Parkin v MyHealth Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Parkin v MyHealth Services Pty Ltd [2023] NSWPIC 643
APPLICANT:	Melissa Cara Parkin
RESPONDENT:	MyHealth Services Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	30 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 11A(1); reasonable action taken or proposed to be taken by or on behalf of the employer in respect to redundancy and/or dismissal; psychological injury; claim for weekly compensation pursuant to sections 36 and 37 as well reasonably necessary medical and treatment expenses pursuant to section 60; reliance by the respondent on issue not previously notified; section 289A of the Workplace Injury Management and Workers Compensation Act 1998; Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Irwin v Director-General of Education, Ivanisevic v Laudet Pty Ltd, Burton v Bi-Lo Pty Ltd, Melder v Ausbowl Pty Ltd, and AMP Bank Ltd v Ayoub considered and applied; Held – the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s psychological injury sustained on 1 March 2023 was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline and/or redundancy within the meaning of section 11A(1); due to psychological injury sustained on 1 March 2023 the applicant has had no current capacity for work from 2 March 2023 to date and continues to have no current capacity for work.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s psychological injury sustained on 1 March 2023 was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline and / or redundancy within the meaning of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). 2. Due to psychological injury sustained on 1 March 2023 the applicant has had no current capacity for work from 2 March 2023 to date and continues to have no current capacity for work. The Commission orders: 3. The respondent to pay to the applicant: a. $1,484.68 per week from 2 March 2023 to 31 March 2023 pursuant to s 36 of the 1987 Act; b. $1,548.50 per week from 1 April 2023 to 31 May 2023 pursuant to s 36 of the 1987 Act; c. $1,304 per week from 1 June 2023 to 30 September 2023 pursuant to s 37 of the 1987 Act, and d. $1,336 per week from 1 October 2023 to date and continuing pursuant to s 37 of the 1987 Act (subject to indexation). 4. The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury deemed to have occurred on 1 March 2023 under s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Melissa Cara Parkin, the applicant, commenced employment with MyHealth Services Pty Limited, the respondent, in September 2018 initially as a graphic designer / social media. In November 2021 she was promoted to the position of Marketing Coordinator and in May 2022 to Marketing Manager.
On 1 March 2023 the applicant attended a meeting with the respondent’s Chief Operating Officer (COO), Marissa Clark. At that meeting the applicant was advised by Ms Clark that her role was potentially to be made redundant. Under cover of correspondence dated
6 March 2023 the respondent advised the applicant that her employment was to be terminated due to redundancy effective at close of business on Friday 24 March 2023. The applicant’s employment with the respondent was ultimately terminated.
The applicant alleges that she sustained psychological injury on the deemed date of
1 March 2023.
The applicant seeks weekly compensation from 2 March 2023 ongoing pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). The applicant also seeks a general order pursuant to s 60 of the 1987 Act for medical and related treatment expenses.
It is not disputed that the applicant sustained a psychological injury.
The respondent:
(a)    asserts that pursuant to s 11A of the 1987 Act the applicant is not entitled to compensation because the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal and / or retrenchment;
(b)    disputes that the applicant has suffered either total of partial incapacity for work as a result of the psychological injury, and
(c)    disputes that medical or related treatment is reasonably necessary as a result of the psychological injury.

ISSUES FOR DETERMINATION

The parties have agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $1,562.82 (and reflecting indexation: $1,630 from 1 April 2023 and $1,670 from
1 October 2023).
At the commencement of the arbitration hearing the respondent sought to rely on a previously unnotified dispute. Under cover of a notice given pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated
3 August 2023 the respondent gave notice to the applicant of the matters in dispute. The matters notified as being in dispute included the respondent asserting that the applicant is not entitled to compensation because her psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to “dismissal” under s 11A of the 1987 Act. This dispute issue was confirmed on
11 September 2023 in response to a request for review made by the applicant. At the arbitration hearing the respondent sought to rely on “redundancy” in addition to “dismissal”.
Pursuant to s 289A(1) of the 1998 Act a dispute cannot be referred for determination by the Personal Injury Commission (Commission) unless it concerns only matters previously notified as disputed. However, pursuant to subsection (4) a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.
The applicant objected to the respondent being able to rely on the said unnotified issue. Pursuant to s 289A(4) I granted leave to the respondent to rely on “redundancy” in addition to “dismissal”. I advised in the arbitration that I would provide in this decision brief reasons for the granting of leave which I now give.
The notice given pursuant to s 78 of the 1998 Act on 3 August 2023 observes that the applicant during an initial contact call on 2 June 2023 advised that she had been made redundant. It was also observed that a factual investigation which had been completed by AB Investigations “…confirmed the series of events in relation to the incident which led to you being made redundant…”
On 11 September 2023 the applicant was advised of the outcome of her request for review of the insurers decision made on 3 August 2023. The review outcome noted that the respondent in its letter to the applicant of 1 March 2023 had advised that the applicant’s position would possibly be made redundant and that under cover of a letter dated
6 March 2023 the respondent advised the applicant that she had in fact been made redundant. The notice of the review outcome also noted that statements had been obtained from the applicant, as well as the respondents Marissa Clark and Hadrian Lee. Those statements were all noted to refer to the applicant as having been made redundant.
It is in the interests of justice that the respondent be given leave to rely on “redundancy” in addition to “dismissal” in respect to the s 11A defence which it had given notice of. The evidence in the matter clearly indicates that the respondent’s stated reason for terminating the applicant’s employment was redundancy. The notices issued to the applicant on
3 August 2023 and 11 September 2023, whilst technically only giving notice of a dispute in respect to “dismissal” under s 11A, clearly also refer to the applicant having been made redundant. Whilst the applicant may dispute whether she was the subject of a genuine redundancy it is her own statement evidence that the respondent advised her that she was being made redundant. The applicant is not taken by surprise and is not prejudiced by the respondent being granted leave to rely on redundancy in addition to dismissal as the factual issues are similar and it has always been the applicants understanding that the respondent’s stated position is that her role had been made redundant. It is in the interests of justice that the true issues between the parties be the subject of determination.
The following issues remain in dispute:
(a)    whether pursuant to s 11A of the 1987 Act the applicant has an entitled to compensation because the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal and / or retrenchment;
(b)    whether the applicant has suffered either total of partial incapacity for work as a result of the psychological injury, and
(c)    whether medical or related treatment is reasonably necessary as a result of the alleged psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference / arbitration hearing before me on
7 November 2023. Mr Craig Tanner, counsel, instructed by Mr Covic, appeared for the applicant, who was present. Mr Paul Rickard, counsel, appeared for the respondent, instructed by Ms Sevastelis. The proceedings were conducted in-person. 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Respondents Application to Admit Late Documents signed 18 October 2023 and attached documents, and
(c)    Applicant’s Application to Admit Late Documents signed 8 November 2023.

17. The documents contained in the respondents and applicant’s applications to Admit Late Documents were admitted without objection into evidence. The documents were potentially relevant to the issues in dispute.

18. A copy of the documents attached to the applicant’s Application to Admit Late Documents signed on 8 November 2023 were provided to the respondent and to myself at the arbitration hearing on 7 November 2023.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

Section 11A

Section 11A(1) of the 1987 Act states:
“(1) 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.”
It is not in issue that the applicant sustained a psychological injury “wholly or predominantly caused” by the action taken by the respondent in dismissing / retrenching her from her employment.
The issue to be determined is whether the respondent’s action(s) were “reasonable”. The respondent bears the onus of establishing the defence under s 11A.[1]
[1] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206.
Whether the actions of the respondent were “reasonable” is a question of fact which requires the weighing of all the relevant factors. The test is objective and must weigh the rights of employees against the object of the employment.[2] Consideration needs to be given not only to the end result but to the manner in which it was affected.[3] The entire process must be looked at including the circumstances surrounding the action, both before and after the action.[4] In considering retrenchment, it is necessary to consider the process involved, not the act itself.[5] It is not relevant to determine if the retrenchment was reasonable.[6]
[2] Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998.
[3] Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998)
[4] Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206; Burton v Bi-Lo Pty Ltd [1998] NSWCC 13; Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454
[5] AMP Bank Ltd v Ayoub [2010] NSWWCCPD 37
[6] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346.
The applicant commenced with the respondent in September 2018[7] initially as a graphic designer / social media. In November 2021 she was promoted to the position of Marketing Coordinator and in May 2022 to Marketing Manager.[8] It is the applicant’s evidence that her work duties with the respondent included overseeing all the marketing activities which included graphic design, social media, websites, analytics, advertising and digital ads.[9]
[7] ARD   p. 1.
[8] ARD   p. 2.
[9] ARD   p. 2.
The applicant was asked to attend a meeting on 1 March 2023 with the respondent’s Chief Operating Officer (COO), Marissa Clark. At that meeting the applicant was advised by
[10] ARD pp. 12-13.
Ms Clark that her role was potentially to be made redundant. Under cover of correspondence dated 6 March 2023[10] the respondent advised the applicant that her employment was to be terminated due to redundancy effective at close of business on Friday 24 March 2023.
Mr Rickard submitted on behalf of the respondent that the respondent’s new Chief Executive Officer (CEO) had a new vision for the respondent and that in line with that vision certain structural changes occurred within the respondent’s business which led to the applicant’s role being made redundant. In the respondent’s submission the redundancy was a genuine redundancy which occurred due to business considerations and had nothing to do with the applicant’s pregnancy.
It was submitted on behalf of the respondent that the respondent’s actions were reasonable. That whilst initially the applicant was not aware of the changes that were being discussed at the executive level the respondent did enter into a consultation period with the applicant once the business decisions had been made and her role had been identified as being potentially subject to redundancy. The applicant was advised of the respondent’s Employee Assistance Program (EAP) as well as the redundancy payment she would receive. That the respondent tried to be as accommodating as possible once it had advised the applicant that her role would potentially be made redundant.
I do not accept the respondent’s submission for the following reasons. The view I have formed on all the evidence is that the action of the respondent with respect to the process of the retrenchment of the applicant were not reasonable.
It is the applicant’s evidence that during her employment with the respondent she was never counselled in respect to any performance issues or breaches of company policies or procedures.[11] The applicant’s evidence is supported by the evidence of the respondent’s CEO, Mr Hadrian Lee.[12]
[11] ARD p. 2.
[12] Reply p. 49.
It is the applicant’s evidence that in or around September 2022 the respondent gave approval for her to hire a Digital Marketing Assistant to help her in the marketing department. At that point in time the Deputy CEO, Mr Lee, was transitioning into the position of CEO. The applicant was working closely with Mr Lee in relation to his vision for the respondent and they had a lot of discussions about what Mr Lee wanted to change and do with the marketing direction. It is the applicant’s evidence that from her perspective “things were ramping up” and she was preparing for a lot more work.[13]
[13] ARD p. 3.
It is the applicant’s evidence that in early 2023 she had discussions about what the respondent wanted from her and the marketing department over the next quarter.[14] That on or around 9 January 2023 she had a discussion with the COO, Ms Clark, regarding the objectives for 2023 and at that time the applicant requested a formal position description. The applicant had not been provided with a position description since becoming Marketing Manager. It is the applicant’s evidence that in a meeting with Mr Lee and Ms Clark on
[14] ARD p. 3.
[15] ARD p. 3.
11 January 2023, during which her position description was discussed, she was told that she was doing well and that they were happy with her work, that she brought a positive vibe and was a good marketing and event’s organiser. After that meeting the applicant informed the respondent that she was pregnant.[15]
It is the applicant’s evidence that on 20 January 2023 she had another meeting with Ms Clark regarding her position description and that on 3 February 2023 she was given her position description. On 13 February 2023 the applicant had a meeting with human resources (HR) to discuss her maternity leave. On 15 February 2023 HR sent an email regarding the split up of the applicant’s marketing duties between staff whilst she would be on leave. On
16 February 2023 the COO telephoned the applicant to discuss with her whether she would be available for contractual work whilst on leave to which the applicant agreed and on
[16] ARD p. 3.
21 February 2023 the applicant provided to HR a full outline of how her role could be covered whilst she was on leave.[16]
It is the applicant’s evidence that there were a lot of discussions taking place, all of which involved her continuing involvement with the respondent and how the respondent was growing and how teams were growing and how the applicant would have an important role with the respondent in the growth of the respondent as Marketing Manager.[17]
[17] ARD p. 3-4.
It is the evidence of Mr Lee that he became the CEO of the respondent in October 2022 and that he had worked with the applicant for the previous four to five years.[18] It is the evidence of Mr Lee that he developed a new strategy for the respondent which was shared with and endorsed by the respondent’s Board in November 2022. The respondent engaged a digital external marketing consultant, King Kong, to support their digital marketing strategy and that an assessment was undertaken as to how the current roles within the respondent aligned with the new vision. It is the evidence of Mr Lee that in March 2023 a “decision-making point” was reached and Mr Lee determined that the respondent didn’t need a Marketing Manager as they had an external contractor and others working internally.[19]
[18] Reply p. 48.
[19] Reply pp. 49-50.
It is the evidence of Mr Lee that the making of the applicant’s role redundant had nothing to do with the applicant personally, it was purely a business decision and had nothing to do with the applicant’s pregnancy.[20]
[20] Reply p. 50.
It is the evidence of, Ms Clark, to whom the applicant directly reported that the applicant was not privy to discussions at the executive level in respect to the new vision of the new CEO, Mr Lee. It is also the evidence of Ms Clark that it may have seemed to the applicant like there would be a lot for her to do however the applicant was not aware of the additional discussions that were had as to how the respondent was going to implement Mr Lee’s vision. It is Ms Clark’s evidence that this was not able to be discussed with staff until such time as things were finalised and approved. It is Ms Clark’s evidence that there were business decisions already in the making even prior to the applicant advising that she was pregnant.[21]
[21] Reply p. 53.

The evidence supports that prior to the meeting with Ms Clark on 1 March 2023 the applicant had not been advised of or consulted in respect to any potential redundancy or termination of her employment. Rather the evidence supports that it was the applicant’s expectation that her role would grow with an increased workload. An expectation which on the evidence of
Ms Clark the applicant understandably developed. The applicant’s expectations in respect to her future role with the respondent was fostered by the conduct of the respondent without there being any indication given that her role may be at risk even though the respondent had been conducting a review in respect to how the roles within the business aligned with the new vision.
In my view the respondent’s actions in not advising the applicant of potential redundancies prior to 1 March 2023, in circumstances where a review of job roles had been in the process of being performed and the actions of the respondent were such as to foster a reasonable expectation in the applicant that her role would expand and grow, was not reasonable.
It is the applicant’s evidence that on 1 March 2023 at 7.07am she received a TEXT message from Ms Clark advising that Ms Clark would “like to discuss your role with you today in a meeting at 11am if you are free then? You are welcome to bring a support person with you to the meeting.”[22]
[22] ARD p. 9.
The TEXT message does not provide any further information as to the purpose of the meeting other than “discuss your role”. It is the applicant’s evidence that she was “shocked” and surprised by the TEXT message and that it made her nervous and anxious.[23] At 7.42am the applicant responded by TEXT message to Ms Clark advising that she thought that she was free at 11am and stating “I have never had a support person before, do you think it’s necessary for this meeting?” to which Ms Clark responded by TEXT message “Up to you, it’s an option though. It’ll just be me there.”[24]
[23] ARD p. 4.
[24] ARD p. 9.
In my view the actions of the respondent in advising of the meeting on 1 March 2023 were not reasonable. In my view the TEXT message from Ms Clarke to the applicant provides insufficient information as to the purpose of the meeting simply stating “like to discuss your role”. The only indication in the TEXT message that something may be amiss is the comment that the applicant was welcome to bring a support person. The TEXT message provides no useful information as to the purpose or the importance of the meeting. Furthermore, when the applicant questions the need for her to bring a support person Ms Clark plays down the seriousness of the meeting and provides no additional information as to the issue(s) to be discussed. The TEXT message from Ms Clarke was sent to the applicant early in the morning well prior to usual business hours and gave the applicant very limited time in which to arrange a support person to attend the meeting and it is the applicant’s evidence insufficient time.[25] There is no explanation provided by the respondent as to why the meeting occurred with such immediacy.
[25] ARD p. 4.
It is the applicant’s evidence that whilst there had been a lot of meetings and discussions prior to this point, at no time had it been mentioned that there was anything wrong, that there were any department failings, money issues or performance issues.[26]
[26] ARD p. 4.
It is the applicant’s evidence that she attended the meeting on 1 March 2023 at which
Ms Clark read from a script hardly making eye contact with her which the applicant found overwhelming. It is the applicant’s evidence that once Ms Clark had finished reading the applicant broke down in tears.[27] The applicant’s evidence that Ms Clark read from a script is supported by a TEXT message which the applicant sent to Ms Clark at 11.44am on
1 March 2023 asking Ms Clark if she could send her “the summary / your script” to which
[27] ARD p. 4.
[28] ARD p. 9.
[29] Reply p. 57.
Ms Clark responded in the affirmative.[28] It is also Ms Clark’s evidence that she read from a script to ensure that nothing was missed and to ensure that the applicant was properly informed of everything properly.[29]
It is the applicant’s evidence that the only thing of substance that she was told during the meeting was that no one was needed to do her job anymore and that her role was being taken over by a number of people including Ms Clark. That there were no performance issues, and this had nothing to do with her performance. During the meeting the applicant was advised by Ms Clark of the possibility that her position would be made redundant.[30]
[30] ARD p. 4.
It is the evidence of Ms Clark that at the meeting on 1 March 2023 she discussed with the applicant the plans that had been discussed at the executive level. That her conversation with the applicant was that there were a lot of changes, and her role was very likely to be made redundant. Ms Clark confirms that the applicant was upset. Ms Clark didn’t expect the applicant to be that surprised but it was clear to Ms Clark that the applicant had not noticed what was happening around her in the business. It is the evidence of Ms Clark that the applicant was surprised and upset which was understandable.[31] Ms Clark denies that the applicant was made redundant because she was pregnant.[32]
[31] Reply p. 55.
[32] Reply p. 57.
It is the applicant’s evidence that she was not doing well after the meeting and asked if she could go home which she was allowed to do.
After the meeting the applicant was given a letter from the respondent dated 1 March 2023. The respondent’s letter dated 1 March 2023 is titled “Possible redundancy of your position” and informs the applicant “As advised during the meeting today, it is with regret that I have to inform you that your position with us may be made redundant.”[33] The letter goes on to state:
“As discussed, the organisational structure of the Marketing function was recently reviewed, with efficiencies identified to streamline Marketing operations and accountabilities. As a result, your position of Marketing Manager may be made redundant.”
[33] ARD p. 10.
The letter also advises:
“We are now commencing to genuinely consult with you about this matter as follows:
1. The reasons for the possible redundancy have been as we discussed and set out above.
2. If your position is made redundant, its duties (if any remain afterwards) will be distributed to other roles. No one would be employed in the foreseeable future in the Marketing Manager position.
3. We anticipate that we will make a final decision on this matter, i.e. whether to proceed with a redundancy of your position by Friday 3 March 2023.
4. We wish to ask you if you have any questions, or if you need any further information about this matter. If you do, would you please let me know as soon as possible.
5. We wish to ask if you have any suggestions or ideas that could be considered to avoid the need to make your position redundant. If you do, would you please let me know as soon as possible.
6. Based on your service with us, should your employment be terminated due to redundancy on Friday 24 March 2023, as you have been employed by Myhealth for over 4 years, eight (8) weeks’ redundancy pay will be applicable.
7. Should your employment be terminated due to redundancy you would also be paid any unused annual leave at that date plus any pro rata long service leave. An estimate will be provided separately for this.”
The respondent proposed in the letter that a follow up conversation occur on Friday
[34] ARD pp. 10-11.
3 March 2023 to discuss any questions or concerns the applicant might have. The applicant was also invited to contact the respondent if there was anything that she wished to discuss or if she needed any further information. The letter provided contact details of the respondents EAP.[34]
It is the evidence of Ms Clark that they could have made the applicant “redundant on the spot, but I did not want to do that. I have known the claimant for 4 years, so I wanted to go through the consultation period and to say that there was a very real possibility the claimant’s role was being made redundant.”[35] This evidence of Ms Clark may indicate that the respondent had already decided that the applicant was to be made redundant and therefore puts in doubt the genuineness of the respondent in respect to the proposed consultation.
[35] Reply p. 54.
The respondent in a response to an unfair dismissal application brought by the applicant in the Fair Work Commission submitted that the applicant was the subject of a genuine redundancy.[36] In its response to the Fair Work Commission proceedings the respondent advised that following the appointment of Mr Lee as the new CEO on 1 October 2022, a number of organisational changes were made. That in or around November 2022 Mr Lee developed a new three year strategy which included initiatives which would impact upon the marketing function including the use of technology to automate processes which led to the engagement of an external provider, King Kong, to support marketing as well as stricter assessment criteria for “M&A” activity resulting in fewer M&A transactions. In or around November 2022 the board of directors formally adopted the new strategy proposed by
[36] ARD p. 31.
[37] ARD pp. 32-33.
Mr Lee and the implementation of those strategies commenced in around December 2022. The implementation of these strategies required a review of certain roles within the respondent. In or around December 2022 Ms Clark commenced a review of the roles which reported to her including the applicant’s which was identified for potential redundancy.[37]
In response to the respondent’s Fair Work submission the applicant submitted that she was not offered any explanation as to how the redundancy was reviewed or decided other than that her role had been reviewed and no one was needed to do the job and that she was given less than 48 hours to understand, consider and make any suggestions.[38]
[38] ARD p. 39.
Whilst the respondent, following the meeting on 1 March 2023, purports to be entering into a consultation period with the applicant, the applicant is advised that the decision in respect to her redundancy is to be made on 3 March 2023. The applicant is therefore given very little time in which to understand what was occurring and to develop, as proposed by the respondent, any ideas and suggestions that could be considered to avoid the need to make her position redundant. Furthermore, effectively the applicant had little ability to consult with the respondent and provide ideas and suggestions as to why her role should not be made redundant as she had not been provided with the reasoning that had led to the respondent identifying that her role was no longer required. In this respect the respondent’s actions were not in my view reasonable.
It is the applicant’s evidence that she saw her midwife on 2 March 2023 who put her on stress leave for a week. Due to this she was unable to attend the follow up meeting which the respondent wished to have on the Friday. Under cover of correspondence dated
[39] ARD pp. 12-13.
6 March 2023[39] the respondent advised the applicant that her employment was to be terminated due to redundancy effective at close of business on Friday 24 March 2023.
I therefore find that the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline and / or redundancy within the meaning of s 11A(1) of the 1987 Act.

Incapacity

The applicant seeks weekly compensation from 2 March 2023 ongoing pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
There is no evidence that the applicant was suffering from any incapacity affecting her capacity to perform her work duties prior to 1 March 2023.
It is the applicant’s evidence that she attended on her midwife on 2 March 2023 who put her on stress leave for a week.[40] It is the applicant’s evidence that her psychological condition was “terrible” following being advised of her being made redundant.[41] The applicant’s midwife subsequently recommended that the applicant consult her GP however the applicant put this off as she found recapping what had occurred confronting. On 13 April 2023 Suzanne John, the applicant’s midwife, reported to Dr Scadden-McHugh that the applicant had recently been made redundant and was struggling emotionally. The applicant had openly talked about the loss of her job affecting her mental health.[42]
[40] ARD p. 5.
[41] ARD p. 5.
[42] ARD p. 72.
The applicant attended on her GP, Dr Myffy Scadden-McHugh on 19 April 2023 who provided a certificate of capacity certifying the applicant unfit for work.[43]
[43] ARD p. 6.
On 29 April 2023 Dr Scadden-McHugh referred the applicant to the psychologist, Jessica Gostelow, at Access Psych for an opinion and management noting that the applicant had been made redundant from work resulting in depressive symptoms and adjustment disorder.[44] On 5 June 2023 the applicant attended Ms Gostelow for the first time.[45]
[44] ARD p. 73.
[45] ARD p. 7.
On 15 August 2023 Dr Scadden-McHugh reported to the workers compensation insurer a diagnosis of adjustment disorder with mixed depressive and anxiety symptoms due to unexpected and perceived unfair dismissal at work.[46]
[46] ARD pp. 82-83.
In a series of certificates of capacity[47] the applicant was certified with no current capacity for any form of work between 19 April 2023 and 16 October 2023 due to an adjustment disorder. The applicant’s proceedings were filed with the Commission on 22 September 2023.
[47] ARD pp. 84-103.
Dr Abdal Khan, psychiatrist, provided a medico-legal report to the applicant dated
[48] ARD pp. 66-71.
21 August 2023.[48] Dr Khan records that the applicant was continuing to experience pervasive symptoms of depression and anxiety, which negatively impact on her functioning including concentration and struggling to focus on cognitively challenging tasks such as reading or using a computer as well as impairment of memory.
On examination Dr Khan observed evidence of impairment in attention, concentration and memory.
Dr Khan diagnosed major depressive disorder with anxious stress.
Dr Khan is of the opinion that the applicant due to her psychological injury does not have any capacity to work in her pre-injury duties and hours or any other jobs/duties in her employment history in the near future.
It is the applicant’s evidence that after ceasing employment with the respondent she did attempt to resume performing freelance work but was unable to mentally and physically sit down and work. It is the applicant’s evidence that she has not earned any income from freelance work since December 2022.[49] Prior to the subject work injury.
[49] ARD p. 7.
The medical evidence supports that the applicant has suffered an incapacity as a result of her psychological injury and that evidence including the opinion of Dr Khan supports that the applicant has been totally incapacitated for employment since 2 March 2023. I therefore find that the applicant has been totally incapacitated for employment on and from 2 March 2023 to date and remains totally incapacitated.

Medical and treatment expenses

As I have found that the applicant has suffered a compensable psychological injury the applicant is entitled to a general order for the payment of the costs of her medical and treatment expenses pursuant to s 60 of the 1987 Act.

SUMMARY

I find that:
(a) the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline and / or redundancy within the meaning of s 11A(1) of the 1987 Act, and

(b) due to psychological injury sustained on 1 March 2023 the applicant has had no current capacity for work from 2 March 2023 to date and continues to have no current capacity for work.

[2023] NSWPIC 643

30 November 2023