Miller v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Miller v Westpac Banking Corporation [2023] NSWPIC 356
APPLICANT:	Deborah Lee Miller
RESPONDENT:	Westpac Banking Corporation
Member:	Michael Moore
DATE OF DECISION:	20 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for a psychological injury; respondent admits that the applicant suffered a primary psychological injury arising out of or in the course of the applicant’s employment; the respondent’s defence to the claim was under section 11A on the basis that the injury was sustained wholly or predominantly as a consequence of reasonable action taken by the respondent with respect to performance appraisal or proposed transfer; the pleaded date of injury predated the proposed transfer so claim was limited to a defence based on reasonable actions taken or proposed to be taken with respect to performance appraisal; Held – the identified actions of the respondent did not constitute a process of performance appraisal and were more accurately viewed as management of one aspect of the applicant’s work performance; the actions were not a limited discrete process as held in Irwin v Director-General of School Education per Geraghty J; further held that in any event the identified actions by the respondent as constituting “performance appraisal” were not shown on the balance of probabilities to be the whole or predominant cause of the applicant’s injury; award for the applicant with referral to the matter for assessment of whole of person impairment by a Medical Assessor.
determinations made:	The Commission determines: 1. The applicant suffered a psychological injury arising out of or in the course of her employment. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of Injury: 25 February 2020 (deemed). (b) Body systems/ parts: psychological /psychiatric. (c) Method of Assessment: whole person impairment. 3. The following additional documents to be reviewed by the Medical Assessor are: (a) Amended Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Application to Admit Late Documents dated 6 April 2023, and (d) Application to Admit Late Documents dated 17 March 2023.

STATEMENT OF REASONS

BACKGROUND

Deborah Lee Miller (the applicant) was born in 1971 and is presently 52 years of age.
The applicant commenced employment with St George Bank in approximately May 2001 working in the personal lending division based in Kogarah New South Wales.
It is not in issue that St George Bank was eventually acquired by Westpac Banking Corporation (the respondent) and it appears that the applicant continued working in the same role post the acquisition.
In the statement attached to the Application to Resolve a Dispute (the application) the applicant described her duties as follows;
“usual duties involved the following:
Incoming call centre lending banker, roll was to receiving calls up to 70 calls a day, regarding all banking, financial, Internet banking, Change in Interest rates, calculating and changing repayments for home loans. Resetting of passwords, Internet banking and cross selling of Insurance and banking products. Opening and closing of accounts. Switch loans from Fixed to variable. Changing payment instructions and amounts to pay off loans.
Upsell cross selling of all products to meet targets.
Navigating screen, check ID, Keep up to date with all policy changes, history, new Interest rates, products, bank policy, emails and compliance. Online training to be compliant.
Personal advise [sic] processes to open bank accounts.
Complaint lodgement, multi tasking, encouraged to complete admin on phone while talking to customers to meet timed calls.
Due to the Royal Commission enquiry regarding banking, this role was highly regulated and monitored via call recording and monitoring. The threat daily of breaches for phrasing or responding to customers not inside of policy was constantly monitored. Ongoing training was provided to keep up to date with new systems and changes to legislation and to be compliant with bank policy.”[1]
[1] Application pp1-2.
The applicant originally worked three days per week but around two years ago that work was reduced to two days per week as the respondent shut the relevant office on Sundays. The applicant appears to have worked around 10-12 hours each shift.
The applicant had been working for the respondent or its predecessor St George Bank doing the same or similar duties for approximately 18 years without any apparent health or performance issues until a new team leader (Amanda Elgammal) was appointed to the applicant’s team in around April 2019.
The applicant’s case is that the management of the applicant by Ms Elgammal involved bullying and harassment of the applicant and that Ms Elgammal created a toxic and stressful work environment with the applicant suffering a major breakdown that has been diagnosed by Dr Tarun Yadav psychiatrist in a report dated 15 September 2022 as constituting a major depressive disorder.[2]
[2] Application p28.
It appears that the applicant first ceased work as a consequence of her alleged injury in February 2020 and had some periods of time off work between February and October 2020.
From approximately October 2020 the applicant appears to have been placed in a different work team and returned to work on a progressive basis.
The applicant states that the different team environment was one that she found supportive and that she was “thriving” while working in same with her new team leader Amina Ejaz.[3]
[3] Application p21.
The applicant claims that during that period her KPIs were all green.[4]
[4] Application p21.
However it also appears that the applicant had never returned to her pre-injury hours following her “breakdown” and was working 6.5 hours a day rather than her pre-injury 10-12 hour shifts.
It is also the case that there is evidence that as at July 2021 the applicant was extremely emotional and crying at work and was exhibiting significant difficulties with memory retention.
In October 2021 the applicant was informed that she was to be moved to a different team on another level in the building. The applicant states that Ms Elgammal worked on that floor and she would be exposed to seeing Ms Elgammal again. The applicant also states that she was distressed at the prospect of losing her then current support network in her existing team.[5]
[5] Application p 3.
The applicant states that when being advised of the transfer she suffered a panic attack with stress and anxiety.[6]
[6] Application p3.
The applicant ultimately completely ceased work with the respondent in about November 2021.
Although it is not precisely clear from the Personal Injury Commission (Commission) file it appears that the applicant claimed weekly compensation benefits and payment of medical expenses and was paid same until 16 June 2022 when the respondent declined liability in a notice (the first s 78 notice) issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) relying upon, inter alia, s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).[7]
[7] Application pp10-15.
The decision to decline liability was made following an independent medical assessment by Dr Graham Vickery, psychiatrist on 24 May 2022 and relied upon the opinion of Dr Vickery as set out in his report dated 6 June 2022 which is attached to the Reply to Application to Resolve a Dispute (the reply).[8]
[8] Reply pp77- 87.
The applicant has not to date made a claim for weekly compensation or payment of medical and related treatment expenses following receipt of the first s 78 notice.
The first s 78 notice referred to a date of injury of 17 February 2020 in its heading although in the body of the notice reference was made to a medical report from a Dr Graham Vickery which suggested that the applicant had suffered two injuries – the first as a consequence of a performance review from which the applicant had recovered and the second from being informed of a transfer.[9]
[9] Reply p3.
The first s 78 notice then described the second injury as one that was sustained in around February 2022 which is after the applicant had ceased work with the respondent.[10]
[10] Reply p4.
It is unclear what the basis was for the nomination of the second date of injury in the first s 78 notice.
By a letter dated 12 October 2022 the solicitors for the applicant gave notice of a claim for lump sum compensation alleging that the applicant was suffering from a whole of person impairment as a result of injury sustained on 29 November 2020.[11]
[11] Application p17.
The reason for nominating 29 November 2020 as the date of injury in the claim for lump sum compensation is unknown.
By a notice dated 16 February 2023 under s 78 of the 1998 Act (the second s 78 notice) the respondent declined the claim for lump sum compensation again relying upon s 11A (1) of the 1987 Act[12] and also maintained that the applicant had recovered from her injury in any event.
[12] Reply pp 8-15.
The second s 78 notice referred to a deemed date of injury in its heading of 18 February 2022 which is a date after the date the applicant appears to have ceased work with the respondent and well before the date of the notice for lump sum compensation. The reason for the nomination of that date in the second s 78 notice is also unknown.
By an Application to Resolve a Dispute (the application) filed 20 February 2023 the applicant commenced proceedings seeking lump sum compensation.
The application pleaded two dates of injury – the first being 17 February 2020 and the second 29 November 2020.
I have already noted that the reason for the allegation of injury on 29 November 2020 used in the letter of claim for lump sum compensation dated 12 October 2022 is unclear and as highlighted above a range of other dates have been used in the two s 78 notices.
The “Injury Details” section of the application as filed was confusing in that the nature of the injury relied upon was unclear as the pleading seemed to be raising elements of both a personal injury under s 4(a) of the 1987 Act together with an allegation in the nature of a disease or aggravation, acceleration, exacerbation or deterioration of a disease under
s 4(b)(i) and (ii) of the 1987 Act.
At the preliminary conference the issue of the pleading and the nature of the injury that was being alleged was discussed and the applicant’s solicitor confirmed that the allegation was that the applicant suffered an injury in the nature of a disease due to the nature and conditions of her employment between 1 April 2019 and February 2020 with a deemed date of injury of 25 February 2020. A direction was issued that the applicant file an amended application to resolve a dispute correctly pleading an allegation of a disease injury.
On 27 March 2023 an amended application to resolve a dispute (the amended application) was filed by the applicant’s solicitors pleading a disease injury under s 4(b)(i) of the 1987 Act with a deemed date of injury of 25 February 2020 and alleging that the applicant had sustained a psychological injury as a result of the nature and conditions of her employment from 1 April 2019.
I note that the annexures to the amended application are exactly the same as the annexures to the application and bear the same numbering.
The first s 78 notice confirmed that the respondent accepted that the applicant had sustained a psychological injury that was mainly or substantially caused by her employment with the respondent within the meaning of ss 4, 9, 9A and 11A (3) of the 1987 Act[13]and the second
[13] Application p13.
[14] Reply p10.
s 78 notice referred to and relied on the first s 78 notice.[14]
As noted the first s 78 notice declined the applicant’s claim relying on s 11A(1) of the 1987 Act but also denied the claim on the basis that the applicant had recovered from her injury.[15]
[15] Application p13.
Again as also noted the second s 78 notice admitted the applicant had suffered a psychological injury arising out of or in the course of her employment that was mainly or substantially caused by her employment but denied the claim on the basis that the applicant had recovered from her injury as well as also relying upon a defence under s 11A(1) of the 1987 Act.[16]
[16] Reply p 13.
The claim before the Commission is one for lump sum compensation and accordingly the dispute raised in the first s 78 notice and the second s 78 notice as to whether the applicant has recovered from any injury would be a matter for a Medical Assessor to determine and accordingly when the matter came up for hearing it was my view that the only issue for determination was whether the respondent’s defence under s 11A(1) of the 1987 Act succeeded.

ISSUES FOR DETERMINATION

At the conciliation / arbitration hearing Mr Bill Carney of counsel appeared on behalf of the applicant and Mr Fraser Doak of counsel appeared on behalf of the respondent.
Mr Doak confirmed that the respondent claimed a full defence to the applicant’s claim relying upon s 11A of the 1987 Act and that no other issue required determination by me.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the application and attached documents;
(b)    amended application;
(c)    Reply and attached documents (the reply);
(d)    applicant’s application to admit late documents dated 17 March 2023 and annexures (AALD1), and
(e)    respondent’s application to admit late documents dated 6 April 2023 and annexures (AALD2).
No objection has been raised by either party to the admission of the amended application or the AALD1 and AALD2 and in my view it is in the interests of justice and fairness to all parties that same be admitted in the proceedings.
I note that given the nature of the amendment to the application which simply clarified the pleading of the allegation of injury no amendment to the reply was required.
No oral evidence was given at the hearing.

FINDINGS AND REASONS

At the conciliation arbitration hearing Mr Doak confirmed that the only issue requiring determination was whether the respondent established a defence under s 11A (1) of the 1987 Act to the applicant’s claim.
Mr Doak also correctly noted that the respondent bore the onus of establishing a defence under the section.
Given time pressures it was agreed that the appropriate way to proceed was to have directions for written submissions with Mr Doak preparing and filing his submissions first, with Mr Carney then filling submissions in reply and Mr Doak having leave to file any response.
The respondent’s submissions were filed on 29 May 2023 (the respondent’s submissions) and the applicant’s submissions were filed on 7 June 2023 (the applicant’s submissions).
No submissions were filed in response to the applicant’s submissions.
As part of his detailed and generally cogent submissions Mr Doak set out a summary of the legal principles to the application of s 11A of the 1987 Act as follows (omitting Mr Doak’s paragraph numbering for reasons of clarity);
“Section 11A – legal principles
Section 11A(1) provides:
‘(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.’
It is uncontroversial that the respondent bears the onus of establishing that the defence under section 11A of the WCA applies. In order to establish that the defence applies it is necessary for the respondent to show the following:
i. The whole or predominant cause of the applicant’s psychological injury was action taken or proposed to be taken by the respondent with respect to one or more of the categories of action identified in the section; and
ii. The action taken or proposed to be taken by the respondent was objectively reasonable.
The respondent relies on its actions with respect to performance appraisal and transfer under section 11A as a defence to the applicant’s claim. (Department of Education & Training v Sinclair [2004] NSWWCCPD 90)
Performance appraisal
In Irwin v Director-General of School Education (NSWCC 14068/97, 18 June 1998, unreported) Geraghty J referred to ‘performance appraisal’ as being:
‘somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited, discrete process, with a recognised procedure through which the parties move in order to establish an employee's efficiency and performance. In Smyth v Charles Sturt University [2007] NSWWCCPD 184 the Commission followed the view of Geraghty J in Irwin's case.
The distinction between ‘performance appraisal’ and ‘discipline’ was discussed by Walker J in Hunt v Dept of Education and Training (NSW) (2003) 24 NSWCCR 642. At 681 his honour considered ‘discipline’ as involving discussion regarding adherence to or breaches of rules while ‘performance appraisal’ involves a discussion or action regarding performance of work but is not punitive in nature. Transfer
The case authorities identify that the term transfer may apply to a change in position or the nature of the duties being performed [Manly Pacific International Hotel Pty Ltd v Doyle(1999)19NSWCCR181] or a change in physical location [ White v Commissioner of Police (2006) 3 DDCR 446].
Reasonable action
Determining whether an employer’s action is reasonable requires an objective assessment of the relevant action in the context of the circumstances and knowledge at the time including the circumstances that led to and created the need for the action to be taken, the circumstances during the taking of the management action and the consequences that flowed from the action {Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004) at para 79, [(2004)135 FCR 105]} .
The test is whether the employer’s action was reasonable, not whether it could have been undertaken in a manner that with the benefit of hindsight could have been undertaken more reasonably. A course of action by an employer may still be considered reasonable event if particular steps in that process are not {Department of Education and Training v Sinclair [2005] NSWCA 405.”[17]
[17] Respondent’s submissions pp2-3.
Mr Carney agreed that Mr Doak had correctly stated the applicable law in the above quoted paragraphs.[18]
[18] Applicant’s submissions p1.
I agree that Mr Doak has provided a generally accurate summary of the applicable law relating to a defence under s 11A of the 1987 Act.
In his summary of the applicable law to s 11A defence Mr Doak referred to both actions in relation to performance appraisal and transfer.
The first s 78 notice denied liability on the basis that the applicant’s condition was first caused wholly or predominantly by action taken by the respondent with respect to performance appraisal and later by action taken by the respondent with respect to transfer.[19]
[19] Amended application p13.
As has been earlier noted the s 78 notices are confusing in relation to the dates nominated as the relevant date of injury however I am of the view that both parties would accept that the intention of the notices was to suggest that the applicant suffered a psychological injury as a consequence of performance review in February 2020 and a further psychological injury as a consequence of a proposed transfer in October 2021.

The second s 78 notice, which was issued in response to the claim for lump sum compensation, confirmed that the respondent maintained the position that the psychological injury was firstly wholly or predominantly caused by actions taken or proposed to be taken, by the respondent against the applicant in respect to transfer and/or performance appraisal[20] and later referenced a report from Dr Graham Vickery dated 24 May 2022 stating that “the initial injury was due to the performance review from which she had recovered” and “her current injury is due to being informed of her transfer”.[21]
[20] Reply p12.
[21] Reply p13.
Despite the two s 78 notices essentially being drafted on the basis that there were two psychological injuries sustained with a first date of injury being in February 2020 and the second date of injury being in October 2021 the submissions of the respondent refer to a pleaded date of injury of 29 November 2020 and do not refer to the amended application and its pleaded date of injury of 25 February 2020. However, it seems to me that Mr Doak essentially proceeded on the basis that a psychological injury was sustained in February 2020 and then argued that the psychological injury that was sustained in February 2020 was wholly or predominantly caused by reasonable action taken by the respondent with respect to performance appraisal during the period that a Ms Elgammal was the applicant’s team leader.
The approach as taken by Mr Doak in his submissions in respect of the date and cause of the psychological injury is consistent with the case as pleaded by the applicant in the amended application and as no challenge is made by the respondent to the pleaded deemed date of injury I will proceed on the basis that both parties agree that the date pleaded in the amended application is the correct date of injury if the applicant succeeds.
The respondent’s submissions state that the respondent relies on the evidence in the statements of Amanda Elgammal (the applicant’s team leader) and Nasser Chami (the applicant’s supervisor) together with the medical opinion of Dr Graham Vickery.[22]
[22] Respondent’s submissions p1.
The respondent also makes extensive submissions addressing what might be described as alleged inadequacies in the applicant’s case.
In relation to the evidence referred to in paragraph 59 above the relevant statement evidence highlighted in the submissions[23] may be summarised as follows:
[23] Respondent’s submissions pp4-6.
a.     Ms Elgammal agreed that she was the applicant’s team leader and when she entered that role she found that the applicant was continuously failing to meet “adherence to schedule” (ATS) targets and that from October 2019 to February 2020 Ms Elgammal began to monitor the applicant’s ATS data;
b.     Ms Elgammal stated that she noted conduct of the applicant that would have contributed to the applicant’s failure to meet her ATS targets and accordingly raised those issues with the applicant;
c.     Ms Elgammal stated that while the applicant stated she wasn’t meeting her targets because of a need to take bathroom breaks that was not what
Ms Elgammal observed;
d.     Ms Elgammal further stated that when the applicant raised an alleged medical condition as the reason for her excessive toilet breaks the applicant was provided with an appropriate form so that medical information could be provided and in the light of the information an adjustment of the applicant’s work conditions could have been arranged;
e.     Ms Elgammal denied making unreasonable demands on the applicant, telling the applicant that she would be “performance managed”, failing to greet the applicant on arrival, sending abrupt emails to the applicant or standing over her in an intimidating manner;
f.     Ms Elgammal did not deny making comments to the applicant about the applicant’s ability to understand information during training but said she could not recall making such comments;
g.     significantly, in my view, Ms Elgammal gave a history of events on 17 February 2020 that on that day Ms Elgammal advised the applicant that the applicant had achieved accreditation and could proceed with a personal advice session with a client. Following that conversation Ms Elgammal stated that the applicant then told her that she had to go to the toilet, returned from the toilet, told Ms Elgammal that she (the applicant) could not make the call and went home;
h.     Mr Chami confirmed that he was made aware of the applicant’s ATS issues shortly after Ms Elgammal took over as the applicant’s team leader;
i.     the applicant had spoken to him about the manner in which Ms Elgammal was dealing with her;
j.     Mr Chami was of the view that Ms Elgammal was dealing with the issues in accordance with procedure;
k.     Mr Chami confirmed that the applicant had been failing to make ATS targets between November 2019 and February 2020;
l.     Mr Chami confirmed that the applicant spoke to him about difficulties the applicant was experiencing with Ms Elgammal’s management style but he understood that Ms Elgammal had changed and the applicant and Ms Elgammal had been working well together;
m.    Mr Chami confirmed that the applicant had raised health issues as a reason for her failure to meet ATS targets in early 2020 but noted that Ms Elgammal had been addressing the issue since April 2019;
n.     Mr Chami also referenced a conversation with Ms Elgammal advising him of the applicant’s log and break times which allegedly did not support a claim that the cause of her failure to meet her ATS targets was the need for toilet breaks however that is obviously hearsay evidence of very limited weight;
o.     Mr Chami also outlined the process whereby the applicant was trained to undertake “personal advice model” calls and in his version of events the applicant during that training had a panic attack and went home;
p.     Mr Chami’s further statement referred to the applicant’s rehabilitation after ceasing work in February 2020 and then noting the circumstances of her proposed move to a new team leader in November 2021. Mr Chami noted that during the rehabilitation period the applicant had not been close to meeting her KPI’s but that had not been raised with her and that he was at a loss to understand why a move to another team leader in November 2021 would have made any difference to her, and
q.     Mr Chami noted that the reason for the proposed move to another team leader was because the then supervisor of the applicant was unable to cope with the number of people reporting to her at that time.
In relation to the medical evidence referred to in paragraph 51 Mr Doak noted that Dr Vickery had provided two reports. The first report was dated 6 June 2022 and provided a diagnosis of an adjustment disorder but that the cause of the psychological injury was action of the respondent with respect to performance management and referred to the contents of a factual investigation report as the basis of that opinion. That factual investigation report included the statement of Ms Elgammal and one of the statements of Mr Chami referred to above.[24]
[24] Reply pp17-61.
The second report of Dr Vickery relied upon by Mr Doak in his submissions is a report dated 29 November 2022. That report was prepared after the applicant made a claim for lump sum compensation and confirmed his initial diagnosis of an adjustment disorder caused by the actions of the respondent in respect to performance management but also identified a number of other causal factors such as the operation of the applicant’s business as contributing to the applicant’s presentation.[25]
[25] Respondent’s submissions p 9.
As part of his submissions Mr Doak raised objections to some of the evidence in the applicant’s case in the following terms (I note that for reasons of clarity in numbering I have omitted the paragraph numbers used by Mr Doak in his submissions):
“The respondent objects to the following paragraphs of the applicant’s statement dated 14 February 2023 for the following reasons:
a) Paragraph 19: (ARD page 2) – the whole of the paragraph. (Hearsay assertion/opinion/no proper basis for assertions established).
b) Paragraph 20 ‘toxic work environment…demotivated’ : (ARD page 3) – (Opinion/ no proper basis for assertions established).
c) Paragraph 21 ‘caused me…breakdown at work’ : (ARD page 3) – (Opinion/matter for medical opinion).
d) Paragraph 23: ‘There were as many…’ to end of paragraph. (ARD page - (Hearsay assertion/opinion/no proper basis for assertions established).
e) Paragraph 24: The whole paragraph - (Hearsay assertion/opinion/no proper basis for assertions established).
f) Paragraph 27: ‘Due to the…frequently to the bathroom’ : (ARD page 3) – (Opinion/matter for medical opinion).
g) Paragraph 30: The whole paragraph. – (Not part of the pleaded allegations/ opinion/no proper basis for assertions established).
Objections to Ms Mahmud’s statement
The respondent objects to the following paragraphs of Ms Mahmud’s statement dated 6 March 2023 for the following reasons:
a) Second last paragraph on page 1 (AALD 1): Sentence commencing ‘There was noise…’ to the end of the paragraph – (Hearsay, opinion/no proper basis for assertions established).
b) Last paragraph on page 1 (AALD 1): ‘…her behaviour was very aloof and demeaning…’ - (Opinion/no proper basis for assertions established). ‘She favoured…with others.’ - (Opinion/no proper basis for assertions established).
c) First paragraph on page 2 (AALD 2): ‘Others…within the team.’ - (Opinion/ hearsay/ no proper basis for assertions established). ‘A few staff members…to end of paragraph. – (Hearsay/opinion/no proper basis for assertions established).
d) Second paragraph on page 2 (AALD 2): ‘From this point…to end of the sentence. - (Opinion/no proper basis for assertions established).
e) Third paragraph on page 2 (AALD 2): ‘The new Team Leader…to end of the sentence. - (Opinion/no proper basis for assertions established).
f) Fourth paragraph on page 2 (AALD 2): ‘I was aware…on a social level.’ - (Hearsay/opinion/no proper basis for assertions established). ‘It was well 8 known…’ to the end of the sentence. – (Hearsay/opinion/no proper basis for assertions established).
g) Fifth paragraph on page 2 (AALD 2): The whole paragraph - (No proper basis for assertions established). Further, the witness does not establish when the asserted conversation took place, what the asserted complaint about ‘what was happening in the team’ was or what the response of Ms Miller was. The assertion about what NM asserts she was told is not in a form that can be given any weight.
h) Last paragraph on page 2 (AALD 2): The whole paragraph - (Hearsay/opinion/no proper basis for assertions established).
i) Fourth paragraph on page 3 (AALD 3): The whole paragraph - (Hearsay/opinion/no proper basis for assertions established).
j) Fifth paragraph on page 3 (AALD 3): The whole paragraph - (Hearsay/opinion/no proper basis for assertions established).
k) Last three paragraphs on page 3 (AALD 3): (Relevance – What NM told Karen Banks is irrelevant to the issue to be determined by the Commission).
l) First paragraph on page 4 (AALD 4): Whole paragraph – (Hearsay/no proper basis for assertions established).
m) Second paragraph on page 4 (AALD 4): Whole paragraph – (Hearsay/no proper basis for assertions established).
n) Third paragraph on page 4 (AALD 4): Whole paragraph – (Relevance).
o) Fourth paragraph on page 4 (AALD 4): Whole paragraph – (Relevance).
Objections to Ms Drisakis’ statement
The respondent objects to the following paragraphs of NM’s statement dated 6 March 2023 for the following reasons:
a) Second paragraph on page 1 (AALD 5): ‘that Deborah was agitated and stressed over her dealings with Amanda.’ – (Conclusion/opinion).
b) Second paragraph on page 1 (AALD 5): ‘I also had other people… to end of paragraph. – (Hearsay/relevance).
c) Third paragraph on page 1 (AALD 5): Last sentence – (Relevance).
d) Fourth paragraph on page 1 (AALD 5): ‘in a harsh manner.’ – (Opinion).
e) Fifth paragraph on page 1 (AALD 5): The whole sentence. – (Hearsay/ no proper basis for assertions established).
f) Sixth paragraph on page 1 (AALD 5): First sentence. – (Opinion/ no proper basis for assertions established).
g) Sixth paragraph on top of page 2 (AALD page 6): ‘There was some friction…at her desk.’ - (Opinion/conclusion/no proper basis for assertions established). ‘I was told later…stress leave.’ – (Hearsay/conclusion/no proper basis for assertions established). h) Second paragraph on page 2 (AALD 6): The whole paragraph. – (Relevance).
i) Third paragraph on page 2 (AALD 6): The whole paragraph. – (Hearsay/opinion/conclusion/no proper basis for assertions established).
j) Fourth paragraph on page 2 (AALD 6): The whole paragraph. – (Hearsay/opinion/conclusion/no proper basis for assertions).
k) Fifth paragraph on page 2 (AALD 6): The whole paragraph. - (Hearsay/relevance).”
Mr Doak states that he objects to those parts of the applicant’s factual evidence enumerated above being considered by the Commission or being given any weight.[26]
[26] Respondent’s submissions p6.
In his submissions Mr Carney responds to those objections[27] noting firstly (and correctly) that the rules of evidence do not apply to the Commission and that the matters raised by Mr Doak go to weight of the evidence.
[27] Applicant’s submissions p2.
Mr Carney secondly submitted in response to Mr Doak’s objections that in any event the applicant is entitled to give evidence of first hand hearsay under s 61 of the Evidence Act and it is a matter of what weight is given to such assertions.
Thirdly Mr Carney submitted that under s 78 of the Evidence Act the applicant can give opinion evidence based upon her impressions and the facts as she sees them and again it is a matter for weight in assessing the value of the evidence.
I agree with the applicant’s submissions and it is certainly the case that the Commission is “not bound by the rules of evidence and can inform itself on any matter in the manner the Commission thinks appropriate and as proper consideration of the matter before the Commission permits”.[28]
[28] Personal Injury Commission Act 2020 s 43(2).
However it is also fair to observe that the rules of evidence are essentially rules of fairness and hearsay evidence is of little or no probative value where it is being used to establish anything more than the statement was made. Irrelevant evidence is clearly of no probative value and unqualified opinion evidence is of little weight.
Applying the above principles I note as follows in relation to Mr Doak’s objections utilizing the same numeration:
Applicant’s statement:
(a)    admitted – of very little or no evidentiary value;
(b)    admitted – description of the applicant’s view of her work environment;
(c)    admitted – description of the applicant’s opinion as to the cause of her breakdown but of limited value as it is a matter for medical opinion;
(d)    admitted – a number of matters are clearly within the applicant’s knowledge such as the existence of a survey – other matters such as the manner in which a survey was conducted or how many witnesses were interviewed are outside the applicant’s knowledge and accordingly are of little weight;
(e)    admitted – of little or no weight;
(f)    admitted – in so far as it is a statement of the applicant’s experience that as she felt stress she experienced a need to attend the bathroom and being embarrassed by a team leader it is probative of her experiences at work but of little weight in terms of the diagnosis of the physiological mechanisms involved, and
(g)    admitted – of no probative value as no context is provided as to when and how the complained of events are alleged to have occurred.
Ms Mahmud’s statement:
(a)    admitted – of little evidentiary weight;
(b)    admitted – is a description of the manner and management style of Ms Elgammal as experienced by the witness but of limited relevance to the applicant’s experience and accordingly of limited weight;
(c)    admitted – of limited weight as it is unclear to what extent the witness is describing her own experience or her actual observations of what occurred with others in particular the applicant and clearly of no weight where describing the feelings of others;
(d)    admitted – of no weight as the witness could not know if Amanda liked the applicant or not;
(e)    this objection is unclear as there is no part of the paragraph with a sentence commencing with the words “The new team leader…”. If intended to refer to the final sentence the sentence is admitted and has some probative value in describing the management style of the team leader although the nature of the threats and intimidatory behaviour is not described;
(f)    admitted – of little or no weight;
(g)    admitted – is evidence of others experiencing difficulty with Ms Elgammal but of slight value in establishing the cause of the applicant’s injury;
(h)    admitted – of very limited evidentiary value in that it is unclear what role if any the witness had in the complaints process. She may have been part of a delegation of employees approaching Mr Cunningham however that is not made clear;
(i)    admitted – the witness’s opinion as what caused a breakdown has no real weight however her confirmation that the breakdown took place during a personal advice training is something she may have witnessed. Similarly the witness may have actually observed the applicant crying and struggling for breath while in the middle of the floor. The witness can also describe the fact that she did not see the applicant return to the office;
(j)    admitted – the witness can say that after the event described that another team leader came and interviewed her and others. She can also describe her perception of how others were reacting although that is of limited to no relevance to the applicant’s reactions;
(k)    admitted – of limited weight other than establishing that the witness as a fellow employee to the applicant also had difficulties with the management style of
Ms Elgammal;
(l)    admitted – clearly hearsay evidence that should be provided by others. Of no real weight;
(m)     admitted – the witness can clearly give evidence of the contents of her conversations however it is otherwise of limited weight;
(n)    admitted – of limited to little relevance, and
(o)    admitted – of little relevance.
Ms Drisakis’s statement:
(a)    admitted – relevant but of less weight due to the fact that the basis of the assertion is not given;
(b)    admitted – the fact of the complaints about Ms Elgammal is relevant but the truth of the complaints is not established by the hearsay evidence;
(c)    admitted – has some relevance to the existence of work stressors in the job;
(d)    admitted – it is a description of Ms Elgammal’s manner however is of limited relevance and weight in proving how the applicant was treated by Ms Elgammal;
(e)    admitted – the witness can describe her view of the morale of the team of which she is a part and also give evidence that she was told that complaints had been made however such evidence does not prove that complaints were made;
(f)    admitted – of little to no weight;
(g)    admitted – of little weight as the statement is too vague to be of any assistance. There is no indication of when any such event or events took place, whether the witness is describing one or more incidents, what she actually observed to constitute “friction” and what Ms Elgammal (assuming that is the “Amanda” referred to in the sentences) did to indicate that she would not help the applicant;
(h)    admitted – of limited relevance but the witness can relate that in March 2020 the applicant stated she was really sick with depression anxiety and stress etc;
(i)    admitted – the witness can give evidence about events after the applicant went off work and her view of the morale and performance of a work team of which she was part;
(j)    admitted – the witness can give evidence of what Mr Chami said to her in a meeting with others present after an enquiry. Mr Chami is also in a position to contradict that evidence if asked to do so, and
(k)    admitted - of very limited to no relevance and weight.

In his submissions Mr Doak concedes that the evidence of the applicant and the witnesses Ms Mahmud and Ms Drisakis confirm that they had issues with the management of the team by Ms Elgammal[29] but argues that unhappiness stemmed from the fact that other team leaders had allowed the applicant and others to take liberties with their break times and attending to personal matters during work hours.
[29] Respondent’s submissions p9.
Mr Doak then submits that the fact that the applicant had issues with Ms Elgammal’s management style that was not the cause of the applicant’s psychological injury.
Mr Doak points to the lack of such a history in the applicant’s treating doctor’s records at the time.
Mr Doak also submits that there is no dispute that the applicant failed to meet her performance targets and it was objectively reasonable for her supervisor to address those performance difficulties.
The submission of Mr Doak argues that the cause of the applicant’s psychological injury is found in the steps taken between late 2019 and February 2020 to address her performance deficiencies.
In support of his submission as to causation Mr Doak pointed to the following evidence:
a.     Mr Chami confirmed that the applicant had spoken to him about Ms Elgammal’s management style soon after she commenced as the applicant’s team leader but that later on the applicant had advised him that the management style had changed and the applicant and Ms Elgammal had been getting on well;
b.     there were no complaints made by the applicant to her general practitioner during the period April 2019 to February 2020 about adverse psychological issues caused by bullying and harassment at work;
c.     the applicant ceased work after a period of performance management by
Ms Elgammal;
d.     the first complaint about bullying was only made to the applicant’s doctor after ceasing work in February 2020 and should be viewed as a reconstruction to excuse her poor work performance;
e.     the applicant’s claim form does not mention bullying and harassment.
f.     That the claim by the applicant that she was taking frequent toilet breaks due to ongoing bullying was not truthful;
g.     that Dr Vickery’s view that the applicant’s psychological injury was caused by the attempts by Ms Elgammal to deal with the applicant’s performance issues is correct and that the opinion of the applicant’s doctor should be rejected because it is based on an incorrect history;
h.     on a similar basis the opinion of the applicant’s treating psychologist Mr Jones (incorrectly referred to as Mr Ford) should be rejected because it again is a retrospective history and is given without considering the statement evidence of Ms Elgammal and Mr Chami, and
i.     Mr Doak refers to the decision of Acting President Roche in Krstevska v Fast and Fluid Management Australia Pty Ltd[30] and points out the necessity for a medical opinion to be given in a “fair climate” and states that was not done in the applicant’s case in the opinions of Drs Yadav and Nyunt and Mr Jones.
[30] [2012] NSWWCCPD 69.
Mr Doak finally submits that if it is accepted that the performance management steps undertaken by Ms Elgammal were the actual cause of the applicant’s psychological injury those steps were objectively reasonable. On that basis there should be an award for the respondent.
The submissions by Mr Carney for the applicant basically argue that the totality of the evidence supports a finding that the applicant’s psychological injury was caused by the personal conflict between the applicant and Ms Elgammal.
Mr Carney points to the fact that the applicant had worked for the respondent for many years with other team leaders without problem points to the management style of Ms Elgammal as being the actual cause of the psychological injury.
Mr Carney further submits that much of the respondent’s submissions are irrelevant as the only issue identified in the s 78 notice was a denial of liability relying on s 11A in relation to action taken by the employer with respect to transfer.
With the greatest respect to Mr Carney that submission is in my view clearly incorrect.
In the second s 78 notice at page 5 of that notice it is clearly stated;
“On consideration of the available evidence we maintain that your work related psychological injury was wholly or predominantly caused by actions taken or proposed to be taken, by Westpac against her in respect to transfer and/or performance appraisal.”[31]
[31] Reply p12.
The same issue had been raised in the first s 78 notice at page 4 of that notice.[32]
[32] Reply p4.
The submissions by the respondent on the issue of a defence based upon s 11A(1) of the 1987 Act alleging an injury wholly or predominantly caused by reasonable action taken by the respondent with respect to performance appraisal are clearly relevant, are matters raised in the first s 78 notice and the second s 78 notice and indeed form the basis of Mr Doak’s submissions.
As has already been noted the respondent has already agreed that the applicant suffered a psychological injury arising out of or in the course of her employment to which her employment was the main or substantial contributing factor.
The respondent’s defence to the claim is based upon s 11A of the 1987 Act and, as has been summarised above, the defence submitted by Mr Doak is one that the applicant’s psychological injury condition was wholly or predominantly caused by reasonable action taken by the respondent with respect to performance appraisal.
I note that none of Mr Doak submissions deal with a suggestion that the cause of the applicant’s injury was reasonable action taken by the respondent with respect to transfer. Accordingly the respondent cannot establish a defence to the applicant’s injury was caused wholly or predominantly by action taken or proposed to be taken by the respondent with respect to transfer. Given the manner in which the applicant has pleaded her case, relying on an allegation of a date of injury that predates any proposed transfer that approach by
Mr Doak is in my view correct.
As has also been noted the respondent bears the onus of establishing a defence under
s 11A(1) of the 1987 Act.
With the greatest respect to Mr Doak, who had a very difficult case to argue, it is my view that the respondent fails to establish such a defence to the applicant’s claim for lump sum compensation under s 11A of the 1987 Act.
The first problem for the respondent is revealed when considering the meaning of “performance appraisal” as described by Geraghty J in Irwin -v- Director-General of School Education and as cited by Mr Doak in his submissions.
As noted the judge referred to “performance appraisal” as being “somewhat like an examination, not a continuing assessment”. He further described it as a “limited, discrete process with a recognised procedure” to establish “an employee’s efficiency and performance”.[33]
[33] NSWCC 14068/97.
The basis of the argument advanced by Mr Doak is that the respondent was undertaking a performance appraisal by monitoring the applicant’s compliance with the employers ATS standards.
ATS standards were, as already noted above, a shorthand reference to Adherence to Schedule standards and those standards simply related to the applicant attending work on time, leaving on time and taking no more than the allowed periods for breaks.
The statement of Ms Elgammal sets out problems being experienced in getting the applicant to adhere to ATS standards but does not refer to assessment of other aspects of the applicant’s efficiency and performance.[34]
[34] Reply pp30-41.
The applicant provided a detailed statement of her duties as repeated at paragraph 4 above and Mr Chami in his statement dated 6 April 2022 described the applicant’s duties and role in the following terms;
“Essentially her role expectation is to help customers over the phone. Deborah was based at the Kogarah customer contact center [sic] and was taking inbound calls in relation to sales opportunities and assisting our home loan customers. Deborah holds the position of Lending Connect Banker. There has been no change to her duties pre or post injury. To explain in more detail, the Customer Care Lending Connect Banker is an important position within Customer Care that is critical to achieving our purpose in Helping Australians succeed. The role of a Customer Care Lending Connect is to fulfill end-to-end banking needs of existing and new to bank customers by having quality conversations to better understand their needs.
The Customer Care Lending Connect Banker helps customers to grow by matching and fulfilling appropriate solutions across a range of products including deposit accounts. They can fulfill customer deposit needs by having needs-based conversations and providing recommendations on the appropriate deposit product. The Customer Care Lending Connect also specialise in the mortgage lending policy and procedures to help customers with service enquiries related to their mortgage products. This role is primarily an inbound phone role, with the opportunity to make scheduled outbound customer contact where required, such as outstanding follow up actions or re-work. The Customer Care Lending Connect Banker maximises opportunities to contribute to customer value through building customer relationships, informing customers about relevant products and services, highlighting alternative channels or products, such as home lending and insurance and arranging referral to business partners. They take responsibility for helping customers and commit to customers by doing what they say they will do whilst operating under a risk and compliance framework.”
In my view a performance appraisal would involve a discrete and limited process (to adopt the words of Geraghty J) whereby the applicant’s efficiency and performance in achieving the expectations of her role as detailed by Mr Chami was assessed.
Simply dealing with one very limited aspect of the applicant’s work performance is not in my view a performance appraisal.
I have no difficulty with the suggestion that taking steps to have the applicant comply with her work schedule standards is reasonable action by an employer (assuming those work schedule standards are otherwise reasonable) but in my view that was simply a management process and one that extended as a continuing exercise of management of the applicant and was not a limited discrete process as described by Geraghty J when considering the meaning of “performance appraisal”.
The respondent’s submissions highlight the ongoing nature of the monitoring of the ATS standards and refer to “steps taken by Ms Elgammal from late 2019 to February 2020 to address the continuing failure of the applicant to meet her performance targets”.[35] Such an ongoing process dealing with one aspect of the applicant’s work performance cannot in my view be accurately described as a performance appraisal.
[35] Respondent’s submissions p10.
Given that in my view the process of monitoring and raising with the applicant on an extended basis her compliance or non-compliance with the ATS standards did not constitute a “performance appraisal” within the meaning of the phrase as used in s 11A (1) of the 1987 Act the defence of the respondent to the applicant’s claim fails.
Even if I am incorrect in my view as to whether the respondent was conducting a performance appraisal when monitoring and raising with the applicant her compliance or non-compliance with ATS standards it is my view that the evidence does not establish on the balance of probabilities that the applicant’s psychological injury was wholly or predominantly caused by the process in any event.
The applicant had worked with the respondent or its predecessor since 2001 apparently without incident.
The change of team leader to Ms Elgammal appears to have fairly early on created some conflict or unhappiness for the applicant with Mr Chami confirming that the applicant raised concerns about Ms Elgammal with him as early as April 2019.[36]
[36] AALD2 p2.
As is conceded by Mr Doak in his submissions[37] the applicant and other members of the team of which she was part had issues with Ms Elgammal’s management style which appears to have caused some distress with the applicant stating that she was suffering memory freeze, and tears amongst other issues.[38]
[37] Respondent’s submissions p9.
[38] Amended application p2.
I note in passing that I do not accept that the evidence establishes “bullying” of the applicant by Ms Elgammal. “Bullying” is the repeated and intentional use of words or actions against someone to cause distress and risk to their wellbeing. There is no evidence in this case that would establish bullying by Ms Elgammal. In the absence of clear evidence establishing that bullying occurred the use of the term is, to say the least, unfortunate and inappropriate.
Further when reference is made to the statement of Mr Chami it is clear that between December 2019 (incorrectly noted in the statement as December 2020) and February 2020 the applicant was suffering significant anxiety about her upcoming training.[39]
[39] AALD2 pp5-6.
As noted earlier there is a significant piece of evidence in the statement of Ms Elgammal in relation to the date the applicant ceased work in February 2020.
Ms Elgammal’s statement describes conducting a training module with the applicant and passing the applicant on 10 February 2020 but when asked to carry out her first personal advice session (which I understand to be the basis of the training module) the applicant stated she couldn’t make the call and went to the bathroom. She then went home.[40]
[40] Reply p43.
It is to be noted that the incident closest in time to the applicant’s breakdown was a request or suggestion to the applicant that she carry out her first personal advice session.
I also note that Mr Tom Jones a treating psychologist took an initial history that the applicant had developed anxiety, depressed mood and panic reaching a crisis point on 17 July 2020 in the context of heavy work demands (emphasis added) and bullying be [sic] a supervisor.[41]
[41] Amended application p41.
I accept that the applicant’s medical case has an incomplete history however in my view there are a number of clearly identifiable issues that contributed to the applicant’s admitted psychological injury which manifested itself in February 2020. Those factors include at least the following matters:
a.     the management style of Ms Elgammal;
b.     the difficulties the applicant was experiencing in completing her training to an acceptable level;
c.     her current heavy workload;
d.     her anxiety about being able to undertake personal advice sessions with clients, and
e.     the continuing monitoring of her compliance or non-compliance with ATS standards.
It is also the case that the respondent’s medical case lacks a full history of such factors or fails to consider same in the reports which in my view means that the opinion of Dr Vickery lacks a proper foundation and is therefore unpersuasive.
Given the range of employment factors that can be identified as contributing to the applicant’s psychological injury and the lack of proper consideration of the contribution of those factors to the applicant’s psychological injury it is clear in my view that it is not possible to find on the balance of probabilities that the respondent’s process of monitoring and seeking to enforce the applicant’s compliance with ATS standards was the sole or predominant cause of her psychological injury and accordingly the respondent would fail to discharge its onus to establish a defence under s 11A of the 1987 Act even if it is accepted that the process of monitoring and seeking to enforce compliance by the applicant with the respondents ATS standards was a performance appraisal.
Accordingly, I find that the respondent has failed to establish on the balance of probabilities a defence under s 11A to the applicant’s claim for lump sum compensation.

SUMMARY

The applicant suffered a psychological / psychiatric injury arising out of or in the course of her employment to which her employment was the main contributing factor and the respondent’s defence under s 11A of the 1987 Act fails.

[2023] NSWPIC 356

20 July 2023