Panchal v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Panchal v Woolworths Group Limited [2021] NSWPIC 389
APPLICANT:	Tarunkumar Panchal
RESPONDENT:	Woolworths Group Limited
MEMBER:	John Isaksen
DATE OF DECISION:	1 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and medical expenses for psychological injury; worker claims that he was pressured into taking annual leave, along with other alleged incidents of harassment; reference to Attorney General’s Department v K; whether the worker perceived he was working in an offensive or hostile environment; section 11A defence relied upon by respondent for action taken with respect to provision of employment benefits; Held – worker perceived he was working in an offensive or hostile environment and as a result sustained psychological injury; annual leave is an entitlement and not a benefit, so that section 11A defence not established; award of weekly payments of compensation for no current work capacity for two months and then varying rates of weekly payments of compensation for partial incapacity, as well as award for reasonably necessary medical expenses.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of his employment with the respondent with a deemed date of injury of 21 August 2020. 2. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987 (the 1987 Act). 3. The applicant had no current work capacity from 21 August 2020 to 14 October 2020. 4. The applicant had a partial incapacity for work from 15 October 2020 to 16 September 2021.
ORDERS MADE:	1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $925.68 per week from 21 August 2020 to 14 October 2020 pursuant to section 36 (1) of the 1987 Act; (b) $561.68 per week from 15 October 2020 to 19 November 2020 pursuant to section 36 (2) of the 1987 Act; (c) $415.52 per week from 20 November 2020 to 20 December 2020 pursuant to section 37 (3) of the 1987 Act; (d) $427.18 per week from 21 December 2020 to 21 February 2021 pursuant to section 37 (2) of the 1987 Act; (e) $281.02 per week from 22 February 2021 to 28 March 2021 pursuant to section 37 (3) of the 1987 Act; (f) $427.18 per week from 29 March 2021 to 9 May 2021 pursuant to section 37 (2) of the 1987 Act; (g) $287.68 per week from 10 May 2021 to 20 June 2021 pursuant to section 37 (2) of the 1987 Act, and (h) $29.28 per week from 21 June 2021 to 16 September 2021 pursuant to section 37 (2) of the 1987 Act. 2. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant, Tarunkumar Panchal, claims that he sustained a psychological injury in the course of his employment with the respondent, Woolworths Group Limited.
The applicant claims that between November 2019 and 20 August 2020 there were several incidents at work involving interpersonal conflict with his managers which caused him to sustain psychological injury.
The applicant claims that he had no current work capacity from 21 August 2020 to 18 October 2020 as a result of this psychological injury, and then returned to work for 14 hours per week, and has gradually increased his fitness for work to be able to undertake 35 hours of work per week since 21 June 2021.
Employers Mutual Limited have issued two dispute notices on behalf on the respondent on 7September 2020 and 10 May 2021 wherein liability is disputed on the grounds that the applicant did not sustain an injury in the course of his employment with the respondent, but if such an injury was sustained then no compensation is payable because of reasonable actions taken by the respondent with respect to the provision of employment benefits and discipline.

The applicant claims weekly payments of compensation from 21 August 2020 to 18 October 2020 due to having no current work capacity for this period, and thereafter weekly payments of compensation due to partial incapacity for work.
The applicant also claims the cost of medical treatment for his psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a)    whether the applicant sustained an injury in the course of his employment with the respondent (section 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b)    whether any psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and/or provision of employment benefits (section 11A of the 1987 Act);
(c)    the extent of the applicant’s incapacity for work as a result of his injury (sections 32A, 33, 36, 37 and Schedule 3 of the 1987 Act), and

(d) whether treatment for the applicant’s psychological injury is reasonably necessary (section 60 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 16 September 2021. 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.
Mr McEnaney appeared for the applicant, instructed by Ms Basal. Ms Grimes appeared for the respondent, instructed by Mr Passas.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $974.40.
The hearing was conducted by telephone in accordance with the protocols set out by the Commission due to the coronavirus pandemic.
The applicant withdrew his claim for the respondent to pay for certain future medical expenses and amended the claim for weekly payments of compensation to end on 16 September 2021.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) The Application to Resoolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;

(c) Application to Admit Late Documents filed by the applicant on
23 July 2021;

(d) Application to Admit Late Documents filed by the applicant on
13 September 2021,and

(e) Application to Admit Late Documents filed by the respondent on 13 September 2021.

Oral evidence

There was no application to adduce oral evidence or to cross examine any witnesses who have made statements, and which have been admitted into evidence.

FINDINGS AND REASONS

Whether the applicant sustained an injury in the course of his employment with the respondent

The evidence discloses that there were three separate issues which occurred in the workplace and which the applicant claims to have caused his psychological injury:
(a)    a conflict between the applicant and his managers on a day in November 2019 when the applicant was directed to continue to work despite severe back pain;
(b)     that on 19 November 2019 the applicant was demoted without notice from his position as supervisor, and

(c)    that from at least April 2020 until 7 August 2020 there were unreasonable demands being placed upon the applicant by management to take accrued annual leave, which had built up to an excessive level.
Mr Grimes for the respondent submits that from a review of the evidence, the first two issues were not causative of a psychological injury because the events surrounding those issues did not occur in the manner described by the applicant. Mr Grimes submits that the third issue regarding annual leave did not amount to bullying and harassment of the applicant such as to cause him injury, and that in any event that issue involved reasonable action taken by the respondent with respect of the provision of employment benefits.
Mr McEnaney for the applicant submits that events in relation to these three issues did occur between the applicant and his managers, and that the medical evidence supports a finding that those events were the cause of the applicant sustaining a psychological injury. Mr McEnaney points out that there is no medical evidence relied upon by the respondent to dispute this.
It is necessary to review the evidence in relation to each of the three issues.
The first issue involves the interaction between the applicant and his managers regarding his complaints of severe back pain on a day in November 2019.

The applicant states that he informed his line manager, Diana Paothong, of his back pain, and she responded: “we are short staffed, go speak to Con.” The applicant states that his manager, Con Retsas, said that he could not go home despite informing Mr Retsas that his pain was 9 out of 10. He states that he argued for an hour and a half with Mr Retsas before he was allowed to go home. He states that this incident left him upset, confused and hurt.
Diana Paothong confirms in her statement dated 10 September 2021 that she is the applicant’s manager. She states that she does recall the applicant approaching her about a lower back complaint and that she referred him to Mr Retsas, but she did not do so in an abrupt manner.
Con Retsas confirms in his statement dated 10 September 2021 that he is the store manager of the Redfern store. He states that he offered to take the applicant to see a doctor as part of his duty of care towards the applicant, but the applicant refused this offer. Mr Retsas states that he and the applicant did not argue for 90 minutes, but that they spoke together for about 20 minutes before he allowed the applicant to go home.

The second issue involves the applicant’s allegation that on 19 November 2019 the applicant was demoted without notice from his position as supervisor.

The applicant states on 19 November 2019 he attended his usual shift and undertook his usual job as the shift supervisor. The applicant states that during the shift the applicant was approached by another employee, Bobby, and was informed by Bobby that Bobby was the supervisor for the shift.
The applicant states that he approached Ms Paothong who said she had no time to talk about it. He states that Ms Paothong said that the managers would discuss this with the applicant next time he was in the store, but that to this day he has not been given an explanation for his demotion. He states that what occurred upset him deeply. He states that he was shocked and bewildered because he could not believe what had happened to him, and could not wait for his shift to finish so he could get out of work.
The applicant states with the support of his wife he decided to send a message to his manager requesting that he no longer fill in when other supervisors were not available as the respondent was only using the applicant as supervisor when they needed him. There is in evidence a text message dated 7 December 2019 from the applicant to Ms Paothong which reads:
“As par current situation you have enough service supervisors to run shifts. So sorry to say I would like to step down, means no more shift run as a shift supervisor. If you really need as a supporting supervisor during the shift I will support for you. Otherwise I would like to work as a normal team member.
Thanks for your support and understanding throughout customer service supervisor journey. I tried my best to work honestly as a customer service supervisor with responsibilities. But unfortunately I need to step down.”

Ms Paothong states that the applicant’s primary position was a ‘team member’, and he was never a supervisor. She states that the applicant stepped into the role of support supervisor on a Tuesday afternoon when the supervisor was away, but following a restructure in mid to late November 2019, Bobby took over the supervisory role on a Tuesday afternoon.

Ms Paothong has provided a “Daily Break Report” which outlines when the applicant worked as a team member and when he had a supervisory role. She states that the applicant was aware of the roster changes, and she treated the applicant with dignity and respect throughout the restructure process.
Mr Retsas states that the applicant was aware of the shift restructures that were made in November 2019, knew that Bobby was the main supervisor, and that the applicant would only step into the support supervisory role when Bobby was on a break.
Both Ms Paothong and Mr Retsas state that the applicant was offered a Saturday supervisory role, but the applicant turned that offer down.

The third issue regarding the demands placed upon the applicant to take some of his accrued leave occurs several months and involves a number of episodes.
The applicant states that he had previously applied for five to six weeks leave in November 2019 but it had been denied by Ms Paothong.
The applicant states that on or around 6 April 2020 he was called into the office of Mr Retsas and told that he had excessive leave and needed to have that leave reduced. He states that after speaking to his wife a plan was made to take leave when his wife’s family would visit from India, but he then had to ask Mr Retsas if he could take leave at a later date due to the borders being shut. He states that Mr Retsas replied: “no, you need to take it now.”

The applicant states that Mr Retsas kept harassing the applicant over the next couple of weeks on a daily basis to apply for annual leave, even though he did not agree to forced leave.
The applicant states that he spoke to Mr Retsas about taking leave while his children were on school holidays and Mr Retsas responded: “no, I don’t care, you take your leave when I want you to take your leave.” The applicant states that this comment upset him deeply and that Mr Retsas was being extremely mean and unreasonable.
In a second statement dated 10 September 2021, the applicant states that he was continually being called in for meetings at short notice. He states that he was being given no time to prepare for these meetings and was not offered a witness, except for the first one or two meetings. He states that he became more anxious to come into work each day.
The applicant states that after a meeting with Mr Retsas on 24 July 2019, he asked to take a few days off work when he had some landscaping planned at his home, but Mr Retsas told him he had to take a week off. The applicant applied for a week of leave commencing 10 August.
The applicant states that on 5 August 2020 he heard from his landscaper that a project could not proceed due to heavy rain and he immediately requested Mr Retsas and Ms Paothong that his annual leave, which was to coincide with the landscape work, be moved to the next week. He states that “this caused an argument” and that both Mr Retsas and Ms Paothong spoke aggressively towards him.
The applicant states that he had been advised that he could move dates for his leave as long as it was not at the last minute, but Mr Retsas had never mentioned a timeframe. He states that he thought that he was giving his employer plenty of notice because he had only applied for that leave two weeks beforehand. He states that he did not want to cancel his holidays, but just to re-arrange it to the following week of 17 August 2020.

The applicant states that he sent an email to Mr Retsas on 5 August 2020 asking that Mr Retsas stop asking the applicant to come into Mr Retsas’ office in regard to the issue of annual leave. He states that this was causing him huge stress and anxiety and that other colleagues were not subject to this treatment by management.

There is in evidence a copy of an email from the applicant addressed to “The Woolworths Redfern”, with a title of “Forcefully Harassment for Annual Leave”, which is dated 6 August 2020. That email includes the following:
“It's my holiday you can't keep force me until and unless I am not prepared. I am the person take decision when I need to apply my holiday. So I kindly request to the store manager stop to harassment for apply annual leave.”
“From now please don't call me regarding my annual leave. Whenever I need holiday I will apply. From now I am not apply any single hour annual leave without plan. Whatever letter you want to give me do it. I will deal with all letter. I kindly request to you please don't give false commitments for work related issues.”
The email also makes reference to the applicant being harassed the previous year to forcefully work with back pain. The email ends: “Please don’t break anyone trust. Not easy to put trust on others.”

The applicant states that he was called into a meeting with Mr Retsas and Ms Paothong when he arrived at work on 7 August 2020. He states that he was “caught off guard” by this. He states that no offer was made that he could get his own witness and would have brought a witness if he had prior notice of the meeting.
The applicant states that Mr Retsas told him that he would be forced to take two weeks leave in September. He states: “I was shocked that he would blatantly force me to take my well-earned entitlements without any acknowledgement of my personal preferences.”
The applicant states that Mr Retsas and Ms Paothong attempted to make him sign a letter of agreement on his annual leave at this meeting, but he refused to sign it. He states that he was very stressed when he left the office and arranged to see his general practitioner.
The applicant states that he contacted head office to find a resolution to this issue, but that Mr Retsas then reduced his pay because he contacted the head office during working hours. He states that he did not know who to speak to or what to do and became very depressed.

The applicant states that Human Resources referred the applicant to two group managers. He states one group manager acknowledged miscommunication between the applicant and his managers, but the managers or the respondent would not take responsibility for the treatment he was subjected to. The applicant was also informed that his complaints about bullying had not been substantiated.

The applicant states that he took two months off work from 21 August 2020 due to the severity of his anxiety and depression.

Mr Retsas states in February 2020 he was sent by head office a list of employees, including himself, the applicant and three other employees, who had excessive leave. He states that employees who had in excess of eight weeks leave were encouraged to take some time off in accordance with the respondent’s annual leave policy, and it was his job to inform employees of this. He states that he raised this matter with the applicant for the first time in February 2020.
Mr Retsas states that he again raised the issue of excessive leave with the applicant in March and then in early April 2020, but disputes that he was pressuring the applicant on a daily basis. He states that he was just trying to come to a mutual agreement with the applicant as to when he would take some time off. Mr Retsas states that the applicant had said in early April 2020 that he was looking to take a trip to India in November 2020, but after speaking about it further they both agreed that it would be difficult due to Covid.

Mr Retsas states that the next time he spoke to the applicant was on 24 July 2020. He states that he had a conversation with the applicant in the presence of a team member Geoffrey Craggs. He states that the applicant informed him that the applicant was applying for leave in mid-August 2020 to landscape his garden, and Mr Retsas told him that once dates were agreed then it would be nearly impossible to change the rosters.
There is an email from Mr Craggs to another section of the respondent’s business dated 12 August 2020 which states that he sat in during a meeting that Mr Retsas had with the applicant, and Mr Retsas said that if the leave was for a few days off work then Mr Retsas “wouldn’t be able to move it around if there was a last minute change of mind.”
Mr Retsas states that on 5 August 2020 the applicant sought to cancel his leave and that the applicant became aggressive when he was told that this could not be done at short notice. He states that he recalls informing the applicant that this was a situation he had warned the applicant of in the meeting on 24 July 2020. Mr Retsas denies he organised to reduce the applicant’s pay when the applicant made contact with HR. He states that he only said to the applicant that if the applicant wanted to call head office then that should be done in his break as the applicant could be on hold for a substantial period.

Mr Retsas states that he requested to see the applicant and Ms Paothong in his office on 7 August 2020. He states that he asked the applicant if he wanted a witness and the applicant repeatedly said he did not want one. Mr Retsas states that he read a letter addressed to the applicant and encouraged the applicant to take four weeks leave over four months that was convenient to him. He states that he did not “ambush” the applicant in this meeting as alleged by the applicant and that he did not pressure the applicant to sign any letter.
Ms Paothong has provided the applicant’s Leave History for the month of November 2020, which includes whether a request for annual leave is accepted or not, and states that the document does not record any annual leave taken or requested by the applicant in that month.
Ms Paothong states that she was present at the meeting with Mr Retsas and the applicant on 7 August 2020. She states that Mr Retsas attempted to read out a letter to the applicant detailing company policy regarding leave and also mental health. She states that Mr Retsas did not force the applicant to sign the letter and that ultimately the applicant became hostile and walked out.
There is an email from Ms Paothong dated 12 August 2020 wherein she writes that the applicant was asked by Mr Retsas before he spoke to the applicant as to whether the applicant would like a witness present, which the applicant rejected.
The clinical records from Hills Doctors which are in evidence include the following notes from Dr Obeyesekara on 6 August 2020:

“Feeling sad and depressed. Stressed and anxious too.
Manager at work place is harassing about his leave.
Unable to concentrate.”

Notes made by Dr Obeyesekara on 16 August 2020 include: “still ongoing harassment.”

Notes made by Dr Obeyesekara on 25 August 2020 include the applicant being abused by the store manager while the door was closed and the applicant being unable to get a witness.

In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K), DP Roche reviewed a number of authorities which considered psychological injuries sustained arising out of or in the course of employment and said at [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 (Spigelman CJ in Chemler at [40]);
(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 (Spigelman CJ in Chemler at [54]);
(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 (Basten JA in Chemler at [69]);
(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 (President Hall in Sheridan);
(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’ Von Doussa J in Wiegand at [31]), 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.”
Deputy President Roche then went on to state at [54]:

“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’.”
It does not automatically follow from the decisions of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler) and Attorney General’s Department v K that if there were real events in the workplace and those events were perceived by a worker to be hostile that a psychological injury is established. Those decisions state that it is “open” to the Commission to make a finding of employment being the cause of psychological injury once a consideration is given to all of the evidence. The submission made by Mr Grimes is that while events did occur in regard to the three separate issues which I have summarised, those events did not occur in an offensive or hostile environment.

There is no reason to doubt that the applicant was experiencing stress on the day in November 2019 when he had low back pain at work. He states that he had severe low back pain and just wanted to go home. However, I am not convinced from a review of the evidence that events on that day occurred in a work environment that was offensive or hostile.
The applicant claims that he argued with Mr Retsas for 90 minutes but does not provide any more specific details as to how the argument could have lasted for such a long period of time. The evidence of Mr Retsas of a discussion of 20 minutes is far more plausible in the absence of any further evidence from the applicant.

Mr McEnaney submits that the applicant was being harried into being sent to a doctor chosen by the respondent and that Mr Retsas intended to accompany the applicant to the doctor chosen by the respondent. However, those submissions are supposition only. The evidence reveals no more than a concern on the part of Mr Retsas towards the wellbeing of the applicant.

One of the applicant’s general practitioners, Dr Sivakumar, has provided a medical certificate dated 28 July 2021 which states that the “attended this practice 28/11/2019 with back pain, mechanical in nature and his store manager forced to work with pain.” However, the notes made by Dr Sivakumar on 28 November 2019 in regard to a consultation by the applicant for low back pain make no mention of the applicant being forced to work with pain.
There is no evidence that the applicant was directed by anyone from management to work on with lower back pain. The applicant does not state this. The evidence is that he firstly asked Ms Paothong and then Mr Retsas if he could go home and after a discussion with Mr Retsas, which is more likely to have been closer to 20 minutes than 90 minutes, the applicant was permitted to go home.

I am also not convinced that the events on 19 November 2019 regarding the applicant’s alleged demotion from a supervisory position occurred in an offensive or hostile work environment.

The shock that the applicant claims to have experienced on that day was from not being told by management that he did not have a supervisor role, and then the failure by management not to discuss this issue with him. However, the applicant had been working at the Redfern store for some six years before the events of that day. The applicant does not state that he was not privy to the “Daily Break Report” which details when the applicant was to work as a team leader and when he was to work as a supervisor, or some similar information from the respondent regarding his position at the Redfern store. It is reasonable to infer from that evidence that the applicant had a good understanding of his position at the Redfern store.

While Ms Paothong does not state that she discussed the demotion alleged by the applicant after that day, Ms Paothong relies upon her understanding that the applicant would have been aware of roster changes and a recent restructure. While the applicant might have considered it desirable to be informed of why he believed he had been demoted, the reasonable response from Ms Paothong is that the applicant would have been aware of the structure of roles at the Redfern store.

There is also no evidence of the applicant taking this particular issue up with higher management as he did with the issue of leave the following year, which also carries the inference that the applicant was aware of how the structure of roles operated at the Redfern store.
Mr McEnaney relies upon the text message sent by the applicant on 7 December 2019 and submits that there is an air of despondency in that message. However, the message does not provide an explanation as to why the applicant no longer wanted to work as a supervisor. The message simply reads as someone who no longer wants the higher responsibility of a supervisor role.

On the annual leave issue, there are significant differences in the applicant’s evidence compared to the evidence from Mr Retsas.
The applicant states that after a meeting with Mr Retsas on 6 April 2020, he was harassed by Mr Retsas for a couple of weeks on a daily basis. The applicant also states that he was continually being called in for meetings with Mr Retsas at short notice, and that except for the first one or two meetings, the applicant was not offered a witness.

Mr Retsas states that he first raised the issue of excess leave with the applicant in February 2020, and then had further meetings with the applicant in March and early April 2020, but then the next time he spoke to the applicant on this issue was on 24 July 2020. Mr Retsas disputes that he was pressuring the applicant about his leave on a daily basis.
It is reasonable to accept that Mr Retsas is likely to be more accurate in identifying when meetings occurred between himself and the applicant on the annual leave issue because, as manager of the Redfern store, Mr Retsas would have been maintaining records of important events during the time that he was at the store. Mr Retsas does not identify any meeting with the applicant on the annual leave issue between early April 2020 and 24 July 2020.
However, it is also reasonable to accept the submission made by Mr McEnaney that Mr Retsas would have spoken frequently to the applicant when they were both in the store in regard to this issue, and that the frequency of those contacts started to cause the applicant stress and concern. Mr Retsas was being directed by higher management to address those employees, including himself, who had excessive leave, and Mr Retsas was acting upon that direction.
The applicant also states that he had two meetings with Mr Retsas between early April 2020 and 24 July 2020. Firstly, sometime after the 6 April 2020 the applicant states that he informed Mr Retsas that he would not take holidays which he had planned because his wife’s family could not get to Australia from India. Then the applicant refers to a further meeting when he told Mr Retsas he would take some time off during school holidays. Mr Retsas also refers to a meeting in early April when there was a discussion about the applicant taking leave in November 2020 to travel to India.
The evidence therefore indicates that the applicant was being approached by Mr Retsas on a basis that was frequent enough for the applicant to begin to experience worry and stress on this particular issue.
The evidence regarding the meeting on 5 August 2020 reveals that at least part of the applicant’s concern was that he was not able to take his annual leave when he chose to. This is apparent from the email which the applicant sent the following day, wherein he states that he will apply for annual leave when he chooses to.
However, that email also refers to “false commitments” and ends with his concern about trust at the place where he works. The applicant’s evidence is that he thought he was giving plenty of notice for a change of dates for his leave, especially when he had only applied for leave two weeks earlier.
Mr Retsas states that all the rosters were in place and that he had warned the applicant that a situation like this might occur. He does not state that he made any attempt to try and assist the applicant with a change of dates.
I therefore accept that while the applicant had certain views about his perceived rights as to when he could take annual leave, he had also experienced stress and worry from the frequent approaches made by Mr Retsas to take leave. It is reasonable to conclude that the applicant perceived that he was working in a hostile environment when he was being frequently approached by management to take annual leave and then also not being offered any assistance to at least try to change the leave he had in place when he encountered a problem with the plans he had made for some leave.
That in turn led the applicant to seek medical treatment, and the note made by Dr Obeyesekara on the day after the meeting on 5 August 2020, being: “Manager at work place is harassing about his leave”, is consistent with the applicant’s perception of a hostile work environment.

It is the applicant’s case is that it was the hostile manner in which representatives of the respondent pressured and harassed the applicant to take annual leave that was the cause of his psychological injury. That is supported by the only opinion of a psychiatrist that is available in this dispute, being Dr Khan. Dr Khan opines in his report dated 20 February 2021:
“There is no doubt that Mr Panchal’s employment was the substantial contributing factor to his development of the psychiatric/psychological condition of adjustment disorder with mixed anxiety and depressed mood. The actions of Mr Panchal’s employer were unreasonable with regard to the unreasonable bullying and harassment perpetrated by his managers during his employment. The requests for him to take annual leave and the demotion were not the cause of his injury as evidenced by the temporality between Mr Panchal’s mental state deterioration and the bullying and harassment.”
The history recorded by Dr Khan include details which are specifically rejected in the evidence of Mr Retsas and Ms Paothong. For instance, Dr Khan records that the applicant was pressured to sign a letter during the meeting on 7 August 2020, but this is denied by both Mr Retsas and Ms Paothong. Dr Khan records that the applicant’s pay was reduced when the applicant made a phone call to head office during work hours, which is denied by Mr Retsas.
There are also additional details recorded by Dr Khan which have not been included in the applicant’s own evidence. For instance, Dr Khan records that the applicant received repeated phone calls from Mr Retsas and Ms Paothong regarding his leave, which the applicant does not refer to in his own statements. Dr Khan records that the applicant was threatened with a “letter” if he did not meet the demands of management, which is also not referred to in the applicant’s statements.
Nonetheless, Dr Khan also records details of the frequent approaches made by Mr Retsas to the applicant regarding the issue of leave, which I have accepted from a review of the lay evidence did occur and which caused the applicant to perceive that he was working in a hostile environment.

There is evidence that the applicant was affronted by the directions made by representatives of the respondent for him to take leave. However, from a review of the lay evidence I have also accepted that the applicant was pressured on his excessive leave over a period of several months while he worked at the Redfern store, that this caused him considerable stress and worry, and that the medical evidence supports a finding that it was this pressure from representatives of the respondent which was the cause of the applicant’s psychological injury.

I am therefore satisfied that the applicant did sustain a psychological injury in the course of his employment with the respondent.

The section 11A defence

Section 11A (1) of the 1987 Act provides:

“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

The respondent relies upon the categories of discipline and the provision of employment benefits in section 11A (1) of the 1987 Act to dispute the applicant’s entitlement to compensation.
However, Mr Grimes for the respondent did not make any submissions which would allow for the application of the category of discipline to the circumstances of this dispute. In particular, he did not submit that the respondent’s Annual Leave policy, and the implementation of that policy as it applied to the applicant, could be included in the category of discipline.
Mr Grimes did submit that the events regarding the applicant being required to take annual leave came within the category of the provision of employment benefits. He observed that there has not been any authoritative decision on this particular category in section 11A, but that annual leave should be regarded as an employment benefit.

In my view, annual leave for a permanent employee is an entitlement as distinct from a benefit. Annual leave is one of the 11 minimum entitlements listed in the National Employment Standards. Section 87 of the (Commonwealth) Fair Work Act 2009 (the Fair Work Act) is headed “Entitlement to annual leave” and then sets out how an employee is “entitled” to annual leave.
Mr Grimes submits that the terms “benefits” and “entitlements” are interchangeable, but in my view, there is a distinction. A permanent employee has an expectation that he or she will be entitled to annual leave so long as they otherwise meet the requirements of the Fair Work Act, whereas a benefit is an act of kindness or generosity that may be provided by an employer to an employee.

I am therefore not satisfied that the action taken by the respondent with respect to the applicant’s annual leave meets the category of ‘provision of employment benefits.’

The claim for weekly payments of compensation

99.The applicant claims weekly payments of compensation pursuant to sections 36 and 37 of the 1987 Act.

The applicant’s solicitors have filed a wages schedule which sets out a calculation of the applicant’s entitlements to weekly payments of compensation. The respondent has not filed any wages schedule in reply. Nor has the respondent filed any medical evidence to challenge the periods of total and partial incapacity certified by Dr Obeyesekara and Dr Sivakumar.

The applicant was certified as having no current work capacity from 21 August 2020 to 14 October 2020 and should receive $925.68 for this period, being 95% of PIAWE.

The applicant was certified as being fit for seven hours per day for two days per week from 15 October 2020 to 13 December 2020. The wages schedule asserts that there were six weeks during this period when the applicant actually worked at least 15 hours per week, which brings him within section 37 (2)(b). However, from my perusal of the wage details in ARD pages 136-138, the applicant worked no more than 13.5 hours in this period, and therefore the payment of weekly compensation for this period is set by section 37 (2)(c).
Section 37 (2) and (3) require a percentage of PIAWE to be deducted from ‘the worker’s current weekly earnings.’ Clause 8 of Schedule 3 of the 1987 Act sets out the meaning of “current weekly earnings” to be:
“‘Current weekly earnings’, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a) the worker's actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
The applicant’s actual gross earnings fluctuate from week to week, but the definition of ‘current weekly earnings’ requires a determination of the greater amount of the applicant’s actual gross weekly earnings and what he is able to earn in suitable employment.

The applicant’s ability to earn in the period from 15 October 2020 to 13 December 2020 seems to be $364 per week, based upon that amount being what he actually earned for at least three weeks in that period. There were some weeks when the amount paid to the applicant was higher than that, but that included personal leave and a picnic day, which was not income for actual work performed during those weeks.

The period from 15 October 2020 to 19 November 2020 still comes within section 36. There will be a payment of $561.68 for this period, being the difference between 95% of PIAWE and $364 per week. There will be a payment of $415.52 per week from 20 November 2020 to 13 December 2020, being the difference between 80% of PIAWE ($779.52) and $364 per week.

The applicant was certified as being fit for seven hours per day for three days per week from 14 December 2020 to 21 February 2021. The applicant’s actual earnings again fluctuate in this period but the wage details at ARD page 319 indicate that for a few weeks the applicant was able to earn $498.50 per week. Those wage details also record that but for the week ending 20 December 2020, the applicant was now working at least 15 hours per week, and he therefore now receives weekly payments pursuant to section 37 (2)(b).

The applicant will receive $427.18 per week from 21 December 2020 to 21 February 2021, being the difference between 95% of PIAWE and $498.50. The period 14 December 2020 to 20 December 2020 is paid at the lower rate of $415.52 per week because the applicant worked less than 15 hours in that week.

The wage details record that the applicant worked seven hours in the week from 22 February 2021 to 28 February 2021, and then did not work again until 28 March 2021 because he was certified as having no current work capacity by Dr Sivakumar.
The applicant states that his anxiety was heightened at work on 10 February 2021. He states he presented a Certificate of Capacity to work a fourth shift and Ms Paothong and Ashish Shakya, an assistant manager, told the applicant they wanted him to work on a Friday. The applicant states he was not available to work on a Friday because he had a doctor’s appointment on that day and the proposed shift would end at 10.30 pm, which would not give him enough hours of sleep to start his shift at 9.00 am on the next day.
Ms Paothong states that she informed the applicant that he was really needed on a Friday and unless he could provide a medical certificate stating that he could not work on a Friday, he would be rostered on that day. Ashish Shakya states that the applicant was rude and aggressive towards Ms Paothong when he was told this.
The medical evidence to support the applicant’s claim that he had no current work capacity is restricted to the contents of the Certificates of Capacity issued by Dr Sivakumar for this period. Those Certificates state:
“When he ready to start work 4 days a week, management changed his days from Wednesday to Friday without communicate with him, his Fridays shift finish at 10.30pm and Saturday start at 9am, he cannot have enough hours of sleep and he will get more tired stress and poor concentration. This changes made him more anxious and worries due to recent work related mental issues and he need few weeks off to sort it out this issue with the head office.”
In the absence of a report from Dr Sivakumar or another medical expert, it would seem from what Dr Sivakumar has written in those particular certificates that the reason the applicant should not work is so that he has time to sort out his rostering at the Redfern store. Dr Sivakumar does not provide an adequate explanation as to why the applicant could not work at all due to the applicant’s psychological injury.
Dr Khan sees the applicant on 20 February 2021, which is right at the time the applicant is having issues with his roster, but Dr Khan’s observations are limited to him stating since returning to work the applicant “was still subjected to ongoing bullying and harassment from Diana who had started to change without discussion.” Dr Khan provides no opinion on how this alleged harassment might have had an impact upon the applicant’s capacity for work.
In the absence of convincing medical evidence as to whether it was the applicant’s psychological injury which caused Dr Sivakumar to certify the applicant as having no current work capacity in late February 2021, and given that the applicant had demonstrated a capacity to work for seven hours per day for three days per week since 21 December 2020, I consider that the applicant’s ability to earn remained at $498.50 per week until 10 May 2021 when he was certified as fit for seven hours per day for four days per week.
Indeed, even that conclusion may be generous towards the applicant because he states that he presented himself to the respondent as being able to work four days per week on 10 February 2021 and Dr Sivakumar states in those Certificates of Capacity: “When he ready to start work 4 days a week, management changed his days.”
The award of weekly payments of compensation for the period from 22 February 2021 to 28 March 2021 will be $281.02 per week, being the difference between 80% of PIAWE and an ability to earn of $498.50 per week.
The applicant returned to work from 29 March 2021 and should return to the higher rate of $427.18 per week, based upon the difference between 95% of PIAWE and an ability to earn of $498.50 per week. This is until 10 May 2021 when he is certified fit for seven hours per day for four days per week and the wage details record an increase in the applicant’s earnings.
The applicant was certified fit for seven hours per day for four days per week from 10 May 2021 to 20 June 2021. The wages schedule states that the applicant’s gross weekly earnings for much of this period was $721 per week, but from my perusal of the wage details from the respondent, the applicant was usually earning $638 per week in this period. The applicant’s ability to earn in that period should therefore be $638 per week.
The difference between 95% of PIAWE and $638 per week is $287.68, and there will be an award of weekly payments at $287.68 per week from 10 May 2021 to 20 June 2021.
The applicant has been certified fit for seven hours per day for five days per week since 21 June 2021, although from my perusal of the applicant’s wage details, he has not worked over 30 hours per week since then. However, 35 hours of work per week should be the basis for a determination of the applicant’s ability to earn in suitable employment because that is what Dr Sivakumar certifies the applicant’s capacity for work to be.
The wage details record that the applicant is paid at a rate of $22.64 per hour, which equates to $792.40 per week for a 35 hour week. The wage details also record that the applicant has received a shift allowance during this period, which is usually $104 per week. I therefore determine that the applicant’s ability to earn in suitable employment since 21 June 2021 is $896.40 per week. The difference between 95% of PIAWE and $896.40 per week is $29.28 per week. There will be an award of $29.28 per week from 21 June 2021 to 16 September 2021.
No explanation has been provided by Dr Sivakumar as to why the applicant could not do an extra 30 minutes per shift, which would bring him back to his pre-injury hours and there would no longer be a difference between 95% of PIAWE and what the applicant is able to earn in suitable employment. However, the respondent has not provided an alternative expert opinion on this issue. The only available medical evidence supports a finding of partial incapacity up to the end of the period claimed by the applicant.

A summary of the calculations which have been made for the award of weekly payments of compensation is as follows:
Period  95% or 80% of PIAWE          Ability to earn Loss
21/8/20 – 14/10/20          $925.68  Nil  $925.68
15/10/20 – 19/11/20        $925.68  $364.00  $561.68
20/11/20 – 20/12/20        $779.52  $364.00  $415.52
21/12/20 – 21/2/21          $925.68  $498.50  $427.18
22/2/21 – 28/3/21            $779.52  $498.50  $281.02
29/3/21 – 9/5/21              $925.68  $498.50  $427.18
10/5/21 – 20/6/21            $925.68  $638.00  $287.68
21/6/21 – 16/9/21            $925.68  $896.40  $29.28
There will be an award of weekly payments of compensation to the applicant as folIows:
(a)    $925.68 per week from 21 August 2020 to 14 October 2020 pursuant to section 36 (1) of the 1987 Act;
(b)    $561.68 per week from 15 October 2020 to 19 November 2020 pursuant to section 36 (2) of the 1987 Act;
(c)    $415.52 per week from 20 November 2020 to 20 December 2020 pursuant to section 37 (3) of the 1987 Act;
(d)    $427.18 per week from 21 December 2020 to 21 February 2021 pursuant to section 37 (2) of the 1987 Act;
(e)    $281.02 per week from 22 February 2021 to 28 March 2021 pursuant to section 37 (3) of the 1987 Act;
(f)    $427.18 per week from 29 March 2021 to 9 May 2021 pursuant to section 37 (2) of the 1987 Act;
(g)    $287.68 per week from 10 May 2021 to 20 June 2021 pursuant to section 37 (2) of the 1987 Act;
(h)    $29.28 per week from 21 June 2021 to 16 September 2021 pursuant to section 37 (2) of the 1987 Act.

The claim for medical expenses

There will be a general order for the respondent to pay the reasonably necessary medical expenses for the treatment of the applicant’s psychological injury.

[2021] NSWPIC 389

1 October 2021