp. She then snapped at me and said ‘Well why wouldn't I be?’ I then politely ended the phone call.

   I then got advice from the Union Organiser. They said to get it in writing from her immediately…

   Three days after that the union secretary, Terry Johnson, rang me and told me that…there has been a complaint from Christina verbally saying that I intimidated women. That flawed [sic] me as I have never had a complaint in my 7 plus year career with Sydney trains. I said I don't get complaints, I get compliments…

   Then a couple of weeks after, Esna Bhatti a part time CSA came into work for the afternoon shift and made the comment that she likes the way I help the staff and didn't find me intimidating at all. I do not know how Esna came to learn of the complaint made against me. I then learned Christina had been asking female staff if they found me intimidating. It seemed she was fishing for some complaint against me, to get back at me for the recent conflicts and complaints I had made against her. I was extremely upset to be accused of intimidating women.

   I was then very cautious in my interactions with my colleagues, especially women…

   I was getting major anxiety and was not able to think clearly, worrying about interactions with women and female staff. I was so stressed out at work about every conversation and it just broke me…

   I made the emergency appointment with my psychologist on 8 May 2020…

   I went to see Dr Kevin Leung on around 8 May 2020. He gave me a workover certificate….

   I said I don't want to take any medication as there are possible ramifications at work. I am already terrified as my manager Christina is trying to get rid of me and I didn't want to take any medication and risk a drug test or some other complication from that.

   In relation to my pre-existing anxiety the diagnosis is anxiety, no depression. I am not willing to talk about details relating to the non-work-related anxiety.

   There is another incident I would like to add which occurred in around mid to late April 2020. Christina rang the Beecroft station and I was trying to get a directive from her earlier about which track work signs we were supposed to ger rid of. She would only say to cut up signs with certain numbers on them but not how many of each and which routes to keep for trackwork closedowns, leaving it up to me figure it out. She would often do this as to not give any directives in writing, confusing myself and other staff…

   I was wondering why was she asking me to help her about something to do with an intimidation claim against someone, as I didn't know who it was and I didn't know what she was talking about. She was then threatening me… I think that is called coercion.

   There are supposed to be policies which protect us from this type of behaviour. We have an EBA and there is also the Sydney Trains code of conduct and other relevant policies.

   I cannot attribute the aggravation of my psychological injury, and my incapacity for work to anything other than the above incidents, and the behaviour of Christina.”

2. In a supplementary statement dated 20 August 2020 Mr Mieth challenged aspects of a statement from Ms Finegan contained in a factual report dated 1 July 2020 to which I will refer later. Many of his comments were a repeat of his earlier statement but he did add:
   
   

   “Ms Finegan indicates that she did encourage me to attend the Christmas party. She recalls that I was a bit hesitant…

   When I entered the party Mr Willis and Ms Finegan both looked at me and made a strange face to each other. They then started talking quite closely to each other, giving me the impression they were talking about me. Given that I had recently lodged a dispute regarding rostering, I assumed that they were talking about that issue.

   While Ms Finegan states that there was no ill intent in any of her actions, this was not my perception of her behaviour. Given our past conflicts, I interpreted her behaviour as intentional.”

3. In a final statement dated 2 August 2021, he said:

   “I was offered the CSA PFT position which became vacant at Moss Vale Station on 5 May 2020.

   I was certified totally unfit for my employment with Sydney Trains from 8 May 2020.

   I accepted the offer from NSW Trains on 9 May 2020.

   At the time I accepted the new position, I was hopeful that I would be able to return to work, and that moving to a work environment where I was away from my antagonist would be suitable to me. I did not want to lose the offer and decided to respond as soon as possible. I knew that I could subsequently reject the offer, if it turns out that I was still unable to work.

   On 15 May 2020 I was contacted by email by NSW Trains to confirm whether I could start the new position on 5 July 2020.

   I did not respond to that email. I was ignoring them, as I did not feel well enough to return to work, and wasn’t sure whether I would also be fit to return to work by 5 July 2020. I needed more time to think.

   A follow-up email was sent to me on 20 May 2020, which I also ignored.

   I took the time to think about it deeply and discuss with my Psychologist whether I was ready to go back. I did not feel confident going back any work environment, even though I would have been removed from seeing my antagonist. I responded on 28 May 2020, and declined the transfer to Moss Vale…

   I was eventually able to return to work with Sydney Trains, and subsequently finalised my employment with them.

   I maintain that I was unfit for work from 8 May 2020, despite the above steps taken in relation to NSW Trains.”

4. The Application contains numerous emails between the applicant and various other parties which I do not propose to repeat in detail here.

5. In summary, there were emails between the applicant and Ms Finegan regarding the “abandoned car” none of which revealed any critical comments. An email from Ms Finegan to the applicant on1 April 2020 said:
   
   

   “Aaron - in line with all the information we are receiving from NSW Health and the Government information I shared with you all today, there is no need to visit a Dr unless you develop symptoms. Donna assured me that she just has a cold - no other symptoms and she has not had any close contact with anyone currently diagnosed with COVID-19. Please attend work as rostered and if your health status deteriorates let's talk about it again then.

   With thanks

   Christina”

6. Some emails confirm the applicant’s assertion that he received “positive feedback” both from Ms Finegan and one from a customer.

1. In his claim form dated 24 July 2020 when asked about “Incident and worker’s injury details” the applicant said “Not applicable to single task injury.” When asked: ”What happened and how were you injured” he said: “By manager. See attached report of psychologist Mary Ticinovic dated 19/05/20.” When asked “What is your injury/condition” Mr Mieth said: “Exacerbation of my pre-existing psychological injury.”

2. Mr Mieth gave no details of where he was working at the time or other information relevant to his claim. He said that he was unable to return to work due to “injury and ongoing symptoms.” He confirmed that Dr Leung was his NTD and that he gave the claim form and certificate from Dr Leung to his employer on 11 June 2020.

The applicant’s medical and other evidence

1. To put Mr Meith’s statements into context, he attended on Dr Leung on 8 May 2020. Dr Leung provided a non-workcover certificate which stated:
   
   

   “THIS IS TO CERTIFY THAT

   Mr Aaron Mieth had to come for an emergency consultation regarding a health issue and was thus unable to attend work on 08/05/2020.”

1. In her report dated 19 May 2020 Ms Ticinovic said:
   
   

   “I have known Mr Aaron Meith for over two years (seeing him off and on throughout this time), in my role as a Clinical Psychologist helping him with his anxiety. He has made improvements and up until early this year he has been managing his anxiety well and was being seen only on a monthly basis. He had called me Friday evening on 08/05/2020 sounding distressed and not coherent in his thoughts, outlining the stress he was undergoing with a manager at work. He requested an emergency appointment, due to this work stress. He attended on Monday 11/05/2020, and was observably, highly distressed, teary, shaking, and reporting experiencing high anxiety, severe back pain, feeling like he is in trouble, low mood, thinking about work constantly, having overwhelming negative thoughts to the point of being completely consumed and not being able to focus his attention…

   He attended another appointment on 16/05/2020.

   I outline below the incidents in question that Mr Meith says trigger his anxiety:

   He reported that approximately, 18 months when he became union delegate he had experienced more bullying, and intimidation from his manager. For example, he reported that at the work Christmas party last year, he arrived and saw his manager talking to another manager, who Mr Meith (as union delegate) had put in a dispute about due to a member’s concerns over a rostering issue. Afterwards he described his own manager as suddenly approaching him, standing over him and had used a dominate hand shake, which forced him to take a step back. He said this made him feel humiliated in front of his colleagues. He believed this was a way to show control and threat to him for placing a dispute on in another manager’s area.

   Another incident was, on 23/03/2020, feeling intimated by his manager, when Mr Meith had questioned procedures over a staff member coming to work with cold/flu like symptoms…

   He outlined in session that he was concerned about following the correct COVID procedures, whereas his manager’s response was described as belittling and he felt that she had a lack of concern for staff safety over her not wanting to have staff use their sick leave (because managers are rewarded for having low staff leave results). He put this conversation in an email to ensure he was following management direction by not seeing his GP…

   Three days later, the union secretary contacted him and advised him that his manager had complained about him being intimidating to woman. He felt this was like a threat or response due to him reporting the COVID incident above…

   Another incident 22/10/2020 [sic] was when Mr Meith queried a direction from his manager about leaving his station unattended (a one person manned station) to inspect a car park (having to cross the road to get there) for possible abandoned vehicles. He queried whether he would be protected from adverse action for leaving a station unattended if there was an incident (e.g., someone falling into the gap)…

   In recent weeks, in general Mr Meith reported that he has noticed less contact from the manager and was not receiving instructions for the day (compared to previously). He says his peers also are not collaborating with him as they were previously. This creating a sense of isolation at work and further deterioration in the relationships with his manager and colleagues at work.

   There are other incidents in addition to these outlined above, however, these are the major instances which trigger his anxiety…”

2. There are numerous reports from Ms Ticinovic commencing on 11 September 2018.

3. Without going into detail, these reports document Mr Meith’s pre-existing psychological problems resulting from various personal reasons, mainly involving family issues, and the extensive treatment for what appear to me to be significant psychological symptoms provided by Ms Ticinovic.

1. Documents produced by the Myhealth Medical Centre Top Ryde (where Dr Leung practises) demonstrate that Mr Meith had significant psychological symptoms much earlier than 2018.

2. For example, an entry on 29 June 2016 where he was referred to another doctor reads:

   “Thank you for seeing Aaron Mieth for an opinion and management. He has concerns about bipolar disorder. His cousins and brothers were diagnosed with bipolar/schizophrenia. He has concerns about ? bipolar disorder (strong family history) and anger issues.”

3. On that date he was admitted into a mental health programme.

1. Dr Bui from the Myhealth Medical Centre referred Mr Mieth to Ms Ticinovic on 30 July 2018. The referral states: “Thank you for seeing Aaron Mieth for an opinion and management of his anger and anxiety under review of MHCP…”

2. On 19 August 2020 Ms Ticinovic wrote to the applicant’s solicitor responding to a number of questions as follows:

   “What was our client’s diagnosis in relation to his pre-existing psychological condition?

   He mainly suffered from anxiety, and some depression. His formal Diagnosis was Mixed Anxiety and Depression.

When was he first diagnosed with that condition?

In early 2017, when I first began seeing him.

What were our client’s symptoms immediately prior to the alleged work aggravation?

Prior to the alleged work aggravation, Mr Meith was coping well. The last appointment in 2019 was on 08/10/2020 [sic[. The first one in 2020 was 31/03/2020 Mr Meith having such a gap in sessions shows he was able to manage on his own and did not need to come and see me earlier. His symptoms and what we were working on immediately prior to the work aggravation was his interpersonal anxiety, that is, anxiety around opening up to people about himself…

When did the aggravation of our client's pre-existing condition start?

There was an obvious and clear change in Mr Meith’s presentation and mental state from the session on the 28th of April (described above) to the next one on 11th May 2020. During the latter appointment, he was clearly distressed… In fact in over two years of knowing him, I have never seen him so acutely distressed. The work situations was definitely causing him anxiety, depression and impacting his mental state, in addition to exacerbating his previous anxiety and depression.

Please provide a history of the alleged work injury provided to you by the Claimant.

I have cut and paste (no changes were made) from my previous report (19/05/2020) as this is when I recorded what he had told me…(see the previous report).

Do you believe that our client's current condition consists of an aggravation, acceleration, exacerbation or deterioration of his pre-existing condition?

Yes…

If so, why do you believe that this is an aggravation, and not a continuation of symptoms arising from his non-work-related factors?

As mentioned above, there was a clear difference between his presentation and the symptoms he was reporting, between 28/04/2020 and 11/05/2020. The only difference in his life, he reported was the stress he was dealing with at work.

Do you believe that his employment with Sydney Trains is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of his pre-existing condition? Please give reasons why.

Yes…The reasons for this have been stated above, but to add, because there was no other stressor in his life. His relationship is going well in fact he was planning to propose to his then girl friend and he was making such obvious clinical gains…

What was our client’s capacity for work from 8 May 2020 to date? Please specify hours and days per week.

In the first twelve weeks from 8/05/2020 his capacity for work was zero. More recently he is improving, his anxiety has settled. He does have flare ups of his anxiety and pain symptoms when problems arise in the whole Workers Compensation experience, and not being paid is a significant stressor. Currently, I would say, he could return to work 3-4 days a week for six hours to eight hours to see how he goes (and build up from there slowly) but not under the same manager.

What are our client’s restrictions in employment from a psychological perspective? Please consider his pre-injury occupation, and his ability to perform the following: 1. (a) Respond to authority; 2. (b) Interact with Ms Finnigan; 3. (c) Concentrate; 4. (d) Travel to and from work; 5. (e) Work in a team environment.

The only restriction is to not work with his previous manager Ms Finnigan. All other factors mentioned above Mr Meith will be able to do…”

1. In her report dated 28 April 2020 to which Ms Ticinovic referred to above, she wrote:
   
   

   “Attended today. Talked about not trusting people, anxiety warns him that tells him worst case scenarios, e.g., with me, that if he gets into a fight his notes will be used against him, with his girl friend that she will use it against him, get bored of him and leave him, cheat on him, if he was to open up. Sees that it just makes him feel alone, and not trusting people. as doesn't feel worthwhile, maintains feeling worthless. Sadness for this, heavy in stomach, tight around his stomach. Holding it down as afraid will be ridiculed. Then gets defensive anger and lashes out because of this fear, but here knows can't do that so beats himself up verbally. And gets back pain to hold in the sadness. Get over it, toughen up, there's worse things out there. Was able to breakthrough with some sadness. Difficult to stay with it, in and out and thoughts of that I would judge him but mostly able to process it feel clouds moving away and seeing things, more able to let go of anger from past (to want to get revenge), sorry also himself for having felt like he had wanted to kill himself. Needs to be less self- judgmental. Gave him the mind body perception book.”

2. Clinical notes from the Myhealth Medical Centre record that on 8 May 2020 Mr Meith consulted Dr Leung for a physical ailment. There was no reference to any work-related problems.

3. The notes continue as follows:
   
   

   “Recorded by: Dr Chumki Majumder Visit date: 11/05/2020.

   Works for Sydney train as a station staff. Suffers from anxiety and depression. Sees Psychologist – private. Problem at work with manager. Feels bit down. More anxious. Not suicidal. Mood is low. Motivation and concentration is not good… Request medical certificate. P/Counselling. Will see psychologist in 1-2 days M/C for 5 days…

   Dr Kelvin Leung Visit date: 16/05/2020. Came with letter from psychologist (Mary Ticinovic) outlining issues at work- request stress leave.

   Dr Robert Huang Visit date: 26/05/2020. here for stress/need to vent… Appearance -no specific issues Behaviour: appropriate facial expression. Mood and affect

   Affect: range normal/appropriate incongruous/stable

   Mood: calm/good stability.

   Management: listen actively, let vent, feedback appropriately, allow time to process thoughts psychoeducation given re: management of anxiety/depression…

   Dr Kelvin Leung Visit date: 07/06/2020. Came for workcover claim initial cert long standing work related stress issue with direct supervisor discussed in other consultations before now to lodge workcover claim and being supported by his union to do so… cert of capacity - fit for duties but not directly under his supervisor…

   Dr Kelvin Leung Visit date: 10/06/2020. discussed workcover wants change to paperwork before lodging to change to no capacity as job has no ability to place him in any other job that is not under his prev supervisor. changed to no capacity…”

4. Subsequent consultations from 1 July 2020 to 13 July 2020 dealt with ‘paperwork’ regarding his claim.

5. On 23 July 2020 Mr Meith presented with issues relating to a physical condition only.

6. On 5 August 2020 Dr Leung recorded: “workcover cert updated- feels ready to work -ready to do full time but not with same manager- certificate updated…”

7. Subsequent entries relate to physical problems with an occasional reference to “stress.”

8. There are a number of certificates of capacity included in the Application.

9. The first is dated 8 July 2020 signed by Dr Leung. It describes the injury as “exacerbation of anxiety as a direct result from work-related stress…bullying, harassment intimidation from immediate supervisor since approximately 18 months ago when he first took the role of union delegate….” Dr Leung was asked about any pre-existing condition and said: “Anxiety- was seeing psychologist 6 months prior to when alleged bullying and harassment started but had improved a lot based on psychologist’s report.”

10. As to Mr Meith’s capacity for work, Dr Leung said: “Not to work with or be involved with his current supervisor as it causes significant exacerbation/worsening of his mental health.”

THE RESPONDENT’S CASE

The Factual Report dated 21 July 2020

1. This report contained the applicant’s statement dated 23 June 2020 which has been set out above.

2. There are also statements from Ms Finegan, Mr Austin and Ms Esna Bhati to which I will also refer.

Ms Finegan’s statement

1. In her statement dated 26 June 2020 Ms Finegan said:
   
   

   “Aaron Mieth is employed by Sydney Trains as a Customer Service Assistant ('CSA') and works in the Epping Group within Region 2. His roster means he works between Beecroft and Meadowbank Stations.

   The claimant is also a union delegate for the Rail Tram and Bus Union.

   He reports directly to me.

   I would describe the claimant's performance as most days as a competent efficient member of staff. When he comes to work he generally does an ok job, he is not a star but he is definitely not the worst.

   He has been quite receptive to conversations we have had about what he needs to do at work and I have not ever had to formally performance manage him.

   In relation to any issues outside of work that may be affecting the claimant's psychological health, I have a good understanding of his family situation as I used to manage his father in a previous role. I am aware that Aaron is the main carer for his brother who suffers mental In relation to any issues outside of work that may be affecting the claimant's psychological health, I have a good understanding of his family situation as I used to manage his father in a previous role. I am aware that Aaron is the main carer for his brother who suffers mental illness. I have also met his sister. At times when he had needed my help he has disclosed personal things to me. I have not had any contact with him since the beginning of May 2020…

   I am advised that the claimant alleges his claim relates to constant bullying and harassment by me and pressure to do things that are unsafe and have been asked to respond to a series of allegations made by Aaron.

   I am advised that the first incident allegedly occurred in June/July 2018 and relates to issues that arose after he worked acting in a higher grade as a Station Duty Manager at Eastwood Station. He indicates that he asked was he allowed to do that…and was told they could approve it but needed to seek approval from me first, that they contacted me and I agreed. In response, yes I agree that this is correct.

   I am advised that the claimant indicates that he completed the 4-hour shift yet was not paid for it… The claimant indicates that after further interaction with the Union the matter was resolved, however I am advised that after this, his relationship with me deteriorated and when issues arose, I would allegedly say, 'well you will go to the union'.

   There were approvals needed and I did give that approval. However I did talk to Aaron about the conditions under which I would approve this. At the time I don't recall saying it was a good leadership opportunity for him but I did mention this in a different context at a later stage… My argument was he had a shift as CSA and went to do another shift as duty manager. I went through this quite a few times with him and sought further advice. I have all the email information about this and was trying to work out how best to pay him or whether to pay him as duty manager at all. He eventually was paid. My recollection is that we talked it through and I was quite floored when I was told about these allegations as I really thought we had a good working relationship. Our relationship didn't decline after this as he alleges and the issue was resolved in his favour so he felt victorious. I deny making any inappropriate comments and my behaviour was reasonable.I am advised that the claimant alleges that from late 2018 throughout 2019 I failed to give him specific instructions in relation to a blind customer, Mr Nixon, who required assistance at Beecroft and later Meadowbank station. I am advised that he and other staff were concerned and he sought instruction as he and other staff were required to assist Mr Nixon from the station to a nearby church at Beecroft and to the TAFE when Mr Nixon was at Meadowbank. I am advised that the claimant says he was very concerned about the ramifications of leaving the station and also leaving the station unattended while assisting Mr Nixon and that despite numerous attempts for clarification on this he was never given a straight answer.

   In response to the above allegation, I don't recall this ever being a problem. I do not recall he raised that with me at all. I don't know who Mr Nixon is. We did have a vision impaired person who would go to Beecroft on the weekend and if this is the same person, the other staff members at Beecroft had been providing this service. The church was close and it was something they enjoyed doing. No one ever raised a concern about this. In response to the TAFE, I do not recall anyone ever asking Aaron to take anyone out of the station and walk them to TAFE. You can actually see the TAFE from the station. My surprise at this is that a lot of our CSA's would do this without a second thought. We help a lot of our customers to a bus stop or taxi stand. Aaron has come to me in the past with these types of concerns, saying he can't cross a road or there was a risk somewhere. There is no breach to leave the station. If they were doing something like helping someone and were not on the station and had some sort of injury we would be supporting them. Our staff leave the station all the time, to get a coffee or lunch… I can't see any problem in assisting this vision impaired man and I can't see that by asking them to do that that we are putting our staff at risk.

   I am advised that the claimant makes another allegation about an incident that occurred in mid-2019 relating to being asked to view and photograph an abandoned car at Meadowbank Station and that he was not given clear instruction and guidance about this situation. I am further advised that the claimant alleges that on 22 October 2019 he emailed me and asked me directly about this issue and did he have her permission to leave the station and inspect the vehicle. He alleges that in response I told him to call the duty manager and tell them he was leaving the station and that I 'just threw it back on him' and 'dodged; his questions and still there was no clear instruction in writing and no answer about being protected from any adverse action if he left the station. He also alleges this was a real cause for stress on the other staff.

   In response to the above, I recall this well and I do have an email trail for this one. As background, we have cars that are dumped or illegally parked in some of our car parks, frequently down around Meadowbank station where some car parks are on rail land but along the street . This one particular car he is talking about was not far from the station, so when he rang me and asked could he go I said yes. I suggested he go down there between trains. It was like any other time. We will often send someone down when they have time and they just pop down and see where the car is. If it was a car parked a long way from the station it may not be so simple, however on this occasion I recall he said it was approximately 400 metres down the road and I said if you can get down there, then off you go. He went down there and got back safely. It is a routine type of thing that a lot of staff do…

   In response to me 'dodging' his questions, I think I would have referred him to the abandon car policy, which is available at every station. …Also, I don't think I need to put instructions in writing, as they are adults, have a job to do and the majority of staff are quite independent in doing that job. Usually the staff will make these decisions themselves and show initiative. It also gives them a chance to go for a walk and to do something different. Most staff have an entirely different view from Aaron about this. I very rarely need to direct or explain these types of things to them. I am not sure of what problems he is worried about. I have not received any other information to indicate that other staff are stressed by going to find abandoned cars, as he now indicates.

   I am advised that the claimant alleges that an incident occurred in December 2019 at the staff Christmas Party… with the CSA's and the duty managers and myself present… I am advised that the claimant alleges that as a background to this incident, there had been complaints by members about Christmas rosters which had been escalated to a level 3 issue, following attempts for clarification with Paul Willis. The claimant alleges that following this, when he went to that Christmas part y, as soon as he walked in he felt very uncomfortable with the managers and felt that he was going to be targeted by me following the escalation of the above. I am advised that the claimant alleges that I approached him and before he could react, I went to shake his hand and stood in very close to him, coming 'in right over hi toes' in front of the other staff. He alleges he felt very uncomfortable and humiliated as a result of my actions which he alleges were a deliberate tactic to place him on show and to make a real point of doing that in front of everyone.

   In response, the managers do the organizing and throw the party for the staff. I can recall he was a bit hesitant and wasn't sure if he was coming or not . Our relationship was fine and I said why don't you come, it's a nice day for everyone. He attended and I welcomed every one of them, including Aaron. That's all I recall. I deny there was anything else in my approach other than welcoming . I deny doing anything inappropriate or that there was any ill intent. Also, I was not aware at all about any rostering issues, which would have been happening in another CAM area {Paul Willis is my colleague) and I have no idea what that dispute was about. I was talking to Paul recently about something else and asked him to cast his mind back to the party and he said it was such a great day and so nice having everyone t here. I thought Arron had a good time as well. I deny there was any deliberate tactic by me to humiliate or intimidate Aaron as alleged.

   I really have no idea why Aaron is making these allegations. I manage 13 stations and have a process set up in my area to connect the teams . When people come to work they ring a neighbouring SOM station as I like to know they staff have ar ri ved at work safely and that the stations are open. I have put little things like that in place to make sure staff are feeling connected and supported. Aaron even challenged that when he first came in and challenged other processes we have had in place for quite a few years…. I also ask my staff to send a text message to me say they won't be at work, as there are certain things I would like to know directly. Aaron is almost the only person (there is one other} in my team who does not do that. He has not been at work since 7 May 2020. Prior to that I have many emails and texts from him where he is asking me normal things, with normal interactions, not raising any of these concerns.

   I have been so proud of how he has come along to the point where I was helping him apply for a Station Duty Manager position. He seems so unsure of himself. He wants to be a Union man but I don't think he understand the politics involved. I am happy to work with him even when he is involved with Union business. I have had no contact with him since 7 May 2020, despite leaving messages and sending a registered letter as I didn't know if he was alright…

   After a couple of weeks and knowing the issues in Aaron's family it was really worrying me. We have been able to sort things out for him previously. I really don't know what's changed outside of work for him. Even other managers have said he has been improving and trying to do the right thing and I thought he was really trying to do something for himself.

   I am advised that the claimant makes allegations about an incident on 23 March 2020 relating to a CSA attending work with flu like symptoms during the COVID-19 pandemic and him raising concerns about this to me. I am advised that the claimant alleges that he raised his concerns about risk with me and that my response was not appropriate given the risk. He alleges that he then wrote to me and received an inappropriate response. In response to this allegation, he contacted me saying he was worried that his colleague had come into work with flu like symptoms and was worried. I said thanks and leave it with me. When I contacted that staff member involved she was quite scared of what he had done and how he had approached her.He did raise this concern and I said I would speak with her and did speak with her and she assured me she had a cold and it was getting better. He is a nice guy but is one of those guys who jumps to conclusions due to ignorance and he was panicking as he didn't understand the whole disease process. He, as all staff in Sydney Trains, have received exactly the same information about Covid including how to reduce the risk of cross infection and there wasn't really anything else I could tell him. Aaron wanted to go and have a test and advised that he would be off until he got the results . I said to him, you are not sick and have only been with her in the office for a short period and if you start feeling unwell to go and get tested. That's what the government advice was at that time. I think he was just panicking that day, however that lady is very sensible and a lovely lady who was quite shocked about how aggressively he approached her. I behaved appropriately and in accordance with the current health advice…

   I am advised that the claimant alleges that three days after the above, he was advised that I had made a verbal complaint that he intimidates women. I am advised that the claimant further alleges that a couple of weeks after this, a CSA approached him and commented that 'she likes the way he helps the staff and didn't find him intimidating at all'. He alleges that confidential information had been revealed.

   In response to this allegation, I am not familiar with any of this. I know I did go to him a few days after the incident in relation to the colleague with the flu, and the conversation was around, if you want to be a manager when you approach these situations to take a different approach. I was trying to teach him and tell him that some people can find his manner and the way he delivers his messages intimidating.

   I even find him intimidating sometimes. There were times when I would arrive at a station and he would say rudely 'what do you want' or 'what are you here for' and that sort of thing. When he wanted something he was respectful and expected me to assist him, which I did. We had worked through a lot of those issues and he would eventually say "good morning" or "good afternoon" so the relationship had matured and developed over time. In relation to any suggestion that I breached confidentiality, the only confidential information was not confidential as I was talking to him about the person who he had interacted with anyway . I had not told anyone else that he was intimidating; the person he interacted with about the Covid issue raised with me that she felt intimidated.

   I am advised that the claimant indicates that in April 2020, I rang the Beecroft station asked did he the claimant observe when I was speaking with an employee and was this person intimidating and that I was 'snappy' when discussing this. I am advised that the claimant then alleges that before he could answer, I allegedly said, 'oh then you must have been inside', in an aggressive tone. I am advised that the claimant alleges that I was goading him to cause an issue. In response to this, as I thought we had a good working relationship, I contacted him and asked if he recalled an incident that happened at the station with a person I know who works at head office. That person had approached me on the station and I thought Aaron was there at the time and had seen this. Aaron said he had no recall of the incident. I asked did he recall this as this other man had said some unpleasant things to me and I was asking if he recalled the incident. He said he didn't, even though I was sure he was standing beside me when the incident occurred. It was purely "do you recall if anything comes to mind". He is usually outside working anyway so there was no suggestion by me that he should have seen it or 'he must not have been outside'. I think he was getting ready to leave work and I had just arrived to visit him when this other person got off the train. I recall talking to him that day asking him what he recalled. As I said before, we had a good working relationship I didn't think it was a problem asking him. I deny any inappropriate interaction with Aaron about this.

   I deny ever threatening, intimidating or bullying the claimant and have acted in accordance with our code of conduct and other relevant policies.

   As far as I am concerned if we have any differences of opinion I try and work them through with Arron so we can have a good working relationship. I felt we had this. Aaron has just never brought these up as ongoing concerns when he had had the opportunity to do it.”

1. Mr Matthew Austin also prepared a statement dated 30 June 2020. He said:

“I am currently employed by Sydney Trains as Operational Readiness Officer. I have held this role since March 2019. Prior to that I was the Station Duty Manager at Epping Station. That also covered Beecroft Station.

I have known Aaron Mieth for around 2 years since he got to Beecroft Station.

Our interactions would have been fortnightly. I was his mentor for the PDPs or he could have rang for advice in relation to having an issue at a station. I was more of a mentor.

He did contact me about various issues. I can't recall exactly what they were off the top of my head. He was always sort of worrying about a lot of things. He was a Union Rep and HSR and tried to pick up a lot of things.

In relation to any personal issues that may be impacting Aaron, I know he was a carer for his brother who I think had an intellectual disability. He mentioned having to do things for his brother before or after work.

I have not witnessed the CAN, Christina Finegan, ever bully or harass the claimant nor did the claimant ever mention to me that the CAN was bullying or harassing him.

In relation to Aaron's allegations about raising issues about…being required to assist a visually impaired customer from Beecroft Station to the local church, I know that we had a customer who would use Beecroft station who is blind and, LoweIla, who worked there, took it upon herself to escort this guy safely from the station to the Church of local shops at Beecroft or wherever he wanted to go. Most staff helped him out and locked the station to escort him to where he needed to go to make sure the customer got there safely.

I personally don't think there was a risk or any big issue with this. The staff leave the station to get lunch or to do other things so I don't think this was a problem.

I don't recall Aaron ever specifically raising concerns with me about this nor do I remember anyone else being concerned about this.

If Aaron had raised concerns with me about walking the customer from the station or leaving the station I would have directed him to speak with Christina about it. I really can't recall any conversation he had with me about this. In relation to Aaron's comment about me saying 'just go along with it' this is a phrase that I do use, however I am not sure it was said in the context of the above issue and my meaning would have been for him to just get on with the job.

My conversations with Aaron were often around him trying to get a promotion or get safe working and it was to do with what he had to do to get the opportunity to do those things. There was always something with Aaron.

When he took that union job he seemed to find an issue with anything and he was a bit of obstructive at times.”

1. Ms Esna Bhatti also prepared a statement dated 30 June 2020. She said:
   
   

   “I am currently employed by Sydney Trains as a Customer Service Attendant. I have held this role since 23 July 2019.

   l have worked with Aaron Mieth on about 4 occasions when I was at Beecroft Station.

   Aaron never mentioned to me he felt he was being bullied or harassed by his manager.

   While Aaron never specifically mentioned any names, he did mention that he wasn't happy with the way the rosters were working and that sometimes things were not fair. I am advised that the claimant alleges that during a discussion I had with him in sometime in April 2020 that I said words to the effect, "I like the way he helps the staff and I don't find him intimidating at all". In response, there was no mention of not finding him intimidating or any mention of intimidation. We discussed how long he had the role and that he had applied for other roles. I did say to him that he was good at his work and that I thought he would make a good duty manager.

   The only concern I had was that Aaron was recording things in the station diary that certain things had not been done. I was a bit taken aback when I read some of the things, however later realised he was just doing his job. I know that could be a bit upsetting to some staff although Aaron was never rude.”

2. The email trails between Mr Meith and Ms Finegan included in the Reply regarding the pay dispute, the abandoned car and Covid 19 concerns do not disclose any adverse comments by Ms Finegan.

1. For example, regarding the pay dispute, in an email dated 13 July 2018 Ms Finegan said:

   “We were very grateful that you accepted to extend on this day at Eastwood as the exceptional circumstances which occurred on that day very rarely occur. Please don't hesitate to contact me in future should you need any other assistance.”

2. On 7 June 2020 Ms Finegan wrote to the applicant as follows:
   
   

   “As you are aware, you have been absent from work since 8 May 2020 and have been on a period of unapproved leave since 13 June 2020. During your absenteeism, I have, on a number of occasions, attempted to contact you without success.

   Recently, I was advised that you had applied for a role within NSW Trainlink. Whilst I strongly encourage employees within Sydney Trains to seek other roles that would offer them development opportunities and/or career pathways within the Transport cluster, you did not notify me of your intention to leave your substantive position. I was only notified by NSW Trainlink when you accepted the role.

   Notwithstanding the above, as a Sydney Trains employee, you have ongoing obligations to maintain contact during a period of absence with me, as your manager, and provide medical certificates where required. So that I can understand your situation, please make contact with me within the next 7 days of receiving this letter, with a view to scheduling a meeting for both of us. At the meeting, I would like to discuss your intentions of future employment with Sydney Trains, and/or if there is anything I can do to support you within the workplace…”

3. Ms Finegan made a further statement dated 7 June 2021. She said:
   
   

   “Following his leave and workers compensation claim in May 2020 I was more than happy to have him back at work despite his claims against me relating to bullying and harassment, which I denied.

   The last work-related contact I had with him was his text message to me on 7 May 2020. My memory is that he did not come back to work after 8 May 2020. On 11 My 20211 sent him an SMS message saying, ‘Aaron are you ok, I can't get through to your phone. Call me as soon as possible.’ As I had not heard from him, on 16 May 2020 I sent an SMS message saying, ‘Good morning, can you please contact me I am worried about you. Now you have been off for more than a week, are you ok is there anything I can help you with’. He did not respond. My next SMS message to him was on 15 June 2020 and says, ‘Aaron just checking in to see how you are. I was advised you submitted a workers compensation claim but am unaware of the details. If there is anything I can help you with please contact me'.

   What happened was Aaron had unintentionally removed himself from a position in my group. The sequence was, he went on sick leave on or about 8 May 2020 and as far as I was concerned he did not advise why he was taking sick leave. Then I received a telephone call a week later from one of my colleagues in NSW Trains telling me that they offered Aaron a transfer as a CSA with NSW Trains and he had accepted. However, they said they were having trouble communicating with him and could I please confirm a release date for him.

   I said I didn't know he had accepted a transfer but would get back to them with a date… I also said I was having trouble contacting Aaron and told them that if he called I would ask him to call them and we left it at that.

   So by accepting the CSA position at Moss Vale with NSW Trains Aaron had then given up his position with Sydney Trains at Beecroft. Once the transfer has been accepted the Sydney Trains team responsible for transfers then begins the process of filling the vacant CSA position at Beecroft.

   Neither NSW trains nor Aaron had previously advised us that he had declined the NSW Trains position. We only found out when we notified NSW Trains that he had a workers compensation claim. He was then left with no position at NSW Trains and had no position at Sydney Trains as his position with Sydney Trains had already been filled.

   Being the kind and considerate company, while Aaron had displaced himself from his position, all the people on our rostering team and in consultation with HR said that as he was last in a position in my group, he should then be coming back at first into a CSA position in my group.

   I had a vacancy at Epping station and they said that until we could find another location, we would place him against that position at Epping, so at least he had a position to come back to when he could return to work after the workers compensation issues. That was our intent.

   Through those internal Sydney Trains meetings that I was a part of in relation to his return to work, I became aware that it was such a struggle getting him back to work and while I didn't know what I had done, I indicated I was happy to meet him and with his GP or psychologist or support person, so he could tell me what it was that was upsetting him so much. I told the Sydney Trains HR and legal team that I was willing to meet and be involved in mediation n if it would help resolve the issues and get him back to work.

   I also sent a significant amount of information to our legal team demonstrating how hard I had worked as his manager to build a good relationship with Aaron prior to his claim and that I was happy to have him back anytime…

   I understand that he did not return to work at all until he was on roster on 18 January 2021 at Rooty Hill and finished there on 5 March 2021.

   I can confirm that I have had no interactions with Aaron at all after May 2020. I therefore deny any suggestion that I could have bullied or harassed him.”

4. A further factual report by the same investigators was prepared on 10 June 2021. It included the further statement from Ms Finegan dated 7 June 2021 referred to above. The report added:
   
   

   “Given the return to work restrictions as per certificates from Dr Leung that the worker could not return to work with Christina Finegan, at no stage did he return to work under her supervision.

   Once the worker was deemed fit for work there appear to have been complexities around this and that protracted discussions between Sydney Trains and the RTBU and later the worker’s lawyer meant that he was not placed elsewhere until 18 January 2021.

   We note that during our initial investigation which concluded on 21 July 2020, the worker did not disclose that he had been offered a CSA position with NSW Trains. During her interview on 7 June 2021, Ms Finegan advised that she and Sydney Trains first became aware of this when she was contacted by NSW Trains likely in mid May 2020, asking for a release date. The transfer subsequently did not occur as the worker later declined the offer, however this also added an additional layer of complexity in relation to the worker’s return to work after his worker’s compensation claim, given he had initially accepted the transfer, which meant that he had relinquished his CSA role at Beecroft with Sydney Trains.

   In his statement dated 23 June 2020 the worker’s allegations related to allegedly being bullied and harassed by his customer area manager, Christina Finegan, which he alleges occurred from 2018 onwards. During our interview with Christina Finegan in June 2020, Christina Finegan refuted the allegations or provided what appear to be reasonable explanations for the incidents raised by the claimant. In her interview on 7 June 2021 Christina Finegan stated that she seeks to rely on her statement dated 26 June 2020. We note that our previous report also indicated that the claimant’s nominated witnesses did not support the worker’s allegations.

   Ms Finegan advised that around a week after the worker went on sick leave, she received a telephone call from NSW Trains advising that they offered the worker a transfer as a CSA with NSW Trains and he had accepted. They advised that NSW Trains were having trouble communicating with the worker and could she please confirm his release date…

   Ms Finegan stated that she can confirm that the worker did not return to work to the Epping Group at any time following his workers compensation leave. She denies any suggestion that she could have bullied or harassed him. Ms Finegan also advised that as the worker did not return to Beecroft, she posted his belongings to Rooty Hill and also asked Paul Willis, Hornsby Group CAM, to arrange to meet with the worker to collect keys…

   It is therefore clear that the worker did not return to work under Christina Finegan’s supervision at any stage after 8 May 2021 [sic]. Based on the evidence and documentation available to date, there is again no evidence that Christina Finegan bullied or harassed the claimant…”

The respondent’s medical evidence

1. The respondent arranged for the applicant to be examined by Dr Bisht on 25 March 2021. In a report dated 20 April 2021 Dr Bisht identified a number of documents which had been sent to him including reports of Ms Ticinovic and the factual report. He said:
   
   

   “Aaron described his work stressors as:

   ‘I had a manager physically stand over me in front of people. She put an email in after a phone conversation between her and I, saying that it was okay for a colleague to come in to work without being tested for COVID. She tried to fabricate intimidation charges against me. She tried to coerce men into making intimidation charges.’

   He said that the manager was Christina Finegan. He added – ‘The nature of my job was to ensure safety. Her approach was to make us do jobs that were not safe. Like leave the station unattended.’ ‘She would also speak down to you.’

   He said that the bullying started in 2019. Aaron described that he started to have substantial psychological symptoms from 2019 onwards and these gradually increased in intensity. These symptoms included –

   • Persistent ruminations about workplace stressors and feeling anxious while having these ruminations.

   • Lack of enjoyment in previously pleasurable activities.

   • Lack of motivation and energy

   • Poor sleep – initial and middle insomnia

   • Difficulty concentrating for long periods.

   • Irritable mood. He said that he stopped working in May 2020, as a result of the worsening severity of his symptoms. He said that he had significant improvement in his symptoms over the next few months, except that he would get very anxious whenever he would think about returning under the same manager’s management. He said ‘I was medically cleared to return, and they refused to acknowledge it…’

   He said that he was cleared to full duties except not to return under the previous manager. ‘Instead of offering me another position they offered me another position under the same manager…’

   Aaron said that he has had partial improvement in his symptoms over the last few months and has started to recover from the recent re-exacerbation when he started working at the new location.

   He added – ‘I still feel like if I can get justice out of this then I will be much better…’

   Aaron said – ‘I see a psychologist for anxiety and depression.’ He said that he has been seeing her for the last 2-3 years. ‘I had low self-worth and excessive worrying.’ He said that he would worry about what all harm people could do to him. He said that this was related to traumatic incidents when he was a child and a teenager. He said that he didn’t want to elaborate on those traumatic experiences.

   Aaron said – ‘My younger brother has issues and a couple of cousins as well. He said that his brother has been diagnosed with bipolar disorder, as well as one of his cousins.’”

2. Dr Bisht added:
   
   

   “The worker is currently still suffering from a psychological injury as he is continuing to experience significant symptoms when he thinks about returning to work with Sydney trains. This psychological injury is an aggravation of his pre-existing condition, and the aggravation has been caused by work related experiences.

   The employment is not the main contributing factor to his injury. Aaron had a significant pre-existing condition, and the employment has been the main contributing factor to the aggravation of the pre-existing condition…

   The worker suffered an aggravation of a pre-existing condition. The employment is the main contributing factor to this aggravation, as

   • There haven’t been any non- work-related psychological stressors, around the time of the exacerbation, which would account for being the main contributing factor.

   • There is no significant contribution from any medical conditions or any medications or any substances of abuse. The aggravation has not ceased yet, as he is continuing to experience significant symptoms when he thinks about returning to work with Sydney trains.”

3. The respondent’s solicitor then wrote to Dr Bisht on 13 July 2021 requesting an updated report. That letter said in part:
   
   

   “The worker alleges suffering a psychological injury as a result of conflicts at work with his manager and/or colleagues on 5 May 2020 (deemed). The worker has commenced proceedings in the Commission claiming benefits of weekly compensation from 8 May 2020…

   There is a lack of evidence obtained following the investigations to suggest any conflict within the workplace. The nominated witnesses the worker identified have not corroborated his allegations of conflict, nor any bullying behaviour within the workplace.

   We note that on your examination of the worker he provided a history of subsequent and reported ongoing issues within the workplace in respect of his return to work. He claims he was offered a position working under the same manager with whom he had a conflict. He claimed this was only agreed to in January 2021 and there was no explanation why he was not offered any other role from August 2020. He had claimed he took the role out of desperation but ran into the same issues and again stopped working very recently.

   The updated evidence from the employer does not confirm the history provided to you in the prior examination.

   The evidence enclosed in this letter indicates the worker had been offered a position with NSW Trains on 5 May 2020. He emailed accepting the offer on 9 May 2020, however subsequently advised NSW Trains on 28 May 2020 that he was declining the transfer for the Moss Vale position.

   The alternative position offered to the worker was with a different government entity and would not expose him to the workplace he claimed to have sustained his injury. As a result of the acceptance of the position, he relinquished his position with Sydney Trains..

   We enclose for your assistance, an updated factual investigation report dated 10 June 2021. We also enclose email correspondence from the employer.

   We would appreciate review of your prior report and in particular your review of the information provided by the worker at the prior assessment…”

4. In a report dated 2 August 2021 Dr Bisht wrote:
   
   

   “The account, of the workplace events, given by the worker, differs from the findings of the factual investigation. As per the factual investigation –

   • There was a lack of evidence obtained following the investigations to suggest any conflict within the workplace. The nominated witnesses the worker identified have not corroborated his allegations of conflict, nor any bullying behaviour within the workplace.

   • The worker had been offered a position with NSW Trains in or prior to May 2020. The worker later declined the offer of employment with NSW Trains. As a result of the worker initially accepting a transfer to NSW Trains, his position with Sydney Trains had been relinquished. He was subsequently provided with duties at Rooty Hill, after several meetings, with no involvement of the prior manager with whom he claimed he had been bullied.

   After reviewing the enclosed material, I am altering my opinion in regards to the contribution of the workplace to the worker’s condition. I am of the opinion that the aggravation of his pre-existing condition was not caused by substantial events at the workplace, but rather by his reaction to routine workplace events, with this reaction likely resulting from the pre-existing psychological injury.”

FINDINGS AND REASONS

1. At the outset, I am satisfied that the evidence supports a finding that any injury sustained by Mr Meith must be seen as one falling within the definition in s 4(b) ii of the 1987 Act, namely an aggravation of a pre-existing psychological condition as pleaded by the applicant.

2. The focus of the submissions by Counsel for the applicant was that it was the applicant’s perception of events that were “insulting to his mind” bringing in to play the principles enunciated by Spigelman CJ in State Transit Authority of New South Wales v FritziChemler [2007] NSWCA 249 (Chemler).

3. In that case, Mr Chemler claimed that he had been subject to racial harassment and vilification in the workplace over a period of years. An arbitrator found that there was no doubt that racial slurs and comments were made, and offensive signs and graffiti were evident, and that these racially based jokes were particularly offensive to Mr Chemler.

4. On appeal, the appellant’s submissions were directed to the proposition that where a matter is imagined, and operates merely as a “perception”, it cannot be said that the injury arose “out of or in the course of employment.”

5. Spigelman CJ said:

   “39.   Plainly, perception by the person affected is normally required before there can be psychological injury. There is no issue in the present case that there was such injury. Nor is there any issue in this Court that the ‘substantial contributing factor’ test was made out.

   40.    In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them. With respect to psychological injury there is an ‘eggshell psyche’ principle which, like the equivalent ‘eggshell skull’ principle, is a rule of compensation not of liability. The element of foreseeability required by the law of negligence is not the basis of the ‘eggshell skull’ principle and it can be applied by way of analogy to claims for compensation under the 1987 Act…

   41.    As noted above, there are numerous references in the Acting Deputy President’s decision to ‘perception’. A typical example is…’Mr Chemler perceived he was being subjected to harassment and victimisation, and it was this perception that caused his psychological injury…’

   47.    In the light of these findings it cannot be said that this is a case in which there was an erroneous perception not based upon conduct in the workplace. The Acting Deputy President’s references to ‘perception’ should be understood as establishing the causal link between acts in the workplace and the effect upon the mind of the Respondent.

   48.    Contrary to the Appellant’s submissions, the Acting Deputy President did not question let alone overturn the credit findings made by the Arbitrator. Mr Handley proceeded on the basis that he accepted the Arbitrator’s findings of primary fact. That included the rejection of some of the Respondent’s evidence. It also included acceptance of other evidence that established conduct at work which could be, and was held to be, causally linked through the perception of the Respondent to psychological injury.

   49.    The position in Townsend supra, on which the Appellant relied, was quite different. There the relevant acts were mere rumours about whether or not the transfer of a police officer represented the implementation of the Police Department’s anti-corruption policy. Nothing suggested that the rumours could be sourced to conduct in the workplace…

   55.    In my opinion, the Acting Deputy President was entitled to conclude that the psychological injury arose by reason of an accurate perception of actual events in the workplace and, accordingly, that the causal link was established…”

6. In line with Spigelman CJ’s comments above, Counsel for the applicant submitted that it is immaterial if others did not perceive the events cited by Mr Meith as causing him psychological distress if they did indeed cause a psychological injury.

7. It was submitted that the issues noted by Mr Meith, namely “incidents of bullying and harassment, pressure to do unsafe things/tasks, and being made to feel I could not be part of the union by…Christina Finegan” were real and significant.
   
   

8. Moreover, the employer was obliged to take Mr Meith as they found him, noting his prior history of psychological problems.
   
   

9. I accept these submissions as they relate to the principles in Chemler. There were clearly “real events’’ in the workplace in that case as found in all the various proceedings.

10. The real issue as I see it however is whether it can be said that Mr Meith had a “perception of real events, which are not ‘external events’”, in order to satisfy the test of injury arising out of or in the course of employment.( Townsend v Commissioner of Police(1992) 25 NSWCCR 9) (Townsend) or whether it can be said that he misperceived otherwise innocuous matters which led to him aggravating his pre-existing psychological condition such that his condition cannot be said to be an injury arising out of or in the course of employment. (Yeo v Western Sydney Area Health Service(1999) 17 NSWCCR 573 (Yeo).

11. It is true that Dr Bisht initially accepted the events in the workplace as real and causative of an aggravation of Mr Meith’s pre-existing psychological condition but on review of all the evidence he concluded that the aggravation “was not caused by substantial events at the workplace, but rather by his reaction to routine workplace events, with this reaction likely resulting from the pre-existing psychological injury.”

12. I accept his opinion for reasons that follow.

13. To begin with, it is true that a lack of corroborative evidence is not necessarily fatal to any claim in this jurisdiction, but in this case, there is simply no corroboration of any of the complaints made by Mr Meith.

14. As Counsel for the respondent put it, one would expect “some crumbs of corroboration or facts to support the claim” but there are none.

15. For example, as regards Ms Bhati, Mr Meith said:

    “I do not know how Esna came to learn of the complaint made against me. I then learned Christina had been asking female staff if they found me intimidating. It seemed she was fishing for some complaint against me, to get back at me for the recent conflicts and complaints I had made against her. I was extremely upset to be accused of intimidating women.”

16. Yet in her statement Ms Bhati said: “Aaron never mentioned to me he felt he was being bullied or harassed by his manager.”

17. Ms Finegan clearly disputes all the allegations made by Mr Meith against her. Indeed, she generally speaks favourably of Mr Meith and was aware of his personal issues. As she said:

    “I would describe the claimant's performance as most days as a competent efficient member of staff. When he comes to work he generally does an ok job…He has been quite receptive to conversations we have had about what he needs to do at work and I have not ever had to formally performance manage him.”

18. Mr Austin also said: “I have not witnessed… Christina Finegan, ever bully or harass the claimant nor did the claimant ever mention to me that [she] was bullying or harassing him.”

19. Mr Meith’s statement about the visually impaired person is also not corroborated by Mr Austin. Mr Meith said a male staff member was required to assist, but Mr Austin said:

    “In relation to Aaron's allegations about raising issues about being required to assist a visually impaired customer from Beecroft Station to the local church, I know that we had a customer who would use Beecroft station who is blind and, LoweIla, who worked there, took it upon herself to escort this guy safely from the station to the Church of local shops at Beecroft or wherever he wanted to go. Most staff helped him out and locked the station to escort him to where he needed to go to make sure the customer got there safely.

    I personally don't think there was a risk or any big issue with this. The staff leave the station to get lunch or to do other things so I don't think this was a problem”

20. Not only is this statement inconsistent with that of Mr Meith, it also reinforces my view that this is simply an example of what Dr Bisht referred to as “routine workplace events” or what I would describe as “an otherwise innocuous matter.”

21. The applicant claims that he sustained a psychological injury as a result of, inter alia, “pressure to do unsafe things/tasks” such as that described above, namely assisting a blind passenger.

22. If he perceived a problem with this task, I regard it as a misperception of an innocuoa matter that in line with Townsend and Yeo, does not support a finding of injury within the meaning of s 4 of the 1987 Act.

23. Ms Finegan also said that she was unaware of any problems with this issue.

24. As I said earlier, the email trails between Mr Meith and Ms Finegan do not disclose any adverse or bullying or harassing remarks whatsoever.

25. I accept Ms Finegan’s evidence, not only in her statement but in the emails and other documents to which I have referred.

26. I make the same observations about Mr Meith’s issues regarding the staff Christmas party. He seems to have simply assumed that other people were talking about him because they paused in their speech when he entered.

27. Not only is that an innocuous event, it is also a clear example of the significant pre-existing anxiety which the applicant has experienced for some years as documented by Ms Ticinovic.

28. The same must be said about Mr Meith’s obvious anxiety about the abandoned car in the car park. No-one else seems to have seen this as a serious issue or an “unsafe thing/task” to be attended to as Mr Meith claims.

29. I say that because, contrary to Dr Leung’s comment in his certificate that Mr Meith had “improved a lot” prior to any work-related issue, it seems clear from the report of Ms Ticinovic dated 28 April 2020 that Mr Meith was still suffering from significant psychological issues. For example, she said: “Talked about not trusting people, anxiety warns him that tells him worst case scenarios… sorry also himself for having felt like he had wanted to kill himself. Needs to be less self- judgmental.” This was approximately 10 days prior to Mr Meith ceasing work.

30. As regards Mr Meith’s statement that he felt bullied or threatened in relation to his role in the union, again, there is not a shred of evidence to corroborate this statement. I would have expected some comment or statement from some of his colleagues, for example, the union secretary, Terry Johnson, whom Mr Meith mentions if there was some substance to this allegation.

31. In summary, I am of the view that Mr Meith’s perception of the various events or tasks he describes represent a misperception by him of innocuous matters such that he has failed to establish that he suffered an injury or an aggravation of a pre-existing condition within the meaning of s 4 of the 1987 Act.

32. This misperception I conclude is a manifestation of his underlying and pre-existing psychological condition as opined by Dr Bisht.

33. Even if I am wrong on the issue of injury, I do not accept that the applicant was incapacitated for work as a result of any aggravation of his pre-existing psychological condition.

34. Mr Meith ceased employment on 8 May 2020. By his own admission, “I was offered the CSA PFT position which became vacant at Moss Vale Station on 5 May 2020. I accepted the offer from NSW Trains on 9 May 2020.” He subsequently decided not to accept that offer.

35. He was certified as fit to work but not with Ms Finegan.

36. The job at Moss Vale accorded with all his medical certifications.

37. Section 32A of the 1987 Act provides that employment for which the worker is currently suited is determined “regardless of” whether the work or employment is “available” and regardless of whether it is “of a type or nature that is generally available in the employment market”.

38. As Deputy President Roche said in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (2 September 2014):

“57.   There is nothing in the context of the definition of suitable employment to suggest that ‘available’ should be given anything other than its relevant dictionary meaning…thus, just because the suitable employment the worker is able to perform is not ‘available’ in the labour market in which the employee was working or might reasonably be expected to work does not justify a finding that the worker has no current work capacity.”

88.For these reasons, there will be an award for the respondent.