Pietrucha v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pietrucha v Secretary, Department of Education [2021] NSWPIC 528
APPLICANT:	Maureen Pietrucha
RESPONDENT:	Secretary, Department of Education
MEMBER:	Cameron Burge
DATE OF DECISION:	17 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation for psychological injury; fact of injury not in issue; whether injury wholly or predominantly caused by respondent’s reasonable actions with regards to performance appraisal and discipline (section 11A Worker’s Compensation Act 1987); Held - the applicant’s injury was neither wholly nor predominantly caused by the matters relied on by the respondent pursuant to section 11A but rather by a multitude of factors, many of which predated the matters relied upon; in any event, the respondent’s actions relied on as the basis for its section 11A defence were not reasonable; respondent ordered to pay the applicant weekly compensation as set out in the applicant’s wages schedule attached to the Application to Resolve a Dispute.
DETERMINATIONS MADE:	1. The applicant suffered a psychological injury in the course of her employment with the respondent, with a deemed date of injury of 5 September 2019. 2. The injury referred to in (1) above was not caused by the reasonable actions of the respondent with respect to the performance appraisal or discipline. 3. As a result of the injury referred to in (1) above, the applicant has suffered and continues to suffer incapacity for employment. 4. The respondent is to pay the applicant weekly compensation as follows: (a) pursuant to section 36 of the Workers Compensation Act 1987, from 5 September 2019 to 6 December 2019 at the rate of $2,161.75 per week; (b) pursuant to section 37 of the Workers Compensation Act 1987, from 28 January 2020 to 21 January 2021 at the rate of $1,839.37 per week, and (c) pursuant to section 37 of the Workers Compensation Act 1987, from 22 January 2021 to date and continuing at the rate of $1,266.41 per week. 5. The respondent is to have credit for any sick leave taken by the applicant in the period 22 January 2021 to date and continuing. 6. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

There is no issue Maureen Pietrucha (the applicant) suffered a psychological injury in the course of her employment with Secretary, Department of Education (the respondent), with a deemed date of injury of 5 September 2019.
That injury is said by the applicant to have arisen as a result of interpersonal conflicts with Ms Culleton, the principal of the school where she was working and delays surrounding the scheduling of a meeting with the applicant.
For its part, the respondent alleges that the injury was wholly or predominantly caused by its reasonable actions in relation to performance appraisal and/or discipline.
The applicant was absent from work from 5 September 2019 until 21 January 2021. From that date, she has returned to work part-time and alleges that she remains partially incapacitated, having been totally incapacitated until the point where she returned to work. The respondent also places in issue the applicant's alleged incapacity.
The respondent also makes a claim for medical and treatment expenses.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant's injury was wholly or predominantly caused by the respondent's reasonable actions with regards to performance appraisal and/or discipline, and
(b) if the answer to (a) above is in the negative, what has been and remains the applicant's capacity for employment as a result of her injury.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 13 December 2021. On that occasion, the applicant was represented by Mr T Hickey of counsel instructed by Ms J Bates, solicitor. The respondent was represented by Mr R Hanrahan of counsel, instructed by Mr B McLean, solicitor.

EVIDENCE

Documentary evidence

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

(a) Application to Resolve a Dispute (the Application) and attached documents, and;
(b) Reply and attached documents save for the document entitled “Table of Concerns” found at pages 20 to 25..

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

The defence under section 11A

Section 11A (1) of the Workers Compensation Act 1987 (the 1987 Act), provides:
"No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to… performance appraisal, discipline…"
An employer which seeks to make out a defence pursuant to section 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSW CA 465.
"Wholly" and "predominantly" are separate concepts, and a finding of one or the other needs to be considered. In Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith) the Arbitrator made a finding subject injury was "wholly or predominantly" caused by action taken by the respondent employer. Snell ADP (as he then was) said at [62] the concepts of wholly and predominantly are different, and if such findings were to be made, "it needed to be one or the other."
The phrase "wholly or predominantly caused” has been held to mean "mainly or principally caused." The test of causation to be applied is that described in the oft-cited paragraph of his Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
In Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad), the respondent employer was unable, on the available evidence and in the absence of any medical evidence dealing appropriately with the topic, to discharge its onus of proving the worker's psychological injury resulted "wholly or predominantly" from its reasonable actions taken or proposed to be taken with respect to discipline.
The effect of the decision in Hamad is that relying on some factual material alone will not always be sufficient to make out a section 11A defence. When factual evidence is adequate, it is often in cases (unlike the present matter) whether it is an allegation of a single event which has given rise to psychological injury.
In order to raise a defence under section 11A, the respondent must not only show the requisite causal connection between its actions and the applicant's injury, it must also satisfy the Commission, that its actions were reasonable.
Considering the meaning of reasonableness, Geraghty J in Irwin v Director - General of Education NSW CC 14608/97, 18 June 1998 (Irwin) said:
"... 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."

In Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), 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 affected."
These passages were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan [2003] NSW CA239, where his Honour said:
"I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgement and in his Honours judgement. The words 'reasonable action', in a statute dealing with workers' compensation rights of employees should be given a broad construction, unfettered by questions as to whether the employee can or cannot also bring an action at common law against the employer, founded upon a breach of duty of care."
In Ritchie v Department of Community Services [1998]16 NSW CCR 727, Armitage J said:
"It is apparent that 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. It follows of course from the objective nature of the test that the 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."
Reasonableness is therefore judged having regard to whether the steps taken were appropriate in the circumstances, including what went before or after a particular action (see Burke J in Meldar v Ausbowl Pty Ltd [1997] 15 NSWCCR 454). Armitage J in Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45 stated "Only if the employer's action in all the circumstances was fair could it be said to be reasonable." (see also NSW Local Health Network v Heggie [2013] NSWCA 255, where it was held that the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken).
In this matter, I am of the opinion that the applicant's injury was not wholly or predominantly caused by the actions of the respondent with regards to performance appraisal and/or discipline. I am also not satisfied on the balance of probabilities that the conduct relied upon by the respondent in support of its defence pursuant to section 11A can be said in the circumstances to be reasonable.
It is, in my opinion, significant that Ms Culleton, the principal of the school at which the applicant worked and with whom her relationship was difficult has not provided a signed statement in these proceedings. This being so, there is little evidence to contradict the difficulties which the applicant sets out in her statement as having been causal factors in her becoming injured. The respondent provided a “Table of Concerns” at pages 20-25 of the Reply said to be authored by Ms Cullerton, however that document was not signed, and its inclusion in evidence was not pressed once objection was taken to it by the applicant. It was accordingly not taken into consideration in reaching this decision.
The matters causing concern as raised by the applicant included low morale at school, her receipt of emails from Ms Culleton contrary to Department of Education guidelines, the setting of unreasonable tasks by Ms Culleton which she would then change halfway through, the removal from the applicant of various duties which she used to enjoy, and lack of clarity regarding tasks set by Ms Culleton.
On 13 August 2019, Ms Culleton commenced long service leave and the applicant alleges none of the staff were notified or advised who would be appointed in the relieving position. On 23 August 2019, the applicant received an email from Ms Culleton which was sent contrary to departmental guidelines and which indicated there were issues between she and the applicant which Ms Culleton wanted to address. Those matters were listed as concerning the applicant's performance in some aspects of her duties and also concerning an allegation that she was gossiping about fellow staff members.
In that email, Ms Culleton advised that she would arrange a meeting for 5 September 2019 at 3.30pm. According to the applicant, she was disappointed that she needed to wait almost two weeks for the meeting to take place, and that if the matters were sufficiently serious to warrant a meeting, it should have been dealt with sooner.
On the day of the meeting, the applicant opened her emails and discovered that at 4.39pm (again contrary to departmental guidelines) on 4 September 2019, Ms Culleton had forwarded an email to the applicant indicating that the meeting would have to be postponed. According to the applicant, she became distressed and left home and consulted a general practitioner the next day.
For its part, the respondent alleges that the email and meeting which was arranged before being cancelled was the predominant cause of the applicant's injury. I reject that submission on the basis that the clinical history reveals that she was experiencing symptoms consistent of a psychological injury many months before that series of events and related to matters which could not be said to be in the nature or performance appraisal. In my view, the causes of the applicant's injury are multifactorial. As Independent Medical Examiner (IME) Dr Allan noted, the applicant:
“initially sought psychological assistance several months prior to going off work in August 2018. She had seen Ms Rosalind Morris, however she did not provide care under the WorkCover system and subsequently her treatment switched to Ms Carmel Pound…” (emphasis added
That history is supported by the report of general practitioner Dr Lo, who noted the applicant first consulted him on 3 September 2019 “after being referred by her psychologist for issues related to work.” Likewise, a clinical note from 3 September 2019 reveals the history of ”throughout sessions with Rosalind Morris has come to realise source of anxiety coming from Principal at school.” Plainly from that history, the applicant was consulting Ms Morris for some time before the events upon which the respondent seeks to rely in support of its defence under section 11A.
In any event, it should be noted that the conduct relied upon by the respondent cannot be said on any view to be reasonable. Firstly, Ms Culleton forwarded to the applicant various emails contrary to the department's own guidelines. She did not communicate with the applicant that the meeting which was being anticipated had been cancelled until after work hours the night before. That communication was also contrary to guidelines. She took no steps to independently corroborate that the applicant was aware of the meeting being postponed.
It must be remembered that this was a meeting where the applicant was to bring a support person, so it was plainly a serious matter. The respondent, through Ms Culleton, would have known that the applicant had arranged for a support person to be present with her at the meeting in question. To cancel the meeting without notice is, in my view, unreasonable.
Moreover, the content of the allegations against the applicant are troubling. There is an allegation that the applicant was gossiping about fellow staff members. That allegation is not particularised in the correspondence to the applicant, nor is it set out formally in any documentation. Rather, it is simply included in Ms Culleton's email without sufficient particularity to enable the applicant to respond to it.
Additionally, the respondent has the onus of proving the reasonableness of its conduct pursuant to section 11A. It has not placed into evidence any outline of policies or guidelines as to how to deal with disputes within the workplace, though it does not offer any evidence to counter the applicant’s evidence the communications by Ms Culleton to the applicant were outside those guidelines.
That, in my view, is significant and leaves the respondent vulnerable to the attack it has not set out, let alone followed, its own guidelines with respect to disputes of this nature. Additionally, there is no statement from Ms Culleton placed into evidence explaining why she adopted the course of action she did with regards to the applicant, nor any documentation in which she asserts she complied with the relevant departmental guidelines.
In my view, the evidence in this matter is clear and overwhelming. The applicant's injury was caused by a multitude of factors, not wholly or predominantly those relating to discipline and/or performance appraisal. Moreover, the conduct relied upon by the respondent cannot be said to have been reasonable in the circumstances.

The applicant's capacity for employment

Mr Hanrahan submitted that the applicant was no longer incapacitated for employment by approximately the beginning of 2021. I reject that submission, as the treating medical material clearly demonstrates the applicant remains partially incapacitated. She is currently working part-time, and in my view, the evidence discloses that up until the point where she returned to work, she was totally incapacitated.
I accept the applicant as a witness of truth, and that she is currently working to the best of capacity. There is little to know evidence to the contrary. The respondent’s IME Dr Paisley provided an opinion the applicant could return to pre-injury duties, however, recommended the applicant not return to her previous workplace. I reject that opinion, as it sits contrary to the other treating and IME evidence in the matter. Dr Paisley provides no reason as to why the applicant could return to full time teaching, other than a bare statement that she could do so.
By contrast, the applicant’s treating doctors who have the benefit of treating her over many years now, agree she remains partially incapacitated for employment. That opinion is supported by Dr Allan in his report of 8 May 2020 in which he states he is hopeful the applicant would return to work some time in 2021. That has indeed come to pass, and is broadly consistent with the findings of the applicant’s general practitioner Dr Lo who said in his report dated 10 September 2021 of the applicant’s condition:
“At this point in time [16 March 2021] she was working 3 days a week doing small group learning and RFF. She did not have a class of her own. This was comfortable in terms of amount and type of work that Maureen was capable of managing. This however was the maximum workload I fee she is capable of.”
I prefer the views of Dr Lo and Dr Allan, together with those of treating psychologist Carmel Pound to those of Dr Paisley, whose report stands alone in stating the applicant could return to full time work.
This being so, the Commission will make orders in accordance with the applicant's wages schedule as attached to the Application to Resolve a Dispute, which is set out on page 1 of the Certificate of Determination.

Medical expenses

It also follows from the above findings regarding causation that there will be a general award pursuant to section 60 of the 1987 Act for the payment of the applicant's reasonably necessary medical treatment expenses.

SUMMARY

For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2021] NSWPIC 528

17 December 2021