Neuroscience Research Australia v de Rome - [2019] NSWWCCPD 13

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Neuroscience Research Australia v de Rome [2019] NSWWCCPD 13
APPELLANT:	Neuroscience Research Australia
RESPONDENT:	Elizabeth de Rome
INSURER:	AAI Limited trading as GIO – agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-3690/18
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	12 November 2018
DATE OF APPEAL DECISION:	11 April 2019
SUBJECT MATTER OF DECISION:	Section 151A(1) of the Workers Compensation Act 1987 – whether receipt of damages was in respect of an injury for which the employer was liable to pay compensation under the 1987 Act; Codelfa Constructions Pty Ltd v State Rail Authority [1982] HCA 24; 149 CLR 337; Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 considered and applied; Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238 applied; Super IP Pty Ltd v Mijatovic [2016] NSWWCCPD 33 considered and distinguished
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hall & Willcox
Respondent:	Adams & Co
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 12 November 2018 is confirmed.

INTRODUCTION AND BACKGROUND

Doctor Elizabeth de Rome (the respondent) commenced employment with Neuroscience Research Australia (the appellant) as a senior research officer in January 2012 and her final contract ceased in January 2016.
The respondent alleged that she was bullied and harassed by her supervisor, Dr Julie Brown, during the course of her employment and lodged a formal grievance in May 2015. The grievances were listed under four headings, namely:
(a)    she was employed under false pretences, in that her name and credibility were exploited publicly while she was excluded from involvement in the design and conduct of the study she was working on;
(b)    her research area had been appropriated by her supervisor, who was undertaking a research program entirely based on work the respondent had done prior to commencing with the appellant;
(c)    she had repeatedly been denied professional development opportunities, and
(d)    she was bullied, harassed and publicly humiliated since the commencement of her employment.
The respondent brought a claim for weekly payments of compensation from 31 January 2016 to 3 April 2017 together with a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), on the basis of an alleged psychological injury in the nature of an adjustment disorder with depressed mood and anxiety, resulting from the above conduct. The claim was denied, and the respondent commenced proceedings in the Commission.
The respondent had previously lodged a “general protections” application against the appellant in the Fair Work Commission (the Fair Work application). That application was settled by way of a deed (the deed), signed by the parties on 23 November 2016.
The Workers Compensation Commission proceedings came to arbitration on 18 October 2018. The issues requiring determination by the Arbitrator were whether:
(a)    the respondent suffered a work-related psychological injury;
(b)    the respondent’s employment was the main contributing factor to the disease injury as required by s 4(b) of the 1987 Act;
(c)    the respondent’s employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act;
(d)    the psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the employer in respect of the matters identified within s 11A(1) of the 1987 Act;
(e)    the respondent suffered incapacity for work as a result of the injury, and
(f)    the respondent was excluded from receiving compensation because of the operation of s 151A of the 1987 Act.
The Arbitrator found in favour of the respondent in respect of all issues and awarded weekly payments of compensation pursuant to s 36 and s 37 of the 1987 Act. He remitted the claim pursuant to s 66 of the 1987 Act to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment as a result of the injury.
The appellant appeals the Arbitrator’s decision. The only challenge to the decision is in respect of whether the respondent was excluded by operation of s 151A of the 1987 Act from workers compensation entitlements because she had received damages in respect of the Fair Work application.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Both parties submitted that it is appropriate for the appeal to be determined ‘on the papers’ and that an oral hearing of the appeal is not required.
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Although the proceedings have not been concluded, the decision appealed against is not interlocutory as the issues between the parties have been determined finally and conclusively.[1] Leave to appeal pursuant to s 352(3A) of the 1998 Act is therefore not required.
[1] Licul v Corney [1976] HCA 6; 50 ALJR 439; Maricic v Medina Serviced Apartments Pty Ltd [2007] NSWWCCPD 196.

THE EVIDENCE

Given the narrow scope of this appeal, it is not necessary to produce a summary of the entire 800 pages of evidence lodged by the parties. It is necessary, however, to consider the histories provided to Dr Patricia Walton, the treating general practitioner, Ms Sally McDougall, treating clinical psychologist, and both the forensic medical experts retained by the parties, as well as the medical opinions on causation provided. It is also necessary to consider the evidence pertaining to the Fair Work application, including the deed.

Dr Walton

In a report dated 29 April 2016,[2] Dr Walton recorded that she had known the respondent for several years prior to a consultation on 14 June 2014, when the respondent presented for the first time with symptoms consistent with anxiety and depression. Dr Walton provided details of those symptoms. Dr Walton noted that the respondent complained that workplace bullying and dishonesty by her superiors were having a detrimental effect on her mental health. Dr Walton referred the respondent to Ms McDougall for psychological treatment in accordance with a Medicare mental health plan.
[2] Dr Walton’s report dated 29 April 2016; Application to Resolve a Dispute (ARD), p 25.
Over the following months, Dr Walton referred the respondent to various other specialists for treatment of the alleged physical effects of the psychological condition, including temporomandibular joint dysfunction, palpitations and hypnic jerks. She prescribed a low dose medication for depression.
Dr Walton believed that the workplace bullying was the main contributing factor to the respondent’s psychological condition.
Dr Walton’s clinical notes were also in evidence, as well as WorkCover certificates of capacity. The WorkCover certificates expressed that the psychological injury was caused by “bullying in workplace”.[3] The clinical notes contained no further details of alleged stressors.[4]
[3] ARD, pp 9–24.
[4] ARD, pp 26–94.

Ms McDougall

Ms McDougall provided a number of reports directed to Dr Walton, describing the therapy provided to the respondent and her progress. Ms McDougall recorded that at the initial consultation on 23 June 2014, the respondent reported a “troubled and complex past history” and difficulty with interpersonal relationships, particularly within the family. The respondent perceived hostility towards her which was, in Ms McDougall’s view, a major contributor to the respondent’s depressive symptoms.[5]
[5] Ms McDougall’s report dated 23 June 2014; ARD, p 95.
At the conclusion of several sessions allocated through the Medicare mental health plan, Ms McDougall reported that the respondent had made very good progress. Her ability to challenge her thinking patterns and change her communication style when working with difficult colleagues and family members had led to an improvement in her interactions with her family and manager, which had previously been causing the respondent anxiety.[6]
[6] Ms McDougall’s report dated 21 October 2014; ARD, p 97.
On 8 May 2015, Ms McDougall reported that the respondent had been attending for a further six sessions with her, and was seeking approval for a further four sessions of therapy. Ms McDougall reported that the respondent continued to struggle with difficult encounters in the workplace, which were escalating. The treatment sessions were focused on providing training in assertiveness, in order to be able to deal with stress encountered in meetings.[7]
[7] Ms McDougall’s report dated 8 May 2015; ARD, p 99.
On 19 June 2015, Ms McDougall wrote to the appellant’s human resources manager, strongly recommending that the respondent be able to work from home because of the untenable circumstances in the workplace. Ms McDougall diagnosed the respondent as suffering from a major depressive disorder.[8]
[8] Ms McDougall’s letter dated 19 June 2015; ARD, p 100.
Ms McDougall provided a report dated 22 August 2016,[9] directed to the appellant’s insurer, confirming that the respondent continued to consult her in relation to her supervisor’s conduct during her employment with the appellant, including:
(a)    being ostracised in the workplace;
(b)    being excluded from meetings and participation in the planning and conduct of studies which involved her area of expertise;
(c)    extensively delaying the research papers she had written without proper reason, and blocking them from publication;
(d)    misappropriating her intellectual property, and
(e)    after cessation of her employment, she was denied access to her own research data.
[9] Ms McDougall’s report dated 22 August 2016; ARD, pp 102–104.
Ms McDougall reported that the respondent had lodged a grievance in May 2014 [sic], by which time the respondent was so unwell she was working from home. Despite the grievance, the bullying continued.
Ms McDougall also recorded that in December 2015, the respondent was informed that her contract would not be renewed in January 2016, which shocked her.
Ms McDougall expressed her opinion that the events in the workplace exacerbated the respondent’s symptoms, which were directly attributable to the ongoing bullying and harassment in the course of her employment from February 2013 until January 2016.

The forensic medical evidence

Doctor Jeff Bertucen, consultant psychiatrist, was qualified by the respondent’s legal representatives to provide a medico-legal report on her behalf. Dr Bertucen provided a report dated 20 February 2017.[10] Dr Bertucen recorded a history of workplace stressors which involved the conduct of Dr Brown towards the respondent. Dr Bertucen noted an onset of psychological symptoms in early 2014. Dr Bertucen said that the respondent found the situation so intolerable that she lodged a grievance, and after she was notified of the outcome of the grievance, the respondent became greatly distressed. Dr Bertucen noted that in November 2015, the respondent’s psychological condition regressed after the grievances were not addressed, and that the respondent was “devastated” that her employment contract was not going to be renewed beyond January 2016.
[10] ARD, pp 1–8.
Dr Bertucen diagnosed a chronic adjustment disorder with depressed mood and anxiety, which evolved into a major depressive disorder. He considered that in the absence of any pre-existing or underlying psychiatric disorder, the events in the workplace outlined in his report were the substantial cause of the psychiatric condition. Further, on the basis of the respondent’s account of the workplace events, the psychological injury occurred as a result of the bullying, harassment and unethical behaviour of the respondent’s supervisor, Dr Brown, rather than any appropriate actions by the employer.
The appellant qualified Dr Graham George, psychiatrist, who provided a report dated 20 June 2016.[11]
[11] Reply to Application to Resolve a Dispute (Reply), pp 6–15.
Dr George took a history of workplace stressors and the onset of symptoms consistent with the history recorded by Dr Bertucen and Ms McDougall. Dr George diagnosed a chronic adjustment disorder with anxiety and depressed mood. He concluded that the respondent believed:
“she was marginalised and managed out of her position by a manager who had access to her intellectual property and research ideas without acknowledging her contribution to her employment. In this context she developed anxiety, depression, a loss of confidence, self-esteem and an ability to function on a day to day basis.”[12]
[12] Dr George’s report dated 20 June 2016; Reply, p 13, [4].

The documentary evidence

The respondent provided a lengthy statement dated 5 June 2018, in which she provided specific examples of Dr Brown’s conduct towards her.[13] It is not necessary to record all of the allegations, which are examples that fall within the parameters of the summarised history provided by Ms McDougall, recorded at [22] above. The respondent also relied on a document referred to as the statement of grievances and dated 12 June 2015.[14] The document was prepared as part of the grievance that the respondent lodged in May 2015. The grievances listed in that document are all events that the respondent included in her statement dated 5 June 2018.
[13] ARD, pp 176–216.
[14] ARD, pp 134–163.
At the arbitration, the appellant sought to rely on the respondent’s Fair Work application form. The document had not previously been served and it had not been raised at the teleconference that the document would be forthcoming. The respondent objected to the tender. After hearing from both parties, the Arbitrator refused to admit the document.
There is no challenge to the Arbitrator’s decision to reject the document and the appellant has not made any application to have the document admitted on the appeal.
The appellant’s response to the “general protections application” to the Fair Work application was in evidence (the response).[15]
[15] Reply, pp 319–323.
The document discloses that the Fair Work application lodged by the respondent was a “general protections application involving a dismissal.”[16] The appellant indicated that it disagreed with the matters set out in the Fair Work application, and did not agree that the respondent was entitled to the remedies she was seeking.
[16] Reply, p 320, [1.1].
In an annexure to the response,[17] the appellant described the respondent’s employment and discussed the necessity for funding to be provided to ensure the respondent’s continuing contract. The appellant denied any assertion that the respondent was ever told, or that it was open to her to imply, that she would be employed in the most recent project for three years. The contract for 2015 commenced on 1 February 2015 and ceased on 31 January 2016. While discussions were undertaken as to proposed work hours for 2014 and 2015, there was no discussion in relation to the appellant’s employment in 2016.
[17] Reply, pp 324–331.
The appellant advised that it had made a generous calculation of an amount to be paid to the respondent to cover the costs of completing the unpublished work that remained after the respondent’s termination, but that it required the respondent to sign a release.
The appellant denied that it terminated the respondent’s employment because she lodged the grievance, and alleged that the respondent was well aware that her contract was not going to be renewed before the grievance was lodged. It said she was entitled to lodge the grievance. Further, the appellant said that the respondent’s suggestion that she was told so late in the year her contract was not to be renewed that she was unable to secure other work and would be unemployed for the year was without merit.
The appellant further denied that the respondent had lost work opportunities or recognition for research or reputation. In addition, the appellant pointed out that the respondent had provided no evidence of alleged damage to her physical or emotional health, had been offered access to the employee assistance program during the grievance complaint process, and was provided with flexible working arrangements during that period.
The deed dated 23 November 2016 was also in evidence.[18] The deed contained the following recitals:
(a)    The respondent was employed by the appellant from 19 January 2012 to 31 January 2016 (the employment);
(b)    During the employment, the respondent made a compliant to the appellant about the conduct of Dr Brown, another employee working in the same research area as the respondent;
(c)    The respondent made an Application for Relief to Adverse Action pursuant to the provisions of the Fair Work Act 2009 to the Fair Work Commission and the Federal Circuit Court in matter No. SYG 889/2016 (the proceedings);
(d)    In the proceedings, the respondent claimed compensation and monies for loss and/or damage arising from alleged damage to her reputation and also claimed damages for pain and suffering (the pain and suffering claim);
(e)    In the proceedings, the respondent claimed monies allegedly owed by the appellant, arising from work performed under an alleged contract for services after the employment ceased (the post-employment claim);
(f)    Without admission of liability, the parties had agreed to settle the proceedings on the terms and conditions set out in the deed, and
(g)    The terms of the deed were confidential.[19]
[18] Reply, pp 519–525.
[19] Reply, p 519.
The relevant definitions were set out in clause 1.1 of the deed. A “claim” was defined as “all claims, suits, causes of action whether at law or in equity or under any statute, Award or industrial instrument in respect of or arising out of the Employment or the Proceedings, but does not include claims under Workers Compensation or Superannuation legislation.” The proceedings were defined as “the proceedings referred to in Recitals clause (c), including the subject matter of those proceedings and all matters arising out of or connected with that subject matter.”[20]
[20] Reply, p 520.
Clause 6.1 of the deed provided that both parties acknowledged that the payment referred to in clause 3.2(a) was a compromise of the respondent’s claim “for general damages for hurt, distress, and reputational damage suffered by her and not related in any way to the termination of her employment or her Post-Employment claim.”[21]
[21] Reply, p 522.
The deed provided for payment from appellant to the respondent of $35,000, which included $20,000 in “General Damages” said to be in resolution of the respondent’s pain and suffering claim (clause 3.2(a)), and $15,000 as a contribution towards legal costs (clause 3.2(b)).”[22]
[22] Reply, p 521.

THE ARBITRATOR’S REASONS

The Arbitrator noted the appellant’s submissions that the statement of grievances was imported into the deed by virtue of recital (b), which made reference to the complaint made by the respondent in respect of Dr Brown’s conduct. The Arbitrator rejected that submission. The Arbitrator referred to the Court of Appeal decision in Adams v Fletcher International Exports Pty Ltd,[23] which had been the subject of submissions made during the arbitration. The Arbitrator said that, following Adams, the deed itself could not have affected the respondent’s entitlement to compensation because of the operation of s 234 of the 1998 Act, which prevents parties from contracting out of the workers compensation legislation. It was the acceptance of the payment of money that agitated the legislative preclusion in s 151A of the 1987 Act.
[23] [2008] NSWCA 238 (Adams).

The Arbitrator further considered Adams, observing that the authority established that it did not matter if the payment of damages was in respect of other claims in addition to the injury. If part of the payment of damages was with respect to the injury and the injury was the subject of a claim for workers compensation, then the worker was precluded from workers compensation. The Arbitrator further observed that in Adams, it was established that, when construing on their face the deed and the letter forwarding payment, or in the light of the surrounding circumstances, the payment was in respect of the injury concerned, that is the left hand and wrist. The deed in Adams made specific reference to “left hand and wrist” which was not the case in the deed between the appellant and the respondent.
The Arbitrator said that the appellant was attempting to include the respondent’s psychological injury in the term “pain and suffering.” The Arbitrator said that there was no longer a provision for an entitlement to compensation for pain and suffering in the workers compensation legislation, as s 67 of the 1987 Act had been repealed.
The Arbitrator noted the respondent’s submission that the pain and suffering referred to in recital (d) was in respect of the damage to her reputation, and accepted the possibility that such a construction could be one explanation. It was his view, however, that in construing the deed as whole, and noting that workers compensation was specifically excluded in the definition of “claim” in clause 1.1 of the deed, the claim for “General Damages” (which had no entitlement founded in the workers compensation legislation), did not indicate that the respondent recovered damages for the injury which was the subject of the workers compensation claim.
The Arbitrator observed that the deed did not offend s 243 of the 1998 Act, and the parties were not contracting out of either the 1987 or the 1998 Acts. The respondent’s entitlement to workers compensation was specifically recognised in the definition of “claim” in clause 1.1 of the deed.
The Arbitrator discussed the Presidential decision of Judge Keating in Super IP Pty Ltd v Mijatovic,[24] in which Ms Mijatovic signed a deed in relation to a complaint lodged by her in the Australian Human Rights Commission in relation to alleged acts of discrimination, including sexual harassment by her employer and other employees, which caused her psychological injury. The parties entered into a deed of release and Ms Mijatovic accepted an amount of money. Included in the Recitals to the deed was specific reference to the workers compensation claim, and the employer’s denial of that claim. Further, the deed recorded that Ms Mijatovic alleged certain conduct by both the employer and employees, which she perceived to be bullying and victimisation, and caused her psychological injury.
[24] [2016] NSWWCCPD 33 (Mijatovic).
The Arbitrator considered the reasoning in Mijatovic established that the meaning of the deed cannot be determined by the parties’ beliefs.[25] The Arbitrator said that in Ms Mijatovic’s circumstances, it was quite clear from the deed of release that “the injury concerned” for the purposes of s 151A(1)(a) was the psychological injury referred to in the Australian Human Rights Commission, which was also the subject of the workers compensation claim.
[25] Mijatovic, [78].
The Arbitrator further referred to the following passage from a decision of Justice Sackar in Sydney Attractions Group Pty Ltd v Frederick Schulman (citations omitted):[26]
“A commercial agreement should be given a businesslike or commercially sensible construction. However, generally speaking, if the language used is unambiguous a court must give effect to that language unless to do so would give the contract an absurd operation …
The court should have regard to all words used in the agreement to ensure the congruent operation of the various components as a whole.”
[26] [2013] NSWSC 858, [35]–[36] (Schulman).
The Arbitrator concluded that in his view, the language of the deed in the respondent’s case was unambiguous, for the reasons set out in [47] above. He further concluded that the respondent was not precluded from pursuing compensation in the current proceedings by the acceptance of $20,000, referred to in the deed as “General Damages”. He determined that the appellant had not discharged its burden of proving that the respondent was prevented from receiving compensation because s 151A of the 1987 Act applied.
The Certificate of Determination issued on 12 November 2018 records:
“The Commission determines:
1.     The applicant sustained injury on 31 January 2016 arising out of or in the course of her employment with the respondent.
2.     The injury is a disease which is of such nature as be contracted by gradual process. The applicant’s employment with the respondent was the main contributing factor to contracting the disease.
3.     The injury sustained by the applicant was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, discipline, retrenchment or dismissal or provision of employment benefits.
4.     The applicant suffered total or partial incapacity from the 31 January 2016 which resulted from the injury.
5. The respondent is to pay the applicant weekly benefits to the applicant pursuant to sections 36 and 37 of the Workers Compensation Act 1987 as follows:
(a)31 January 2016 – 30 April 2016: $1,254.10 per week from pursuant to section 36;
(b)1 May 2016 – 17 July 2016: $1,056.08 per week pursuant to section 37, and
(a)18 July 2016 – 3 April 2017: $565 per week pursuant to section 37.
6. The respondent is to pay the applicant’s costs and expenses pursuant to section 60 of the Workers Compensation Act 1987.
7.     The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment as a result of psychological injury deemed to have occurred on 31 January 2016.
8.     The documents to be referred to the Approved Medical Specialist are:
(a)Application to Resolve a Dispute and attached documents;
(b)Reply and attached documents;
(c)Application to Admit Late Documents dated 11 October 2018 and attachments, and
(d)Application to Admit Documents and attached documents, marked exhibit ‘A’ in the applicant’s case.”

GROUNDS OF APPEAL

The appellant asserts five errors of fact and law, identifying each as a ground of appeal. In effect, the appellant asserts error on the part of the Arbitrator in determining that the respondent was not precluded from receiving compensation. Those errors are identified as:
(a)    Ground one: finding that the respondent did not receive damages within the meaning of s 149(1) of the 1987 Act in respect of the injury;
(b)    Ground two: not incorporating the statement of grievances into the deed;
(c)    Ground three: failing to determine that the subject matter of the deed included a claim for damage to the respondent’s emotional health, which flowed from the allegations in the statement of grievances and the subsequent termination of her employment, and was the same injury as the workers compensation claim;
(d)    Ground four: determining that clause 1.1 of the deed was not “affected by s 234 of the 1998 Act”, and
(e)    Ground five: determining that the receipt of $20,000 pursuant to the deed was not damages in respect of an injury pursuant to s 151A of the 1987 Act.

LEGISLATION

Section 149(1) of the 1987 Act defines “damages” for the purpose of Part 5 of that Act. The section provides:
“149 Definitions
(1) In this Part:
damages includes:
(a) any form of monetary compensation, and
(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),
but does not include:
(c) compensation under this Act, or
(d) additional or alternative compensation to which Division 8 of Part 3 applies, or
(e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or
(f) a sum required or authorised to be paid under a State industrial instrument, or
(g) any sum payable under a superannuation scheme or any life or other insurance policy, or
(h) any amount paid in respect of costs incurred in connection with legal proceedings, or
(i) damages of a class which is excluded by the regulations from this definition.
(2) A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made.”
Section 151A of the 1987 Act, which appears in Division 1A of Part 5, relevantly provides as follows:
“151A Effect of recovery of damages on compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3), (4) or (5) covers the case):
(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
…”
Section 234 of the 1998 Act bears the heading “No contracting out”. The section provides:
“This Act and the 1987 Act apply despite any contract to the contrary”.

SUBMISSIONS

The appellant’s submissions

Ground one: failing to find that the respondent received damages in respect of the injury

The appellant cites s 149(1) of the 1987 Act and submits that the first question that should have been determined was whether the respondent received “damages” within the meaning of that subsection.
The appellant says that it was appropriately conceded at the arbitration that the respondent had received $20,000 in respect of general damages pursuant to clause 3.2(a) of the deed. The appellant submits that the recitals to the deed are clear. The deed and the settlement recorded in the deed were as a result of the parties’ desire to settle the proceedings on the terms set out in the deed.
The appellant refers to recital (c) of the deed, which it says defined the proceedings as being the claim for relief to the Fair Work Commission made by the respondent, but that clause 1.1 of the deed specified that the term “proceedings” included “the subject matter of the proceedings and all matters arising out of or in connection with the matter.”
The appellant further refers to recital (d) that recorded that in the proceedings (as defined), the respondent claimed compensation for “pain and suffering.”
The appellant submits that, when read as a whole, the parties agreed to resolve the proceedings, and all matters arising out of or in connection with the proceedings, in which the respondent claimed compensation for pain and suffering.
The appellant contends that there could be little doubt that the receipt of $20,000 by the respondent constituted payment in respect of a compromise settlement of a claim for monetary compensation, satisfying s 149 of the 1987 Act. The appellant asserts that the Arbitrator failed to make such a finding, when the determination was inevitable.
The appellant submits that taking into account the terms of the deed and that the respondent conceded she received the payment, the Arbitrator should have determined that the payment pursuant to the deed was damages within the meaning of s 149. As a result, the Arbitrator’s obiter comments are an error of law.[27]
[27] Appellant’s submissions, [17].
The appellant contends that the Arbitrator further erred by then not turning his mind to whether the payment pursuant to the deed, which was intended to settle the proceedings, included the payment of damages in respect of the work injury which would preclude the respondent from receiving compensation by virtue of s 151A of the 1987 Act. The appellant says that the injury in question is that injury determined by the Arbitrator as a compensable psychological injury.
The appellant asserts that, in the light of the wording of the deed, the only conclusion that can be reached is that the injury claimed in the Commission proceedings was either:
(a)    imported into the deed through recital (b);
(b)    alternatively claimed as part of the Fair Work Commission proceedings, or
(c)    a matter that arose out of or was in connection with the subject matter of those proceedings, that is bullying and harassment, and the subsequent termination of employment,
all of which were claimed to have caused mental harm for which the respondent sought compensation from the Fair Work Commission.

Ground two: failure to incorporate the statement of grievances into the deed

The appellant submits that recital (b) to the deed imported the full statement of grievances into the terms of the deed, and that the complaint referred to in recital (b) can only be the statement of grievances. The grievances were summarised by the respondent, and she complained in the statement of grievances that the ill treatment caused severe consequences and took a toll on her physical and mental health.
The appellant observes that the workers compensation claim form describes the injury as bullying and harassment between 2013 and 2015, which it says is exactly the same time period as in the statement of grievances. The appellant also observes that the statement filed by the respondent is almost a complete recitation of the statement of grievances, including the allegations of bullying and harassment and the impact those actions had on her mental health.
The appellant contends that there can be little doubt that the allegations raised in the Commission proceedings are the same allegations made in the statement of grievances. Further, there can be little doubt that those alleged actions caused injury to her mental health. On that basis, the bullying and harassment are the same allegations with the same impact on the respondent’s mental health.
The appellant asserts that the respondent clearly prepared the statement of grievances with the intention of proceeding to the Fair Work Commission, referring to the respondent’s statement, at page 53 of the Reply.
The appellant says that the Commission does not have the Fair Work application, but that it can be inferred from appellant’s response to the application what allegations were made and what claim was made. The appellant asserts that the Arbitrator failed to consider the response to the application, and its relevance to the deed, the defined proceedings and in turn the payment of damages.
The appellant contends that the response to the Fair Work application at [33] and [34] specifically refers to the grievance as forming part of [3.1.18] of the Fair Work application and it follows that it was part of the proceedings. The appellant maintains that there can be little doubt that the statement of grievances and the allegations made therein (including the alleged psychological injury) formed part of the Fair Work Commission proceedings or, at the very least, was a matter “arising out of or in connection with that subject matter.”[28]
[28] Appellant’s submissions, [29].
The appellant concludes that the Arbitrator erred by not importing the statement of grievances into the deed by virtue of recital (b) of the deed, and by virtue of the fact that the grievances formed part of the application to the Fair Work Commission that the subsequent payment of damages resolved.

Ground three: failing to determine that the subject matter of the deed included a claim for damage to the respondent’s emotional health which was the same injury as the workers compensation claim

The appellant says that the respondent’s injury was not only caused by incidents in the statement of grievances but also incidents that occurred afterwards which were included in the statement filed in the Commission proceedings. The commencement of the Fair Work proceedings was included in the statement. The appellant comments that “such circumstances,” which included the termination of employment, were noted by Dr Bertucen to have been a substantial cause of the psychological injury.
The appellant maintains that the allegations and claim made in the Fair Work proceedings can be inferred because the response to the application specifically referred to the manner in which the termination was conveyed, and the termination itself formed part of the Fair Work application. The appellant submits that on that basis, the events that were alleged to have occurred after the grievance was lodged were a cause of the psychological injury and without doubt were the subject matter of the proceedings, or at least “arising out of or in connection with that subject matter.”
The appellant refers to its response to the Fair Work application where it indicated that the respondent had “provided no evidence of the alleged damage to physical and emotional health.” The appellant submits that it can be inferred that from that response that the respondent alleged in the Fair Work application that she had suffered damage to her emotional health caused by the matters referred to in the statement of grievances and the termination of employment, and claimed damages accordingly. The appellant further submits that those allegations were resolved by payment of damages in the sum of $20,000, which was received by the respondent.

Ground four: determining that clause 1.1 of the deed was not affected by s 234 of the 1998 Act

The appellant submits that the Arbitrator’s determination that the parties were not contracting out of the 1987 and 1998 Acts and the contract did not offend s 234 of the 1998 Act must be incorrect at law. The appellant says that s 151A does not operate in respect of a claim for injury but operates when there is receipt of damages for the injury.
The appellant asserts that an agreement between the parties that the respondent’s rights to claim workers compensation entitlements would not be affected by the settlement is irrelevant as to whether she received damages for her injury. The appellant says that, regardless of clause 1.1 of the deed, s 234 of the 1998 Act applies. In the circumstances, clause 1.1 “definitely” offends s 234, regardless of the parties’ intentions, and the Arbitrator erred in determining otherwise.

Ground five: determining that the receipt of $20,000 pursuant to the deed was not damages in respect of an injury pursuant to s 151A of the 1987 Act

This ground of appeal alleges that the moneys received by the respondent were not damages to which s 151A applies. The appellant submits that the terms of the deed are not ambiguous in terms of how the word “proceedings” is defined in the deed. The definition included the subject matter of those proceedings and all matters arising out of or in connection with that subject matter. The appellant contends that the Arbitrator erred by not determining the subject matter of the proceedings.
The appellant maintains that:
(a)    the respondent received damages as defined by s 149 of the 1987 Act, pursuant to the deed;
(b)    in accordance with the deed, the damages were paid in order to resolve the proceedings (which included the subject matter and all matters arising out of or in connection with the subject matter), and
(c)    the subject matter was the same as the subject matter of the workers compensation claim, including the alleged injury to the respondent’s emotional and mental health.
The appellant submits that the damages, which were paid in the form of general damages, were agreed to include hurt or distress (clause 8.1 of the deed).

The appellant concludes that the Arbitrator erred in determining that the respondent was not precluded from recovering compensation by operation of s 151A of the 1987 Act.

The respondent’s submissions

Ground one: failing to find that the respondent did not receive damages in respect of the injury

The respondent submits that it was not necessary for the Arbitrator to find that she had received damages pursuant to s 149 of the 1987 Act because it was common ground that the parties considered the payment was either “damages” or “general damages.” Further, the Arbitrator referred to the payment in his reasons where he confirmed that the damages received referred to in the deed were “general damages”. The respondent submits that there was no contest that the payment of $20,000 referred to in deed was a payment of damages that fell within the definition of damages in s 149(1)(a) of the 1987 Act.
The respondent contends that the substantial issue was not whether she had received “monetary compensation,” but whether the appellant had established that the respondent had received damages for the injury in respect of which she was claiming compensation in these proceedings. The respondent says that this issue was identified by the Arbitrator in his reasons. In any event, if such an issue had to be determined, and the Arbitrator failed to determine it, the failure would not have affected the outcome. The respondent refers to the Arbitrator’s reasons and conclusion that the construction of the deed as whole, and the exclusion of workers compensation entitlement in clause 1.1 of the deed did not indicate that the respondent received damages for the injury claimed in the Commission proceedings.
Relying on Adams at [22], the respondent submits that whether s 149(1)(b) of the 1987 Act applied was not necessary to determine because that subsection does not confine subs 149(1)(a).
The respondent refers to the appellant’s submission that the parties agreed to settle the Fair Work proceedings and “all matters arising out of or in connection with them, in which the [r]espondent claimed compensation for pain and suffering”.[29] The respondent disputes that such an interpretation can be made because:
(a)    recitals (d) and (e) of the deed specified what the procedure included;
(b)    the deed specified what amount was paid and for what (clause 3.2);
(c)    the “for what” was defined in clause 6.1, and
(d)    no indemnity or release was provided by the respondent for anything other than if there was an increased tax liability (clause 6.2).
[29] Appellant’s submissions, [15].
The respondent further refers to the appellant’s submission that the Arbitrator failed to turn his mind to whether the payment to settle the Fair Work proceedings (as defined) included the payment of damages in respect of the work injury which would preclude the respondent from receiving compensation by virtue of s 151A of the 1987 Act. The respondent observes that the appellant makes no complaint that the Arbitrator overlooked any submissions. The respondent submits that the Arbitrator articulated the appellant’s argument (as he understood it) and thereafter gave reasons as to why he concluded that, when construing the deed as a whole, the appellant had not established that the respondent had received damages in respect of the injury the subject of the Commission proceedings. The respondent referred to the Arbitrator’s reasons, summarised at [44]–[52] above.
The respondent concludes that the emphasis of the Arbitrator’s finding was not that there was no money received, but that the money received was not in respect of the same injury. She submits that the appellant puts forward a different construction of the consideration of the deed as a whole, but the appellant does not assert that the Arbitrator’s finding was not open to him.

Ground two: failure to incorporate the statement of grievances into the deed

The respondent contends that the status of the statement of grievances was never explained, and could hardly have been part of the Fair Work proceedings because it had been drafted some months earlier. The respondent submits that, for the statement of grievances to be imported into the deed, such an inclusion had to be expressly stated in the deed, which it was not. In the absence of such express inclusion, the deed should be read objectively and given a commercially sensible construction.[30]
[30] Schulman, [35].
The respondent submits that whatever was claimed in the Fair Work proceedings, it was not imported in the deed, which was specific in terms of what was included in the settlement, that is:
(a)    in clause 1.1, the word “claim” was defined to exclude “claims under workers compensation and superannuation legislation”;
(b)    however broad the Fair Work claim had been, only two claims were referred to in the deed, that is the “Pain and Suffering” claim (recital (d)) and the “Post Employment” claim (recital (e));
(c)    clause 3.2 provided that the payment consisted of $20,000 as general damages in resolution of the respondent’s pain and suffering, and $15,000 as a contribution towards costs, and
(d)    the indemnities provided by the respondent:
(i)in clause 6.1, that the general damages were in respect of hurt, distress and reputational damage, which was not in any way related to the termination of her employment or the Post-Employment claim, and
(ii)in clause 6.2, to indemnify the appellant in respect of any additional tax liability or any Australian Tax Office penalty that may be imposed.
The respondent further submits that the Arbitrator was correct to reject the appellant’s submission that the use of the word “complaint” in recital (b) imported into the deed the entire contents of the statement of grievances, which had been completed months earlier.

The respondent asserts that it is quite clear that the Arbitrator did not accept that any settlement in the Fair Work proceedings resulted in her recovering damages in respect of the injury the subject of the Commission proceedings, either by:
(a)    not accepting that the statement of grievances was imported into the deed;
(b)    finding that the damage and description of injury in the deed were different to the workers compensation proceedings, or
(c)    not accepting that the descriptor of the damage referred to in the deed was an injury.
The respondent submits that it was clear that the Arbitrator did not accept that “pain and suffering” did not include the term “psychological injury”. She contends that if there was any doubt about that it was dispelled by clause 6.1(a), and otherwise reading the deed as a whole.
The respondent asserts that it was accepted between the parties that in determining what was included in the settlement, reference should only be made to the deed which is consistent with Handley AJA’s observation in Adams at [24] that the character of the payment is governed by the deed and the accompanying letter.
The respondent observes that there was no authority put forward by the appellant to support the notion that consideration should be given to what was claimed in the proceedings, or the evidence relied on in those proceedings, when determining the “character of the payment.”
The respondent relies on and quotes from two further authorities, Pacific Carriers Limited v BNP Paribas[31] and Codelfa Constructions Pty Ltd v State Rail Authority.[32]
[31] [2004] HCA 35; 218 CLR 451, [22].
[32] [1982] HCA 24; 149 CLR 337 (Codelfa), [24].
The respondent contends that if liability for the psychological injury was included in the settlement, it was unusual that the appellant would receive nothing in return for the payment, given the only indemnity they received was in respect of taxation matters. Further, in a personal injury matter, it would be unusual not to have included an indemnity that the monies were a “once and for all” payment. These matters, the respondent submits, are indicative that the settlement did not involve a resolution of the personal injury claim.
The respondent seeks to distinguish both Adams and Mijatovic on the basis that in both cases, references to the compensated injuries in both the deed and the workers compensation proceedings were the same. In addition, in Mijatovic the recitals included a reference to the psychological injury due to workplace bullying, the damages were $8,700 and the indemnity clause specifically included anything arising from the personal injury claim.

Ground four: determining that clause 1.1 of the deed was not affected by s 234 of the 1998 Act

The respondent submits that because there was no earlier settlement of a workers compensation injury, the Arbitrator’s finding that clause 1.1 of the deed (definition of a claim) confirmed that the respondent was not contracting out of the 1987 and 1998 Acts was correct. The respondent further submits that, in any event, if the appeal against the Arbitrator’s decision that the respondent was not precluded from receiving compensation by operation of s 151A of the 1987 Act fails, then this ground of appeal falls away.

Ground five: determining that the receipt of $20,000 pursuant to the deed was not damages in respect of an injury pursuant to s 151A of the 1987 Act

The respondent maintains that in accordance with Adams, in a determination of what was included in the settlement, reference should only be made to the deed and that on the face of this deed, there is no similarity between the damages settled and the injury that formed the basis of the workers compensation claim.
The respondent asserts that at the arbitration, both parties proceeded on the basis that the deed was unambiguous, the Arbitrator agreed, and he was correct to make that finding.
The respondent points out that the references in the deed to damages suffered by her are limited to recital (d) (damage to reputation, pain and suffering), clause 3.2 (pain and suffering) and clause 6.1 (hurt, distress and reputational damage). The respondent submits that none of those are personal injuries, and pain and suffering ceased to be compensable under the 1987 Act.
The respondent submits that the Arbitrator considered the construction of the deed as a whole, including the definition of claim in clause 1.1, and concluded that it did not indicate that the respondent recovered damages (any form of monetary compensation) for the injury in respect of which she was claiming compensation in these proceedings.
The respondent contends that the Arbitrator was entitled to come to that conclusion and the finding should not be disturbed.

DISCUSSION

It is settled law that it is not the execution of the deed that invokes the prohibition in s 151A of the 1987 Act, it is the recovery of damages.[33] It is also well settled that the word “recovers,” for the purpose of s 151A means “receipt of moneys.”[34]
[33] Adams, [17].
[34] Watson v Newcastle Corporation [1962] HCA 6; 106 CLR 426, 445.
If the word ‘recover’ is interpreted as requiring receipt of the money, and the worker receives a sum of money that is paid as damages, what remains to be determined is whether the damages were paid in respect of the same injury that is relied on in seeking workers compensation. The character of the payment is governed by the deed and the letter (if any) that accompanied the payment.[35] In this case, the moneys were paid by electronic transfer.
[35] Adams, [24].
In this case, the respondent conceded that she had received $35,000 in accordance with the agreement recorded in the deed. The deed records that the figure was made up of $20,000 in general damages and $15,000 in respect of legal costs.
It is clear that the payment of $20,000 satisfied the definition of “damages” contained in s 149(1)(a) of the 1987 Act, and the matter proceeded before the Arbitrator on that basis.
These matters are all pertinent to a consideration of the alleged errors identified in the grounds of appeal.

Ground one: failing to find that the respondent did not receive damages in respect of the injury

It is alleged by the appellant that the Arbitrator erred by “failing to determine that the respondent had received damages.” Given that the matter proceeded on the basis that the payment was for “damages” pursuant to s 149 of the 1987 Act, and the respondent did not contest that the damages were as defined in s 149(1), it was not necessary for the Arbitrator to make a determination that the payment was in respect of “damages”. There is no error on the part of the Arbitrator in failing to determine a matter that was not raised.[36] The allegation that the Arbitrator erred by failing to determine that the respondent received damages is not made out and this ground of appeal fails.
[36] Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111.
In further submissions under this ground of appeal, the appellant submits in respect of what constituted the “proceedings,” and that the deed incorporated the injury which was the subject of the workers compensation claim. Those submissions are not relevant to the question of whether the payment of $20,000 was damages for the purposes of s 149 of the 1987 Act. The submissions are discussed in consideration of grounds three and five below. Whether the damages were recovered in respect of the work injury is also the subject of ground five of the appeal and will be discussed accordingly.

Ground two: failure to incorporate the statement of grievances into the deed

Ground two alleges that the Arbitrator erred in failing to incorporate the statement of grievances into the deed. The appellant asserts that recital (b), which referred to the respondent’s complaint lodged in respect of the conduct of Dr Brown, could only be a reference to the statement of grievances. The appellant further asserts that the statement of grievances is in the same terms as the statement dated 5 June 2018, prepared for the workers compensation proceedings, except that the statement dated 5 June 2018 refers to events after the grievance was lodged. The appellant also contends that the appellant’s response to the Fair Work application at [33] clearly identified that at paragraph [3.1.18] of the Fair Work application, the statement of grievances was incorporated in the Fair Work proceedings and so the statement of grievances formed part of the subject matter of the Fair Work application.
The response provided by the appellant in the Fair Work proceedings at [33] was that the appellant:
“… denies there was a direct link between the [respondent’s] grievance and the offer regarding her continued work on the identified publications. The [respondent] was entitled to lodge a grievance complaint. This was lodged after her 2015 contract was issued, so at the time she lodged her grievance complaint the [respondent] knew her employment was due to end on 31 January 2016.”[37]
[37] Reply, p 328, [33].
I have summarised the matters addressed in the appellant’s response at [33]–[39] above. In my view, a fair reading of the response indicates that in the Fair Work application, the respondent was seeking redress on the basis that her employment contract had allegedly not been renewed because she had lodged a grievance, and further, she was not being compensated fairly for work done to complete her research after her employment was terminated. This is consistent with the deed at clause 6.1, which expresses that the respondent acknowledges that the payment was a compromise of the respondent’s claim for “hurt, distress and reputational damage suffered by her and not related in any way to the termination of her employment or her Post-Employment Claim.”[38]
[38] The deed; Reply, p 522, [6.1].
It is also consistent with the respondent’s statement that in the letter of termination, she was asked to complete unfinished work, and was offered $15,000 (later increased to $20,000) to do so. The respondent stated that she had demanded a substantially higher settlement, which was refused. She consulted a lawyer, who recommended applying for general protection under the Fair Work Act 2009 (Cth). The respondent further stated that in March 2016, she attended a conciliation at the Fair Work Commission during which Professor Schofield refused to increase the offer. She then engaged a barrister and applied to the Federal Court and mediation was scheduled for 16 November 2016.[39]
[39] Respondent’s statement; ARD, pp 212–213, [228]–[234].
It is abundantly clear from the available evidence that the Fair Work application did not seek damages in respect of the alleged grievances.
In any event, both the parties at arbitration and on appeal proceeded on the basis that the deed was unambiguous. In those circumstances, the deed is to be construed on its face, and not by reference to extrinsic material.
In Schulman, Sacker J considered the principles to be applied in construing the terms of a commercial agreement and made the following observations:
“The principles to be followed in relation to the proper construction of a written contract have recently been summarised in Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 in which Bathurst CJ (with whom Macfarlan and Meagher JJA agreed) said at [52]:
‘The principles underlying the construction of written contracts are well established and it is not necessary to deal with them at length. A contract is to be construed by reference to what a reasonable person would understand by the language in which the parties have expressed their agreement having regard to the context in which the words appear and the purpose and object of the transaction ... At least in the case of ambiguity, resort can be had to the surrounding circumstances known to the parties in interpreting the particular provision …’
A commercial agreement should be given a businesslike or commercially sensible construction. However, generally speaking, if the language used is unambiguous a court must give effect to that language unless to do so would give the contract an absurd operation.”[40]
[40] Schulman, [34]–[35].
Mason J in Codelfa said:
“... Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification. Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”[41]
[41] Codelfa, [23]–[24].
The statement of grievances was prepared well before the Fair Work application and for the purpose of lodging a grievance with the appellant. The appellant, by seeking to have the statement of grievances imported into the deed, is attempting to go beyond the deed in order to have the deed construed in its favour. There is no basis upon which the statement of grievances is relevant to the construction of the deed, which discloses no ambiguity. Mere reference in the recitals to the fact that a grievance was made is not sufficient to say that the grievances were part of the complaint made by the respondent. The Arbitrator was correct to reject the submission that the statement of grievances should be incorporated into the deed. The appellant has failed to identify error on the part of the Arbitrator and this ground of appeal fails.

Ground three: failing to determine that the subject matter of the deed included a claim for damage to the respondent’s emotional health which was the same injury as the workers compensation claim

The appellant says that the respondent’s alleged injuries were not only caused by matters referred to in the statement of grievances, but also the events that post-dated the lodgment of the grievance. The appellant says that the respondent’s own forensic specialist concluded that such circumstances (which included the termination) were causative of the injury. On that basis, the appellant submits that the causative events after the grievance was lodged were the subject matter of the Fair Work proceedings or at least arising out of or in connection with the subject matter. It is difficult to see how this submission assists the appellant. Even if it was considered that those events were the subject matter of the proceedings (of which there is no evidence), they were not the subject matter of the settlement as clause 6.1 expresses that the payment was “not related in any way to the termination of her employment or her Post-Employment Claim.”[42]
[42] The deed; Reply, p 522, [6.1].
The appellant again refers to the response to the Fair Work application in respect of the appellant’s response that the respondent “has provided no evidence of the alleged damage to her physical and emotional health.”[43] The appellant submits that it can be inferred that the damage to the respondent’s emotional health was as a result of the matters referred to in the statement of grievance and the subsequent stressors. I do not accept that such an inference can be drawn, when there is no evidence to support it, and the damage might equally be asserted to result from the alleged damage to reputation. In any event, once again, the deed is unambiguous and is to be construed on its face, without reference to extrinsic evidence to assist in the interpretation of the deed.[44]
[43] Appellant’s response to the Fair Work application; Reply, p 331, [46].
[44] Codelfa, [24].
This ground of appeal discloses no error on the part of the Arbitrator and must fail.

Ground four: determining that clause 1.1 of the deed was not affected by s 234 of the 1998 Act

The appellant asserts that the Arbitrator’s conclusion that the deed did not offend s 234 of the 1998 Act is wrong in law. The appellant provides no basis to support that assertion. Clause 1.1 excludes a workers compensation claim from the definition of “claim” for the purposes of the deed. Section 234 of the 1998 Act provides that both the 1987 Act and the 1998 Act apply, despite any contract to the contrary. The deed is the contract. Clause 5 of the deed provides that the respondent acknowledges that the payment is full and final settlement “of all Claims which she has or may have had or would have had arising out of the Employment, the Proceedings and the Post-Employment Claim.” The deed clearly excludes workers compensation claims from the matters that were resolved, so that it cannot be said that the contract (the deed) in any way offends s 234.
I accept the appellant’s submission that s 151A does not operate in respect of the making of a claim for compensation, and it only applies where there has been a receipt of moneys in respect of damages. However, it was appropriate and necessary for the Arbitrator to look to the terms of the deed to determine whether the damages recovered were in respect of an injury and if so what that injury was.[45] Clause 1.1 identifies that workers compensation claims were to be excluded, and, for the reasons set out in relation to grounds three and five of this appeal, there was no other part of the deed that contradicted that exclusion.
[45] Mijatovic, [52].
If the deed provided for damages in respect of the work injury, then there would be an inconsistency within the deed. The Arbitartor considered Mijatovic, in which the deed was expressed to not include workers compensation injuries, but also clearly expressed that the payment was for the work injury. The Arbitrator in Mijatovic was found to be in error because he proceeded to construe the deed but failed to determine whether Ms Mijatovic had received damages for the work injury which by operation of s 151A thereby excluded her from workers compensation entitlements. On appeal, the President Judge Keating found that Ms Mijatovic had received damages in respect of her work injury, despite the exclusion, because the payment Ms Mijatovic had received was clearly expressed to be for the work injury. Mijatovic is not on all fours with this case and is of no assistance to the appellant, for the reasons expressed in grounds three and five.
This ground of appeal fails to identify error on the part of the Arbitrator, and cannot succeed.

Ground five: determining that the receipt of $20,000 pursuant to the deed was not damages in respect of an injury pursuant to s 151A of the 1987 Act

The appellant submits that the proceedings are identified in recital (c) as:
“[The respondent] made an Application for Relief in relation to Adverse Action pursuant to the provisions of the Fair Work Act 2009 to the Fair Work Commission and the Federal Circuit Court in matter No. SYG 889/2016; (the Proceedings).”
The appellant referred to clause 1.1 of the deed, which defined “proceedings” to include “the subject matter of those proceedings and all matters arising out of or connected with that subject matter.” It further referred to the reference to a claim for “pain and suffering” in recital (d).
The appellant submits that reading the deed as a whole, the parties agreed to settle the proceedings, and all matters arising out of or in connection with the proceedings, including a claim for pain and suffering. As “pain and suffering,” which could only be a reference to the work-related psychological injury, was claimed in the deed, the work-related psychological injury that resulted from bullying and harassment was either claimed in the Fair Work application, or was a matter that arose out of or in connection with the subject matter of the Fair Work proceedings.
The subject matter of the proceedings was clearly identified in recitals (d) and (e), that is:
“(d) In the Proceedings [the respondent] claimed compensation and monies for loss and/or damage arising from alleged damage to her reputation and also claimed damages for pain and suffering (‘the Pain and Suffering claim’)”
and
“(e) In the Proceedings, [the respondent] claimed monies allegedly owed by [the appellant] arising from work performed under an alleged contract for services after the Employment ceased (‘the Post-Employment Claim’).”[46]
[46] Reply, p 519.
The appellant contends that the “pain and suffering” component is a reference to the work related psychological injury. The psychological injury claimed in the workers compensation proceedings was said to have resulted from the events summarised at [22] above, namely being ostracised, excluded from participating in meetings, planning and studies, delay in publishing her research, misappropriation of her intellectual property, and being denied access to her own research. None of these matters fall within the ambit of the claims as expressed in the recitals, and the recitals make no reference to the workers compensation claim or the psychological injury claimed in these proceedings, which was alleged to have resulted from bullying and harassment in the workplace.
In circumstances where the parties have not raised any issue that the term “pain and suffering” was ambiguous, it is not open to the appellant to seek to look beyond the deed to ascertain its meaning. As the respondent submits, the term is not a reference to an injury, and when considered in the context of the deed, the term cannot be considered to be any more than a reference to the consequences of the appellant’s alleged conduct, which in the deed is limited to recitals (d) and (e).
It follows that the submission by the appellant that the payment of damages for “pain and suffering” is payment of damages for the injury cannot be accepted.
The appellant asserts that the general damages were paid in respect of “hurt and distress,” as agreed in the deed at clause 8.1. “Hurt” and “distress” do not of themselves constitute an injury and there is nothing to indicate that the hurt and distress flowed from the bullying and harassment claims made by the respondent, particularly as it is expressed in the context of “reputational damage.”[47] It follows that this submission must also be rejected.
[47] The deed, Reply, p 522, [6.1].
Further submissions made by the appellant go to the question of what constituted “the proceedings”. That argument is dependent upon consideration of whether the statement of grievances should have been imported into the deed. The Arbitrator correctly rejected the submission that the statement of grievances ought to be incorporated in the deed. In any event, whatever was the subject of, or arose out of the proceedings, that does not answer the question of whether the payment of damages was in respect of the work injury.
The Arbitrator did not err in his finding that the payment of damages was not in respect of the work injury.

CONCLUSION

The appellant alleges error on the part of the Arbitrator in respect of:
(a)    not determining that the respondent had received damages;
(b)    not incorporating the statement of grievances into the deed;
(c)    failing to determine that the subject matter of the deed included the respondent’s emotional health that resulted from the matters referred to in the statement of grievances and the termination of the respondent’s employment;
(d)    determining that clause 1.1 did not offend s 234 of the 1998 Act, and
(e)    determining that the receipt of $20,000 was not damages in respect of the work injury pursuant to s 151A.
The challenge to the Arbitrator’s decision is that the findings are wrong. To succeed on this appeal, the appellant is required to establish that the Arbitrator’s decision is affected by error of fact, law or discretion, in accordance with s 352(5) of the 1998 Act. For the reasons set out under each of those grounds of appeal, the appeal fails to disclose the requisite error. The conclusions and findings made by the Arbitrator were open to him on the evidence before him and his decision discloses no error of fact, law or discretion. The decision dated 12 November 2018 is confirmed.

DECISION

The Certificate of Determination dated 12 November 2018 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

11 April 2019