Pham v Rentokil Initial Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pham v Rentokil Initial Pty Ltd [2024] NSWPIC 471
APPLICANT:	Van Tuyet Pham
RESPONDENT:	Rentokil Initial Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	27 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 33, 37, 60 and 66; section 11A(1) defence; accepted psychological injury; claim for permanent impairment lump sum compensation, weekly compensation, and medical and related expenses; whether 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 performance appraisal; Held – applicant sustained a psychological injury due to numerous workplace incidents; injury not wholly or predominantly caused by reasonable action of employer related to performance appraisal; matter referred to Medical Assessor for assessment of whole person impairment; after issue of a Medical Assessment Certificate, matter to be relisted for conference to address the issue of weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. A defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (1987 Act) is not established. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 6 October 2022 Body parts: Psychological Method: Whole person impairment 3. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 25 July 2024 filed by the respondent (admitted into evidence by consent), and (d) complete copy of the report of Dr Assad Saboor dated 17 April 2024 containing an assessment of whole person impairment, filed pursuant to direction made on 19 August 2024. 4. The respondent is to pay the applicant’s medical and related expenses pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge. 5. After the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference before me to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Van Tuyet Pham (the applicant) was employed by Rentokil Initial Pty Ltd (the respondent) as a banking and allocation officer from 2016 to July 2023.
On or about 18 November 2022, the applicant reported an injury and initiated a claim for workers’ compensation for weekly compensation and medical and related expenses pursuant to the Workers Compensation Act 1987 (the 1987 Act), in respect of depression and anxiety due to workplace bullying and harassment by her team leader, with a date of injury of 6 October 2022.
By letter dated 25 November 2022, the respondent’s insurer stated that it would pay the applicant weekly compensation for an initial period pursuant to s 36 of the 1987 Act and treatment expenses in respect of the injury.
By letter dated 21 March 2023 issued pursuant to s 78 of the 1987 Act, the insurer stated that it disputed liability for the injury pursuant to ss 11A (on the grounds of transfer, promotion and/or performance appraisal), 33, 59 and 60 of the 1987 Act.
By letter dated 6 April 2023, the insurer issued a review decision which accepted that the applicant suffered from psychological injury. However, the insurer maintained its denial of liability for the injury pursuant to ss 11A (on the ground of performance appraisal), 33, 59 and 60 of the 1987 Act.
By letter dated 7 November 2023, the applicant made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in the amount of $59,700, calculated on the basis of 21% whole person impairment (WPI).
By letter dated 31 May 2024, the insurer stated that it accepted that the applicant sustained a psychological injury in the course of her employment. However, it disputed liability for permanent impairment compensation pursuant to ss 11A (on the grounds of transfer, promotion and/or performance appraisal) and 66 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant commenced these proceedings by way of an Application to Resolve a Dispute (ARD) filed on 27 May 2024. The respondent filed a Reply to ARD (Reply) on 18 June 2024.
At a conciliation and arbitration hearing before me on 30 July 2024, Mr Jon Trainor, counsel, appeared for the applicant, instructed by Mr Ton of Ton Legal. Mr Justin Hart, counsel, appeared for the respondent, instructed by Ms Nichols of Hall & Wilcox Lawyers.
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.

ISSUES FOR DETERMINATION

It is not in dispute that the applicant sustained a primary psychological injury, with a date of injury of 6 October 2022.
At the hearing, Mr Hart stated that the respondent now only presses a defence pursuant to s 11A of the 1987 Act on the ground of “performance appraisal”.
Further, Mr Trainor stated that the applicant now only presses for a general order for medical expenses pursuant to s 60 of the 1987 Act.
On that basis, the parties agreed that the following issues remain in dispute:
(a) whether s 11A of the 1987 Act operates as a defence to liability for workers compensation on the basis that the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to “performance appraisal”;
(b) the extent and quantification of the applicant’s entitlement to:
(i)weekly compensation pursuant to ss 33 and 37 of the 1987 Act;
(ii)medical and related expenses pursuant to ss 59 and 60 of the 1987 Act, and
(iii)permanent impairment compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Oral evidence

No application for leave to cross-examine was made and no oral evidence was given.

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 25 July 2024 filed by the respondent (admitted into evidence by consent), and
(d)    complete copy of the report of Dr Assad Saboor dated 17 April 2024 containing an assessment of WPI, filed pursuant to direction made on 19 August 2024.

Lay evidence

Applicant

The applicant gave evidence by way of a statement dated 13 December 2022. In summary, the applicant stated:
(a)    The applicant commenced employment with the respondent as a banking and allocation officer on a full-time basis in 2016. The applicant worked primarily from home from about March or April 2020. The applicant’s duties included down-loading bank statements from the bank and uploading them into the respondent’s accounting system, contacting customers for remittance advices and allocating payments from customers. Prior to Achint Malhotra (Mr Malhotra) becoming the applicant’s team leader, the applicant had always received positive performance reviews and had never been subject to performance management.
(b)    Mr Malhotra was the applicant’s team leader from July 2022. Mr Malhotra regularly, “picked on” the applicant, criticised her work, claimed that she made mistakes and said that people complained about her. The applicant denies that she made such mistakes. Although the applicant regularly requested Mr Malhotra to set out the issues in an email to give her the opportunity to look at what he was saying and to respond in writing, Mr Malhotra never did so. The applicant experienced Mr Malhotra’s manner when he claimed she was making mistakes as abrupt, direct and threatening.
(c)    On a number of occasions, the applicant told Mr Malhotra that she had a heart condition and that she had heart palpitation issues due to the way that he treated her.
(d)    On about 7 or 8 September 2022, the applicant applied for another position.
(e)    The applicant took a period of annual leave during September 2022, and returned to work on 29 September 2022.
(f)    On 5 October 2022, Mr Malhotra “threatened [the applicant] that he was going to go to [Human Resources – ‘HR’] about [her] health and [her] performance”. Mr Malhotra also “picked on” the applicant and told her that she was “not allowed to apply for any position within the company without his approval”. Mr Malhotra told the applicant that she “should not have responded to the email [she] received from Elardus Nel in reply to her application”.
(g)    The applicant was given no opportunity to go the next step in [her] application following the review of Elardus Nel. The applicant believes that is due to Elardus Nel contacting Mr Malhotra about her application and Mr Malhotra providing negative feedback to Elardus Nel.
(h)    By email dated 6 October 2022, the applicant told her manager, Julie Rojas (Ms Rojas), about Mr Malhotra’s threat of going to HR regarding her performance and health;
(i)    By email dated 6 October 2022, Ms Rojas responded to the applicant’s email, and stated that Mr Malhotra had not mentioned the applicant’s performance, just her health.
(j)    By email dated 7 October 2022, the applicant explained to Ms Rojas how Mr Malhotra was treating her and how it was making her feel. The applicant requested to talk with Ms Rojas.
(k)    Some time between 7 October 2022 and 17 October 2022, Mr Malhotra advised the applicant that she was to attend a meeting with him and Human Resources (HR).
(l)    By email dated 17 October 2022, Mr Malhotra advised the applicant of claimed performance issues.
(m)     On 18 October 2022, the applicant attended a meeting with a HR representative Kathy Nolan (Ms Nolan) and Mr Malhotra. During the meeting, the applicant stated that Mr Malhotra’s claims were not correct. Ms Nolan stated that Mr Malhotra should detail the issues in an email to the applicant.
(n)    By email dated 20 October 2022, the applicant received a performance improvement plan (PIP). The applicant was not advised of the upcoming PIP prior to such receipt of the PIP.
(o)    The PIP had a column for the applicant’s response. By email to Ms Rojas and Ms Nolan dated 21 October 2022, the applicant responded to the PIP and stated that it was not fair to put her on a PIP.
(p)    Ms Nolan subsequently advised the applicant to attend a further meeting with her and Mr Malhotra to discuss the PIP.
(q)    On 25 October 2022, the applicant attended a meeting with Ms Nolan and Mr Malhotra.
(r)    By email dated 26 October 2022, as requested, the applicant sent Mr Malhotra a copy of her email to Ms Rojas dated 21 October 2022.
(s)    By email dated 28 October 2022, the applicant advised Mr Malhotra of her interest in a billing position which had become available with the respondent.
(t)    On 31 October 2022, the applicant initially consulted with general practitioner, Dr Diep Giang, and reported heart and breathing issues. Dr Giang referred the applicant to a heart specialist and for imaging.
(u)    On 15 November 2022, the applicant again consulted with Dr Giang and reported how she had been treated at work and queried whether it was related to heart and breathing issues that she experienced; Dr Giang issued the applicant with a workers compensation Certificate of Capacity, which certified that the applicant had no capacity to work from 15 November to 25 November 2022, which the applicant provided to the respondent.
(v)    On 25 November 2022, the applicant consulted heart specialist, Heart Care.
(w)   On 28 November 2022, the applicant again consulted heart specialist, Heart Care. The applicant was advised that her condition had deteriorated, and she was required to undergo further imaging.
(x)    The applicant’s last day of work with the respondent was 3 October 2022. The applicant was absent from work on stress leave from 4 October 2022 to 11 October 2022, and on sick leave from 15 October 2022 to date.
(y)    On 18 October 2022, the applicant was asked if she could return to work with the respondent in the same position and not report to Mr Malhotra. The applicant replied that she had lost her confidence, concentration, was not sleeping and felt isolated by her team leader.
The applicant also gave evidence by way of a further statement dated 6 May 2024. In summary, the applicant stated:
(a)    She experienced Mr Malhotra’s approach during the various private “sit down” discussions with her to be patronising and aggressive. Mr Malhotra ignored the applicant whenever she disputed that she had made alleged mistakes. Because of Mr Malhotra’s manner, the applicant repeatedly asked him to send her emails detailing the alleged mistakes so that she could respond to the allegation.
(b)    The applicant felt scared by Mr Malhotra’s statement that he would take the matter to HR. As a result, on 6 October 2022, sent an email to Ms Rojas expressing that she had been unable to sleep due to what Mr Malhotra had said. Later, on 6 October 2022, Ms Rojas replied to the effect that Mr Malhotra had advised that the referral was for a health issue, not work practices. By email dated 7 October 2022, the applicant told Ms Rojas of her enormous relief to receive such advice.
(c)    On 17 October 2022, the applicant received an email from Mr Malhotra informing her of the agenda for a meeting on 18 October 2022, which identified seven areas for discussion.
(d)    On 18 October 2022, the applicant met with Ms Nolan and Mr Malhotra. The applicant recalls that Ms Nolan caused the meeting to be aborted because Mr Malhotra had failed to give the applicant sufficient information to deal with the allegations.
(e)    On 20 October 2022, Mr Malhotra sent the applicant a PIP. The applicant’s understanding is that was the first time that there was reference to a PIP.
(f)    The applicant was surprised to receive the PIP. Firstly, it was contrary to Ms Rojas’ email of 6 October 2022 which indicated that the referral to HR was in relation to hear health only. Secondly, from the applicant’s experience, PIPs frequently culminated in termination of a person’s employment. Further, she was uncertain about what the respondent was doing in relation to a referral (being for her health or a PIP) and she was unsure at least until 20 October 2022 if there was an actual PIP in place.
(g)    On 23 October 2022, the applicant completed the PIP with her response which indicated that she felt the criticism of her performance were wrong.
(h)    On 27 October 2022, the applicant attended a second meeting with Mr Malhotra and Ms Nolan, which was said to be for purposes of review of the PIP. The applicant recalls that the meeting was aborted because Mr Malhotra did not have a copy of the applicant’s response to the PIP.
(i)    The applicant is confused as to when the PIP commenced and the purpose and consequence of her completing the PIP with her response. The applicant is also confused as to why the meeting on 27 October 2022 was a PIP review, given the applicant’s response to the PIP.
(j)    The applicant feels that her trust in Ms Rojas by sending the email on 6 October 2022 was misplaced, given that the decision to place the applicant on a PIP was apparently made prior to the applicant commencing leave.
(k)    The applicant also noted apparent inconsistency between issues raised in the PIP and Mr Malhotra’s statement about the applicant’s alleged mistakes and performance issues.
Ms Rojas also gave evidence by way of a statement dated 12 December 2022. In summary, Ms Rojas stated:
(a)    Mr Malhotra reports to Ms Rojas as his manager.
(b)    On an unspecified date in August 2022, prior to the applicant commencing leave on 9 September 2022, the applicant told Ms Rojas that she had issues with her heart condition and memory but that neither of those impacted her work. Ms Nolan and Nadine Kelly were made aware of those issues.
(c)    The applicant was on leave from 9 September 2022 until 30 September 2022.
(d)    After the applicant returned from leave, Mr Malhotra requested the applicant to attend the respondent’s office one day per week to facilitate a business process. The applicant raised concerns regarding Covid risk.
(e)    Mr Malhotra was a good and fair manager who fully supported his teams. He did not have a micromanagement style.
(f)    The applicant was never performance managed prior to about August 2022.
(g)    When Mr Malhotra commenced in his role, it was discovered that the respondent had a lot of poor practices in place. At that time, Mr Malhotra was more directly involved with the applicant and noticed that her performance was not up to speed. Mr Malhotra advised Ms Rojas of his concerns and his plan in relation to the applicant’s work performance.
(h)    Mr Malhotra raised his concerns with the applicant in about August 2022.
(i)    Before the applicant commenced leave on 9 September 2022, the management team prepared the PIP plan for the applicant. However they did not implement it until after the applicant’s return from leave.
(j)    On 6 October 2022, after she had returned from leave, the applicant contacted Ms Rojas and asked for help because Mr Malhotra said that he would “take [her] to Human Resources due to bad performance”.
(k)    Subsequently, Ms Rojas received a message from the applicant which stated that Mr Malhotra was “taking her to HR”.
(l)    By email on 13 October 2022, Ms Rojas told that applicant that they could meet on 14 October 2022 to have a chat.
(m)     On 14 October 2022, the applicant and Ms Rojas “had a chat as arranged”. The applicant stated that she had no support from Mr Malhotra and that he just wanted to put her on a PIP. Ms Rojas explained to the applicant that placing the applicant on a PIP was not a disciplinary action, but rather it was to support the applicant’s performance.
(n)    On 18 October 2022, the applicant attended a meeting with Ms Nolan and Mr Malhotra to discuss her PIP.
(o)    Following that meeting, the applicant contacted Ms Rojas. Ms Rojas explained that the purpose of the meeting was “to plan on how they were going to get back on track in regard to her performance”. The applicant stated that she thought it was harassment to point out her weaknesses. Ms Rojas stated that “nobody was pointing out her weaknesses and that it was a two way discussion between them all to work together”.
(p)    On 21 October 2022, the applicant requested to meet with Ms Rojas but Ms Rojas was unavailable to do so.
(q)    On 23 October 2022, the applicant requested the PIP to stop, stated that she was a hard-working employee in the team and requested a move to an alternate role.
(r)    On 24 October 2022, Ms Rojas had a discussion with the applicant. Ms Rojas “again explained that HR involvement was purely to support both parties, not disciplinary” and the applicant “seemed ok with this”. “She seemed to be fixated on [Mr Malhotra] blaming her for things that it disciplinary [sic]. I had to explain that they needed to work together with HR to achieve the performance level expected of her”.
(s)    On 28 October 2022, at the applicant’s request, Ms Rojas had a discussion with the applicant regarding a position with the respondent that the applicant wanted to apply for. Ms Rojas told the applicant to inform Mr Malhotra and that she would then send the applicant the position description.
(t)    On 30 October 2022, Mr Malhotra told the applicant that whilst she was on a PIP, she would not be able to apply for another role. The applicant requested Ms Rojas and Ms Nolan to move her to the other role.
(u)    By email to the applicant dated 31 October 2022, Ms Nolan confirmed Mr Malhotra’s advice.
(v)    On 3 November 2022, Ms Rojas and another manager, Arman, met with the applicant regarding the other role sought by the applicant. The applicant did not meet the requirements for the other role and they advised the applicant that she was not suitable for the role.
(w)   On 4 November 2022, the applicant commenced sick leave and she was due to return to work on 14 November 2022.
(x)    By email to the applicant dated 11 November 2022, Ms Rojas confirmed that she was not suitable for the other role and that she would not be moving forward with the next step.
(y)    On 14 November 2022, when the applicant did not present for work, Ms Rojas telephoned the applicant. The applicant stated that she was not coming to work and she “mentioned her heart, her liver, and being scared of [Mr Malhotra] as he points out her mistakes and she can’t work under him”.
(z)    The applicant provided a further medical certificate for the period from 14 November to 18 November 2022.
(aa)    By email to Ms Rojas dated 16 November 2022, the applicant provided a workers compensation Certificate of Capacity which stated that the applicant had no work capacity from 14 November to 25 November 2022. The applicant stated that she “had lost her confidence since not being successful in the other roles, that [Mr Malhotra] was bullying her, and the PIP paperwork did not reflecting [sic] her performance...”.
(bb)    The applicant has not returned to work since that time.

Thi Thu Ha Lai (Julie), applicant’s work colleague

Thi Thu Ha Lai (Julie) gave evidence by way of a statement dated 5 March 2024. In summary, she stated:
(a)    The applicant was an excellent and hardworking team member and completed all her tasks very well including complicated tasks.
(b)    Ms Nolan probably did not want to keep the applicant in the team and spoke negatively about the applicant to Mr Malhotra who treated the applicant badly such as by blaming the applicant without cause.
(c)    The applicant complained that Mr Malhotra criticised the applicant and that the applicant suffered stress.

Anonymous, applicant’s work colleague

An anonymous work colleague gave evidence by way of a statement dated 12 March 2024.

Kathy Nolan, Human Resources Business Partner

Ms Nolan gave evidence by way of a statement dated 5 November 2022. In summary, Ms Nolan stated:
(a)    The applicant never reported or alleged any bullying behaviour by Mr Malhotra toward her.
(b)    A PIP to address the applicant’s performance issues was prepared prior to the applicant commencing leave however it was decided not to issue the PIP until after the applicant returned from leave.
(c)    On 18 October 2020, Ms Nolan and Mr Malhotra met with the applicant and discussed their concerns regarding the applicant’s performance and issued the PIP. Mr Malhotra provided examples of errors made by the applicant. The applicant denied making such errors and refused to accept the performance criticism.
(d)    Whilst on the PIP, although the applicant was required to respond to Mr Malhotra, she did not do so and sent numerous emails to Ms Nolan and Ms Rojas.
(e)    On 27 October 2020, Ms Nolan met with the applicant to review the PIP. After the meeting, Ms Nolan asked the applicant if she was okay, and the applicant responded yes. The applicant appeared to be comfortable and smiled. Ms Nolan stated that it was just a matter of needing some training to correct performance.
(f)    Following the meeting on 27 October 2020, the applicant applied for a couple of internal jobs. Mr Malhotra advised the applicant that she could not apply for other positions whilst a PIP was in place.
(g)    Subsequently, the applicant submitted a claim for workers compensation and did not return to work.
(h)    Mr Malhotra had asked Ms Nolan how he could address the applicant’s performance in light of her health conditions. When asked about her health conditions, the applicant stated that she was “ok”.

Achint Malhotra, Credit Manager

Mr Malhotra gave evidence by way of a statement dated 8 December 2022. In summary, Mr Malhotra stated:
(a)    The applicant has reported to Mr Malhotra as her manager since June 2022.
(b)    The applicant advised Mr Malhotra that she has a heart condition, which affects her memory when she gets stressed. The applicant stated that consequently, she sometimes made mistakes because she forgot things when she got stressed. Mr Malhotra informed HR. However the applicant later denied that her health issues affected her memory.
(c)    Mr Malhotra became aware of various issues regarding the applicant’s work processes and performance which he addressed with the applicant. Prior to the applicant going on leave, Mr Malhotra had a number of informal discussions with the applicant to check that she had required support and to discuss mistakes that the applicant made. The applicant was not willing to accept feedback on changes that she needed to make. Her mindset was that she had been there for six years and knew what she was doing. She was not listening and was in denial of anything that Mr Malhotra would mention.
(d)    Mr Malhotra believed it was necessary to have HR involved to facilitate providing feedback to the applicant. He told the applicant that he would arrange for that to occur after she returned from leave.
(e)    Prior to going on leave, the applicant applied for another role. The applicant was not successful in her application because it was a stressful environment that would not have suited the applicant’s health issues and also because she did not have the required skill set and experience for the role.
(f)    The applicant had previously been resistant to a requirement to attend the respondent’s office one day per week due to her health concerns. During conversations in that regard, the applicant came across as being unwilling or unable to understand the business requirements.
(g)    Mr Malhotra initiated the PIP process due to his concerns with the applicant’s performance and feedback from the wider business. The PIP outlined where the applicant had failed to follow processes or instructions.
(h)    The applicant was placed on the PIP on 18 October 2022. Mr Malhotra and Ms Nolan met with the applicant to initiate the PIP. They explained that the PIP was not disciplinary, but it could escalate to disciplinary action if the applicant did not improve her performance whilst on the PIP.
(i)    During the PIP process, the applicant bypassed Mr Malhotra and communicated directly with Ms Rojas and Ms Nolan. The applicant claimed it was because she was scared of Mr Malhotra. Mr Malhotra believes the reason the applicant feels that way is because he had to point out the applicant’s mistakes and the applicant did not accept that she had made mistakes.
(j)    Mr Malhotra denied that the applicant kept requesting him to provide examples of mistakes and that he failed to do so. Mr Malhotra stated that he provided examples during informal meetings, PIP meetings, emails and chat messages.
(k)    The applicant did not understand or want to understand that she was unable to apply for other jobs whilst on a PIP before the PIP process was completed.
(l)    Mr Malhotra denied bullying and harassing the applicant. He stated that he only provided constructive feedback to the applicant. Mr Malhotra stated that he was supportive of the applicant when she wanted time off work, in relation to her medical condition and throughout the PIP process.
(m)     The applicant struggles to take ownership of her mistakes and tried to deflect them onto other people.
(n)    The applicant did not have the required experience or the technical knowledge to undertake the roles that she applied for.
(o)    The applicant continued to bypass Mr Malhotra in failing to advise him of other roles that she was seeking notwithstanding being made aware of the requirement to do so.
(p)    The respondent followed correct process in administering the PIP. Mr Malhotra treated the applicant fairly and was provided with an opportunity to improve her performance with clear examples and instruction.
(q)    The applicant has not returned to work since 4 November 2022.

The PIP and the applicant’s response to the PIP

The PIP, which set out various issues with the applicant’s performance and behaviour, performance expectations and an improvement plan and measurements. Performance issues noted related to failure to follow processes, follow instructions, work normal hours, demonstrate initiative, undertake learning and training and work effectively under pressure.
The applicant’s response to the PIP, in which the applicant disputed various alleged performance issues. The applicant also stated: “I am under pressure now due to [Mr Malhotra’s] treatment – trying to find unreasonable issues to blame me that puts pressure on, I have to work under tear and I am very depressed now”.

Correspondence

The evidence contains copies of various email and other correspondence related to the applicant.

Factual investigation reports

The evidence includes two Factual Investigation Reports prepared by Procare, respectively dated 21 December 2022 and 29 January 2024 (which contained various attachments).

Financial records and other documents

The evidence includes various financial records and other documents related to the applicant.

Wages schedule

The evidence includes a Wages Schedule prepared on behalf of the applicant.

Treating medical evidence

Dr Eric Lim, general practitioner

In a report dated 7 December 2022, Dr Lim concluded that the applicant sustained a psychological injury from the workplace, in particular by being bullied and harassed by a team leader at work. Dr Lim recorded the following history:
“Psychological injury from the workplace. She was bulled and harassed by a team leader at work.
A new team leader commenced working in June 2022. She was approached for her poor work performance and threatened to have her role and responsibilities changed if she did not improve. When she confronted him, he threatened to report her to HR. She was placed under a performance review and has attempted to look for another role within the company as she feels she cannot work under this particular team leader. She has been on sick leave since 04/11/2022.”

Carl Nieslen, psychologist

In a report dated 15 December 2022, Mr Nielsen stated a diagnosis of adjustment disorder with depressed and anxious mood. Mr Nielsen recorded a history that: the applicant’s team leader accused her of poor work performance and threatened to have her role and responsibilities changed if she did not improve; when the applicant confronted the team leader in relation to his allegations of her poor work performance, the team leader threatened to report her to human resources; the applicant was placed on a performance review; the applicant attempted to obtain another role as she could no longer cope with the team leader’s work related threats; the applicant feared for her job safety and her mental health.

Certificates of capacity and medical certificates

The evidence includes various certificates of capacity and medical certificates. Certificates of Capacity record a psychological diagnosis and stated the cause of injury to be:
“Bullying by new team leader – Achint – 3 months ago, by placing patient into Performance Improvement Plans and pick on her faults, which are inaccurate. Tried to apply for 2 different positions but unsuccessful. Feels isolated from team members and other team leaders and loss of confidence in the work place.”

Clinical notes

The evidence includes various clinical notes of Dr Eric Lim and Dr Ben Dickson and Wyong Doctors.

Independent medical evidence

Dr David Kumagaya, consultant psychiatrist (qualified by the applicant)

In a report dated 2 June 2023, Dr Kumagaya diagnosed a primary psychological injury, being major depressive disorder with anxious distress. Dr Kumagaya expressed the opinion that, whilst the workplace occurrences in and around October 2022 contributed to the applicant’s psychological injury, it was the nature and conditions of the applicant’s employment from June 2022, which resulted in the onset of her psychological injury.
Dr Kumagaya recorded a reported history which included: Mr Malhotra subjecting the applicant to unreasonable criticism and differential treatment; Mr Malhotra regularly cutting the applicant off during team meetings; Mr Malhotra ignoring the applicant’s requests for constructive feedback in relation to points that she could improve; the applicant not being allowed to apply for any alternative position without first notifying her supervisor; inaccurate performance concerns being raised against the applicant; the applicant not being given the opportunity to bring a support person to the meeting; a PIP being issued despite responses which the applicant provided and failure to address the concerns raised by the applicant.
In a further report dated 2 June 2023, Dr Kumagaya stated an assessment of 21% total WPI in respect of a primary psychological injury.

Dr Assad Saboor, psychiatrist (qualified by the respondent)

In a report dated 28 February 2023, Dr Saboor diagnosed a primary psychological injury, being adjustment disorder with depressed and anxious mood. Dr Saboor expressed the opinion that the applicant sustained the psychological injury in the context of claimed bullying and harassment by her new team leader, who had been picking her mistakes and placed her under a PIP. Dr Saboor recorded a history that the applicant reported that she was wrongly accused, and she strongly disagreed with those allegations. Dr Saboor expressed the opinion that the psychological injury has been caused by the employer’s action regarding a PIP.
In a report dated 17 April 2024, Dr Saboor confirmed his diagnosis. Dr Saboor recorded a history that the applicant’s team leader was pointing out her mistakes and that she was managing her stress associated with that problem with the team leader when she was subsequently put on a PIP. The applicant reported that she was wrongfully accused of making mistakes and she disagreed with the manager’s allegations. Dr Saboor expressed the opinion that the applicant is totally incapacitated from work as a result of a primary psychological injury. In a further report dated 17 April 2024, Dr Saboor stated an assessment of 19% total WPI in respect of a primary psychological injury.
In a report dated 5 June 2024, Dr Saboor maintained that the applicant was totally incapacitated from work as a result of a primary psychological injury and maintained his previous assessment of WPI.

SUBMISSIONS

Both counsel gave lengthy and detailed submissions which were recorded.
In summary, on behalf of the respondent, Mr Hart submitted that:
(a)    primary psychological injury is not in dispute;
(b)    if the Commission finds in favour of the applicant in respect of liability, in accordance with the decision of Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335, determination of the applicant’s entitlement to weekly compensation should be delayed until the applicant’s WPI is assessed by a Medical Assessor;
(c)    the respondent now only presses a defence pursuant to s 11A of the 1987 Act on the ground of “performance appraisal”;
(d)    s 11A of the 1987 Act requires an objective assessment of reasonableness, and does not require perfection;
(e)    having regard to various evidence, the applicant’s claim of bullying and harassment is a vague claim, never particularised;
(f)    the applicant’s statement recently made in May 2024 should be given little weight because it was not contemporaneous and it is not supported by contemporaneous evidence;
(g)    the applicant’s evidence that Mr Malhotra bullied or harassed her or acted in a threatening manner is unsupported by the evidence, being contrary to the evidence of the respondent’s lay witnesses and irreconcilable with contemporaneous communications which demonstrate that Mr Malhotra was supportive and sensitive to the applicant’s needs. Mr Malhotra directly denies bullying and harassing the applicant;
(h)    the applicant’s complaint that prior to her commencing leave, she was unsuccessful in her application for another role because of negative feedback provided by Mr Malhotra is purely speculative and not supported by the evidence;
(i)    the evidence demonstrates that the relevant conduct of the respondent was not a disciplinary process, but rather was a performance management process following a constant informal process of assisting the applicant to improve her work performance;
(j)    the evidence demonstrates that the applicant had ongoing performance issues which required to be addressed;
(k)    the PIP was necessary because the applicant was resistant to Mr Malhotra’s informal attempts to assist the applicant to improve her work performance;
(l)    the PIP was reasonable in the circumstances. The PIP document evidences that the objective purpose of the PIP was to implement a positive process to improve the applicant’s work performance and was not of a punitive nature. The PIP was very specific about what the applicant was required to do and how the respondent was committed to assist the applicant to improve her work performance;
(m)     the respondent’s conduct in relation to implementation of the PIP was reasonable in all the circumstances, being based on ongoing concerns in relation to the applicant’s work performance and the applicant’s concession that her performance was not satisfactory at times;
(n)    it is reasonable that the respondent did not advise the applicant about the PIP until after she returned from leave on welfare grounds, and that was acknowledged by the applicant;
(o)    it is reasonable in all the circumstances that the applicant was given notice of the meeting on 18 October 2022 on the day prior and was not offered the opportunity to have a support person at the meeting on 18 October 2022, because it the meeting occurred in the context of a dynamic workplace and it was part of a remedial process and not a disciplinary process;
(p)    the Commission should give little weight to the statement of Thi Thu Ha Lai because it is unclear the basis upon which the allegation is put, it is at least partly based on hearsay. Further, in relation to the allegation about conduct by Ms Nolan, it is not supported by the applicant’s evidence and it is scandalous;
(q)    the Commission should give little weight to the statement of the anonymous work colleague as a matter of procedural fairness because it is not able to be tested by the respondent;
(r)    having regard to the evidence as a whole, the applicant’s evidence of bullying and harassing conduct by Mr Malhotra should not be accepted;
(s)    the Commission should give little weight to the independent medical evidence of Dr Kumagaya in relation to whether s 11A is satisfied because the independent medical experts did not properly engage with all the relevant evidence and the legal test. The Commission should prefer the evidence of Dr Saboor who was of the opinion that the PIP process was causative of the applicant’s psychological injury;
(t)    there is no medical evidence that the applicant reported psychological symptoms prior to 31 October 2022;
(u)    there is no evidence that the applicant suffered psychological symptoms prior to commencement of the PIP;
(v)    the medical evidence demonstrates that the applicant commenced sick leave only after being put on a PIP and being told that she was not suitable for another role, and
(w)   having regard to the evidence as a whole, the Commission should be satisfied that a defence pursuant to s 11A is made out.
In summary, on behalf of the applicant, Mr Trainor submitted that:
(a)    the applicant now only presses for a general order for medical expenses pursuant to s 60 of the 1987 Act;
(b)    the applicant presses with the issue of incapacity to be dealt with at this time;
(c)    a defence pursuant to s 11A must fail on the ground that the respondent’s actions were not reasonable;
(d)    there is no evidence that any educational processes were implemented to facilitate changes required to be made by the applicant after Mr Malhotra commenced;
(e)    when Mr Malhotra commenced, the applicant was under pressure because the team was short of a member;
(f)    it is unreasonable that Mr Malhotra persistently failed to provide the applicant with emails detailing alleged mistakes despite the applicant’s repeated requests. This was significant because the applicant’s requests were reasonable, meetings were conducted by way of audio-visual platform, the applicant requires an interpreter for more advanced concepts and provision of such information by email was consistent with standard and reasonable practices. The applicant never had a chance to consider the alleged issues in writing and to properly respond and explain;
(g)    although there is reference to them in the Second Factual Investigation Report, the respondent’s policies and procedures in relation to performance management and transfer/promotion are not in evidence before the Commission. The Commission is entitled to draw a Jones v Dunkel inference against the respondent in that regard. In any event, there is no evidence that the applicant was made aware of any such policy or procedure which is unreasonable;
(h)    it is unreasonable that the timing of making the decision to implement the PIP was uncertain. This is also significant because there is inconsistency in the respondent’s evidence regarding the timing of the decision to implement the PIP which calls the veracity of such evidence into question;
(i)    it is unreasonable that the respondent did not notify the applicant of the PIP until almost three weeks after the applicant returned from leave;
(j)    it is unreasonable that the applicant was given only one days’ notice of the PIP meeting on 18 October 2022;
(k)    it is unreasonable that at the PIP meeting on 18 October 2022, Ms Nolan stated that she found the allegations against the applicant to be “substantiated”, which suggests fact-finding on the part of the respondent in circumstances where the applicant had inadequate notice of such allegations and the meeting. This is also significant in the context of the applicant’s evidence that the meeting of 18 October 2022 was aborted because she needed to be given the PIP document and that she subsequently prepared her response to the PIP document;
(l)    it is unreasonable that Ms Rojas email to the applicant on 6 October 2022 stated that Mr Malhotra only spoke with HR regarding a health issue and the applicant’s performance was not referenced at all, when Ms Rojas knew that a PIP was to be implemented in respect of the applicant. This is significant in view of the applicant’s subsequent expression of relief to receive such feedback and her advice that Mr Malhotra had failed to email the applicant about alleged mistakes despite her repeated requests for same. Ms Rojas’ email to the applicant effectively lulled the applicant into a false sense of security before the PIP was dropped on her, which was not reasonable in the circumstances;
(m)     it is unreasonable that there is uncertainty as to when the PIP commenced, particularly in view of the applicant’s response to the PIP and the fact that the second PIP meeting on 27 October 2022 was aborted because Mr Malhotra did not have a copy of the applicant’s response;
(n)    although there is reference to them in the Second Factual Investigation Report and the statement of Ms Nolan, the respondent’s minutes of PIP meetings are not in evidence before the Commission. The Commission is entitled to draw a Jones v Dunkel inference against the respondent in that regard;
(o)    in the circumstances, the applicant’s evidence in relation to those meetings and that both PIP meetings were aborted should stand uncontradicted and should be accepted;
(p)    having regard to the evidence as a whole, the Commission should not be satisfied that the respondent has satisfied its onus of proof to establish a defence pursuant to s 11A;
(q)    the medical evidence is consistent with the applicant having no work capacity, and
(r)    accordingly, the applicant should receive compensation as claimed.

In summary, on behalf of the respondent, Mr Hart submitted in reply that:
(a)    the evidence demonstrates that Mr Malhotra was supportive of the applicant addressing her work performance issues;
(b)    Mr Malhotra was under no obligation to comply with the applicant’s request for him to state her work performance issues in an email;
(c)    the appropriate course was to put the work performance issues in a PIP and that was done;
(d)    it should be of no concern to the Commission that there is no policy or procedures in evidence because the PIP process was set out in the PIP document itself and was detailed in the statement evidence;
(e)    it should be of no concern to the Commission that there were inconsistencies in the respondent’s lay evidence in relation to the commencement date of the PIP. In any event, nothing turns on the matter because the applicant was not told about the PIP until 18 October 2022 and it was an organic process that culminated on the applicant being told at that time;
(f)    the evidence of Ms Nolan that the alleged performance issues were “substantiated”, indicated that Ms Nolan was convinced that there was a proper basis to initiate the PIP process;
(g)    the applicant’s most recent statement was made several years after relevant events, and
(h)    Ms Rojas’ email to the applicant dated 6 October 2022 does not demonstrate “treacherous” actions by the respondent. Ms Rojas was not cross-examined. The email is irrelevant to issues about the applicant’s performance and should be effectively disregarded.

FINDINGS AND REASONS

It is not in dispute that the applicant sustained a primary psychological injury, with a date of injury of 6 October 2022.

Defence pursuant to section 11A of the 1987 Act

The respondent maintains a defence pursuant to s 11A(1) of the 1987 Act on the ground that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal.
Section 11A(1) of the 1987 Act provides:
“(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.”
The respondent has the onus of establishing a defence under s 11A(1) of the 1987 Act: Pirie v Franklins Ltd[1] (Pirie); and Department of Education and Training v Sinclair[2] (Sinclair).
[1] [2001] NSWCC167; (2001) 22 NSWCCR 346.
[2] [2005] NSWCA 465; (2005) 4 DDCR 206.

Wholly or predominantly caused by performance appraisal

Firstly, in order to establish the defence, the injury must be “wholly or predominantly caused” by the respondent’s actions regarding one of the categories referred to in s 11A(1). As noted, the respondent relies on the ground of performance appraisal.
“Wholly” and “predominantly” are different concepts and a finding of one or the other needs to be considered: Smith v Roads and Traffic Authority of NSW[3] (Smith).
[3] [2008] NSWWCCPD 130.
Relevant to the issue of causation of psychological injury, particularly in relation to a worker’s perception of real events at work, in Attorney General’s Department v K,[4] Roche DP (as he then was), summarised the principles to be applied:[5]
[4] [2020] NSWCCPD 76.
[5] [2020] NSWCCPD 76, at [52].
“(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 Chelmer 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 a ‘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. (at [52])”.
And said:[6]
“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 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...”
[6] [2020] NSWCCPD 76, at [54].
Reliance on factual material alone will not always be sufficient to establish a s 11A defence and medical evidence may be necessary to determine the causation issue: Hamad v Q Catering Limited (Hamad).[7]
[7] [2017] NSWWCCPD 6.
The term “performance appraisal” was considered by Geraghty CCJ in Irwin v Director General of School Education[8] (Irwin):
“It is important to consider the meaning of the term ‘performance appraisal’. The respondent submitted that it should receive its ordinary street meaning, that it is not a term of art. But it seems to me to be a rather precious and precise expression. It is framed within the context of other processes like ‘transfer’, ‘demotion’, ‘promotion’, retrenchment or ‘dismissal’ of workers. It must be seen in this context. Furthermore, performance appraisal is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged. ‘Performance appraisal’ is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discreet process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance.”
[8] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1987 (unreported).

Consideration of the factual evidence generally

Whilst I accept that the applicant’s most recent statement was made some time after the relevant events occurred, I note that it is generally consistent with the applicant’s earlier statement and provides additional detail of matters referred to in the earlier statement. For that reason, I do not accept the respondent’s submission that the applicant’s most recent statement made in May 2024 should, wholly, be given little weight. I have assessed the various evidence included in both of the applicant’s statements having regard to all of the other evidence in these proceedings.
I do give little weight to the statement of Thi Thu Ha Lai because it appears to be at least partly based on hearsay. Further, in relation to the allegation about conduct by Ms Nolan, it is unclear the basis upon which the allegation is put and it is not supported by the applicant’s evidence.
Further, I do give little weight to the statement of the anonymous work colleague as a matter of procedural fairness because it was not able to be tested by the respondent.
I note that the witness evidence of Mr Malhotra, Ms Rojas and Ms Nolan is largely consistent.
I accept the following broad sequence of events on the basis that the evidence in that regard seems to be undisputed or supported by contemporaneous email evidence:
(a)    Mr Malhotra commenced as the applicant’s team leader in or about July 2022;
(b)    during August 2022, Mr Malhotra and Ms Rogas were notified by Credit Control of various processing delays and issues;
(c)    by email dated 29 August 2022, Mr Malhotra queried the applicant’s processing of certain entries;
(d)    by email dated 30 August 2022 the applicant responded to Mr Malhotra and apologised for a processing error which had been identified;
(e)    the applicant took leave during September 2022, and returned to work on 29 September 2022;
(f)    by email dated 5 October 2022, Elardus Nel advised the applicant that she was unsuccessful in her application for another role;
(g)    by email dated 6 October 2022, the applicant introduced herself to Elardus Nel and sought a further chance for another role;
(h)    on 6 October 2022, the applicant sent Ms Rojas messages and advised that she was in a “bad situation, so stressful” and “I could not sleep last night as [Mr Malhotra] said he will send me to HR due to my bad performance”;
(i)    by email from Ms Rojas dated 6 October 2022, Ms Rojas responded to the applicant’s messages. Ms Rojas told the applicant that she would be available to speak with the applicant the following day. Mr Rojas also stated “I did ask [Mr Malhotra] what had occurred and he did say that he mentioned talking to HR regarding a health issue you have raised as he was concerned about you. Your performance was not referenced at all”;
(j)    by email dated 7 October 2022, the applicant responded to Ms Rojas and stated “I feel relieved to have your feedback”;
(k)    by email dated 17 October 2022, Mr Malhotra advised the applicant of items which he wished to discuss in a meeting with the applicant and Ms Nolan the following day. Mr Malhotra stated:
“Please see below a list of the items that I would like to discuss during tomorrow’s meeting you yourself and Kathy. These points are in reference to the concerns that I have raised and the examples that I have already been shared with you during our previous informal meetings.
·Attention to Detail
·Failure to follow clear instructions
·Teamwork
·Lack of initiative
·Cross Training
·Issues around Communication
·Ability to work under pressure and to remember things
During tomorrow’s meeting, we would like to explore the options to resolve these concerns and identity any areas where you may require further support including providing additional training or assigning a buddy.
Please let me know if you have any further queries...”;
(l)    on 18 October 2022, the applicant attended a meeting with Ms Nolan and Mr Malhotra in relation to alleged concerns about the applicant’s work performance;
(m)     by email dated 18 October 2022, the applicant denied making alleged mistakes and stated that she had requested Mr Malhotra on a number of occasions to send her an email setting out alleged mistakes to “give me a chance to explain” however he had not done so. The applicant stated that her health issues did not adversely affect her work performance. The applicant stated however that she told Mr Malhotra that his conduct affected her health: “Only the way you treat me – point out the mistake, give me no chance to explain, force me to accept anything you said that had an effect on my heart and my heart palpitated not normal during the meeting time with him”;
(n)    by email dated 20 October 2022, Mr Malhotra provided the applicant with a copy of the PIP. He asked her to review it and advise if she required any further clarification. He stated that once confirmed, he would finalise the document and schedule weekly meetings;
(o)    by email from the applicant to Ms Nolan and Ms Rojas dated 23 October 2022, the applicant requested them to reconsider the PIP on the basis that it was unfair. The applicant stated that she was hardworking and productive and open to performance evaluation of her good and weak points. The applicant sought that Mr Malhotra acted in a “non-threatening manner” and stated that she “could not work under his supervision any longer”. The applicant requested that she was placed in another position under a different supervisor “where I could feel safe to concentrate on the duties, where there is a manager willing to listen to all matters of her staff, or across the company as I strongly believe in my abilities to learn and adapt to new duties very fast”. The applicant provided her response to the PIP;
(p)    by email dated 25 October 2022 from Mr Malhotra to the applicant and Ms Rojas, Mr Malhotra advised that he had scheduled weekly meetings for the PIP;
(q)    by email from Ms Nolan to the applicant dated 27 October 2022, Ms Nolan acknowledged the applicant’s response to the PIP, stated the purpose of the PIP, expressed the hope that the applicant would participate in the PIP process and stated that “You have asked to be ‘moved’ to another role, however we cannot consider that while the PIP process is underway. All employees must first perform satisfactorily in their own role, before they can be considered for an alternate role”;
(r)    by email dated 28 October 2022, the applicant advised Mr Malhotra of her interest in another role and sought his assistance in that regard;
(s)    by email dated 29 October 2022, Mr Malhotra advised the applicant that her application for another role could not be supported whilst the PIP process was current. He noted that the PIP document stated that:
“Involvement in this process may exclude [the applicant] from applying for or transferring to another position or department for a period of six (6) months after the successful completion of the PIP.”, and
(t)    on 31 October 2022, the applicant initially consulted with her general practitioner and reported heart and breathing issues.
In the context of that broad factual matrix, I will consider the evidence in relation to the applicant’s various allegations in greater detail.

Alleged bullying and harassment by Mr Malhotra

The applicant alleged that she was subjected to bullying and harassment by Mr Malhotra. In particular, the applicant alleged that Mr Malhotra: was regularly critical of her; was abrupt, patronising, aggressive and threatening in discussions with her; and was dismissive of the applicant and did not give her the opportunity to respond to criticisms in meetings with her. The only alleged threat by Mr Malhotra that the applicant has detailed in her evidence is a threat to “take her to HR” due to her poor work performance.
Mr Malhotra denied such allegations. Mr Malhotra stated that prior to the applicant commencing leave, he did have a number of informal discussions with the applicant regarding her work processes and performance however he only provided constructive feedback to the applicant and acted in a supportive manner. Having regard to the evidence as a whole, particularly the PIP, I accept that Mr Malhotra did have genuine concerns as to the applicant’s work processes and performance. Mr Malhotra stated that the applicant was not willing to accept feedback and was in denial of criticisms of her work performance.
Ms Nolan stated that the applicant never reported or alleged any bullying behaviour by Mr Malhotra.
Ms Rojas stated that the applicant was a good and fair manager who fully supported his teams and did not have a micromanagement style. Ms Rojas stated that Mr Malhotra raised performance concerns with the applicant in about August 2022. Ms Rojas stated that the applicant advised her of his concerns and his plan in relation to the applicant’s work performance.
There is no independent evidence which significantly corroborates the applicant’s allegations in relation to bullying and harassment by Mr Malhotra.
There is some limited evidence that the applicant complained to Ms Rojas by email about the effect of Mr Malhotra’s conduct on her. For example, the applicant’s email to Ms Rojas on 6 October 2022 stated that Mr Malhotra “said he will send me to HR due to my bad performance”.
Further, the applicant’s email to Ms Nolan and Ms Rojas dated 23 October 2022 stated that the applicant sought that Mr Malhotra acted in a “non-threatening manner” and that she “could not work under his supervision any longer”. The applicant also requested that she was placed in another position under a different supervisor “where I could feel safe to concentrate on the duties, where there is a manager willing to listen to all matters of her staff...”.
The evidence is consistent that, with limited exceptions, the applicant largely denied allegations of her poor work performance.
It is clear from Mr Malhotra’s evidence that he did not accept the applicant’s denial of the criticisms of her performance. However, Mr Malhotra’s evidence did not specifically address whether, and to what extent, he gave the applicant an opportunity to comprehensively respond to his criticisms about her work performance and what consideration he gave to the applicant’s response.
It is clear from the evidence and not in dispute that Mr Malhotra did, ultimately, involve HR in a process to improve the applicant’s work performance which culminated in the PIP.
Taking those matters into account, and considering the evidence as a whole, I prefer and accept the applicant’s evidence in that regard.
Having regard to the evidence as a whole, on the balance of probabilities, I accept that: Mr Malhotra did have a number of informal discussions with the applicant when he advised the applicant of alleged processing and performance errors which he sought to address; the applicant denied such criticisms of her work performance and did not accept such feedback; Mr Malhotra was dismissive of the applicant and did not give her an opportunity to comprehensively respond to those criticisms of her performance; Mr Malhotra threatened to involve HR; and the applicant perceived Mr Malhotra’s conduct to be regularly critical, abrupt, patronising, aggressive, dismissive and threatening.
On that basis, I do accept that there were real events, which the applicant perceived that she was subjected to criticism of her work performance and processes by Mr Malhotra which was unfair.

Alleged failure by Mr Malhotra to set out performance issues in emails as requested by applicant

The applicant alleged that Mr Malhotra repeatedly failed to comply with her requests to email her details of her alleged mistakes.
Mr Malhotra denied that allegation and stated that he provided examples of the applicant’s mistakes by emails, chat messages and during informal meetings.
In the context of the applicant’s acknowledged repeated denial of the alleged processing and performance issues, that the applicant’s discussions with Mr Malhotra were mostly conducted by video, and the applicant’s acknowledged issues with her memory, I consider it likely that the applicant did regularly request email confirmation of those alleged errors.
The evidence includes an email exchange between Mr Malhotra and the applicant on 29 and 30 August 2022 when Mr Malhotra queried the applicant’s processing of certain entries and the applicant apologised for a processing error.
Considering the evidence as a whole, I consider that there is only limited contemporaneous evidence of the applicant being emailed details of her alleged mistakes prior to receipt of the PIP.
For these reasons, I prefer and accept the applicant’s evidence in this regard.
On that basis, I accept that Mr Malhotra failed to set out performance issues in emails as requested by the applicant prior to issue of the PIP.

Alleged threat to put applicant on PIP on or about 6 October 2022

The applicant alleges that Mr Malhotra threatened to put her on a PIP if she did not address alleged mistakes. The applicant’s evidence in that regard is corroborated by her email to Ms Rojas dated 6 October 2022.
Mr Malhotra did not specifically deny making such a statement to the applicant.
However, I note that Mr Malhotra, Ms Rojas and Ms Nolan gave evidence that a PIP was prepared prior to the applicant commencing on leave.
On that basis and in the context of the broad matrix of events, I consider it likely and accept that Mr Malhotra did make a statement to the applicant or about 6 October 2022 to the effect that he would put her on a PIP if she did not address alleged mistakes.

Ms Rojas’s email to the applicant on 6 October 2022 and “surprising” the applicant with the PIP

The email from Ms Rojas to the applicant dated 6 October 2022, evidences that the applicant advised Ms Rojas that she was in a “bad situation, so stressful” and “I could not sleep last night as [Mr Malhotra] said he will send me to HR due to my bad performance”. In response, Ms Rojas stated “I did ask [Mr Malhotra] what had occurred and he did say that he mentioned talking to HR regarding a health issue you have raised as he was concerned about you. Your performance was not referenced at all”.
The applicant’s email in response to Ms Rojas dated 7 October 2022 expressed the applicant’s relief to receive Ms Rojas’ feedback in that regard.
Ms Rojas did not explain those emails in her evidence. However, Ms Rojas stated that in a meeting with the applicant on 14 October 2022 the applicant stated that she had no support from Mr Malhotra and that he just wanted to put her on a PIP. Further, Ms Rojas stated that she explained to the applicant that placing the applicant on a PIP was not a disciplinary action, but rather it was to support the applicant’s performance. I note that Ms Rojas did not give evidence that she advised the applicant of the anticipated PIP at that time. The applicant did not address that alleged conversation in her evidence.
It appears clear from the evidence of Ms Rojas, Mr Malhotra and Ms Nolan that the respondent anticipated implementing the PIP by 7 October 2022. Indeed their evidence is that the PIP was prepared prior to the applicant commencing leave in September 2022 and that they intended to issue the PIP after the applicant returned from leave. There is no evidence that they anticipated not issuing the PIP to the applicant or that issue of the PIP was conditional upon some other event apart from the applicant returning from leave.
Mr Malhotra’s email to the applicant dated 17 October 2022 requested the applicant to attend a meeting on 18 October 2022 in relation to specified performance concerns, to “explore options to resolve these concerns and identify any areas where you may require further support including providing additional training or assigning a buddy”.
The applicant’s evidence is that she was not advised of the PIP prior to the meeting on 18 October 2022.
I note that there is no evidence that the applicant was otherwise advised or forewarned of the PIP prior to the meeting on 18 October 2022.
There is no evidence, apart from Ms Rojas’ email to the applicant on 6 October 2022, in relation to any discussion between Ms Rojas and Mr Malhotra concerning the applicant on or about that date.
Having regard to the above evidence, I am satisfied that Ms Rojas’ email to the applicant on 6 October 2022 did give the applicant a sense of relief with an expectation that Mr Malhotra did not refer her to HR in relation to a PIP, which was unfounded having regard to the respondent’s intention to issue a PIP to the applicant at that time.

Failure to give applicant opportunity to have a support person attend meeting on 18 October 2022

The applicant’s evidence is that she was not given an opportunity to have a support person attend the meeting on 18 October 2022.
It is not in dispute that the applicant was notified of the meeting on 18 October 2022 by an email from Mr Malhotra dated 17 October 2022. That email stated the intentions of Mr Malhotra and Ms Nolan to “explore options to resolve” identified performance concerns and “identify any areas where you may require further support including providing additional training or assigning a buddy”. The email does not refer to a PIP. Further, it does not give the applicant the opportunity to bring a support person to the meeting.
As noted above, I accept that by that time the respondent had prepared the PIP and intended to issue it to the applicant.
Having regard to the above evidence, I accept that the applicant was notified of the meeting on 18 October 2022 by email on 17 October 2022 and she was not given the opportunity to bring a support person to the meeting.

Unfair to issue PIP to applicant on 20 October 2022

The applicant’s evidence is that issue of the PIP to her on 20 October 2022 was unfair. The applicant effectively alleged that there were inadequate grounds to issue the PIP because the applicant did not accept the errors alleged and she was not given a prior opportunity to consider and respond to the alleged errors in writing. Further, the applicant noted inconsistencies between performance issues identified in the PIP and those raised in Mr Malhotra’s evidence. I note that the applicant’s response to the PIP subsequently set out her objections to the various performance concerns stated in the PIP.
The evidence of Mr Malhotra, is that the PIP was appropriate because he had valid concerns about the applicant’s processes and performance which the applicant had been resistant to accepting and addressing on an informal basis. The evidence of Ms Rojas and Ms Nolan is consistent with Mr Malhotra’s evidence in that regard.
As I noted above, I accept that Mr Malhotra failed to set out performance issues in emails as requested by the applicant prior to issue of the PIP.
Having regard to the above evidence, I accept that there were real events, being the issue of the PIP on 20 October 2022 in circumstances where the applicant considered there were inadequate grounds for issue of the PIP, which the applicant perceived was unfair.

Failure to address applicant’s response to the PIP and reconsider the PIP

The applicant’s evidence is that the respondent acted unfairly by failing to properly address her response to the PIP and to reconsider the PIP in view of that response.
It appears clear from the documentary evidence that the applicant sent her response to the PIP to Ms Nolan and Ms Rojas on 23 October 2022. Further, on 25 October 2022, Mr Malhotra notified the applicant that he had scheduled weekly meetings for the PIP.
The respondent stated that a meeting between the applicant, Ms Nolan and Mr Malhotra on 27 October 2022 was aborted because Mr Malhotra did not have a copy of the applicant’s response to the PIP. The applicant stated that, as requested, she subsequently sent Mr Malhotra a copy of her response to the PIP.
I note that by email to the applicant dated 27 October 2022, Ms Nolan acknowledged the applicant’s response to the PIP, stated the purpose of the PIP and expressed the hope that the applicant would participate in the PIP process. Ms Nolan did not specifically individually address many of the applicant’s responses to the PIP. Ms Nolan did not indicate that the PIP had been reconsidered in light of the applicant’s responses. Indeed, the tone of the email appears to be largely dismissive of the applicant’s responses and focused on the PIP process continuing.
Having regard to that evidence, I accept that there were real events, being a failure to specifically address the applicant’s response to the PIP and reconsider the PIP in light of that response which the applicant perceived to be unfair.

Uncertainty as to when PIP commenced

The applicant expressed confusion as to when the PIP commenced and the purpose and consequence of her completing the PIP with her response.
The chronology of events in relation to the issue of the PIP is set out under the above heading.
I note that the Factual Investigation Report and the statement of Ms Nolan refers to the respondent’s minutes of PIP meetings. The Factual Investigation Report also refers to the respondent’s policies and procedures in relation to performance management and transfer/promotion. None of those documents are in evidence before the Commission. There is no evidence that they were provided to the applicant.
I note that the PIP document includes a section for comments by the employee to be inserted. The document itself does not articulate the process for addressing any comments or the effect of any comments made by the employee.
Having regard to the above evidence, I accept that PIP document and the respondent’s actions in relation to the PIP caused the applicant to be confused as to when the PIP commenced and the purpose and consequence of her completing the PIP with her response.

Applicant being unsuccessful and denied the opportunity to obtain other roles

The applicant alleged that she was unfairly denied the opportunity to obtain two other roles.
The applicant alleged that Mr Malhotra told her that she was not allowed to apply for any other roles within the respondent without his approval.
It does not appear to be in dispute that the applicant applied for roles in September 2022 and October 2022 respectively, and those applications were unsuccessful.
In relation to the application in September 2022, the applicant believed that rejection of her application was due to Mr Malhotra giving negative feedback about the applicant. There is no other evidence which corroborates the applicant’s assertion that rejection of her application was due to Mr Malhotra giving negative feedback about her, however I note that at that time, the respondent was preparing a PIP for the applicant but had not issued a PIP to the applicant. Mr Malhotra’s evidence is that the applicant was not successful in obtaining the other role because it was a stressful environment that would not have suited the applicant’s health issues and also because she did not have the required skill set for the role.
In relation to the application in October 2022, by email dated 28 October 2022, the applicant advised Mr Malhotra of her interest in another role and sought his assistance in that regard. By email from Ms Nolan to the applicant dated 27 October 2022, Ms Nolan stated that “You have asked to be ‘moved’ to another role, however we cannot consider that while the PIP process is underway. All employees must first perform satisfactorily in their own role, before they can be considered for an alternate role”. By email dated 29 October 2022, Mr Malhotra advised the applicant that her application for another role could not be supported whilst the PIP process was current. Ms Rojas confirmed that the applicant advised that she could no longer work with Mr Malhotra and requested Ms Rojas and Ms Nolan to another role but it was the respondent’s position that the applicant could not move to another role whilst she was on a PIP. Ms Rojas also stated that the applicant was unsuitable for the role she sought.
There is no evidence which either corroborates or contradicts Mr Malhotra’s evidence that the applicant was unsuccessful because she was unsuited to the other roles. The applicant has not challenged Mr Malhotra’s credibility and did not seek to cross-examine him. In the circumstances, I accept Mr Malhotra’s evidence that the applicant was unsuited to those roles.
The PIP document stated that: “Involvement in this process may exclude [the applicant] from applying for or transferring to another position or department for a period of six (6) months after the successful completion of the PIP.” I note that the word “may” is used and the PIP document itself does not express the requirement in mandatory terms.
On the basis of the evidence, I accept that the applicant was unsuccessful in her application for two other roles, at least in part because she was unsuited to those roles. I also accept that the respondent imposed on the applicant a requirement that she could not transfer to another role whilst the PIP process was in place.

Consideration of the medical evidence

The various Certificates of Capacity stated the cause of the applicant’s psychological injury to be “bullying” by her team leader.
The applicant’s treating general practitioner, Dr Lim, concluded that the cause of the applicant’s psychological condition was being bullied and harassed by her team leader at work. Dr Lim did not record any detail of such alleged bullying and harassment apart from the actions of the applicant’s team leader in relation to her work performance. In that regard, Dr Lim noted a history that the applicant was approached for her poor work performance and threatened to have her role and responsibilities changed if she did not improve and that, when she confronted him, he threatened to report her to HR and placed her under a PIP.
The applicant’s treating psychologist, Mr Nielsen, recorded a similar history.
I note that there is no medical evidence that the applicant reported psychological symptoms prior to 31 October 2022. By that date, the applicant had been provided with the PIP and the applicant had been informed that she was not suitable for another position.
The independent medical expert qualified by the applicant, Dr Kumagaya, concluded that the cause of the applicant’s psychological condition was the nature and conditions of the applicant’s employment from June 2022, including workplace occurrences in and around October 2022. (For context, I note that Mr Malhotra commenced as the applicant’s manager in or about June 2022.) In that regard, Dr Kumagaya recorded a history that Mr Malhotra subjected the applicant to unreasonable criticism and differential treatment, regularly cut the applicant off during team meetings, ignored the applicant’s requests for constructive feedback and raised inaccurate performance concerns against the applicant. Dr Kumagaya also recorded a history that the applicant not being allowed to apply for any alternative position without first notifying her supervisor, was not given the opportunity to bring a support person to a meeting and a PIP being issued despite the applicant’s responses and failure to address concerns raised by the applicant.
The independent medical expert qualified by the respondent, Dr Saboor, concluded that the cause of the applicant’s psychological condition was bullying and harassment by her team leader. In that regard, Dr Saboor recorded a history that the applicant’s team leader pointed out the applicant’s mistakes, wrongly accused the applicant of making mistakes and the applicant was placed on a PIP.
I note that both independent medical experts concluded that the cause of the applicant’s psychological condition was bullying and harassment, and further, included the applicant’s team leader wrongly criticising her performance and issuing a PIP. Dr Kumagaya concluded that the cause of the applicant’s psychological condition also included the applicant’s treatment from June 2022, including Mr Malhotra regularly cutting the applicant off during team meetings, ignoring the applicant’s requests for constructive feedback, not allowing the applicant to apply for any alternative position without first notifying her supervisor, not giving the applicant the opportunity to bring a support person to a meeting and issuing the PIP despite the applicant’s responses and failure to address concerns raised by the applicant.
I do not accept the respondent’s submission that Dr Kumagaya’s evidence should be given less weight because he had an incorrect history. Whilst it appears that Dr Kumagaya did not have the complete statements of Mr Malhotra, Ms Nolan and Ms Rojas, Dr Kumagaya was provided with a copy of the s 78 notice which relevantly summarised those statements. Dr Kumagaya examined the applicant and would have had an opportunity to ask the applicant questions to provide additional detail if necessary. It is clear from Dr Kumagaya’s report that he obtained a fairly detailed history from the applicant. The history recorded by Dr Kumagaya is substantially consistent with the applicant’s evidence generally which I have considered above, and also consistent with the applicant’s email complaints to Ms Rojas on 6 October 2022 and Ms Nolan and Ms Rojas dated 23 October 2022 regarding Mr Malhotra’s treatment of her.
Further, I do not accept the respondent’s submission that Dr Kumagaya’s evidence should not be accepted because he applied an incorrect legal test. Considering Dr Kumagaya’s report as a whole, it is clear that Dr Kumagaya comprehensively considered the issue of causation and provided a detailed and sound basis for his conclusion.
For all of these reasons, I prefer and accept the evidence of Dr Kumagaya.

Conclusion as to causation

Having regard to the evidence as a whole, and for all of the reasons that I have set out above, I feel a real sense of persuasion and I accept that the cause of the applicant’s psychological condition was multi-factorial being due to the nature and conditions of the applicant’s employment from June 2022, including workplace occurrences in and around October 2022. In particular, I accept that the cause of the applicant’s psychological condition was:
(a)    Mr Malhotra regularly criticised the applicant’s work performance;
(b)    in meetings with the applicant, Mr Malhotra regularly cut the applicant off, was dismissive towards the applicant and did not give the applicant an opportunity to comprehensively respond to criticisms of her work performance;
(c)    Mr Malhotra failed to comply with the applicant’s requests to email her details of her alleged mistakes so that the applicant could comprehensively respond to those criticisms;
(d)    Mr Malhotra threatened to put the applicant on a PIP if she did not address alleged mistakes;
(e)    the respondent failed to give the opportunity to have a support person attend the meeting on 18 October 2022;
(f)    the respondent issued the PIP to the applicant on 20 October 2022 in circumstances that the applicant considered to be unfair;
(g)    the respondent failed to address the applicant’s response to the PIP and reconsider the PIP, and
(h)    the applicant was denied the opportunity to obtain other roles, was required to notify Mr Malhotra of her intention to apply for other roles and was prohibited from transferring to another role whilst the PIP was in place.
It is clear from the evidence and I accept that the respondent took the view that the applicant had ongoing performance issues which required to be addressed. Each of the above factors occurred in the context of the respondent, either informally or formally, seeking to address and rectify identified performance issues with the applicant.
The applicant’s relevant policies and procedures are not in evidence to assist in identifying the nature of the PIP process implemented by the respondent. However, it appears from the evidence that the relevant conduct of the respondent was not a disciplinary process, but rather was a performance management process following a constant informal process of assisting the applicant to improve her work performance.
I note that the applicant did not make any significant submissions to the effect that the relevant conduct was not taken with respect to performance appraisal.
Taking all of the above matters and the evidence as a whole into account, I am satisfied on the balance of probabilities that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal.
Accordingly, I find that the respondent has established on the balance of probabilities, that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal.

Reasonableness

Secondly, the respondent is required to establish the respondent’s actions were “reasonable”.
In relation to the issue of reasonableness, in Richie v Department of Community Services[9] (Richie), Armitage J said:
“... it is apparent that the test in this case is an objective one, where one must weigh the consequences of the respondent's conduct against the reasons given for it, and I have done so. It follows of course from the objective nature of the test that evidence given by the applicant as to the perceived unreasonableness of the respondent's conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
[9] [1998] NSWCC 40; (1998) 16 NSWCCR 727, at [47].
The issue of reasonableness was considered by Geraghty CCJ in Irwin:[10]
“... the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[10] Cited with approval by Roche DP in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1, at [64].
In Ivanisevic v Laudet Pty Ltd,[11] Truss CCJ said:
“In my view when considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[11] Unreported, 24 November 1998; cited with approval by Roche DP in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1, at [64]-[65].
These passages were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan[12] (Minahan) who added:
“The words ‘reasonable action’, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.”
[12] [2003] NSWCA 239; 1 DDCR 57, at [42].
Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action: Burke J in Melder v Ausbowl Pty Ltd.[13]
[13] [1997] 15 NSWCCR 454.
In Jackson v Work Directions Australia Pty Ltd,[14] Armitage J stated “only if the employer’s actions in all the circumstances was fair could it be said to be reasonable”.
[14] [1998] NSWCC 45.
In Heggie[15] Sackville AJA stated general principles regarding s 11A(1) (albeit with respect to the ground of discipline):
[15] [2013] NSWCA 255; 12 DDCR 95, at [59].
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(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.”
In Heggie, Sackville AJA further stated:[16]
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[16] At [61].
The respondent’s actions or proposed actions do not need to be perfect to be reasonable: Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49 at [140], [179]-[183].
I have set out my findings in relation to causation, and the basis for those findings, above. I rely on my analysis of the evidence in that regard.
The respondent submitted that the PIP was necessary and that the respondent’s conduct in relation to implementation of the PIP was reasonable in all the circumstances, because it was based on ongoing concerns in relation to the applicant’s work performance, the applicant’s concession that her performance was not satisfactory at times and the applicant was resistant to Mr Malhotra’s informal attempts to assist the applicant to improve her work performance. The problem with that submission is that the applicant was not given a comprehensive opportunity to consider and respond to the criticisms of her performance in circumstances where she made it clear that she did not accept those criticisms.
The respondent submitted that the PIP was reasonable in the circumstances because the PIP document evidenced that the objective purpose of the PIP was to implement a positive process to improve the applicant’s work performance and was not of a punitive nature. Further, the respondent submits that the PIP was very specific about what the applicant was required to do and how the respondent was committed to assist the applicant to improve her work performance. However, again problem with that submission is that the applicant was not given a comprehensive opportunity to consider and respond to the criticisms of her performance in circumstances where she made it clear that she did not accept those criticisms.
The respondent submitted that it is reasonable in all the circumstances that the applicant was given notice of the meeting on 18 October 2022 on the day prior and was not offered the opportunity to have a support person at the meeting on 18 October 2022, because it the meeting occurred in the context of a dynamic workplace and it was part of a remedial process and not a disciplinary process. The respondent’s relevant policies and procedures are not in evidence and it is not possible to ascertain the respondent’s required procedures in that regard. Having regard to the evidence and circumstances as a whole, I consider that it would have been reasonable to give the applicant greater notice of the meeting and the opportunity to bring a support person. In particular, it is apparent that the meeting was held in circumstances where the respondent had already prepared the PIP, the applicant denied the criticisms of her work performance but had not been given a comprehensive opportunity to respond to the criticisms, the applicant had advised the respondent of her anxiety about the alleged performance issues being referred to HR and she had effectively been assured that was not the case. In those circumstances, I consider that a reasonable person would anticipate that the applicant may have benefited from having a support person present at the meeting.
Considering the evidence as a whole, I am of the view that the actions taken or proposed to be taken by the respondent were not reasonable. In particular:
(a)    there is no evidence that any educational processes were implemented to facilitate changes required to be made by the applicant after Mr Malhotra commenced;
(b)    Mr Malhotra’s treatment of the applicant during meetings resulted in the applicant feeling unsafe and was unfair because the applicant was unable to comprehensively respond to criticisms of her work performance in circumstances where the applicant believed those criticisms to be unjustified;
(c)    Mr Malhotra’s failure to comply with the applicant’s requests to email her details of her alleged mistakes was unfair because it denied the applicant the opportunity to comprehensively consider and respond to those criticisms in circumstances where the applicant believed those criticisms to be unjustified;
(d)    Mr Malhotra’s threat to put the applicant on a PIP if she did not address alleged mistakes was unfair in circumstances where the applicant believed those criticisms to be unjustified and the applicant had not been given a real opportunity to respond to those criticisms;
(e)    Ms Rojas’ email to the applicant on 6 October 2022 gave the applicant a sense of relief with an expectation that Mr Malhotra did not refer the applicant to HR in relation to a PIP, which was unfounded having regard to the respondent’s intention at that time to issue a PIP to the applicant;
(f)    the respondent gave the applicant only one days’ notice and failed to give the applicant the opportunity to have a support person attend the meeting on 18 October 2022, in circumstances where the respondent had prepared the PIP and intended to issue it to the applicant, the applicant had previously expressed to Ms Rojas her anxiety about the involvement of HR in relation to criticisms of her performance and had no notice of the respondent’s intention to issue the PIP;
(g)    the respondent issued the PIP to the applicant on 20 October 2022 in circumstances where the applicant had no prior notice of issue of the PIP, the applicant understood from Ms Rojas’ email on 6 October 2022 that criticisms of her performance had not been referred to HR, the applicant did not accept the criticisms of her performance and the applicant did not have an opportunity to previously comprehensively respond to criticisms of her performance;
(h)    the respondent failed to address the applicant’s response to the PIP, failed to reconsider the PIP in light of the applicant’s response and failed to inform the applicant of the outcome of her response and the reasons for that outcome;
(i)    the respondent’s conduct caused the applicant to be uncertain about when the PIP commenced and the purpose and consequence of her completing a response to the PIP;
(j)    the applicant was prohibited from transferring to another role whilst the PIP was in place in circumstances where it was unreasonable for the PIP to be issued;
(k)    the applicant was required to notify Mr Malhotra of her intention to apply for a alternative role despite her having complained about Mr Malhotra’s unfair and dismissive treatment of her;
(l)    the applicant was not provided with a copy of any of the respondent’s policies or procedures relevant to the PIP, transfer or promotion, and
(m)     the PIP document used the word “may” and did not conclusively prohibit the applicant from applying for or transferring to another position whilst on a PIP. The applicant was given no information regarding any factors relevant to exercise of that discretion.
Taking all of the above matters and the evidence as a whole into account, I am satisfied on the balance of probabilities that the causative actions of the respondent, in all of the circumstances, were unfair on the applicant and not reasonable.
Accordingly, I find that the respondent has not established on the balance of probabilities, that the action taken or proposed to be taken by the respondent with respect to performance appraisal was reasonable.
On that basis, the defence pursuant to s 11A(1) of the 1987 Act is not established.

Compensation for permanent impairment

Section 66(1) of the 1987 Act states:
“66 Entitlement to compensation for permanent impairment
(1)A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
There is a dispute in relation to assessment of WPI. Given my findings above, it is appropriate to refer the matter to the President for referral to a Medical Assessor for determination of WPI.

Compensation for medical and related expenses

The applicant seeks a general order for medical expenses pursuant to s 60 of the 1987 Act.
Sub-section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
...”
In Diab v NRMA Ltd,[17] Roche DP, referring to the decision in Rose v Health Commission (NSW),[18] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury.[19]
[17] [2014] NSWWCCPD 72.
[18] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[19] [2014] NSWWCCPD 72, at [76].
Considering the evidence as a whole, my findings above and having regard to the matters set out in Diab v NRMA Ltd,[20] I am satisfied that medical and related treatment is reasonably necessary as a result of the injury sustained by the applicant.
[20] [2014] NSWWCCPD 72.
On that basis, I am satisfied that it is appropriate to make a general order that the respondent pays the applicant compensation pursuant to s 60 of the 1987 Act.

Weekly compensation

Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Section 37 of the 1987 Act states:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Having regard to the statements of Deputy President Roche in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [266]-[269],[21] I consider that there is merit to the respondent’s submission that determination of the applicant’s entitlement to weekly compensation should be delayed until the applicant’s WPI is assessed by a Medical Assessor.
[21] I note that the decision was overturned on appeal but not on this procedural point.
Accordingly, I will direct that the matter is to be relisted for a further conference to address the issue of the applicant’s entitlement to weekly compensation after the issue of a Medical Assessment Certificate.

SUMMARY

A defence pursuant to s 11A(1) of the 1987 Act is not established.
The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:      6 October 2022
Body parts:          Psychological
Method:               Whole person impairment
The materials to be referred to the Medical Assessor are to include:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 25 July 2024 filed by the respondent (admitted into evidence by consent), and
(d)    complete copy of the report of Dr Assad Saboor dated 17 April 2024 containing an assessment of WPI, filed pursuant to direction made on 19 August 2024.
The respondent is to pay the applicant’s medical and related expenses pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge.
After the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference before me to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation.

[2024] NSWPIC 471

27 August 2024