Padayhag v State of New South Wales (The Children's Hospital Westmead)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Padayhag v State of New South Wales (The Children’s Hospital Westmead) [2021] NSWPIC 267
APPLICANT:	Glenn Padayhag
RESPONDENT:	State of New South Wales (The Children’s Hospital Westmead)
MEMBER:	Brett Batchelor
DATE OF DECISION:	29 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly benefits and section 60 expenses as a result of psychological injury; the respondent conceded injury but relied of section 11A defence of reasonable action taken or proposed to be taken with respect to transfer and/or provision of employment benefits; Held- finding that injury was caused by action taken or proposed to be taken by the respondent with respect to transfer and the provision of employment benefits but finding that such action was not reasonable; awards for weekly compensation and section 60 expenses in favour of the applicant.
DETERMINATIONS MADE:	1. The applicant suffered psychological injury arising out of or in the course of his employment with the respondent deemed to have occurred on 30 June 2020. 2. Injury was caused by action taken or proposed to be taken by or on behalf of the respondent with respect to transfer and the provision om employment benefits. 3. Such action of the respondent was not reasonable. 4. Pre-injury average weekly earnings are $1,120.20. 5. The respondent is to pay the applicant: (a) $1,064.19 per week from 9 June 2020 to 8 September 2020 pursuant to s 36 of the Workers Compensation Act 1987, and (b) $896.16 per week from 9 September 2020 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 6. The respondent is to have credit for payment made to the applicant after 9 June 2020. 7. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Glenn Padayhag (the applicant/Mr Padayhag) claims weekly benefits and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of psychological injury arising out of or in the course of his employment with the State of New South Wales (The Children’s Hospital Westmead) (the respondent/the hospital), deemed to have occurred on 30 June 2020.
The applicant commenced employment with the respondent in 1989 as a porter and cleaner and worked in that capacity until 30 June 2020, the date on which he claims he is deemed to have suffered injury.
When he commenced working for the respondent Mr Padayhag was employed on the afternoon shift, from 2.00 pm to 10.30 pm. On 12 May 2015, his working times were changed to 4.00 pm to 12.30 am when he was moved to working on the Emergency Department (ED). On 3 February 2015, according to the applicant, his job description changed to mean that he could be rotated onto different shifts, and he signed that job description.
In May 2020 Mr Padayhag was advised that his roster would change to night shift, 11.00 pm to 7.30 am. He took three days’ sick leave from 20 to 22 May 2020 in accordance with a certificate for such leave issued by his general practitioner, Dr Mercidita Reyes.
On 9 June 2020, the applicant approached Ziada Camdzic, the Domestic Services Manager at the hospital, with a request that he be left on afternoon or night shift, as he had seen the next roster and noted that he was moving to day shift. He said that he needed the 15% penalty rate payable on the afternoon and night shift. This request was declined by Ms Camdzic who said that she needed to look after everybody. The applicant was involved in an incident on that day whilst driving home from night shift. He says that his car almost mounted a roundabout, his vision went black, he stopped a while then drove home slowly. He saw Dr Reyes again and was given sick leave from his shifts from 9 to 12 June 2020. Mr Padayhag worked night shift on 15 to 17 June 2020.
On 16 June 2020, the applicant was spoken to by Ziada Camdzic who asked how he was going. Mr Padayhag replied that he was unable to sleep after night shift. The applicant says that Ms Camdzic replied he would have plenty of time to sleep the next month as he would be moving to the day shift.
On 18 June 2020,the applicant was contacted by the domestic services secretary and told not to come to work that day, and to take sick leave until 26 June. Mr Padayhag attended his general practitioner and obtained a certificate covering this period of sick leave.
The applicant was informed by a colleague that the July roster had him working the morning shift in ED from 7.30 am to 4.00 pm. Mr Padayhag returned from sick leave on 30 June 2020 and was initially taken to ED to be shown what to do on that shift. Ms Camdzic called him to her office to discuss him moving to another department, as he was a vulnerable staff member, and there was a need to put him where he was less of a Covid risk. Mr Padayhag experienced a panic attack during the meeting and was told to rest and go home, which he subsequently did, visiting Dr Reyes later in the day who diagnosed anxiety and stress. The applicant has not worked since.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Was the psychological injury suffered by the applicant wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer and the provision of employment benefits?

The respondent confirms that there is no issue that the applicant suffered a psychological injury, deemed to have occurred on 30 June 2020, and that pre-injury average weekly earnings (PIAWE) are $1,120.20.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration on 21 July 2021 conducted via telephone conference. Mr D Epstein of counsel appeared for the applicant briefed by Mr A Ramesh. The applicant attended on a separate line. Ms K Balendra of counsel appeared for the respondent briefed by Mr D Khoshaba.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (the Application);
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) dated 31 May 2021 lodged by the applicant with Medicare notice of charge dated 5 May 2021 attached;
(d)    AALD dated 9 July 2021 lodged by the applicant with medical certificate in respect of the period from 30 June 2020 to 10 July 2020, and certificates of capacity in respect of the periods from 11 July 2020 to 30 July 2021, issued by Dr Reyes attached, and
(e)    AALD dated 9 July 2021 lodged by the respondent with attachments commencing with Factual Investigation of Brian Davis & Associated dated 9 August 2020 attached.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. In summary they are as follows, noting that the respondent presented its submissions first in view of the admission that the applicant has sustained a psychological injury and that the respondent bears the onus of proof in respect of the defence on which it relies pursuant to s 11A of the 1987 Act.

Respondent

The respondent submits that opinion of Dr Reyes in her report dated 8 July 2020, supports its case the whole cause of the applicant’s psychological injury is work issues, namely change in shifts and the transfer of his duties from the emergency room due to his age and because of high risk to him due to the Covid pandemic. This evidence of Dr Reyes is found in her report dated 8 July 2020[1] and the clinical notes in respect of consultations with the applicant on 9 and 30 June 2020[2]. This evidence is in contrast with what the applicant says in his statement dated 3 May 2021[3], save for the fact that the applicant did not mention to Dr Reyes that he was “…pushed to sign paperwork by (his) manager”, and that he was not “…provided assistance of a nurse or doctor”[4].
[1] Application p 97.
[2] Application pp 75 and 74.
[3] Application p 2.
[4] See [21] (d) & (e), Application p 3.
The respondent submits that the seven points of history referred to by Dr Martin Allan, consultant psychiatrist, who independently medically examined the applicant on 15 December 2020 and produced a report on 16 December 2020[5] also support the respondent’s case that the whole or predominant cause of the psychological injury was the transfer to non-emergency ward and the shift changes in May and June 2020.
[5] Application p 114.
The respondent submits that the changes on the applicant’s shifts constitute “transfer” for the purpose of s 11A of the 1987 Act, and relies on the evidence of Ziada Camdzic, Shirley Magallenes and Sanjo Paul, whose statements dated 5 August 2020 are in evidence[6]. The respondent notes the proposed transfer of the ED of the Children’s Hospital to a new building in February 2021 and the consequent need to introduce rotating rosters. All staff were consulted about the changes and none raised any objection. This evidence of Ziada Camdzic is confirmed by Shirley Magallenes. The respondent submits that the conduct in respect of this transfer of the applicant’s duties was reasonable conduct in the context of the requirements of the hospital and the concern for the applicant’s welfare.
[6] AALD, respondent, 9 July 2021 pp 17, 22 & 26.
The respondent also submits that the action of Ms Camdzic in requesting the applicant to sign a medical authority for release of information on 30 June 2020 was reasonable. Ms Camdzic explained the document to Mr Padayhag and why the information was required. This request was in the context of the volume of sick leave taken by the applicant up to that date. Mr Padayhag did not inform Ms Camdzic that he did not have his glasses with him so that he could not read it. The respondent submits the applicant was not forced to sign the document. Further, the respondent submits that Mr Padayhag was offered assistance when he suffered a panic attack at the meeting with Ms Camdzic on 30 June 2020.
The respondent submits that the evidence of Ms Camdzic and Sanjo Paul as to what occurred on 30 June 2020 is to be preferred to that of the applicant, as he was at that meeting upset and suffering a panic attack, and that therefore his evidence is less reliable.

Applicant

The applicant notes his long period of employment and the hospital, since 1997, and the abrupt shift change in 2020 which in this context was unreasonable.
The applicant submits that the treatment to which he was subjected by the respondent and which was unreasonable commenced in May 2020 when he was told by his supervisor to check his roster as he was scheduled to work night shift (12.00 am to 7.30 am), having previously worked afternoon shift (4.00 pm to 12.30 am). He had worked this last mentioned afternoon shift from 12 May 2015 when he was moved to work in the ED.
The applicant refers to what he was informed on either 14 and 21 May 2020 by his supervisor and manager that if he were to take sick leave, he would get an extra week of night shifts. The applicant did not interpret this as a joke, as asserted by Ms Camdzic, but was upset and distressed by the comment which he felt demonstrated a total disregard for his health well-being. The applicant was not aware of this apparent running joke in respect of staff at the hospital. The applicant’s response was his perception of a real event.
The applicant notes that he raised a complaint in respect of his current employment condition with Adam Steggles in an email dated 8 June 2020 sent by his wife Janette Mifsud[7]. This was followed up by a further email dated 10 June 2020[8] in which the applicant outlined his concerns. The actions of the respondent were perceived by the applicant as bullying.
[7] Application p 18 (bottom).
[8] Application p 18 (top).
The applicant submits that in a subsequent letter dated 18 June 2020 sent to him by Ms Camdzic[9], his concerns in respect of sick leave, lack of communication and the proposed transfer of the ED of the Children’s Hospital were not addressed in this letter.
[9] Application p 23.
The applicant questions whether a change in shift constitutes “transfer” for the purpose of s 11A, relying on a decision of Acting Deputy President Michael Snell (as he then was) in Smith v Roads and Traffic Authority of NSW[10]. The applicant further submits that the “provision of employment benefits to workers” would not encompass the loss of shift allowance of which he complained by being obliged to work day shift instead of afternoon or night shift.
[10] [2008] NSWWCCPD 130 (Smith) at [77].
The applicant refers to the letter of Dr Reyes dated 19 June 2020[11] outlining his co-morbidities and the effect on him of the change of shift and rotating roster. It is apparent from the roster attached to the Reply[12] that he was on sick leave from 18 to 26 June 2020.
[11] Reply p 52.
[12] Reply p 45.
The applicant emphasises what happened at the meeting with Ms Camdzic on 30 June 2020 and his lack of understanding of the form which he was asked to sign at that meeting. He denies that the document was explained to him, and this was a cause of significant anxiety. This caused him to become dizzy. The subsequent offer of help from Ms Camdzic and Mr Paul is also disputed.
The applicant submits that it is his perception of what occurred on 30 June 2020 that is important, and what caused the panic attack. This is confirmed by what is recorded in the Notification of injury/illness form attached to the Application[13] in which the occurrence of the injury is given as alleged unfair treatment by Domestic Services Manager.
[13] Application p 17.
The applicant relies on what is said in Attorney General’s Department v K[14] to submit that it was his perception of real events which actually occurred in the workplace which gave rise to his psychological injury. Further, it was the conduct of the respondent as perceived by him in respect of:
(a)    not explaining why he was being transferred to night shift;
(b)    being punished for taking sick leave with a threat that he would have extra night shifts;
(c)    being changed to day shift, and
(d)    being forced to sign a document that he did not understand,
which gave rise to his injury, and that as such conduct was not reasonable, the respondent is not entitled to rely of s 11A to defend the claim.
[14] [2010] NSWWCCPD 76 (A G v K).

Respondent in reply

The respondent submits that the applicant in his submissions confuses the issue of his perception of events in the workplace with the defence of the reasonableness of the respondent’s actions in respect of transfer and the provision of employment benefits. The matters referred to in A G v K deal with non s 11A events, whereas in order to determine if the respondent’s actions in respect of transfer and the provision of employment benefits were reasonable, such actions must be viewed objectively (see Norther NSW Local Health Network v Heggie[15]). It is not the applicant’s subjective perception of the respondent’s actions which is the test for the reasonableness of the respondent’s conduct.
[15] [2013] NSWCA 255 (Heggie).
The respondent notes that the applicant suggests that one of the categories of the s 11A defence, that is the provision of employment benefits, does not apply to the causation of his psychological injury. That submission was made in relation to the shift change and the consequent loss of penalty rate. This submission of the applicant is in accord with what he says at [68] of his statement dated 3 May 2021 and at [16] of the earlier statement dated 4 August 2020. The respondent submits that the applicant’s concern over the shift changes and loss of the penalty rate is addressed in the email dated 10 June 2020 from Ziada Camdzic to Candice Pertel[16] in which Ms Camdzic addresses the applicant’s complaints in dot point form. This email makes it clear that the applicant is not being treated differently to what has been provided to other employees in his position, that the applicant along with other staff were informed of the roster change verbally and by a display of rosters four weeks in advance and that Mr Padayhag had no issue of being moved from afternoon shift to night shift. He was not happy when his roster was changed to day shift for a month. This evidence is corroborated by that of Shirley Magallenes and Ms Camdzic in their statements.
[16] AALD, respondent, 9 July 2021 pp 42-43.
In respect of the “joke” issue referred to in [23] above, the respondent submits that even if the applicant’s case is accepted at its highest, if what occurred is found not to be reasonable conduct, that is only one issue which could be said to be causative of the applicant’s injury. There are a number of other actions relied upon by the respondent which constitute reasonable conduct with respect to transfer and the provision or employment benefits. The issue is what is the whole or predominant cause of the applicant’s psychological injury.
In any event the respondent submits that the complaint of the applicant about the joke issue, that is if he took sick leave he would get an extra week of night shifts, is in accord with his aim to avoid the day shift. In that circumstance he would not lose the 15% penalty rate payable for the afternoon and night shift.

FINDINGS AND REASONS

Injury

In A G v K, Acting President Roche at [52], after a review of the authorities, set out the principles in respect of the causation of psychological injury in the workplace as follows (authorities omitted):
“52. The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle;
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment;
(c)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established;
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind;
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’, and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.’”

At [54] the Acting President said:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’, as Ms Smuts has submitted.”

The respondent concedes that the applicant suffered psychological injury but submits that such injury was caused by reasonable actions it took with respect to transfer and the provision of employment benefits to the applicant.
In submissions the applicant appears to have confused the subjective test to be satisfied as to the causation of psychological injury in the workplace referred to in A G v K, with the propositions set out by Sackville AJA in Heggie consistent with the statutory language and the authorities that have construed s 11A of the 1987 Act. At [59], his Honour said this, with reference in that case to reasonable actions said to be taken with respect to discipline:
“(i)     A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)     Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)    An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)    The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)     Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)    The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (Emphasis in original)

It is often the case in matters where the causation of psychological injury is in issue that an event, or series of events having a cumulative effect, can be causative of a psychiatric condition which does not become manifest until a later time. This proposition was observed by Deputy President Michael Snell in at [78] Hamad v Q Catering Limited[17].
[17] [2017] NSWWCCPD 6 (Hamad).
If it can be shown that the series of events, commencing it would appear with the incident in May 2020 when the applicant was threatened that if he took sick leave he would get an extra week of night shifts (a “joke” according to Ms Camdzic), and concluding with what occurred on 30 June 2020 were causative of the psychological injury he suffered, and that such events were not in with respect to transfer or the provision of employment benefits, Mr Padayhag will succeed in his claim.
On the other hand, if the respondent can prove on the balance of probabilities that the whole or predominant cause of the psychological injury was the actions taken or proposed to be taken by or on behalf of the respondent were with respect to transfer and/or the provision of employment benefits, and that such actions were reasonable, the respondent will succeed in its defence to the applicant’s claim under s 11A of the 1987 Act.
It is therefore necessary to examine the series of events commencing in May 2020.
In his first statement dated 4 August 2020[18] the applicant says at [9]-[11] that when he commenced at the Children’s Hospital he worked afternoon shift from 2.00 pm to 10.30 pm. On 12 May 2015 the shift times were changed to 4.00 pm to 12.30 am, when he was moved to working in the ED. He then says that on 3 February 2015 his job description, which he signed, was changed to provide for the applicant’s rotation onto different shifts. In May 2020 Mr Padayhag was advised that his roster would change to night shift, 11.00 pm to 7.30 am. The applicant says he called Ms Camdzic in late May to take three days of sick leave from 20 to 22 May and was told by her that if he was going to take sick leave she would put him on another week’s worth of night shift. The applicant saw Dr Reyes who issued a sick leave certificate for these dates.
[18] Application p 12.
In his statement dated 3 May 2021 the applicant says that on 14 May 2020 his supervisor had told him what his (the applicant’s) manager asked her to tell him, namely, words to the effect that “if you take sick leave, you will get an extra week of nightshifts”. The applicant then goes on to say that on 21 May 2020 he recalls feeling unwell. He had spoken to his manager about this who responded with the words to the following effect, “what’s wrong? If you are sick, then you will have extra nightshifts.” Mr Padayhag says that he was shocked by her response and was not able to respond; he hung up the phone. He says that he was left feeling distressed and upset by the manager’s words and that there was a total disregard for his health and well-being.
The applicant in fact visited Dr Reyes on 20 May 2020 complaining of left shoulder joint pain[19]. Dr Reyes issued a medical certificate. Mr Padayhag visited Dr Reyes on 19 and 25 June 2020. On 19 June the doctor issued a “STANDARD LETTER” to the employer and a medical certificate. On 25 June 2020 he created and edited a Medical Questionnaire to the employer. The next entry in the doctor’s clinical notes is that of 9 June 2020[20] referred to hereunder.
[19] See Dr Reye’s clinical notes, Application p 76.
[20] Application p 75.
The applicant’s manager, Ms Camdzic says in her statement dated 5 August 2020[21] that in February 2021 the ED of the Children’s hospital was moving to a new building and that the Department was to triple in size. Previously there had been no rotating rosters, but with changes to the hospital, with the new ED needing more staff due to COVID 19, the method of rosters had to change. Ms Camdzic says that prior to the change, all staff were consulted about the changes and that no staff had any objection. Staff did give the feedback that they would prefer to do a month’s worth of shifts prior to rotating to another shift.
[21] AALD, respondent, 9 July 2021 p 17.
If this sequence of events is correct, as appears to be the case, Mr Padayhag’s evidence, noted in [43] above, that he signed his job description providing for rotation onto different shifts on 3 February 2015 is probably not correct. It was more likely signed in February 2020. The discrepancy in this evidence is not material. Mr Padayhag did sign a job description providing for rotation onto different shifts.
Ms Camdzic says that prior to the change to rotating rosters she asked Shirley Magallenes, Domestic Services afternoon shift supervisor, to speak with the applicant specifically about his first roster change, from afternoon to night shift, and she informed Ms Camdzic that he “looked happy and had no objection to the published roster.” This is confirmed by Shirley Magallenes in her statement dated 5 August 2020. Ms Magallenes says that when she told Glenn Padayhag about the coming changes, he said it was fine and he had no objections.
Ms Camdzic says that the comment about an “extra week of night shifts” is a running joke in the department, which started when a staff member called up on his birthday to say that he had drunk too much at his birthday lunch and could not come in on night shift. It then became a joke that “you get an extra week”. Ms Camdzic says that she always had a good relationship with Mr Padayhag and felt that she could have this joke with him as she had with other staff.
In any event, there is no evidence that the applicant was punished with an extra week of night shift for taking sick leave between 20 and 22 May 2020 which was covered by a medical certificate issued on 21 May 2020 for a left shoulder condition.
The applicant says that he commenced night shifts in June 2020 and found them to be extremely tiring on his body. He was distressed and felt anxious which made the night shift difficult. He had no appetite and had difficulty sleeping as a result. He said that he had difficulty adjusting to night shift roster changes and had numerous days off work during that time due to that difficulty. He said that he “had no sleep,” and “was feeling tired as my body was unable to adjust with the changes to my sleeping pattern.”
Chronologically, the next item of relevant evidence is an email from the applicant to Adam Steggles dated 8 June 2020 at 11:28 am (forwarded by Janette Mifsud, the applicant’s wife)[22]. The subject of the email is “Complaint – Working Condition”, and in the email Mr Padayhag relates the history of his employment with the respondent, the changes in his working hours and the initial difficulty he had in adjusting to such changes and then the change to night shift commencing on 1 June 2020 which he discovered after being advised by Shirley Magallenes to check the roster. The threat about an extension on night shift for an extra week if sick leave is taken is also referred to, which Mr Padayhag says he found very odd, feeling that he was being punished because of the sick leave he took in the previous weeks, which was supported by a medical certificate from his general practitioner. The applicant also says in that email:
“Without any formal confirmation of my night-shift working hours, I just found out that after 1 month of nightshift, I will be rotated again to day shift. This action by my Manager is unacceptable and I consider this as BULLYING and should not be tolerated by the Senior Management. My position description states that my working hours is 14:00-22:30 and there was nothing to say that I can be rotated to different time.”
[22] AALD, respondent, 9 July 2021, p 45.

The response to this email is one from Candice Pertel to the applicant sent 9 June 2020 at 9:00 am asking for confirmation “…that you being moved between night shift and day shift is the concern you are referring to?”[23] . The applicant replied to this on 10 June 2020 at 10:04[24] setting out his issues as follows:
(a)    that he should not be rotated to different times because his position description clearly states his working hours;
(b)    that it appears that the change in his working conditions is solely based on his manager’s discretion without proper consultation from Human Resources. Mr Padayhag did not think that his manager had the authority to just simply change his working conditions without proper consultation with the staff concerned and the Senior Management or Human Resources;
(c)    the unprofessional way in which he was informed by his manager of the rotations without consultation with him personally as to how that change would impact him and his health condition, and
(d)    his perception that he was being targeted as the only one who had been rotated to different times, ant the appearance that his manager was having problems with his sick leave.
[23]AALD, respondent, 9 July 2021, p 44.
[24] AALD, respondent, 9 July 2020, p 44.

Ziada Camdzic responds to this email in one dated 10 June 2020 at 12:59 pm[25] as follows:
(a)    “The hours of work are on every work schedule for various shifts not on the PD the PD [sic] in cleaning services re generic but work schedule is specific to the work area.”
(b)    “All staff affected by the roster change have been informed prior to roster change verbally and rosters displayed minimum 4 weeks in advance. Glenn had no issue being moved from afternoon shift to night shift but he was not happy when his roster was change [sic] to day shift for a month.”
(c)    “I am not sure what unprofessional manner he is referring to. I have spoken to all staff on day shift and I had the afternoon supervisor inform Glenn. Glenn approached me one morning to say that he has noticed that he was roster on day shift from 29/06/2020 to 24/07/2020 and ask if I can keep him on night and afternoon shift as he needs extra money.”
(d)    “ I can confirm that Glenn is not the only employee in cleaning services rotating on the variable roster there are at least 12 other staff who roster rolls over every pay cycle.”
[25] AALD, respondent, 9 July 2020, p 42.

The approach to Ziada Camdzic referred to in [54(c)] above appears to be that referred to by Ms Camdzic at [13] in her statement dated 5 August 2020 and referred to at [5] above.
Mr Padayhag relates the incident which occurred whilst driving home after a night shift on 9 June 2020 at [34]-[35] of his statement dated 3 May 2021 as follows:
“34. On 9 June 2020, whilst driving home, I was so physically and mentally exhausted from work that I fell asleep at the wheel and crashed into a gutter. As I clipped the gutter, I immediately woke up. I recall there being a blackout, however there was no clear loss of my consciousness. I was feeling extremely fatigued throughout that period.
35. As a result of the ongoing fatigue, anxiety, lack of energy and significant distress I was experiencing and lack of support from my employer, I consulted with my General Practioner [sic], Dr Mercedita Reyes who provided me with a certificate for sick leave.”
The applicant consulted Dr Reyes on 9 June 2020 with a history recorded as follows:
“Psych: bullied at work transferred to to night shift for 1 month, after 23 years of working afternoon shift, upset he lost penalty ,wanting to apply stress leave due to unfair rostering, developed anxiety resulting in tremors and poor sleep,
wanting to file stress levae” [sic]

The reason for contact was noted as “Anxiety”

The applicant was on sick leave for his shifts from 9 to 12 June 2020. He worked night shifts on 15 to 17 June 2020 and was contacted by the domestic services secretary on 18 June 2020 and told not to come to work but take sick leave until 26 June 2020. He consulted Dr Reyes and obtained a sick leave certificate for this period.
On 17 June 2020 at 2:47 pm the applicant emailed Ziada Camdzic noting that he learned from his colleague that his name was included in the roster for day shift starting 30 June 2020, and was surprised by that because his understanding was that his working hours were fixed as stated in his position description, originally 2:00 pm to 10:00 pm and later changed to 4:00 pm to 12.30 am. He said that he had been working (those) hours for the past five years and that his body seemed to have adjusted (to) the time. He then refers to the change to night shift (11:00 pm to 7:30 am), and that he was told by his supervisor that this would be only for one month. He did not complain although he did not want to do that shift. He complains about the lack of rest since starting the night shift due to his inability to sleep during the day and expresses concern about his health. Mr Padayhag then advises Ms Camdzic that he would not be doing the day shift for the following reasons:
(a)    he was not informed of the change;
(b)    there was no written confirmation from HR about any changes to his working conditions, and
(c)    he will be financially disadvantaged.
He says at the end of the email that at the end of his night shift on 30 June 2020, he wants
[26] Application p 22.
to go back to his original working hours of 4:00 pm to 12:30 am[26].
On 30 June 2020 the applicant worked his first day shift when his supervisor showed him what he needed to do in ED. He did not have any porter duties, just cleaning. During this shift he was paged by Ziada Camdzic to go to her office. When he met Ms Camdzic She told him that he needed to be moved from the ED as he was a high risk due to his age, diabetes and hypertension, and also that he needed to be moved to an area where there was less risk of him contracting COVID.
This information on Mr Padayhag’s health appears to have come from the answers to a medical questionnaire forwarded to Dr Reyes on 24 June 2020 to which he responded[27]. In that report Dr Reyes said that the applicant was permanently unfit to perform rotating roster. He went on to say:
“Glenn is already 65 yers [sic] old. His age and rotating shift have a significant impact on his sleep pattern and multiple comorbidities. He is fit to resume to his preinjury duties on his old shift in a weeks time.”

Dr Reyes said that the applicant was not fit to perform rotating roster and needed to retain his old roster.

[27] AALD, respondent, 9 July 2021, p 57.

The applicant refers to what happened in the meeting with Ms Camdzic in both of his statements. In the statement dated 4 August 2020 he says that Ms Camdzic, after advising him of the information referred to in [60] above, asked him to sign a form and that he did not know what it was. He did not have his glasses with him to read the form. He was asked to sign it anyway, but he was anxious and shaking and told her he could not sign the form, but Ms Camdzic pushed him and he eventually signed it. At the end of the meeting he was to have gone with the supervisor to be shown how to clean the corridor, but when he stood up he became dizzy and almost collapsed. He could not remember if the supervisor grabbed him or he grabbed hold of a cabinet. His vision went black again, and Ms Camdzic told him to rest and go home, and to call her when he got home so that she knew he was safe. He rested in the office for about 30 minutes, went to the carpark and felt dizzy again, so rested for another 15-20 minutes. Mr Padayhag drove home, rang Ms Camdzic and let her know he was home. In response to a question from her he said that he had not yet been to the doctor as he was resting. She told him to go to the doctor and let her know what was happening. The applicant visited Dr Reyes later that day.
In his statement dated 3 May 2021 the applicant expands on what he says occurred in Ms Camdzic’s office on 30 June 2020. He reiterates that he did not have his reading glasses with him but does not say that he told Ms Camdzic this. He said that when he asked if it was possible to take the document home and give it back to her later, this request was refused and he was told that everything was fine and that there was nothing to worry about him signing the document without even reading it. He says that he was forced to sign the document without even reading it, and that his hands were visibly shaking. He suddenly started to experience dizziness and was feeling unwell to the point that he nearly collapsed. Ms Camdzic asked him to sit down and rest in her office, and that as soon as he felt better that he could go home. The applicant then refers to a number of paragraphs in his earlier statement which deal with what occurred in Ms Camdzic’s office, and repeats what happened after he left the office, travelled home, contacted Ms Camdzic and visited his doctor later in the day.
The applicant complains that he was not provided the assistance of a nurse or doctor from the hospital and was provided no support to get home “…after the concerning incident had presented itself to them.” He felt that they wanted to avoid the issue as he was in a panicked state. He was not offered an ambulance or transport to his home, nor was he asked if he needed to drive or catch public transport. He felt like his well-being and health was not important “to them.”
Later in the statement Mr Padayhag says that:
“The abovementioned workplace issues have significantly contributed to my
psychological injury. It was like a domino effect, the combination of all those problems built up in me and caused me tremendous stress about my work.”
At [17]-[22] of her statement dated 5 August 2020 Ms Camdzic gives evidence as to what happened at the meeting with the applicant at the meeting on 30 June 2020. Her version of events differs in a number of aspects from that related by Mr Padayhag. She says that:
(a)    she asked the applicant to sign a Medical Authority Release Form to allow the hospital to get information from his GP;
(b)    she went through the form with him and explained for and why it was required;
(c)    she also took him through the EAP (which I interpret to mean Employee Assistance Programme) services and explained that they were available to him;
(d)    when Mr Padayhag went to sign the form his hand was shaking and she asked him if he was alright;
(e)    he replied that it “was anxiety”, and when asked if Ms Camdzic had done anything to upset him, he said “…it was fine this happened sometimes, and the doctor told him it was anxiety”;
(f)    the applicant was to be moved to CT ward as it was a lower risk ward and that the day shift supervisor was to take him to that ward and show him what to do there;
(g)    however after the applicant stood, he became shaky (like he was cold) and unbalanced. Ms Camdzic asked him if he was alright and he said that he just needed a rest;
(h)    the applicant was offered a drink but he declined, saying that this type of episode happens to him all the time, even at home, and that it goes away and he is fine;
(i)    she was not comfortable with him continuing at work that day and could arrange for someone to take him home;
(j)    the applicant declined the offer and said he would be fine, and she asked him to call her when he got home so that she knew he was OK, and
(k)    Mr Padayhag left her presence at approximately 8:30 am. She thinks that he went to the male changerooms and called her at approximately 11:00 am to let her know he was home, that he had not yet gone to the doctor and that he was going to go at 3:00 pm.

Sanjo Paul, the Domestic Services Supervisor at the hospital, in his statement dated 5 August 2020 gives evidence as to what he saw and heard in respect of the meeting between the applicant and Ms Camdzic on 30 June 2020. He says that:
(a)    30 June 2020 was Mr Padayhag’s first day shift. When he first saw him at the very start of the shift he appeared to be fine;
(b)    he was then in the storeroom next door to Ziada Camdzic’s office, and that after they had their discussion Ms Camdzic brought Mr Padayhag to the storeroom via the door connected to her office;
(c)    Mr Padayhag was unbalanced and shivering, like he was cold, and Ms Camdzic asked him if he was OK. He said he was OK, it happened sometimes and he didn’t know why. Ms Camdzic said that he should not be working and should go see his doctor;
(d)    Mr Padayhag did not appear to faint and he (Mr Paul) did not assist him to stand and steady himself;
(e)    Mr Padayhag agreed that he should go home and see his doctor. Ms Camdzic said that he should not drive, being unwell, and offered to have someone drive him home and that it that was not suitable suggested that he call someone to come and pick him up;
(f)    Mr Padayhag said that he would be fine and declined any assistance offered to him, and
(g)    Mr Padayhag then moved to the locker room to have a rest. He (Mr Paul) did not see him again that day.

On 30 June 2020 Ms Camdzic forwarded an email to Candice Pertel at 9:44 am “Just to recap my meeting with Glenn this morning.”[28] The contents of that email are consistent with what Ms Camdzic says in her statement date 5 August 2020 occurred at the meeting.
[28] AALD, respondent, 9 July 2021, p 47.
Candice Pertel, the Workforce (HR) Manager, wrote to Dr Reyes on 2 July 2020 requesting a report and forwarding a template for the doctor to answer questions[29]. She referred to the incident on 30 June 2020 and said:
“We are seeking your assistance in understanding the nature of Mr Padayhag's medical circumstances and its impact on his normal work duties, restrictions and. if any, timeframes and any additional support we may be able to provide. I note that it is an inherent requirement of Mr Padayhag's role to work a rotating roster covering 24 hours a day 7 days per week.
Prior to Mr Padayhag returning to work additional information provided by yourself will need to be considered. Additionally we would like to ensure that there are some supports in place pertaining to his mental health.”
[29] AALD, respondent, 9 July 2020, p 59.
Dr Reyes provided a report dated 8 July 2020[30]. He said:
“9 June 2020 Genn [sic] consulted due to work place issues. He felt that he was unjustly treated by his supervisor due to unfair rostering. He presented with panic attack manifested as palpitation and tremors. He also reported poor sleep and loss of appetite. His BP was also BP (Sitting): 171/99 Pulse (Sitting): 86 elevated which is previously under control with medication. The anxiety attack is worst when he approach the hospital. He was rostered to do night shift for 1 month, after 23 years of working afternoon shift. Then he was given morning shift. The rostering was verbal without written notification.
On June 30 2020 he was told that he cannot work in emergency room anymore due to his age, high risk of COVID. Patient was rostered to work in emergency even during the COVID period from February until June. He manifested with course tremors noted when he was signing the work cover certificate and he did not eat breakfast due to lack of appetite and anxiety,”
[30] Application p 97.

Dr Reyes’ diagnosis of injury was “Anxiety Disorder” and he said in answer to a question “Do you believe Glenn employment with NSW Health is the whole or predominant cause of his current presentation?” that “Work issues is [sic] the single major contributing factor in his current condition.”
In respect of the differences between the evidence given by the applicant, Ms Camdzic and Mr Paul as to what occurred at and shortly after the meeting on 30 June 2020, I accept the evidence of Ms Camdzic and Mr Paul in preference to that of the applicant. Mr Padayhag’s first statement was given on 4 August 2020 and those of Ms Camdzic and Mr Paul on 5 August 2020, so that they all have a degree of contemporaneity with the events of 30 June 2020. Mr Padayhag’s second statement was not given until 3 May 2021. The version put forward by Ms Camdzic is consistent with the recap of events that she gave to Candice Pertel in the email dated 30 June 2020 referred to in [67] above. Ms Camdzic says in that email:
“When I explained to him that we would need him to sign Authority for release Medical Information form he agreed and as he took the pen to complete the form his right hand start to shake cause difficulty to sign the form.
I asked him if he was OK and asked why his hand was shaking he replied ‘the doctor said is because of anxiety’ He went on to say that the doctor has suggested psychological assessment and I provided him with a pamphlet for the EAP which je said he already had I attached to his previous letter
We have directed Glenn to sick because of his shaking episodes he said that sometimes he is fine then all of the sudden he shakes.
I asked Glenn once he arrives home to call me so that I know he is safe.” [sic]

It was an authority for the release of medical information that the applicant was asked to sign and it was logical that Ms Camdzic would seek such an authority in view if the history of events leading up to the meeting and the concern that Ms Camdzic had in respect of Mr Padayhag’s medical conditions and the risk of him working in high risk Covid areas. Mr Padayhag says he indicated to Ms Camdzic that he did not have his reading glasses and that he could not therefore read the form. It is not completely clear from what Mr Padayhag says at [20] in his first statement if this was actually conveyed to Ms Camdzic. In any event I do not accept that Ms Camdzic forced him to sign the document. She did however have Mr Padayhag sign the document without him having read it, at a time when was obviously upset. I accept that Ms Camdzic explained the document and the reason why his signature thereon was necessary.
The authority itself is in evidence[31]. In it the applicant consents to the respondent obtaining from Dr Reyes any relevant medical information and advice concerning his fitness to safely undertake the duties of his position and other health related matters that had been identified by the respondent that needed to be considered in respect of his employment.
[31] Application p 70.

Ms Camdzic may have declined the request of Mr Padayhag to take the document home before he signed it, and whilst that refusal may be viewed in the context of the requirement of the hospital to ascertain the best way forward to deal with the applicant’s situation at the hospital and the concerns held about his ability to continue to work in a high risk area, for reasons set out hereunder I think that the applicant should have been allowed to take the form home before he signed it.

I do not however accept that Ms Camdzic showed a lack of concern for the applicant’s welfare after he experienced the attack if dizziness at the meeting on 30 June 2020, or that she did not offer support or assistance in ensuring that he got home safely. This is confirmed by the evidence of Mr Paul. I do not accept that the applicant’s well-being and health on that day was not important to Ms Camdzic.
The statement in which the lack of concern of Ms Camdzic is asserted by the applicant was made 10 months after the event of 30 June 2020. It is quite possible that the applicant when he made that statement would, probably unconsciously, view the events of 30 June 2020 from a different perspective. Mr Padayhag lodged a Notification of injury/illness form on or about 3 July 2020[32] alleging unfair treatment by the Domestic Services Manager, and his claim for compensation on the same day[33]. This claim was denied in the s 78 notice dated 10 July 2020[34].
[32] Application p 17.
[33] See email dated 3 July 2020 3:28 pm from Tracey Brooks to Candice Pertel, AALD, respondent, 9 July
[34] Application p 48.
In Onassis and Calogeropoulos v Vergottis[35], Lord Pearce said of documentary evidence:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
[35] [1968] 2 Lloyd’s Rep 403 at 431.
From what the applicant says in his first statement, he may have perceived that he was being pushed to sign the medical authority which he eventually signed, but his subjective perception is relevant only to the question as to whether he suffered a psychological injury. The events up to and/or including what happened on 30 June 2020, in so far as they are relied upon by the respondent as constituting reasonable action taken or proposed to be taken with respect to transfer or the provision of employment benefits to the applicant, must be viewed objectively.
The respondent concedes that the applicant has suffered psychological injury. The cause of such injury must be determined.

Cause of injury

I do not regard the incident of 20 May 2020 as being significant. The applicant did not understand the joke made by Ms Camdzic about being put on another week’s worth of night shift if he took sick leave on 20-22 May 2020. He does not say in his first statement that he was shocked by what he was told by Ms Camdzic on that day but does say in his second statement that he was left feeling distressed and upset by her words. The applicant visited Dr Reyes on 20 May 2020 for left shoulder pain. There is no mention in the clinical note of that day of any upset or disquiet about anything that occurred at work. It is not clear from the applicant’s second statement if the visit to the doctor was after or before he spoke to Ms Camdzic. He says in that statement that he recalled feeling unwell on 21 May 2020 and that he had spoken with his manager about that. (Emphasis added)
The incident of 20 May 2020 was however a precursor to what occurred from the beginning of June.
During the visit to Dr Reyes on 9 June 2020 he complained about being bullied at work and about being transferred to night shift for one month after 23 years of working afternoon shift, about the loss of penalty, and indicated a desire to apply for stress leave. He was complaining of tremors and poor sleep. The reason for contact was listed as anxiety.
In his report dated 8 July 2020 Dr Reyes confirms this attendance and notes that he presented with panic attack manifested as palpitation and tremors. His pulse was elevated, previously under control with medication. The anxiety attack was noted to be worst when approaching the hospital. This visit to Dr Reyes was after Mr Padayhag experienced a problem driving home from work after night shift when he says that he was so physically and mentally exhausted that he fell asleep at the wheel and crashed into a gutter. Dr Reyes granted him sick leave from 9 to 12 June 2021. He worked night shifts on 15-17 June. Mr Padayhag saw Ms Camdzic on 16 June when he expressed to her that he was having trouble sleeping. She told him that hopefully he would adjust as he would soon be moving to day shift which should help.
Thereafter the applicant was contacted by the domestic services secretary and told not to come to work and take sick leave until 26 June. He obtained a certificate from Dr Reyes for this period, took the leave. The direction to take sick leave from 18 June 2020 was confirmed in a letter from Ms Camdzic to the applicant on that day. In that letter the applicant was directed to attend his treating practitioner to obtain medical information so that the hospital could ensure a safe working environment for him.
On 19 June 2020 Dr Reyes issued a short report in which he noted that applicant’s co-morbidities and that:
“The change of shift and rotating roster has resulted in anxiety and poor sleep. This has created a significant impact on his quality of life and can later affect his BP and diabetes control.”[36]
[36] Reply p 52
On 24 June 2020 Dr Reyes advised the hospital that the applicant was permanently unfit to perform rotating roster and that he needed to retain his old roster (see [61] above).
The next relevant occurrence was the events of 30 June 2020 described above. That was the first day that the applicant was on day shift in the ED when he was shown by the shift supervisor his duties, which comprised of cleaning only and not porter duties. At the subsequent meeting with Ms Camdzic, Mr Padayhag was told by her that he needed to be moved from the ED to the CT ward where there was less risk of him contracting Covid. It was then that the applicant was asked to sign the medical authority form when he experienced a panic attack.
This is confirmed by the clinical note of the applicant’s attendance on Dr Reyes that day. The history recorded by Dr Reyes is as follows:

“History:
panic attack ,manifested as tremors and anxiety was told that he cannot work in emergency anymore due to his age high risk of COVID , patient ws rostered to work in emergency even during the COVID period, felt that he is unjustly treated by management , this situation just happened when he ask to be rostered to work
in his ussual PM shift that he used to work for 23 years”

The reason for contact was noted by the doctor as “Anxiety – PTSD” and medical certificates were created.
The applicant was independently medically assessed by Dr Yajuvendra Bisht, psychiatrist, at the request of the respondent’s insurer, EML on 24 August 2020. In a report dated 25 August 2020[37] Dr Bisht recorded a history of events which accords with that set out above and diagnosed the applicant as suffering from adjustment disorder with mixed anxious and depressed mood. He said in respect of the causation of the injury sustained by the applicant:
“The injury was predominantly caused by or mainly caused by the change of shift and the requirement to work a rotating roster”
[37] Reply p 57.
Dr Bisht’s opinion on whether employment was a substantial contributing factor to any injury sustained is as follows:
“The employment has been a substantial contributing factor to the psychiatric
condition, as
• Stressful work related experiences, in the form of changes in rostering, did indeed occur
• The onset of the condition coincided with the stressful work experiences
• These workplace stressors would be considered severe enough to cause a psychological injury”

Dr Bisht said that the applicant currently did not have capacity for any type of work. The cause of his incapacity was the severity of his symptoms.
In a supplementary report dated 9 July 2021, Dr Bisht when asked to review the applicant’s “fresh statement” and whether he still held the opinion referred to in [90] above said:
“Later, he was taken off night shifts and the sleep problems resolved. His worry increased further when he started doing day shift, because he was afraid that it would affect him financially. Glen’s panic attack was on 30th June 2020, but he had been experiencing substantial symptoms even prior to that. Thus, having read the worker’s statement, I continue to hold the opinion that the injury was predominantly caused by or mainly caused by the change of shift and the requirement to work a rotating roster”

The applicant was independently medically examined on 15 December 2020 by Dr Martin Allan at the request of his solicitor. Dr Allan produced a report dated 16 December 2020[38]. The history recorded by Dr Allan is not controversial, although he does not appear to refer to the fear expressed by the applicant, recorded by Dr Bisht, that day shift would affect him financially. Dr Allan noted the issues which caused the applicant’s condition related to the rostering changes, lack of support throughout those changes and the direct threats made against him over extra nightshifts if he was sick and could not attend work. This is consistent with the concerns he outlines in his statement.
[38] Application p 114.
Dr Allan said that the applicant’s employment has been the substantial contributing feature to his condition. Mr Padayhag had no capacity of any type of employment since going off work.
Dr Allan made the same diagnosis of injury as Dr Bisht.
In my view the cause of the applicant’s psychological injury was the stressful working conditions to which the applicant was subjected to from the beginning of June 2020 when he commenced on night shift. These manifested themselves initially on 9 June 2020 when Mr Padayhag almost crashed his car on the way home from night shift, was diagnosed by Dr Reyes as suffering from anxiety and subsequently had to take sick leave at the direction of the respondent. Matters came to a head with the events of 30 June 2020. I do not think that it was caused solely by what occurred on that day. It was the culmination of events leading up to that day.
This finding is in accordance with the opinions of Dr Reyes, Dr Bisht and Dr Allan.

The injury was wholly or predominantly caused by the actions of the respondent.

Transfer and/or provision of employment benefits?

The applicant submits that the transfer of the roles of the applicant from working in ED to another ward and from night shift then to day shift does not constitute transfer for the purpose of s 11A, and that the loss of the shift allowance by having to work day shift does not constitute provision of employment benefits.
In support of the submission in respect of transfer, the applicant cites a decision of Acting Deputy President Snell in Smith. At [77] Snell ADP stated:
“The only potential element of ‘transfer’ associated with the meeting of 13 September 2007, was the direction that the Appellant Worker work two to three days per week out of the Granville office, rather than the Newcastle office. The Appellant Worker’s position was not changed. It is not suggested his job description was varied. The email from Mr Dinan dated 24 September 2007 … specifically asserted ‘The position was not relocated’. In my view, there is considerable doubt regarding whether the meeting can be regarded as action taken by the Respondent Employer with respect to transfer.”

Each case depends on its own facts. I think that there was a transfer of the applicant’s position in this case. The respondent was a large hospital and the applicant was being transferred from the ED, where he had worked since 2015, to another part of the hospital because of concerns about his health. He was not happy with the transfer for a number of reasons including the change in the shift that he had worked for many years with its consequent interruption to his pattern of sleeping and interference with his health and well-being, and the loss of shift allowance. Whilst I find that the change in shifts was not a “transfer”, the move from the ED was.
No authority was cited in support of the submission that the loss of shift allowance was a loss in employment benefits. I think that it was. It was clearly of benefit to the applicant not to work day shift where he would lose that shift allowance. Whilst he would receive the allowance on both the afternoon shift, on which he had worked for many years, and the night shift, which significantly interfered with his health, by working the afternoon shift he would avoid the detriment to his health. This became clearly apparent from the beginning of June 2020 and is corroborated by Dr Reyes.

Reasonableness of the respondent’s actions

I do not think that the actions of the respondent in imposing upon that applicant the obligation to comply with a rotating shift and moving him out of ED in the manner in which it did were reasonable. The respondent was aware from June 2020 of the effect that the roster changes were having on the applicant and had medical evidence to corroborate this. True it is that the applicant in February 2020 signed an agreement to work on a rotating roster and expressed to Shirley Magallenes in May 2020 that he had no objections to the coming changes. She also confirmed with Mr Padayhag in May that he was aware of the changes. However it quickly became apparent in June that he was not coping with the changes, and obviously started to decompensate. This was clear from what happened on 9 June 2020. The respondent was made aware of the applicant’s condition by Dr Reyes prior to 30 June 2020 and of his unfitness to work other than on the shift which had worked for many years.

In my view, having regard to the deterioration in the applicant’s health throughout June 2020, the respondent was not acting reasonably in pushing the change onto the applicant on 30 June 2020. He was a long term employee of the respondent who only started to experience problems with his health with the changes which occurred from early June 2020 onwards. Further, although I have found that Ms Camdzic was concerned for the welfare of Mr Padayhag at the meeting of 30 June 2020 and as to how he travelled home thereafter, I do not think that it was reasonable to encourage him as she did to sign the authority for medical information. I accept that she did explain it to him, but I also accept that he could not read it. When Mr Padayhag became so obviously unwell on that day, signature of the document could have been left to another day, particularly as he was sent home sick.
For the foregoing reasons I find that whilst the applicant’s injury was wholly or predominantly caused by the actions taken by the respondent with respect to transfer and the provision of employment benefits, such actions were not reasonable. The applicant is entitled to an award in his favour of the weekly benefits sought by him and expenses pursuant to s 60 of the 1987 Act.

Capacity

The respondent does not dispute that that applicant has no current work capacity. He is entitled to an award pursuant to s 36 of the 1987 Act for the first 13 weeks of incapacity at 95% of PIAWE and thereafter pursuant to s 37 at 80% of PIAWE.

Award for weekly benefits

The applicant claims weekly benefits from 9 June 2020. He worked night shift from 15 to 17 June 2020. The respondent will have credit for payments made to the applicant after 9 June 2020.

SUMMARY

The applicant suffered psychological injury arising out of or in the course of his employment with the respondent, deemed to have occurred on 30 June 2020.
Injury was caused by action taken or proposed to be taken by or on behalf of the respondent with respect to transfer and the provision of employment benefits.
Such action of the respondent was not reasonable.
Pre-injury average weekly earnings are $1,120.20
The respondent is to pay the applicant:
(a) $1,064.19 per week from 9 June 2020 to 8 September 2020 pursuant to s 36 of the 1987 Act, and
(b) $896.16 per week from 9 September 2020 to date and continuing pursuant to s 37 of the 1987 Act.

The respondent is to have credit for payment made to the applicant after 9 June 2020.

The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act.

2020 p 49.

[2021] NSWPIC 267

29 July 2021