Ninkovic v Sydney Children's Hospital Network (Westmead) - [2013] NSWWCCPD 46

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ninkovic v Sydney Children’s Hospital Network (Westmead) [2013] NSWWCCPD 46
APPELLANT:	Drazena Ninkovic
RESPONDENT:	Sydney Children’s Hospital Network (Westmead)
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-3019/12
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	6 June 2013
DATE OF APPEAL DECISION:	11 September 2013
SUBJECT MATTER OF DECISION:	Challenge to factual findings founded upon finding of credibility of witness; s 11A of the Workers Compensation Act 1987; reasonable action taken by or on behalf of employer with respect to transfer
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	NSW Compensation Lawyers
Respondent:	DLA Piper Australia
ORDERS MADE ON APPEAL:	1. The award and order made by the Arbitrator found in Certificate of Determination dated 6 June 2013 are confirmed. 2. No order as to costs of this appeal.

BACKGROUND

Ms Drazena Ninkovic (the appellant) was employed as a cleaner by Sydney Children’s Hospital Network (Westmead) (the hospital). That employment commenced in September 2002. The appellant ceased work in November 2007 by reason of alleged work related stress causing depression. She has not returned to work since that time. The appellant gave the hospital notification of that alleged injury in January 2008. The injury was then described as “work related stress and depression”. That notice described “how the injury happened” as “work disagreement relating to change of area. Mrs Ninkovic lasted only a week and went on sick leave from 5 November 2007”. No compensation benefits have been paid.
A claim for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) was made on behalf of the appellant by letter dated 20 December 2011, sent by her solicitors to the hospital’s insurer. Liability in respect of that claim was denied by the insurer. The notice of the decision to reject the claim was given to the appellant by the insurer in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 14 March 2012. That notice placed reliance upon the provisions of s 11A of the 1987 Act.
The dispute came before the Commission following the filing of an application in March 2012 seeking an award for lump sum compensation. The application was subsequently amended to include a claim for medical and associated expenses. The subject injury was described in that application as: “Psychological injury – major depression”. The manner in which the injury allegedly occurred was particularised as: “[the appellant] was the subject of harassment during the course of her employment with [the hospital]. [The appellant’s] employment with [the hospital] is a substantial contributing factor”.
The matter came before Arbitrator Garth Brown for conciliation/arbitration on 5 December 2012. The matter proceeded to arbitration and the Arbitrator reserved his decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued by the Arbitrator on 6 June 2013 in which the following orders were made:
“The Commission determines:
1.Award respondent in respect to the applicant’s claim for psychological injury.
2.No order as to costs. Matter is certified as complex with a 30 per cent uplift in costs applicable to the parties pursuant to Item 4 Table 4 of Schedule 6 of the Workers Compensation Regulation 2010.

A statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

The appellant relies upon two grounds of appeal which are expressed as follows:
“Ground 1 – the Arbitrator erred in finding the appellant did not establish ‘injury’ or satisfy s 9A.
Ground 2 – the Arbitrator erred in finding the psychological injury was wholly or predominantly caused by the respondent’s reasonable action in respect of a transfer under s 11A.”
To enable a proper understanding of the matters raised by the appellant in each of those grounds it is necessary to summarise the unusual manner in which the appellant’s case was presented before the Arbitrator. Notwithstanding the brevity and apparent simplicity of the description of injury as particularised in the Application, the evidence presented before the Arbitrator, and argument advanced, suggested that the injury had been caused by alleged harassment and victimisation of the appellant by her superior Ziada Camdzic, and by her alleged experience of a series of events whilst cleaning the public male toilets at the hospital. Those events involved assaults and abuse of a sexual nature committed by male members of the public and, in one instance, by an unidentified employee of the hospital.
The appellant, as is discussed in more detail below, sought to make out a “primary” case that the subject injury had been caused by the sexual advances and assaults allegedly experienced in the course of the employment. It was put by counsel that, upon acceptance of the factual allegations and of the causal nexus between those events and the injury, there was no need for the Commission to consider the relevance or otherwise of s 11A. That section had been raised by the hospital by way of defence to the further allegation of injury said to have been caused by the alleged conduct of the appellant’s superior.
The Arbitrator found the sexual assaults and abuse did not happen (Reasons at [83]). Ground one challenges this finding.
Ground two is a challenge to the Arbitrator’s finding (Reasons at [104]) that:
“The whole or predominant cause [of the subject injury] is in respect to [the hospital’s] reasonable actions or proposed actions in respect to s 11A factors relating to transfer of [the appellant] from her general cleaning duties in the PICU [Paediatric Intensive Care Unit] area to the general male and female public amenities that took effect on 29 October 2007.”
The issues in dispute may thus be summarised as whether the Arbitrator erred in finding that:
(a) the sexual assaults and abuse did not happen, and
(b) the subject injury was caused by reasonable action in respect of transfer.

THRESHOLD MATTERS

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

THE ARBITRAL HEARING

The proceedings before the Arbitrator were recorded and a transcript (T) has been produced and made available to the parties. The parties, each of whom were represented by counsel, were granted leave to cross-examine witnesses. Both the appellant and Ms Camdzic gave such evidence.

The evidence

The appellant relied upon three written statements made by her on 18 August 2011, 15 August 2012 and 30 October 2012. In the first of those statements the appellant alleged that she had, in 2006, been assigned duties cleaning the public toilets on three levels of the hospital. That work, it was said, was performed for six months (this history was, it will be seen, revised in later evidence). The appellant described her experiences while performing that work in the male toilets. She described being subjected to most offensive behaviour by males using the amenities as she worked. Those experiences included instances of indecent exposure, inappropriate touching and lewd and suggestive comments.
The appellant stated that the many incidents were reported by her to Ms Camdzic but her complaints were not acted upon. She felt she was not being taken “seriously” and she felt “helpless”. A request to be transferred to other duties was denied. The appellant stated that she considered she was being “discriminated against because of [her] nationality”. The statement contains detail of suggested ethnic difference between Ms Camdzic and the appellant, both of whom came to this country from the former Yugoslavia.
That first statement also includes allegations that:
(a)     Ms Camdzic ordered the appellant to repeatedly mop the floor outside Ms Camdzic’s office;
(b)     Ms Camdzic refused to rotate cleaners on the “worst jobs”;
(c)     in 2001 Ms Camdzic had refused to give the appellant time off work to go overseas for her mother’s funeral;
(d)     Ms Camdzic had compelled the appellant to take holidays in short periods preventing the appellant from taking longer breaks to enable overseas travel and had interfered with the timing of a trip to Europe which was intended to afford the appellant an opportunity to build a memorial to her mother. That latter incident was stated to have occurred in 2006;
(e)     on at least 10 occasions over the years when the appellant rang to report her sickness, Ms Camdzic “would order [the appellant] to come to work which made [the appellant] very anxious about calling her…”. It was also stated that Ms Camdzic refused a change of shift for the appellant to enable her to look after a sick child. It was stated that Ms Camdzic said “I don’t care for your children, whether they are sick or not”;
(f)      Ms Camdzic displayed anger, refused to talk to the appellant, slammed doors, yelled loudly and made facial expressions of “disgust” which humiliated the appellant and belittled her, and
(g)     concerning complaints of poor performance in the PICU the appellant asserted that Maria Dunk, the appellant’s fellow worker in that unit, worked very slowly, provided no assistance to the appellant and often required the appellant’s assistance with her work. (This circumstance was raised by counsel as being relevant to reasonableness of the hospital’s actions).
The appellant further stated that by 5 November 2007 she was unable to “cope anymore with these duties and the aggression shown towards me from [Ms Camdzic]”. She consulted her general practitioner Dr Mark Marinkovic. Dr Marinkovic prescribed anti-depressant medication and issued a medical certificate providing for time off work. The appellant stated that there was a subsequent discussion between herself and Ms Camdzic where a request for duties other than the toilet work was refused. Another meeting took place at the hospital when the appellant again requested that her duties be changed. She felt “like vomiting and [she] was getting very emotional and even crying”. The appellant again consulted her general practitioner who again issued certificates in respect of absence from work. On 12 November 2007 the appellant consulted Mr Zoran Protulipac, psychologist, to whom she had been referred by Dr Marinkovic. The appellant, in that first statement, provided detail of complaints made concerning her work at the PICU. Those complaints concerned poor standard of work performance which were denied by the appellant. The appellant has not worked since leaving her place of work on 5 November 2007; her employment was terminated about 12 months thereafter and she had never received any workers compensation payments. The appellant stated that she did not consider herself “ready to return to employment”. The statement contains a summary of the symptoms experienced by her for which she has sought treatment from both Dr Marinkovic and the psychologist.
The later statements which were tendered in evidence before the Arbitrator generally represent the appellant’s responses to the evidence filed on behalf of the hospital. In the statement made on 15 August 2012 it is said that her recollection was that the assignment to the toilets “took effect prior to 29 October 2007 and that [she] had been working three to four weeks before [she] sought medical assistance from Dr Mark Marinkovic and obtained a medical certificate”.
The appellant’s statement made on 30 October 2012 includes clarification of the earlier statements. It was accepted by the appellant in that statement that the relevant work cleaning the public toilets took place between 29 October 2007 and 5 November 2007. The appellant stated that the reference to the period of “six months” employment in that capacity related to work of that nature performed by her in 2003 to 2004. The appellant confirmed in that statement that the “specific incidents of sexual harassment occurred after I moved from the PICU to clean the public toilets from 29 October 2007 until I ceased work on 5 November 2007”.
The appellant also sought to correct other matters recorded in her original statement. It was accepted that she did not commence work in 2001 but rather 2002. It was also acknowledged that, given that her mother had died in 2001, her earlier statement that she was denied leave to attend her mother’s funeral in that year was incorrect. I note in passing that at the hearing counsel appearing on behalf of the appellant expressly abandoned the original allegation concerning “discrimination” concerning provision of employment benefits (leave) for the purpose of attending the funeral of the appellant’s mother.
The clinical notes produced by Dr Marinkovic’s practice were tendered in evidence. An entry dated 5 November 2007 records a consultation with the appellant as follows: “She claims she is bullied by the boss (Zijada Camdzic) on national bases. Very distress [sic]. Depressed. Prolonged counselling. Advice given”. The “reason for contact” was recorded as “work stress”. Those notes contain no record of complaint made by the appellant concerning the sexual abuse and assaults which allegedly occurred at her workplace.
The appellant relied upon the opinion of Dr Peter J Morse, consultant psychiatrist, found in his report dated 9 December 2011. Dr Morse had been qualified to provide an opinion for the purposes of this litigation. Dr Morse records the history of “harassment” involving Ms Camdzic and took a history that the appellant had commenced cleaning the public toilets in May 2006. Dr Morse recorded the distress and fright experienced by the appellant when performing that work by reason of the sexual abuse and assaults to which she was allegedly subjected. It was Dr Morse’s opinion that the appellant suffered from Major Depression. Dr Morse expressly stated that he was “in no position to make a comment on [the appellant’s] complaints about her employer”. Dr Morse accepted that the appellant “obviously suffered marked distress from the experience of the sexual harassment by working in the male toilets”. Dr Morse proceeded to state:
“In conclusion regarding the causation of her disturbed emotional [sic] I am unable to come to a definitive conclusion regarding the validity of her complaints. What can be said is that because of her experience at work she is depressed and anxious and her disturbed emotional state had a profound effect on all areas of her life.”
I note in passing that Dr Morse recorded in that report that the appellant “blames [Ms Camdzic] for [her inability to attend her mother’s funeral] and not have the time to attend her mother’s grave”.
The appellant also relied upon a report provided by Mr Protulipac, psychologist, dated 2 August 2011. A detailed history of the appellant’s experiences in the course of her employment with the hospital is recorded. That history includes detail of the alleged sexual assaults and abuse. Mr Protulipac notes that the appellant was unable to recall relevant dates. That history records many occasions when such incidents occurred. It is further recorded that the appellant had been ridiculed when she reported the incidents to Ms Camdzic who laughed the matter off, declined to report the matters to the authorities and declined to investigate further or acknowledge the trauma she experienced. That history also included particulars concerning the alleged harassment and discrimination experienced by the appellant by reason of the behaviour of Ms Camdzic. It was Mr Protulipac’s opinion that the appellant suffered from a chronic psychiatric disorder which was directly causally linked to the incidents recorded in the history. Whole person impairment was calculated as being 16 per cent.
The appellant was extensively cross-examined by counsel appearing on behalf of the hospital. The appellant agreed with counsel that the alleged abuse and assaults occurred over a period of one week, rather than over a period of six months as had been earlier stated. The appellant denied that she had not reported these incidents and stated that she had complained to Ms Camdzic “three or four times”. The appellant stated that the only other person that she had told of these events was Tiange, a fellow worker. It was suggested in cross-examination that the appellant, who had consulted Dr Marinkovic five times between her ceasing work and 11 December 2007, had not informed that practitioner of the abuse and assaults. The appellant asserted that she had in fact informed Dr Marinkovic of those allegations. The appellant agreed with counsel that she had in fact taken ten weeks leave in 2006. The appellant denied that she had told her supervisor that she was unable to use an electric polisher because of back pain whilst working at the PICU before her transfer to the work on the toilet amenities. Later in questioning the following exchange occurred:
“Counsel:Madam, you were transferred to do the toilet cleaning because you could not use a polisher because of your back. Is that correct?
Appellant/Interpreter: Yes. Yes. Probably, probably it was. But about that, I can’t remember.” (T38)
The evidence relied upon by the hospital included two statements made by Ms Ziada Camdzic, employed by the hospital as cleaning services manager within the domestic services department. The first of those statements dated 20 June 2012 makes reference to a statement made by Ms Camdzic in March 2009. I note that that statement is not before the Commission. Ms Camdzic stated that a meeting took place between the appellant and herself on 10 October 2007 at which time Ms Tiange Sowah, a fellow employee, was present as a witness. The appellant was informed of a change of roster and work allocation. The reason for the change was explained as being that the appellant was “unable or unwilling to use the scrubber/polishing machine on the floors in the Paediatric Intensive Care Unit [PICU]. There had been many complaints from PICU staff and a parent about the standard of the cleaning services in the unit”. The change in allocation of duties to the public toilet amenities was effective from 29 October 2007. Ms Camdzic stated that the appellant worked that roster for only one week following which a medical certificate was produced which stated that she was suffering from “work stress”.
Ms Camdzic proceeded to state that the appellant was off on sick leave for a week and returned on 12 November 2007 at which time a meeting took place. At that meeting the appellant requested a change of duties because she “didn’t like cleaning toilets”. Ms Camdzic was informed by the appellant that on one occasion as she was cleaning the male toilets, opposite security in the emergency waiting area, an unknown man walked in to use the facilities. This caused her embarrassment and discomfort; however, no complaint was made that the male had approached her or acted inappropriately towards her. Suggestions were made, it was stated, concerning methods to minimise the use of the toilets during cleaning. The appellant was informed that there would be a purchase of appropriate signs to prevent entry to the toilet during cleaning. Those signs were ordered immediately.
The statement made by Ms Camdzic on 16 August 2012, included reference to leave records relating to the appellant. It is stated that the records demonstrate that there had been no refusal to grant family leave when requested. The records indicated that two days were taken in July 2007 to take care of her sick children. The records demonstrate that the appellant has, on four other separate occasions, taken family leave during the period 2004-2005. Ms Camdzic denied that the appellant was ever forced to use her holidays in small portions. In October 2005 the appellant was given notice that her then current leave balance was considered excessive and annual leave was taken by her between 22 May 2006 and 30 July 2006, a total of 10 weeks. The records also demonstrate that the appellant was on annual leave between 5 February 2007 and 23 February 2007, and also between 10 April 2007 and 20 April 2007.

Ms Camdzic denied that she had ever, during her period of employment with the hospital, forced any staff member to attend work when they reported in as being unwell. Ms Camdzic also denied the allegation made by the appellant that she had ordered the appellant to mop the floor outside her office. That statement had a number of relevant documents annexed to it relating to leave taken by the appellant.
The hospital also relied on a statement made by Ms Tiange Sowah dated 20 June 2012. Ms Sowah was employed by the hospital as training officer within the domestic services department. Ms Sowah was in attendance at the meeting between Ms Camdzic and the appellant which took place on 10 October 2007. It is stated that the change of duties arranged for the appellant was necessary by reason of her inability or unwillingness to use the polishing machine on the floors in the PICU. It was stated that the assignment to the toilet cleaning was necessary because in that work there are “no vinyl floors to be cleaned using the polisher”. There was only limited work that could be made available where a polisher was not used. The change in the work allocation took effect from 29 October 2007. Ms Sowah recalled that the appellant worked only one week on the new roster arrangement before she took sick leave.
Ms Sowah further stated that she was present during a meeting which took place on 12 November 2007 between the appellant and Ms Camdzic. Also present at that meeting was a female friend of the appellant. The appellant wanted a change of work allocation. She was informed by Ms Sowah that the hospital could offer a different shift commencing at 6.00 am working in the office areas. That work did include some toilets but there were “a limited number”. The appellant immediately responded that it was “too early for [her]”. Ms Sowah said that at no time had any complaint been made to her concerning sexual harassment whilst the appellant cleaned the toilets.
Ms Sowah stated that she had since become aware that the appellant had made allegations concerning sexual harassment whilst cleaning the toilets on the public amenities run. It was stated that:
“during the week that [the appellant] was actually doing that work she made no complaint to me about any incidents where she was sexually harassed. If she had come to me with such a serious complaint I would have taken immediate action and reported this in accordance with hospital policy.”
There were statements tendered by the hospital made by Mr Brant Dawes, domestic services cleaning supervisor, dated 20 June 2012 and a statement by Ms Ann Gouffe, nurse manager, dated 20 June 2012. Those statements represent evidence corroborating certain matters raised in the statements made by Ms Camdzic and Ms Sowah. Having regard to the matters raised on appeal it is unnecessary to attempt a summary of that material.
Ms Camdzic was cross-examined by the appellant’s counsel during which particular attention was given to the manner in which complaints concerning the appellant’s work performance at the PICU had been carried out. Ms Camdzic made it clear that the investigation in relation to the complaints received was not conducted by her but by a responsible supervisor. Ms Camdzic conceded that she was unaware as to whether the supervisor had spoken to the appellant’s fellow worker Ms Dunk. Ms Camdzic denied that she had acted unfairly towards the appellant and rejected suggestions that she had “picked on her”.
In the course of that cross-examination, Ms Camdzic was questioned as to the reason for the transfer of the appellant to the toilet amenities work. The following response was given by Ms Camdzic (at T66):
“Because Drazena brought a medical certificate that she can’t use the floor scrubber and we needed someone, while both cleaners up in our intensive care units use floor scrubbers. We didn’t want to put [the appellant] in any danger so we looked at a job where she wasn’t required to use a floor polisher.”
It was accepted by Ms Camdzic during the course of cross-examination, that the appellant had reported to her that an unidentified man had come in to the male toilet during cleaning operations and that the appellant had felt “uncomfortable and embarrassed”. Ms Camdzic denied that the appellant had reported that there was “a sexual element” to that encounter.

Submissions before the Arbitrator

Counsel appearing on behalf of the appellant submitted that there was “no evidence to contradict [the evidence] of Mr Protulipac or Dr Morse”. It was asserted in submissions that “in terms of psychological injury, there is simply no evidence from the respondent to dispute [the appellant’s] allegation of psychological injury”.
It was the appellant’s primary submission that “the sexual assaults of themselves have caused [the appellant’s] psychological injury”. It was argued that the evidence of Mr Protulipac was “extremely important, because he comes into the clinical picture relatively early”. Reference was made to the notes of that practitioner which record detail of the alleged encounters experienced by the appellant in the toilet amenities work. It was suggested that the Commission could “have judicial notice” that a victim of sexual assault may delay before reporting the relevant occurrences. It was suggested that the appellant, upon consulting Mr Protulipac, was able to “articulate what had been making her uncomfortable, what had made her embarrassed, what happened in the course of her employment”. The Arbitrator was urged to accept the evidence of the appellant as to the occurrence of these incidents.
It was further submitted that, by reason of the discomfort and embarrassment experienced by the appellant, any delay that may be found concerning the reporting of these incidents may be explained. Reference in the course of submissions was made to the experience of courts exercising criminal jurisdiction when dealing with alleged sexual offences which had not been promptly reported. A further argument was advanced that, given the accusation that an employee of the hospital, a maintenance man, was responsible for one of the incidents, it was relevant to take into account that no evidence was adduced by the hospital challenging such accusation.
Further argument was advanced upon an acceptance that the Arbitrator was not satisfied as to the occurrence of injury caused by the many encounters described by the appellant. It was argued that, having regard to the provisions of s 11A, the hospital’s conduct was not “reasonable” concerning matters of performance appraisal, discipline and transfer. It was put that, given the absence of evidence from the appellant’s fellow worker, Maria Dunk, an inference may, in accordance with those matters stated in Jones v Dunkel [1959] HCA 8; 101 CLR 298, be drawn, that the evidence of Ms Dunk would not have assisted the hospital’s case.
It was submitted on behalf of the hospital that “there is simply no medical evidence that [the appellant] suffered psychological injury, wholly or predominantly, as a consequence of the actions of the employer in respect of [work performance, discipline and/or transfer]”. It was argued that a finding should be made that in relation to discipline, work performance and transfer that the hospital acted reasonably. It was further argued that any support concerning the occurrence of injury that may be found in the medical evidence needs to be evaluated having regard to the history as recorded by those practitioners. The argument was put that the factual matters concerning the appellant’s treatment at the hands of her supervisor would not be accepted and that the facts alleged concerning the repeated incidents of abuse and assault would not be accepted. It was expressly stated that, given the many inconsistencies in the appellant’s evidence, a finding should be made that she could not be accepted as a witness of truth.

The Arbitrator’s decision

The Arbitrator, in a comprehensive statement of his reasons for the determination of the dispute, recorded the issues for determination which had been agreed between the parties (Reasons at [14]) as follows:
“(a) whether the applicant suffered a psychological injury arising out of or in the course of her employment with the respondent;
(b) if so, whether employment was a substantial contributing factor to any such injury, and
(c) if so, whether such injury was wholly or predominantly caused by the reasonable action or proposed action taken by or on behalf of the employer with respect to s 11A factors, namely, discipline, transfer, performance appraisal and/or provisions of employment benefits.”
There followed a summary of relevant evidence which included lengthy extracts from the documents tendered and from the transcript of the oral evidence.
The Arbitrator observed that the evidence of the appellant concerning the timing of the alleged abuse and assaults had been changed following the making of her first statement dated 18 August 2011. He proceeded to consider the evidence, including inconsistencies and the absence of recorded history of these events in the relevant clinical notes, and concluded (Reasons at [83]):
“I consider the most likely explanation as to why [the appellant] did not raise such matters with Dr Marinkovic is because the events did not happen.”
The Arbitrator reached the following conclusion concerning the credibility of the appellant’s evidence (Reasons at [88]):
“Upon consideration of the whole of the evidence in the proceedings I am satisfied much of [the appellant’s] evidence lacked credibility and was unreliable.”
The Arbitrator also concluded that the evidence of Ms Camdzic was to be preferred to that of the appellant concerning the suggested reports of sexual harassment made to that witness by the appellant. The appellant’s evidence concerning her willingness to use the polishing machine was found to be “unreliable” and was not accepted by the Arbitrator (Reasons at [90]).
With respect to the appellant’s allegation of conduct by Ms Camdzic being harassment or discrimination, the Arbitrator concluded (Reasons at [101]):
“I note also Ziada Camdzic denies the allegations made against her by the applicant alleging conduct of harassment or discrimination. In view of the concerns already expressed about the reliability of the applicant’s evidence I am satisfied that where there is difference in matters of fact between the evidence of the applicant and the respondent’s witnesses and documents I prefer the evidence provided by the respondent over uncorroborated evidence of the applicant including in respect to matters such as the manner in which employment benefits were provided to the applicant, the manner in which the respondent’s employees communicated with the applicant in meetings involving the applicant including the content of matters discussed, the manner in which investigations and meetings were conducted in 2006 and 2007.”
The Arbitrator proceeded to summarise his findings as follows (Reasons at [103]):
“…I am not satisfied the applicant’s allegations of harassment behaviour or other alleged inappropriate actions by her manager or others towards the applicant were reliable or credible. I do not accept the applicant’s claims that she was subjected to being exposed to multiple instances of serious and inappropriate behaviour of a sexual nature by many different male persons over about a 5 - 7 working day period when she was transferred to working in the general male and female toilets at the Children’s Hospital and that she brought these incidents to the attention of her manager and others and in response her manager either laughed at her, ignored her, waved her away or did not take her seriously. I do not accept the applicant’s evidence to the effect that on multiple occasions during this period and subsequently she brought to her manager’s attention the incidents of inappropriate behaviour on multiple occasions and her manager failed to make proper response.”
The Arbitrator proceeded to consider the relevance and application of the terms of s 11A of the 1987 Act to the facts as found. The operation of that section was addressed by him in the context of the appellant’s alternative allegation made concerning injury caused by relevant action taken by the hospital.
The Arbitrator firstly considered the concept of “transfer” as that term appears in s 11A. It was noted that the parties had agreed that relevant circumstances concerning the appellant’s transfer from the PICU to the general public male and female toilet amenities constituted “transfer” within the meaning of that section. The Arbitrator found that the appellant had “perceived the transfer from PICU as a punishment”. Following a summary of the conflicting evidence concerning that transfer, the Arbitrator reached the following conclusion (Reasons at [116]):
“I am satisfied that on about the 10th October 2007 [the appellant] was informed of the employer’s decision to transfer her from cleaning the toilets and general ward areas attached to the PICU ward area to the general public amenities toilet areas of the Children’s Hospital. I am satisfied the actions and proposed actions on the part of the employer in respect to the transfer were in all of the circumstances reasonable.”
The Arbitrator proceeded to find that none of the actions of the hospital, through its servants and agents, constituted discipline or employment appraisal within the meaning of s 11A. Notwithstanding that last finding, a further finding was made in the following terms:
“I am satisfied that [the hospital’s] actions in response to complaints received from medical staff and in respect to any related fact finding or investigation process concerning the PICU area was reasonable.”
The Arbitrator had earlier noted that the parties had agreed that the evidence concerning meetings, exchanges and decisions relating to the provision of the appellant’s leave entitlement constituted “provision of employment benefits” within the meaning of s 11A. The appellant’s evidence concerning the provision of leave was found to be “confused, vague, inconsistent and at times contradictory” (Reasons at [121]) and such evidence, where it conflicted with the evidence of the hospital’s witnesses, was not accepted. A further finding was made in the following terms:
“To the extent that any psychological injury condition [sic] results wholly or predominantly from the provision of employment benefits I am satisfied [the hospital’s] actions or proposed actions with respect to the provision of the [appellant’s] leave was reasonable.”
The Arbitrator proceeded to make the orders noted at [4] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The appellant’s first ground of appeal challenges the Arbitrator’s finding that the sexual assaults and abuse alleged by her had not happened. That conclusion was reached by the Arbitrator following his finding that the appellant’s evidence was not credible. Error, it is argued, is demonstrated by the Arbitrator’s failure to take into account that:
(a)     English is not the appellant’s first language;
(b)     the appellant was “embarrassed and uncomfortable” concerning the abuse and assaults, and
(c)     the appellant was a poor historian.
In my view none of the matters complained of are capable of forming a basis upon which relevant error may be argued. As is acknowledged in submissions, the appellant had, at all times, the benefit of a suitably qualified interpreter to assist her at the hearing. The appellant elected to give much of her evidence in English, without placing reliance upon the services of that interpreter. There is nothing submitted, nor to be found in the transcript, which demonstrates that the appellant in any relevant manner experienced difficulty with the language such that the evaluation of her evidence required any more scrutiny than that which is found in the reasons as expressed by the Arbitrator.
In so far as it is suggested that the Arbitrator failed to take into account the appellant’s embarrassment and discomfort and that she was a poor historian, it must be noted that her allegations were plainly and comprehensively stated by her in evidence. That evidence was rejected because, in the Arbitrator’s view, there existed therein marked inconsistencies. It was that inconsistency that led to his conclusion that her evidence “lacked credibility and was unreliable”. The suggestion that the appellant did not report these events because she was embarrassed and uncomfortable was itself expressly rejected by the Arbitrator (Reasons at [98]). As is recorded by the Arbitrator, the appellant’s case was that she reported the events to her superiors and Dr Marinkovic. It may safely be assumed that such evidence constituted part of the inconsistency which the Arbitrator had found.
The appellant’s complaints noted above are directed to the Arbitrator’s factual findings concerning the alleged incidents of abuse and assaults. Those findings were made following an evaluation of the appellant’s credibility as a witness. Such a conclusion of fact, having regard to relevant authority, may be disturbed on appeal if it be demonstrated that the finding is against “incontrovertible facts or uncontested testimony”, or, in rare cases, that the finding was “glaringly improbable” or “contrary to compelling inferences”: see discussion in Fox v Percy [2003] HCA 22; 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [29]. In the present matter the appellant has, in my view, failed to establish such error.
The appellant, in argument advanced between [2.9.2] and [2.9.8] of submissions on this appeal, does not address relevant error but, rather, attempts to re-argue the case as presented before the Arbitrator. This appeal is not a review or a new hearing: s 352 (5) of the 1998 Act. Ground one fails.
The second ground challenges the Arbitrator’s finding that the psychological injury received by the appellant was wholly or predominantly caused by the hospital’s reasonable action, in terms of s 11A, in respect of transfer. It is reasonably clear from the submissions put that the challenge is limited to the finding that the action taken was reasonable. Such a finding is one of fact and is to be determined upon an objective assessment of relevant circumstances, being the rights of both the worker and the employer: Irwin v Director General of School Education (unreported, Workers Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997).
It seems to be argued that the hospital had not, as it was required, established on the evidence that its action with respect to transfer was reasonable. Two matters are raised in submissions which, it is argued, demonstrate that the action of transferring the appellant to the toilet amenities was not reasonable. The first matter concerns the suggested failure of the hospital to interview the fellow worker of the appellant in the PICU, Ms Dunk.
The Arbitrator had expressed his acceptance of the evidence of Ms Camdzic. That evidence included a statement that she had relied upon the investigation and report of a responsible supervisor concerning the complaints of poor work standards at the PICU. Such approach was found to be reasonable and nothing raised by the appellant suggests the commission by the Arbitrator of any relevant error in reaching that conclusion.

The second matter raised is a complaint that no offer of work “in carpeted areas” was made to the appellant. The necessity to transfer the appellant to the toilet amenities was explained by Ms Camdzic in evidence and that evidence was accepted. The Arbitrator’s acceptance of that evidence led, in part, to his conclusion as to the reasonableness of the action. The conclusion reached, that the action was reasonable, was open on the evidence and no relevant error has been demonstrated. Ground two must be rejected.
Each of the grounds relied upon by the appellant have been rejected and the appeal must fail. Appropriate orders appear below.

DECISION

The award and order made by the Arbitrator found in Certificate of Determination dated 6 June 2013 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady
Deputy President

11 September 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE