Navitas English Pty Ltd v Trinh - [2017] NSWWCCPD 52

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Navitas English Pty Ltd v Trinh [2017] NSWWCCPD 52
APPELLANT:	Navitas English Pty Ltd
RESPONDENT:	My Hung Trinh
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-1017/17
SENIOR ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	27 July 2017
DATE OF APPEAL DECISION:	29 November 2017
SUBJECT MATTER OF DECISION:	Ability of the respondent to an appeal to raise grounds in opposition, akin to a cross-appeal – BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69 and Rail Corporation of New South Wales v B [2009] NSWWCCPD 81 applied, s 352(6) of the Workplace Injury Management and Workers Compensation Act1998 – fresh evidence on appeal – CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied, duty to make findings, the test to be applied in establishing psychological injury – State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 applied
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Stiles Lawyers
Respondent:	Santone Lawyers
ORDERS MADE ON APPEAL:	1. The respondent’s application to admit fresh evidence is refused. 2. The Certificate of Determination dated 27 July 2017 is set aside. 3. The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

This appeal is brought by an employer against a decision involving psychological injury to a worker. It raises issues going to a Senior Arbitrator’s formal findings on ‘injury’ and ‘substantial contributing factor’, and the failure of the employer’s defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). It raises issues going to the test to be applied, in dealing with allegations of psychological injury.

BACKGROUND

My Hung Trinh was employed full-time by Navitas English Pty Ltd (Navitas) as a work experience placement officer from March 2012. Navitas teaches English to migrants, and Ms Trinh assisted clients of Navitas into employment through work experience placements. Ms Trinh last worked with Navitas on 16 July 2015. She lodged a claim form dated 31 July 2015, claiming psychological injury due to “ongoing harassment and bullying over the past years”. Navitas’s insurer arranged a factual investigation, as part of which a lengthy statement was taken from Ms Trinh by an investigator.[1] The statement identified 19 allegations of matters that were allegedly causative of Ms Trinh’s psychological injury (the allegations). The statement was attached to Ms Trinh’s Application in the current proceedings, and was referred to in the parties’ submissions and the Senior Arbitrator’s decision.
[1] Ms Trinh’s statement dated 11 September 2015 (the statement).
Navitas made voluntary payments of compensation until 13 November 2015. Its insurer issued a s 74 notice dated 30 October 2015 denying liability. The notice disputed that Ms Trinh satisfied the requirements of s 9A of the 1987 Act (‘substantial contributing factor’). It also asserted that Navitas had a defence based on s 11A of the 1987 Act, as the injury resulted wholly or predominantly from reasonable action taken or proposed to be taken by Navitas, with respect to performance appraisal. The notice placed incapacity and the need for treatment in issue, on the basis that Ms Trinh had not sustained a compensable injury. The notice did not specifically raise the occurrence of ‘injury’ as an issue.

THE ARBITRAL PROCEEDINGS AND DECISION

The current proceedings were commenced by Application to Resolve a Dispute registered on 2 March 2017 (the Application). The matter was listed for an arbitration hearing on 22 June 2017. Mr Tanner, instructed by Mr Santone, appeared for Ms Trinh. Ms Wood appeared for Navitas. There were no applications to cross-examine or to adduce oral evidence. The matter proceeded on the documentary material, and counsel addressed. The Senior Arbitrator reserved her decision.
The Commission issued a Certificate of Determination (which included 26 pages of reasons) dated 27 July 2017.[2] The Senior Arbitrator summarised the medical evidence. She referred to a report of Dr Rastogi (the treating psychiatrist) dated 30 September 2015. Dr Rastogi diagnosed “adjustment disorder with depressed mood and anxiety”.[3] The Senior Arbitrator referred to the report of Dr Dinnen (a psychiatrist qualified on Ms Trinh’s behalf) dated 31 March 2016. Dr Dinnen diagnosed “persistent depressive disorder or dysthymia which was stable and ‘appeared to have been triggered by workplace conflicts’”. He regarded Ms Trinh as “unfit for work”.[4] The Senior Arbitrator referred to a report from Dr Singh (a psychiatrist qualified by the insurer of Navitas) dated 28 September 2015. Dr Singh diagnosed an “unspecified depressive disorder”. She thought that “employment was not the main contributing factor to her symptoms”, rather there was a “general inability to cope with the stresses involved”. Dr Singh considered Ms Trinh was “currently functioning at her premorbid level of capacity”. The Senior Arbitrator noted that Dr Singh was “not asked to address the terms of s 11A”.[5]
[2] [2017] NSWWCC 176 (reasons).
[3] Reasons at [21]–[22].
[4] Reasons at [23]–[26].
[5] Reasons at [27]–[36].
The Senior Arbitrator referred to the s 74 notice dated 30 October 2015. She described it as declining liability on the basis of ss 9A and 11A(1) of the 1987 Act. She said the notice “did not dispute incapacity, despite the opinion of Dr Singh”.[6]
[6] Reasons at [37]–[44].
The 19 allegations in the statement involved various other employees of Navitas. Navitas relied on statements of six employees, whose statements were relevant to various of Ms Trinh’s allegations. The reasons set out the allegations seriatim, under each summarising Ms Trinh’s allegation, and the response from the statements of those witnesses who were relevant.[7]
[7] Reasons at [45]–[128].
The Senior Arbitrator summarised the parties’ submissions. She said Mr Tanner’s submissions referred to those parts of the lay evidence that supported Ms Trinh’s case, but not “the substantive parts of the statements which did not”. She said that Mr Tanner submitted that there were “a variety of stressors besides performance appraisal”. She noted a submission that the s 11A defence could not succeed, in the absence of medical evidence that “reasonable action with respect to performance appraisal” had wholly or predominantly caused the relevant psychological condition (referring to Hamad v Q Catering Ltd[8]). She noted Mr Tanner’s submission that the s 11A defence was based on “performance appraisal”, a “limited discrete process”, relying on Irwin v Director General of School Education.[9] Mr Tanner submitted that the test was not whether Navitas had treated Ms Trinh fairly, but whether she had reacted to events with “a perception of persecution or unfairness”. Ms Trinh had an “eggshell psyche”, she could not accept negative feedback. Mr Tanner submitted that Ms Trinh had no current work capacity after she finished work on 16 July 2015.[10]
[8] [2017] NSWWCCPD 6 (Hamad).
[9] (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported) (Irwin).
[10] Reasons at [130]–[131] and [135]–[136].
The Senior Arbitrator referred to Ms Wood’s submissions. Whether employment was a substantial contributing factor to the injury was in issue. There was no medical evidence about the complaints in 2014, the only evidence from Dr Hossain was a “a certificate in non-WorkCover form which did not specify a work-related cause”. The evidence from Dr Lim was brief. Ms Wood submitted that “[t]he factual allegations with respect to bullying and harassment were not made out”. She submitted that the causation test in s 11A(1) was satisfied, as the “only matters which were proved were performance based”.[11]
[11] Reasons at [132]–[134].
The Senior Arbitrator expressed reservations about the state of the evidence. Many of Ms Trinh’s allegations were “vague”. Ms Trinh did not, in her supplementary statements, respond to the statements of the other witnesses. The Senior Arbitrator said the medical evidence was “scant”.[12] She said:
“Navitas does not dispute that Ms Trinh suffered a psychological injury. It disputes that employment was a substantial contributing factor to her condition. The s 74 notice did not dispute incapacity.”[13]
[12] Reasons at [138]–[141].
[13] Reasons at [144].
The Senior Arbitrator referred to a number of authorities[14]. She said that only two of the “issues on which [Ms Trinh] relied” were the subject of complaint by Ms Trinh, before she left work. These two were the events in 2012 between Ms Trinh and Ms Roussos which led to mediation, and being “fixated on Dikea and Iris” during her performance appraisal.[15] The Senior Arbitrator referred to the histories recorded by doctors, on which they had based their opinions. Dr Lim and Dr Singh recorded bullying by co-workers which involved “shouting, yelling and ‘putting her down’”. Dr Rastogi recorded “that Ms Roussos and Ms Lhosa subjected [Ms Trinh] to chronic bullying, intimidation, harassment and verbal abuse”. Dr Dinnen recorded “people were nasty and management caused her distress”. Dr Singh recorded that Ms Trinh was “distressed after the meeting with management in July 2015”.[16]
[14] Reasons at [146]–[152]; State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler), Attorney General’s Department v K [2010] NSWWCCPD 76; 8 DDCR 120, Wiegand v Comcare Australia [2002] FCA 1464, Gibbs v Trustees of the Roman Catholic Church of the Diocese of Lismore [2012] NSWWCCPD 30, Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56.
[15] Reasons at [154].
[16] Reasons at [156].
The Senior Arbitrator said it was necessary to determine whether the history provided to Ms Trinh’s medical practitioners was accurate, “such that it provides a fair climate for the acceptance of their opinions”. She referred to Paric v John Holland Constructions Pty Ltd[17] and associated authorities. She said there was “no medical evidence” that Ms Trinh had an “eggshell psyche” or a particular inability to accept feedback which was not positive.
[17] [1984] 2 NSWLR 505 (Paric).
The Senior Arbitrator noted that the Application pleaded injury involving “bullying, isolation, subjected to unfair treatment, harassment”. She noted the prevalence of Applications in the Commission pleading ‘bullying and harassment’. The Senior Arbitrator said that as the words were used in Ms Trinh’s claim form, and by doctors on whose opinions the claim was based, she “must determine what those words mean in the context of her claim”.[18] The Senior Arbitrator referred to the following definition of “bullying” from the ‘SafeWork NSW’ website:
“Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”
[18] Reasons at [159].
The Senior Arbitrator referred to “the most useful definition of ‘harass’ … in the online Macquarie Dictionary being ‘to disturb persistently; torment’”. She said these definitions fitted “the allegations which Ms Trinh made to medical practitioners”.[19] She said the histories obtained by medical practitioners were “quite different to the facts as described by a range of witnesses”. She was not satisfied the first 18 of the allegations were “made out”. Therefore, she was not satisfied that employment was a substantial contributing factor to “Ms Trinh’s condition in respect of those allegations”. She accepted that there was “some tension in the workplace from time to time”, but this was not the same as psychological injury. The Senior Arbitrator was satisfied the evidence of the witnesses on which Navitas relied was “objectively reliable”.[20] The Senior Arbitrator dealt with each of the first 18 allegations, giving brief reasons for rejecting each of them. She said:
“183. With respect to those 18 allegations, I prefer the evidence of other witnesses where it differs from that of Ms Trinh. There is no objective evidence of conduct which could be called bullying or harassment nor is there evidence that she was isolated or subjected to unfair treatment by other staff or her managers. Mr Tanner said that her vulnerability is that she is unable to accept feedback which is not positive but there is no medical evidence that this inability constituted an ‘eggshell psyche’.
184. In respect of the first 18 allegations, I am not satisfied that Ms Trinh has reacted to real events in the workplace and the complaints she made to medical practitioners are not supported by that review of the evidence. Her complaints are radically different to the evidence of the other witnesses. My finding is reinforced by the absence of any notes, WorkCover certificates or reports from Dr Hossain.
185. I am not satisfied that Ms Trinh’s first 18 allegations accurately set out a history of events which were a substantial contributing factor to Ms Trinh’s psychological condition.”[21]
[19] Reasons at [160]–[161].
[20] Reasons at [162]–[163].
[21] Reasons at [183]–[185].
The Senior Arbitrator then dealt with the nineteenth allegation, which dealt with a performance review on 9 July 2015, together with Ms Trinh’s last day at work, 16 July 2015. She noted that Navitas bore the onus of proof in establishing a defence pursuant to s 11A(1). She said that the meeting “on 9 July 2015 was a formal, annual review meeting and falls within the definition of performance appraisal in Irwin”. She said that the reasonableness of Navitas’s conduct was “a matter for objective assessment”.[22] She referred to the manner in which the review, and associated matters, were carried out, and concluded that “[t]he review was therefore reasonable action with respect to performance appraisal”.[23]
[22] Reasons at [191]–[192], referring to Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 and Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95.
[23] Reasons at [193].
The Senior Arbitrator then turned to whether the evidence established that “the injury was wholly or predominantly caused by Navitas’ action”. She quoted from the decision in Hamad at [88]. She said:
“Reluctantly, I am forced to conclude that Navitas has not made out its defence under s 11A because Navitas has not led medical evidence that Ms Trinh’s injury was wholly or predominantly caused by the performance appraisal on 9 July 2015. I am satisfied, on a common sense basis, that the injury was caused by reasonable action with respect to performance appraisal but the evidence of Dr Singh is to the contrary because she considered that it was likely that stressors outside work were the cause of Ms Trinh’s condition and she had a ‘general level of inability to cope with the stresses involved.’ The other medical practitioners have relied on a factual matrix which I am not satisfied had been made out.”[24]
[24] Reasons at [195].
The Senior Arbitrator then dealt with the weekly entitlement. She said that the “insurer failed to raise the question of incapacity in the s 74 notice, despite Dr Singh’s opinion that Ms Trinh had returned to her pre-morbid level of functioning”. She said that therefore the “only evidence is that Ms Trinh was and remains totally incapacitated for work”. She made a continuing award at $1,138.49 per week from 13 November 2015 pursuant to s 37 of the 1987 Act, and an award for s 60 expenses incurred after 9 July 2015.[25]
[25] Reasons at [196]–[197].

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Navitas submits that this appeal can be decided on the papers. Its submissions in reply state that its appeal involves an error of law and can be determined on the basis of the factual findings made by the Arbitrator.
Ms Trinh submits that the orders in the Certificate of Determination should not be disturbed, but that “appropriate Orders have been issued pursuant to an erroneous reasoning process”. Ms Trinh submits that the matter should be listed for telephone conference before the Presidential member, “to facilitate discussion regarding the various procedural issues”. Ms Trinh submits there are three appropriate alternate approaches on appeal:
(a)    that the appeal be dismissed, on the basis that “the outcome will be no different following a proper determination of the substantive issues”;
(b)    that the decision should be revoked, and the matter then be re-determined by the Presidential member, subject to admission of fresh evidence (the clinical notes of Dr Hossain), or
(c)    that the decision be revoked and the matter be remitted to another Arbitrator for re-determination, subject to orders for the admission of the notes of Dr Hossain.

FURTHER SUBMISSIONS

On 3 November 2017 the Commission issued a Direction in the following terms:
“The respondent’s submissions (at [8]–[12]) go to whether, in dealing with the allegations numbered 1 to 18, the Senior Arbitrator erred in the test which she applied, to whether the respondent received a psychological injury. The appellant submits (in its Submissions in Reply at [1]) that its appeal relates to an error of law and can be dealt with on the basis of the Senior Arbitrator’s factual findings. The attention of the parties is drawn to the decision of BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69 at [10]–[14]. It is noted that the Senior Arbitrator described the occurrence of psychological injury as not disputed (reasons at [3]), a situation the appellant accepts (submissions in support at [1.2]). Whether some or all of the Allegations numbered 1 to 18 were accepted or proved, is of potential relevance to whether psychological injury resulted wholly or predominantly from the events found by the Senior Arbitrator to constitute performance appraisal. The parties are directed to address:
(a)    Whether the respondent should be allowed to raise the issue going to the test applied by the Senior Arbitrator, dealing with the various allegations of injury, in its Notice of Opposition?
(b)    The parties should further address the alleged error identified by the respondent, should they wish to do so.
(c)    To the extent to which ‘injury’ was conceded by the appellant, what did that concession involve?
(d)    What psychological injury did the Senior Arbitrator find, that resulted from the events found to constitute performance appraisal?”
Submissions in compliance with this Direction were lodged by Navitas on 10 November 2017, and by Ms Trinh on 20 November 2017.

DEALING WITH THE ADDITIONAL ISSUES RAISED BY MS TRINH ON THE APPEAL

Navitas states that it “broadly opposes the respondent’s raising of further issues going to the test applied by the senior arbitrator relating to the various allegations of injury”. The description of injury in the Application pleaded “Bullying, isolation, subjected to unfair treatment and harassment”. Ms Trinh relied on Dr Dinnen, who described her statement and account given to psychiatrists as “being subjected to bullying and harassment”. Ms Trinh “advanced [her] case before the arbitrator on that basis”. She always bore an onus of establishing that those matters she asserts “are in fact a reality”. The 18 allegations were dismissed as “unsubstantiated and had not relevantly caused injury”.
Navitas submits that the decision in BlueScope Steel Ltd v Markovski[26] can be distinguished. In the current matter, Ms Trinh’s submissions dealing with error in the test applied “essentially revisit submissions made before the arbitrator”. The Arbitrator did not confine her analysis to the “narrow delineation in the pleadings and medical evidence”; she considered whether there was “any other evidence of conduct which might have been causative of injury”. In Markovski, an alternative reasoning process was suggested in the appeal; in the current matter there is an application to seek to bring fresh evidence on appeal, which is opposed. The new evidence (contemporaneous clinical material) “was not critical to the arbitrator’s reasoning process”. Navitas made submissions opposing the application to rely on fresh evidence.
[26] [2013] NSWWCCPD 69 (Markovski).

In Markovski Roche DP said:
“While there is no provision for a cross appeal in the Commission’s rules, proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits (s 354(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)). In addition, the Commission has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act). Moreover, a respondent to an appeal can, on appeal, support the decision below on any good legal ground appearing on the evidence (David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 420E–421D; 426F; 428G). That is effectively what Mr Markovski is seeking to do, in the event that BlueScope succeeds on the causation issue.”[27]
[27] Markovski at [13].
In Rail Corporation of New South Wales v B,[28] an appeal brought under an earlier form of s 352 of the 1998 Act, Roche DP to similar effect said:
“RailCorp submits that, as the Arbitrator found against Mr B on the issue of reasonableness and, as Mr B has not filed a ‘cross appeal’, he is precluded from arguing that issue on review. That is not correct. There is no provision in the legislation or rules for a cross appeal in the Commission and where a factual finding is at issue on review and each party has had an opportunity to make submissions on it, as has happened in the present case, it is open for that issue to be re-determined by a Presidential member conducting a section 352 review.”[29]
[28] [2009] NSWWCCPD 81 (B).
[29] B at [54].
Ms Trinh did not herself lodge an appeal, she could not be expected to challenge the orders in her favour. If the arguments of Navitas on appeal are found to be correct, it would be inconsistent with s 354 of the 1998 Act if Ms Trinh was precluded from pursuing an argument that may entitle her to success. This is consistent with the approach taken in Markovski and B, with which I agree. This is subject to issues of procedural fairness, and also to issues associated with whether such an argument was raised at first instance,[30] if it reasonably could have been. Navitas has had the opportunity to make submissions in reply, and also pursuant to the Direction. Ms Trinh’s arguments about an “eggshell psyche”, and her perception of real events, were pursued at first instance.[31] The Senior Arbitrator’s reference to an objective test of “bullying and harassment”, by reference to an online definition and a definition from a dictionary, was not raised at first instance by Navitas or the Senior Arbitrator, and so was not responded to by Ms Trinh. The correctness of the test applied is raised in Ms Trinh’s submissions on appeal.[32]
[30] Coulton v Holcombe [1986] HCA 33; 162 CLR 1, Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481.
[31] Transcript of Proceedings, Trinh v Navitas English Pty Ltd (WCC, [2017] NSWWCC 176, Senior Arbitrator McDonald, 22 June 2017) (T), T 79.12–80.27.
[32] Ms Trinh’s submissions at [9].
It is appropriate that Ms Trinh be allowed to raise the above arguments on this appeal. Contrary to Navitas’s submissions on the appeal, it is not appropriate that the appeal be conducted simply on the basis of the Senior Arbitrator’s factual findings. The correctness of the test applied, in arriving at the factual findings, is challenged.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

GROUNDS OF APPEAL

The grounds of appeal lodged by Navitas raise the following:
(a) The Senior Arbitrator erred in failing to make specific findings that Ms Trinh sustained injury in a performance appraisal on 9 July 2015, and that her employment was a substantial contributing factor to that injury (Ground No 1).
(b) The Senior Arbitrator, it may be inferred, determined that any injury, and consequential entitlement to weekly payments and medical expenses, were due to the performance appraisal on 9 July 2015. She specifically found that Navitas’s relevant conduct was reasonable. She then erred in finding that the defence pursuant to s 11A(1) was not made out, absent medical evidence to the effect that the injury was wholly or predominantly caused by the performance appraisal on 9 July 2015 (Ground No 2).
The Senior Arbitrator made specific findings that the allegations numbered 1 to 18 were not made out.[33] The Notice of Opposition lodged on Ms Trinh’s behalf argues that, if the Senior Arbitrator fell into the error alleged by Navitas, the result was correct in any event, as she erred in the following respects:
(a) The Senior Arbitrator erred, in approaching the issue of psychological injury on the basis of objectively assessing whether Ms Trinh was “bullied and harassed”, which is not the relevant requirement. “The relevant consideration is not whether her reaction is objectively founded, but rather whether her perception, or interpretation, of real events gave rise to her condition.”[34]
(b) The workplace was considered “toxic”, Ms Trinh was “reduced to tears”, “it was necessary to convene a mediation”. The Senior Arbitrator “erroneously failed to acknowledge the relevance of the workplace stressors, which gave rise to the worker’s psychological condition, prior to the performance appraisal.”[35]

FRESH EVIDENCE

[33] Reasons at [162].

[34] Ms Trinh’s submissions at [8]

[35] Ms Trinh’s submissions at [9]–[11].

Ms Trinh’s Submissions

Ms Trinh seeks the admission of fresh evidence pursuant to s 352(6) of the 1998 Act. It is clinical material produced by Idameneo (No 123) Pty Ltd, which relates to Ms Trinh’s treatment at the Fairfield Chase Medical & Dental Centre (including treatment by Dr Hossain). It appears the documents were produced pursuant to a Direction for Production issued at the request of Navitas’s solicitors, and were received by the Commission on 9 June 2017. The application is supported by an affidavit of Mr Santone (Ms Trinh’s solicitor) dated 10 October 2017.
Mr Santone’s affidavit indicates that his firm wrote to Dr Hossain requesting clinical records, and enclosing an authority, in December 2015. The records were not produced. He believed the request was followed up by his assistant. The current proceedings were commenced on 1 March 2017, with the clinical records not having been received. At a telephone conference held on 6 April 2017, Navitas was granted leave to issue a Direction for Production on Dr Hossain. Documents were not produced prior to the first arbitration date, listed for 30 May 2017, which was vacated due to illness of the Senior Arbitrator. Mr Santone stated that it was his usual practice to inspect produced documents prior to the arbitration date, and subject to instructions, to lodge them as Late Documents. On 9 June 2017 he received notice from the Commission that Idameneo (No 123) Pty Ltd had produced documents. He did not inspect them, as he erroneously believed that preparations for hearing were finalised prior to the first hearing date. It was only after the matter was determined, that Mr Santone reviewed his file and realised that the notes were in fact produced. He said that at the time of the second hearing (22 June 2017) he believed the records had not been produced.
Ms Trinh refers to entries in the notes dated 23 October 2014 and 9 May 2015 that refer to complaints such as work related stress, bullying, verbal abuse, overwork, an inability to attend work and unable to sleep. These pre-date the performance appraisal interview on 9 July 2015. It is submitted it is apparent, from the Senior Arbitrator’s reasoning, that “she considered that the absence of contemporaneous evidence adversely affected the worker’s case”. If the decision is revoked on the grounds submitted by Navitas, the notes of Dr Hossain should be considered on a re-determination to avoid “substantial injustice” as contemplated by s 352(6).[36]
[36] Ms Trinh’s submissions at [16]–[22].

Navitas’s Submissions

Navitas opposes the admission of fresh evidence. The evidence does not indicate that it was not available, and could not reasonably have been obtained, for the arbitration hearing. The fresh evidence “would effectively see a completely different case being presented” by Ms Trinh.[37] The reasons indicated that the Senior Arbitrator’s “finding with respect to the cause of injury were ‘reinforced’” by the absence of material from Dr Hossain. Thus this was “not critical to the arbitrator’s reasoning process”, there was an acceptance that the decision had been made “independent of contemporaneous evidence in any event”. There was no evidence that these matters in the notes were “causative of incapacity”. Incapacity resulted “only following the performance appraisal”.[38]
[37] Navitas’s submissions in reply at [2]–[3].
[38] Navitas’s submissions in response to the Direction.
Navitas submits that the entry in the notes for 10 July 2015 (after the performance appraisal interview) stands in stark contrast to those on 23 October 2014 and 9 May 2015. The material in the notes would not necessarily have led to a different decision. Navitas also refers to the desirability of finality to litigation.[39]
[39] Navitas’s submissions in response to the Direction.

Consideration

Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 sets out the procedure for seeking leave to rely on fresh evidence. Section 352(6) was dealt with in CHEP Australia Limited v Strickland,[40] where Barrett JA (Macfarlan JA agreeing) said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.” [41]
[40] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
[41] Strickland at [27] and [30]–[31].
It is clear, from Mr Santone’s affidavit, that the relevant medical records were produced to the Commission and available for inspection from 9 June 2017, when the Commission sent him a notification to that effect. This was a little less than two weeks before the date when the arbitration hearing proceeded. Mr Santone stated that he did not inspect the notes as he erroneously believed that preparations for the hearing were finalised. The appellant’s submission is correct, leave cannot be granted on the basis of the first of the threshold questions in s 352(6). The evidence was available before the proceedings concerned.
This leaves the second of the threshold questions, is the further evidence of such a nature “that failure to grant leave would cause substantial injustice in the case”? Applying Strickland, is the result that would emerge different depending on whether the fresh evidence is taken into account? As was observed by Roche DP in Drca v KAB Seating Systems Pty Ltd, “[t]his requires a consideration of what the result ‘would’ be if the evidence were excluded and what the result ‘would’ be if it were admitted”, involving “careful consideration of the merits of the grounds of appeal”. [42]
[42] [2015] NSWWCCPD 10 at [26].
Navitas, opposing admission of the fresh evidence, submits “contemporaneous clinical material was not critical to the arbitrator’s reasoning process”. Navitas submits the Senior Arbitrator made findings of fact, and said that her opinion was “reinforced by the absence of any notes, WorkCover certificates or reports from Dr Hossain”.[43] This suggests “that a decision with respect to matters of fact had been made, independent of contemporaneous evidence in any event”. Navitas submits there is no medical evidence that clinical references to matters such as work related stress “were relevantly causative of incapacity or indeed were evidence of an injury being sustained particularly with reference to the operation of s 11A(3)” of the 1987 Act.
[43] Reasons at [184].
The entry in Dr Hossain’s notes on 23 October 2014 included:
“Multiple issues
- work related stress
- discomfort in throat
[difficulties] in swallowing
On going issues at work ? bullying / verbal abuse – under stress. Not in suitable mind or sound mind to continue work today, Unable to sleep last night. Unable to attend work, clinically psychological injury
Declined suicidal ideation or self harm …
Actions:
Letter created – re. PRY Medical Certificate.
Supportive care – explained / information provided
Counselled
MC issued” (emphasis in original)

The entry in Dr Hossain’s notes on 19 May 2015 included “Suffering from stress/overwork”, and a history that Ms Trinh was planning for a pregnancy, but it was “not happening thinking due to stress”. There was a history “Want to reduced [sic] her hour to relive [sic] some work related stress”. This was the last entry in Dr Hossain’s notes, prior to the performance appraisal interview.
The Senior Arbitrator’s reasons described the medical evidence as “scant”, and said all of it “post-dates the performance review on 9 July 2015, even including Dr Hossain’s non-WorkCover certificate dated 13 July 2015”.[44] She said that “lack of complaint to a general practitioner is not decisive, particularly where a worker complained to his or her employer about bullying and harassment”.[45] The Senior Arbitrator said:
“In respect of the first 18 allegations, there is no evidence that Ms Trinh made contemporaneous complaints because there is no evidence from Dr Hossain other than a certificate which is not in WorkCover form.”[46]
[44] Reasons at [140].
[45] Reasons at [142], referring to Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56.
[46] Reasons at [143].
The fresh evidence is relevant and has the capacity to affect the result. It corroborates the presence of work related psychological symptoms, which pre-dated the performance appraisal interview. However, for it to be admissible on the basis of the second of the threshold questions in Strickland, it is necessary that it be evidence, the admission of which would lead to a different result. It is insufficient if it is simply “compelling and might have affected the outcome”. The Senior Arbitrator’s finding, about the first 18 allegations, was based on a number of factors, of which the lack of corroborated, contemporaneous medical complaint was only one. I am not satisfied that its admission would have produced a different result. The application for admission of the fresh evidence in this appeal is refused.
For reasons which follow, I have formed the view that the appeal succeeds, and should be remitted for re-determination by a different arbitrator. The admission of further evidence can be dealt with in the normal way, by the arbitrator, in the re-determination.

GROUND NO 1 – THE FINDINGS ON ‘INJURY’ AND SECTION 9A OF THE 1987 ACT

This ground alleges that the Senior Arbitrator erred in failing to make the following specific findings:
(a) that Ms Trinh sustained injury in a performance appraisal on 9 July 2015, and
(b) that Ms Trinh’s employment was a substantial contributing factor to that injury (s 9A of the 1987 Act).
These alleged errors collectively constitute Ground No 1.

Navitas’s Submissions

Navitas submits that the Senior Arbitrator correctly observed that it’s concession that Ms Trinh suffered psychological injury, and the issues were ss 9A and s 11A(1) (with respect to performance appraisal). She correctly observed that there were “19 factual allegations with respect to potential causes of injury”. No “non work related issue” was advanced by either party as contributing to any psychological condition”. Dr Singh, although referring to “underlying personality traits, “did not identify any psychological condition attributable to events inside or outside the workplace”. In respect of the first 18 allegations, the Senior Arbitrator found that she was “not satisfied that Ms Trinh has reacted to real events in the workplace”. She was “not satisfied that Ms Trinh’s first 18 allegations accurately set out a history of events which were a substantial contributing factor to Ms Trinh’s psychological condition”. Navitas submits the Senior Arbitrator “dismissed the first 18 allegations as unsubstantiated and not relevantly causative of any injury per the operation of s 9A of the WCA 1987”. [47]
[47] Reasons at [183]–[185], discussed in Navitas’s submissions on appeal at [1.2]–[1.6].
The Senior Arbitrator then turned to allegation number 19. She “analysed the nature of the performance review”, and noted that after the meeting Ms Trinh “left work and was given a non WorkCover certificate”. She said that this was “the first medical evidence with respect to her condition though Dr Hossain did not say anything about the causation of that condition”.[48]
[48] Reasons at [186]–[188], discussed in Navitas’s submissions on appeal at [1.7]–[1.8].
Navitas submits that the Senior Arbitrator erred, in that she “does not make any specific finding with respect to matters going to causation in particular that [Ms Trinh] suffered a psychological condition as a consequence of that performance review”. Navitas does say that it “can be inferred from the senior arbitrator’s reasoning process relying on the certificate provided by Dr Hossain that injury had occurred at that point”.[49]
[49] Navitas’s submissions on appeal at [1.9].

Ms Trinh’s Submissions

Ms Trinh’s submissions do not make any argument against the existence of the error identified by Navitas. Ms Trinh’s submissions argue that the same result could have been appropriately reached for other reasons. The submissions then challenge the application of the test applied, in dealing with the first 18 allegations, which were rejected.

Further Submissions

The Direction sought further submissions going to the nature of the concession of ‘injury’ made by Navitas, and identification of any ‘injury’ finding made, in respect of the ‘performance appraisal’ interview.
Navitas referred to Dr Singh’s opinion that “employment is not the main contributing factor to her current symptoms”, and submissions on that topic.[50] It said:
“In essence the appellant’s position was that while there was a concession with respect to psychological injury based upon the opinion of Dr Singh, s 9A of the WCA 1987 operated to preclude any entitlement to benefits under the Act given employment was not the main contributing factor.”
[50] Reply p 7, Navitas’s submissions pursuant to Direction at [1(C)].

I note the reference to “main contributing factor” appears to be to the requirements for a ‘disease injury’ in s 4(b) of the 1987 Act, rather than s 9A(1), which imposes a test involving “substantial contributing factor”. It is only if an ‘injury’ is established, that it is then necessary to consider whether employment was a substantial contributing factor to the injury.
Navitas reiterated its submission that there was no “formal finding with respect to the psychological injury”, but it could be inferred, from the Senior Arbitrator’s reasons and reliance on Dr Hossain’s certificate, that injury occurred at the time of the performance appraisal.[51]
[51] Navitas’s submissions pursuant to Direction at [1(D)].
Ms Trinh’s further submissions said that the issues were confined to ss 9A and 11A. Navitas was not entitled to raise an issue about ‘injury’. The injury was clearly pleaded as a cumulative one from March 2012 to 16 July 2015. This was supported by Dr Dinnen’s report in Ms Trinh’s case, which said there was a depressive disorder triggered by the workplace conflicts described in the statement. Navitas did not take issue with the existence of the depressive disorder, or that it was causally related to the 19 stressors in the statement. There was no dispute that Ms Trinh suffered a psychiatric injury, in the course of her employment, in the circumstances she described in the statement. The defence was limited to the “secondary questions” pursuant to ss 9A and 11A. It was not open to the Senior Arbitrator to “embark upon a forensic evaluation of whether each of the 19 stressors … [was] causative of her injury”.[52]
[52] Ms Trinh’s submissions pursuant to Direction at [1]–[9].
Ms Trinh submits it was not permissible for the Senior Arbitrator to approach the issue pursuant to s 9A, from a context other than that Ms Trinh suffered injury as described. “There was plainly no factor external to [Ms Trinh’s] employment that would explain her condition.”[53] Ms Trinh submits that she easily discharges her onus under s 9A, and Navitas cannot discharge its onus on the causation issue raised by s 11A. Navitas has no evidence that Ms Trinh’s condition was wholly or predominantly caused by performance appraisal.
[53] Ms Trinh’s submissions pursuant to Direction at [10]–[13].

Consideration

Ms Trinh’s claim form asserted “ongoing harassment and bullying over the past years”. The pleading of injury in the Application gives the date of injury as March 2012 to 16 July 2015, and relies on bullying, isolation, unfair treatment and harassment, with a single date of claim, 16 July 2015. Opening Ms Trinh’s case at the arbitration hearing, her counsel said:
“The applicant’s case is that her psychiatric injury was received as a result of an adverse experience in the workplace over an extended period from March 2012 through to 16 July 2015.”[54]
[54] T 2.15–8.
The following exchange occurred at the arbitration hearing:
“SENIOR ARBITRATOR: It’s just occurred to me just noticing that date that the date of injury relied on is 16 July.

MS WOOD: Yes. I think the applicant went back to work for one - for a short period on the 16th but not for the whole day.

MR TANNER: When you say 16th, that’s deemed date.

SENIOR ARBITRATOR: Sorry. That’s the pleaded date.

MS WOOD: That’s the last day.

SENIOR ARBITRATOR: Deemed date. She went in on that day.

MR TANNER: So it’s March 2012 to 16 July.”[55]
[55] T 50.21–51.4.

The above is consistent with Ms Trinh relying on an allegation of injury based on the ‘disease’ provisions in s 4(b) of the 1987 Act.
Identification of the relevant ‘injury’ was important for the purposes of the issues involving both s 9A and s 11A(1) of the 1987 Act. In Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd Allsop P, Beazley and McColl JJA said:
“The starting point for the President’s determination was that the appellant had sustained injury in the course of her employment. That was a matter that had been conceded, but its relevance remained fundamental to the task that the President was required to undertake under s 9A. It remained fundamental because, as we have already explained, ‘employment’ for the purposes of s 4 and s 9 is the same employment that is under consideration in s 9A. By that, we are not saying that the tests under the two sets of provisions, that is, s 9 and s 4 on the one hand and s 9A on the other, are the same. We have already explained that s 9A involves a different test than that which arises under the earlier provisions.”[56]
[56] [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi) at [91].
Both s 4 and s 9A require independent satisfaction.[57]
[57] Badawi at [48].
The way in which the arbitration hearing was conducted was consistent with the allegation of ‘injury’ being in issue. Counsel for Navitas addressed on the report of Dr Singh:
“… what I submit this doctor is saying is that the employment factors were not sufficient to have caused a psychological condition and a psychological injury and if you’ll accept that, then what we have is a real issue in respect of section 9A and the employer’s contribution to any symptoms that the applicant is being treated for.”[58]
[58] T 76.6–12.
Notwithstanding the reference to s 9A, an argument, based on medical evidence, that employment factors were not sufficient to cause a psychological injury, is an argument going to ‘injury’ rather than s 9A. Similarly, Ms Trinh’s counsel in his submissions in reply said:
“In this case, as in all psychiatric injuries, it’s a question of whether there is a basis for the applicant to have the perception she has. My friend took you through the reports of the respondent’s witnesses and sought to argue about the way in which these people had behaved or treated the applicant in a fair manner.
The fact that they or my learned friend think that they behaved fairly is not the test here. The question is was there an event and did the applicant react to that event in a manner which involved a perception of persecution or unfairness?”[59]
[59] T 79.13–25.
This submission also went to whether allegations of ‘injury’ were made out. There was a single allegation of injury, based on the ‘disease’ provisions in s 4(b) of the 1987 Act, relying on Ms Trinh’s employment from March 2012 to 16 July 2015. The Senior Arbitrator’s reasons dealt seriatim with 19 individual allegations which were spelled out in the statement, and whether each of these was established. This may have flowed from the way in which the investigator set out the evidence in the statement. Ms Trinh argues that ‘injury’ was not placed in issue by Navitas, therefore all of the 19 individual ‘allegations’, which went to make up the single allegation of a ‘disease’ injury, were conceded by Navitas.
As a general proposition, this may well be true. If Navitas sought to dispute some or all of the ‘injury’ allegations, this should have been raised in the s 74 notice and/or the Reply. However, in the circumstances of the current matter, the extent to which ‘injury’ was conceded was unclear.
The s 74 notice was poorly drafted, and failed to draw a clear distinction between disputing ‘injury’ and disputing whether s 9A was satisfied. It is clear from Badawi that the provisions of ss 4 and 9A raise different tests, which need to be independently satisfied.[60] The notice was dated 30 October 2015. It post-dated the factual investigation; the witness statements (including that of Ms Trinh) were attached to the s 74 notice. The document acknowledged the need to satisfy both s 4 and s 9A. It referred to Ms Trinh’s “injury (which is disputed)”. It recited three allegations of bullying, which appear to be those numbered 1, 2 and 18 in the statement. In relation to number 1, the notice said that the insurer was “unable to determine that there has been one-sided ‘bullying’ of you by Ms Roussos”, and it was “more akin to a personality clash”. In relation to those numbered 2 and 3 in the s 74 notice, it said it did “not have any witness statements substantiating your allegation of bullying”, and could not accept the allegation.
[60] See the passages referred to at [61]–[62] above.
The conclusion of the “Reasons for our decision”, in the s 74 notice, was that “there is no causal connection between the alleged bullying and the development of your claimed psychological injury … As such, we are of the view that your employment was not a substantial contributing factor to any psychological injury you may have sustained.” The s 74 notice did not deal with the majority of the allegations raised in the statement. The reasons it gave were more consistent with a denial on the basis of ‘injury’ rather than on the basis of s 9A.
The way in which the parties conducted the arbitration hearing was consistent with ‘injury’ being in issue.[61]
[61] See the passages quoted at [63]–[64] by way of example.
In Shore v Tumbarumba Shire Council Roche DP said:
“The issues in dispute are ultimately determined by the way the parties present their respective cases. As observed by Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15]) ‘pleadings are only a means to an end’ and if, in the running of the case, the parties choose to restrict them, enlarge them, or to disregard them, ‘it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest’.”[62]
[62] [2013] NSWWCCPD 1; 14 DDCR 157 (Shore) at [36].
Leaving to one side whether it was consistent with the s 74 notice and pleadings, dealing separately with the 19 allegations in the statement had some practical utility. The defence based on s 11A(1) may potentially have been available in respect of some of the allegations, but not others.
Navitas, in its submissions on appeal, acknowledges that the s 74 notice conceded psychological injury,[63] but it also relies on the Senior Arbitrator having “dismissed the first 18 allegations as unsubstantiated and not relevantly causative of any injury per the operation of s 9A” (emphasis added). In Dayton v Coles Supermarkets Pty Ltd Davies AJA described the operation of s 9A:
“The section uses the word ‘substantial’. Before ordering that compensation be paid, a court must be satisfied that the contribution of the employment was a substantial contributing factor to the injury.”[64] (emphasis in original)
[63] Navitas’s submissions at [1.2].
[64] [2001] NSWCA 153; 22 NSWCCR 46 (Dayton) at [39].
The Senior Arbitrator did not find that the first 18 allegations of injury (if approached individually) were made out, but that no compensation was payable as s 9A was not satisfied in respect of each of them. The ultimate findings of fact dealing with the first 18 allegations are set out at [14] above.[65] On a fair reading, this involved a finding that Ms Trinh had not discharged an onus, of proving that the first 18 allegations, alleged to comprise the ‘disease’ injury, were made out. Although it used the terminology “substantial contributing factor”, the subject matter of the reasoning was ‘injury’, not whether s 9A was satisfied.
[65] Reasons at [183]–[185].
The Senior Arbitrator then dealt with the “final allegation [which] relates to a performance review on 9 July 2015”. She said that Ms Trinh was “presented with an Action Plan containing four areas to focus on”. She noted evidence from Mr Jakob that Ms Trinh “asked for three months off work to look after her husband who was ill”, and that Ms Trinh had not sought to put on a supplementary statement responding to that. She said that Ms Trinh “ceased work after the performance review on 9 July 2015”. The Senior Arbitrator said that Dr Hossain provided a certificate in “non-WorkCover form” on 13 July 2015, giving Ms Trinh “three months’ [sic] off work, the same time frame that she had sought in the performance review”. She said that this certificate “did not say anything about the causation” of Ms Trinh’s condition.[66]
[66] Reasons at [186]–[188].
The Senior Arbitrator referred to Ms Trinh’s cessation with Navitas:
“Ms Trinh returned to work on 14 July though was sent home on 16 July by Mr Jakob because she had a certificate which said that she was unfit. The history obtained by Dr Lim that she could not cope and ceased on that day is not supported by the facts. There is no evidence that she sought medical attention again before she saw Dr Lim on 24 July 2015. The allegation that Ms Trinh ‘had a breakdown’ is not supported by the medical evidence.”[67]
[67] Reasons at [189].
The Senior Arbitrator then turned to a consideration of Navitas’s defence pursuant to s 11A(1) of the 1987 Act. There were no ultimate findings of fact made about ‘injury’ or s 9A, in respect of the performance review on 9 July 2015. A determination of ‘injury’ was important, for consideration of whether s 9A was satisfied (this being in dispute) and also in considering whether a defence pursuant to s 11A(1) was available in respect of any found injury.
Navitas submits that a finding of injury can be inferred, from the Senior Arbitrator’s reasoning process and the certificate of Dr Hossain. Dr Hossain’s certificate dated 13 July 2015[68] includes a diagnosis of “depression, anxiety and stress”. As the Senior Arbitrator observed, it said nothing about the cause of this condition, and it was not in a WorkCover form. The reasons suggested a level of scepticism about the certificate, given that it was for the same period for which leave was previously requested, based on Ms Trinh’s husband’s illness. The reasons did not suggest that the certificate was accepted as persuasive evidence of a psychological injury. The Senior Arbitrator specifically rejected the proposition that Ms Trinh ceased work on 16 July 2015 as she “could not cope”, and also rejected a proposition that Ms Trinh “had a breakdown”.
[68] Reply at p 10.
The Senior Arbitrator referred to Paric and other authorities, dealing with the need for a doctor’s history to provide a fair climate for the acceptance of the doctor’s expert opinion.[69] She said that the histories obtained by the medical practitioners were “quite different to the facts as described by a range of witnesses”, and she was not satisfied that the first 18 of the allegations were made out.[70]
[69] Reasons at [157].
[70] Reasons at [162].
Navitas, during the arbitration hearing, submitted it was Dr Singh’s opinion that “employment factors were not sufficient to have caused a psychological condition and a psychological injury” (see [63] above). Dealing with the defence pursuant to s 11A(1), the Senior Arbitrator referred, with apparent acceptance, to the opinion of Dr Singh “that it was likely that stressors outside work were the cause of Ms Trinh’s condition”. The Senior Arbitrator said “[t]he other medical practitioners have relied on a factual matrix which I am not satisfied had been made out”.[71] This is apparently a reference to the lack of weight to be attached to the other medical opinions, on the basis of Paric. It is not clear, having regard to the Senior Arbitrator’s analysis of the medical evidence, what an appropriate finding on ‘injury’ would have been, and on what evidentiary basis. At the least, in the absence of a specific finding having been made, it is not appropriate to infer an ‘injury’ finding.
[71] Reasons at [195].
Additionally, there was not a finding, in respect of the events on or around 9 July 2015, dealing with whether s 9A of the 1987 Act was satisfied. Whether that section was satisfied was in issue between the parties. Ms Trinh submits that s 9A could not assist the employer, as “[t]here was plainly no factor external to the worker’s employment that would explain her condition”[72]. The satisfaction of s 9A was an issue on which Ms Trinh carried an onus[73]. For the reasons given in the previous paragraph dealing with the Senior Arbitrator’s analysis of the medical evidence, together with the events around 9 July 2015, and the finding that the first 18 allegations going to ‘injury’ were not made out, it would not be appropriate to infer a finding that s 9A was satisfied.
[72] Ms Trinh’s submissions in response to Direction at [11].
[73] See Dayton, Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313.
In Hume v Walton McColl JA said:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728.”[74]
[74] [2005] NSWCA 148 at [69].
The failure to make findings, on the factual issues going to the alleged injury on or around 9 July 2015, and s 9A, constituted error. It follows that Ground No 1 is made out.

GROUND NO 2 – ALLEGED ERROR IN THE FINDINGS APPLYING SECTION 11A(1)

Because it is not appropriate to infer the factual findings for which Navitas argues, the basis on which Ground No 2 rests is not made out. Additionally, for reasons which follow, there is substance to Ms Trinh’s submission that there was error in the test applied, in rejecting the first 18 allegations. This is relevant to whether the defence pursuant to s 11A(1) of the 1987 Act could be made out.

THE ERRORS ALLEGED BY MS TRINH

Ms Trinh alleges error in the Senior Arbitrator’s approach “that it is necessary for the worker to establish, on an objective basis, that she was ‘bullied and harassed’”. She submits that whether “the experience of the worker … objectively falls within what might be considered to constitute ‘bullying and harassment’ is not the relevant requirement for establishing liability pursuant to sections 4 and 9A”.[75]
[75] Ms Trinh’s submissions at [8].
The parties were invited, in the Direction, to further address the error alleged by Ms Trinh, should they wish to. Navitas submits that the Senior Arbitrator:
“… took the analysis of the conduct of [Navitas’s] employees beyond that ‘narrow’ delineation in the pleadings and medical evidence and considered whether there had been any other evidence of conduct which might have been causative of injury.”[76]
[76] Navitas’s submissions in response to Direction at p 3.
In State Transit Authority of New South Wales v Chemler Basten JA said (excluding citations):
“In so far as his findings constituted a rejection of the need for an intention to harass, there was no error of law. Nor is it necessary to determine whether the Respondent’s response was a misperception as to the intention or attitudes of his fellow workers. In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor. … If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established.”[77]
[77] [2007] NSWCA 249; 5 DDCR 286 (Chemler) at [69].
In the same decision, Spigelman CJ said:
“As McGrath CJ Comp Ct indicated, as quoted above, a ‘perception of real events’, which are not ‘external events’, can satisfy the test of injury ‘arising out of or in the course of employment’.”[78]
[78] Chemler at [54].
Deputy President Roche referred to and applied these passages from Chemler in Attorney General’s Department v K.[79]
[79] [2010] NSWWCCPD 76 (A-G v K).
The Senior Arbitrator’s reasons set out various legal principles dealing with proof of injury in cases involving psychological injury.[80] This included quotes from the passage of the judgment of Basten JA in Chemler referred to above, and the passage from the decision of Roche DP in A-G v K in which the Deputy President summarised the conclusions to be drawn from the authorities[81]. The Senior Arbitrator said that, as the words “bullying and harassment” were used in Ms Trinh’s claim form and by the doctors on whose opinions her claim was based, it was necessary to “determine what those words mean in the context of her claim”[82]. The Senior Arbitrator set out definitions of “bullying” (from a SafeWork NSW website) and of “harass” (from the online Macquarie dictionary). She said that those “definitions fit the allegations which Ms Trinh made to medical practitioners”.[83] Navitas relied on statements from six lay witnesses. The Senior Arbitrator made a finding that “the evidence of those witnesses is objectively reliable”.[84]
[80] Reasons at [145]–[152].
[81] A-G v K at [52].
[82] Reasons at [159].
[83] See [13]–[14] above.
[84] Reasons at [163].

The Senior Arbitrator dealt with the first 18 allegations. In respect of the fourth, the Senior Arbitrator said that Ms Trinh had failed to follow correct procedure, and “[c]orrection of an error is not the same as bullying and harassment”.[85] In relation to the seventh she said a “request for information which had not been correctly provided is not bullying or harassment”.[86] In relation to the eighth, there was reference to the “placement of too many students with an employer”, and whether an agreement was signed. She concluded that the “evidence does not support the allegation that this was an instance of bullying or harassment”.[87] The eighteenth allegation is said to be:
“an example of Ms Trinh’s failure to understand what was required of her in a team environment. It cannot be said that a manager’s enquiry about a reason for lateness when others were relying on her constituted bullying.”[88]
[85] Reasons at [170].
[86] Reasons at [173].
[87] Reasons at [174].
[88] Reasons at [182].
The lack of “objective evidence of conduct which could be called bullying or harassment” was one of the factors relied on by the Senior Arbitrator, in rejecting the first 18 allegations going to injury.[89]
[89] Reasons at [183].
Ms Trinh submits:
“The Senior Arbitrator has approached the issue as to whether the worker has received a psychological injury, on the basis that it is necessary for the worker to establish, on an objective basis, that she was ‘bullied and harassed’. The Senior Arbitrator did not consider that the evidence established that [t]he worker was ‘bullied and harassed’. In that respect the Senior Arbitrator misdirected herself. In cases of psychological injury, the question is whether the psychological condition of the worker arose in the course of her employment, and whether employment was a substantial contributing factor to such injury. Whether the experience of the worker which gives rise to the relevant psychological condition objectively falls within what might be considered to constitute ‘bullying and harassment’ is not the relevant requirement for establishing liability …”
I accept Ms Trinh’s submission on this issue. The definition of “bullying” the Senior Arbitrator relied on involved “unreasonable behaviour directed towards a worker”, that is, the perpetrator was acting unreasonably. The definition of “harass” relied on involved the perpetrator persistently disturbing or tormenting the victim. These definitions are likely to involve the “motivation, intention or other mental state” of the perpetrator, something on which there should not be focus, “even in a limited sense”, applying the judgment of Basten JA in Chemler. The Senior Arbitrator correctly observed that the words “bullying and harassment” were not “a term of art”.[90] However, she then sort to define the terms, and considered whether various of the allegations fell within the definitions, in assessing whether the allegations were made out.[91] This approach is inconsistent with what was said by Basten JA in Chemler at [69]. The correct enquiry is whether “conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed”.
[90] Reasons at [159].
[91] See [89] above.
The error identified by Ms Trinh in her submissions on appeal, referred to at [31(a)] above, is made out. It is unnecessary to deal with the alleged error referred to at [31(b)] above.

DISPOSITION OF THE APPEAL

Navitas has established error in the failure to make ultimate findings of fact going to ‘injury’ and s 9A, in respect of the nineteenth allegation. It is not, for reasons given, appropriate to infer findings in respect of ‘injury’ and s 9A. Ms Trinh has established error in the approach taken in dealing with the other eighteen allegations, given the reliance on concepts of “bullying and harassment” in considering whether these allegations were made out. It may be that allegations of injury, not restricted to the nineteenth allegation, can be made out, if the test identified by Basten JA in Chemler is applied. This could impact on whether Navitas can discharge its onus, of proving that any psychological injury resulted wholly or predominantly from its reasonable action with respect to performance appraisal. Each party has identified error in its submissions. There remains a level of uncertainty regarding the precise nature of the concession made by Navitas going to ‘injury’. The findings made by the Senior Arbitrator, dealing with the first 18 allegations of injury, were based to an extent on findings of credit. Depending on the ‘injury’ findings made, ss 9A and 11A(1) will require consideration.
Justice between the parties is best achieved, in my view, by remitting the matter for re-determination by a different arbitrator. Issues of further evidence can also be dealt with then.

ANOTHER MATTER

There was a certain level of confusion in this matter, regarding what part of the injury allegations was placed in issue, and what was conceded, by Navitas’s insurer. It is desirable, at the commencement of an arbitration hearing, to have the parties state with precision, on transcript, what concessions are made, and what matters remain in issue and require determination.

DECISION

Ms Trinh’s application to admit fresh evidence is refused.
The Certificate of Determination dated 27 July 2017 is set aside.
The matter is remitted for re-determination by another Arbitrator.

Michael Snell

Deputy President

29 November 2017