Pilbara Iron Company (Services) Pty Ltd v Suleski - [2017] WADC 114

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PILBARA IRON COMPANY (SERVICES) PTY LTD -v- SULESKI [2017] WADC 114

CORAM: HERRON DCJ

HEARD: 21 DECEMBER 2016 & 10 APRIL 2017

DELIVERED : 31 AUGUST 2017

FILE NO/S: APP 71 of 2016

BETWEEN: PILBARA IRON COMPANY (SERVICES) PTY LTD
Appellant
AND
SPASE SULESKI
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :MR B NUGAWELA
Citation  :A15906

Catchwords:

Appeal and cross-appeal - Worker's compensation - Disease caused by stress - Relevance of worker's perception he was unfairly treated - Meaning of 'discipline' - Meaning of 'wholly or predominantly' - Meaning of 'unreasonable and harsh' - Section 5 Workers' Compensation and Injury Management Act 1981 definition of 'injury' - Section 5(4) Workers' Compensation and Injury Management Act 1981

Legislation:

Commonwealth Employees' Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Workers' Compensation and Injury Management Act 1981

Result:

Appeal allowed in part
Application remitted to Workers Compensation Arbitration Service for further determination
Cross-appeal dismissed

Representation:

Counsel:

Appellant: Mr DR Clyne
Respondent: Mr JR Brooksby

Solicitors:

Appellant: Jackson McDonald
Respondent: Slater & Gordon

Case(s) referred to in judgment(s):

Ausden Joinery v PJ WACC C4-2011
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bednarczyk v Natcorp Investments Limited (Unreported, FCt WASC, Library No 970363, 23 July 1997)
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
Bobic v City of Armadale [2013] WADC 126
Bostik (Australia) Pty Ltd v Gorgevski [No 1] [1992] FCA 209; (1992) 36 FCR 20
Byrne and Frew v Australian Airlines Limited (1995) 131 ALR 422
Byrne and Frew v Australian Airlines Limited [1994] FCA 888; (1994) 120 ALR 274
Byrne v Australian Airlines Limited (1995) 131 ALR 422
Carson v Comcare [1998] AATA 644
Catholic Education Office of WA v Granitto [2012] WASCA 266
Comcare v Martin [2016] HCA 43
Commissioner of the Safety and Rehabilitation of Commonwealth Employees v Gregory Charles Chenhall [1992] FCA 535; (1992) 37 FCR 75
Department of Education v Azmitia [2014] WADC 85
Department of Education v Azmitia [2015] WASCA 246
FAI General Insurance Co Limited v Goulding [2004] WASCA 167
Housing Industry Association Limited v Murten [2004] WASCA 139
Jenkins v Western Australian Department of Training [1999] WASCA 199
McKay v Commissioner of Main Roads [2013] WASCA 135
McPherson v State Print (Unreported, WASC, Library No 960697, 15 December 1996
Mokta v Metro Meat International [2005] WASCA 143
O'Leary v Edith Cowan University CM-108/02
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pedley v West Coast College of TAFE (Unreported, C21-2006 (McCann) 8 November 2006)
Sydney Harbour Federation Trust and Comcare v Radford [2008] AATA 1087
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Wiegand v Comcare Australia [2002] FCA 1464

HERRON DCJ:

Introduction

By application dated 8 August 2014 (filed on 13 August 2014) the respondent (applicant) Mr Spase Suleski (Mr Suleski) claimed against his employer the appellant (respondent) Pilbara Iron Company (Services) Pty Ltd (Pilbara Iron) weekly payments of workers' compensation for total incapacity from 22 August 2013 and continuing together with statutory allowances. The date on which the injury was alleged to have occurred was 22 August 2013. The injury was described as stress and anxiety which was caused by experiencing bullying and threats made by management during the period 22 August to 10 December 2013. The nature of the stress was described as an adjustment disorder which was contracted between 22 August and 15 December 2013.
Pilbara Iron declined liability for the claim and the application proceeded to hearing before an arbitrator, Mr Nugawela, in the Workers' Compensation and Arbitration Service (WorkCover) on various dates between 23 February and 28 October 2015. On 19 August 2016 the arbitrator delivered written reasons for decision allowing Mr Suleski's application and ordering Pilbara Iron to pay Mr Suleski workers' compensation payments for total incapacity together with statutory allowances. He also ordered that interest be paid on the sum payable by Pilbara Iron but given the lapse of time between the last hearing date and the delivery of the reasons for decision he gave Pilbara Iron liberty to apply regarding the rate of weekly payments from 3 July 2015.
By an amended notice of appeal Pilbara Iron seeks leave to appeal against the arbitrator's decision pursuant to s 247 of the Worker's Compensation and Injury Management Act 1981 (the Act) and seeks an order, inter alia, that the orders made by the arbitrator be quashed.

Issues before the arbitrator

Mr Suleski's case before the arbitrator was based on the events of 22 August 2013.
On that day, Mr Suleski attended a meeting with his superintendent, Ms Bufton, during which he was advised, with prior warning, that he would be placed on a performance management plan (PMP) due to a number of performance issues identified in the preceding six months. The meeting on 22 August 2013 commenced implementation of the PMP which in part stated '… may result in disciplinary action up to and including termination of employment'.
It was not in dispute before the arbitrator that Mr Suleski suffered from a psychiatric disease that rendered him incapacitated for work on 22 August 2013 and that his employment was a contributing factor and contributed to a significant degree to that disease.
Mr Suleski accepted that the meeting on 22 August 2013 related to performance issues, and that the meeting was a contributing factor and contributed to a significant degree to his psychiatric disease (stress), but maintained that:
(a)the meeting was not discipline;
(b)if it was, the meeting was not the whole or predominant cause of his incapacity; and
(c)if it was, then Pilbara Iron's actions on 22 August 2013 were unreasonable and harsh.
Pilbara Iron's case before the arbitrator was two‑fold. It argued that Mr Suleski's psychiatric disease arose wholly or predominantly from:
(a)Mr Suleski's expectation of discipline, in which case, the arbitrator should not have turned his mind to whether Pilbara Iron's conduct was unreasonable and harsh as this concept cannot apply to an expectation (McPherson v State Print (Unreported, WASC, Library No 960697, 15 December 1996)); or, alternatively
(b)actual discipline which was not unreasonable and harsh.
Pilbara Iron's primary argument was that of an 'expectation' of discipline.

Submissions at the arbitration hearing

In its written outline of opening submissions dated 16 February 2015 filed at WorkCover, Pilbara Iron submitted (pars 2 – 3):
2.The respondent denies the applicant is entitled to the orders sought on the grounds that any psychological condition arose out of discipline or alternatively his expectation of discipline - as set out in s 5(4) of the Act.
3.Specifically, the respondent submits that the matters constituting discipline for the purposes of actual or an expectation of discipline were:
(a)the mid year performance review in 2013;
(b)the subsequent meeting on 22 or 23 August 2013 that discussed the performance management plan issued to the applicant; and
(c)the performance management plan itself.
However, in its written outline of closing submissions dated 31 July 2015 Pilbara Iron adopted a different position by submitting its primary position was that Mr Suleski's psychiatric condition arose from an expectation of discipline. It was further submitted that the meeting on 22 August 2013 constituted actual discipline: see [6], [31].
As outlined above, Mr Suleski's position at the hearing before the arbitrator was that his psychiatric condition did not wholly or predominantly arise from any of the matters referred to in s 5(4), specifically from a matter of discipline, or an expectation of discipline, because the implementation of the PMP was not a matter of discipline, nor did it give rise to any relevant expectation, but if his condition did arise from a matter of discipline, the discipline was unreasonable and harsh on the part of the employer Pilbara Iron (see Mr Suleski's written outline of submissions filed at WorkCover dated 20 February 2015 and 21 August 2015). Both in his written opening and closing submissions Mr Suleski submitted that his employment was a significant contributing factor to his injury and that none of the s 5(4) exclusions applied, but did not clearly identify how the employment contributed to the injury. It is not clear whether it was Mr Suleski's case there were other, apart from the PMP implementation, employment factors or matters which significantly contributed to the injury (it being accepted that the injury was a disease caused by stress). Although it appears Mr Suleski's principal position was that the PMP was not a matter of discipline, it is unclear whether it was also Mr Suleski's case that if the PMP was a matter of discipline, the stress-caused disease wholly or predominantly arose from other employment matters or events such as bullying and harassment as distinct from the stress wholly or predominantly arising from any of the s 5(4) matters. Relevantly, it is unclear what are the non‑PMP or non‑disciplinary matters that Mr Suleski says caused his stress rather than the matters referred to in s 5(4). It is hinted at in the written closing submissions that the cause of Mr Suleski's stress was the mismanagement of Mr Suleski by his superintendent, Ms Bufton, and that Mr Suleski was subject to bullying and harassment which was the cause of his stress, rather than the PMP or a matter of discipline or expectation of discipline or termination (pars 203(b), 205 – 206, 249, 307, 322 and 369 – 377). Such a submission is consistent with the way in which the injury was particularised in the application which was described as stress and anxiety caused by experiencing bullying and threats made by management during the period 22 August 2013 – 10 December 2013. Therefore, the submission seems to be that the stress did not wholly or predominantly arise from a s 5(4) excluded matter. Rather, it wholly or predominantly arose from workplace bullying and harassment which was not a s 5(4) excluded matter.
Therefore, the issues before the arbitrator were:
(a)whether, apart from the PMP meeting on 22 August 2013, there were any other employment-related matters or events, such as bullying and harassment, which were significant contributing factors to the contraction of the disease;
(b)whether the implementation of the PMP at the meeting on 22 August 2013 was discipline, and if it was, whether the stress that caused Mr Suleski's psychiatric disease:
(i)wholly or predominantly arose from a matter mentioned in s 5(4) of the Act, namely discipline or an expectation of discipline; and
(ii)if there was actual discipline (as opposed to an expectation of discipline) whether the discipline was unreasonable and harsh on the part of Pilbara Iron.

The arbitrator's findings

The arbitrator found:
1.that Mr Suleski's psychiatric condition wholly or predominantly arose from an excluded matter in s 5(4) being the implementation of the PMP at the meeting [99(a)];
2.that the implementation of the PMP at the meeting on 22 August 2013 was disciplinary [99]. In brief reasons the arbitrator, citing FAI General Insurance Co Limited v Goulding [2004] WASCA 167, found that the PMP meeting amounted to actual discipline; [99(d)];
3.that the actions of Pilbara Iron in implementing the PMP were both unreasonable and harsh [100]:
(i)because each of the reasons given by Pilbara Iron for implementing the PMP were unreasoned and unjustified and therefore unreasonable and amounted to harsh conduct as a justification for implementing the PMP 'against the workers' understandable and steadfast refusal to sign the same'. In so finding, the arbitrator found [101]:
(a)that it was unreasonable for Pilbara Iron not to accept (or to disregard) Mr Suleski's explanations in relation to issuing warnings to subordinates and to instead implement the PMP [100(a)];
(b)that there was no reasonable opportunity for Mr Suleski to complete the role description for transport operator and that it was unreasonable for Pilbara Iron not to accept (or to disregard) Mr Suleski's explanations in relation to the provision of the role description and to instead implement the PMP [100(b)];
(c)that it was unreasonable for Pilbara Iron not to accept (or disregard) Mr Suleski's explanations and instead to implement a PMP in circumstances where [100(c)]:
(i)    Mr Suleski had not been provided with any or any adequate leadership training [88(b)];
(ii)    Mr Suleski's mid-year performance review was selectively downgraded on Ms Bufton's email instruction [88(c)]; and
(iii)   Pilbara Iron departed from its own procedures in managing Mr Suleski and placing him on a PMP instead of a development plan [88(f)].

Amended grounds of appeal

The amended grounds of appeal read as follows:
1.The learned Arbitrator was wrong in law in finding that the actions of the Appellant in implementing a Performance Management Plan (PMP) in respect of the Respondent on 22 August 2013, was the cause of the stress related illness and was harsh and unreasonable.
2.The learned Arbitrator was wrong in law in finding that the injury arose as a consequence of actual disciplinary action and should have found the injury arose as a result of the Respondent's 'expectation of' disciplinary action which is an excluded factor for recovery of payments under Section 5 of the Act.
3.Wrong in law in that he failed to consider properly or at all, whether the discipline as compared to the expectation of discipline, was the whole or predominant cause of the stress related injury, the onus in respect of which lies on the Respondent.
4.Wrong in law in that he ordered ongoing weekly payments in circumstances where there was no evidence of the Respondent's ongoing incapacity and failed thereby to apply the relevant onus of proof which lies on the Respondent to demonstrate such incapacity.
5.Abandoned.
6.Abandoned.
7.Wrong in awarding interest to be paid to the Respondent in respect of the weekly payments when there was no application for same on the part of the Respondent and without giving the Appellant an opportunity to be heard on the matter, particularly in circumstances where the Respondent remained in receipt of payments under an income protection policy.
8.The learned arbitrator was wrong in law:
(a)In applying a subjective test to the determination of causation;
(b)In his application of what he described as the Azmitia perception' in respect of the issue of causation.
Grounds 5 and 6 alleged actual or apprehended bias on the part of the arbitrator. Those grounds were formally abandoned by counsel at the resumed hearing of the appeal on 10 April 2017.

Mr Suleski's cross‑appeal

Mr Suleski has filed a cross appeal the grounds of which are:
1.the arbitrator erred in law in finding that the placing of Mr Suleski on a PMP (or a DP) constituted 'discipline' within the meaning of s 5(4)(a) of the Act; and
2.Mr Suleski's injury was not caused by an 'excluded' matter and Mr Suleski is entitled to compensation by reason of his having suffered an injury within the meaning of s 5 of the Act.
Therefore both Pilbara Iron and Mr Suleski allege the arbitrator erred in law by finding that the placing of Mr Suleski on a PMP constituted 'discipline' for the purposes of s 5(4)(a) of the Act.

Section 247 – appeal involves a question of law

Section 247(1) of the Act provides that a party may, with leave of the District Court, appeal to the District Court. Pursuant to s 247(2), leave can only be granted if 'a question of law is involved'.
To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred. A court or tribunal does not make an error of law merely because the court or tribunal finds facts wrongly or upon a doubtful basis: Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] ‑ [55] (Murphy JA) (with whom Pullin & Newnes JJA agreed); BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6 [52] – [54] and cases cited therein (see also [45] – [51]).
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason J said (355 – 357):
(4)Review of the Findings of Fact
(a)Grounds of Review
….
The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd. (46); Australian Gas Light Co. v Valuer-General (47). Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light (47); Hope v. Bathurst City Council (48). This is because, before the inference is drawn, there is the pre1iminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. (49). So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (50). But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (51), per Brennan J. Similarly, Menzies J. observed in Reg. v District Court; Ex parte White (52):
'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.'
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
Whether facts as found meet a particular statutory definition, or satisfy statutory criteria, involves a question of law: Vetter v Lake Macquarie City Council (2001) 202 CLR 439 [24] – [27] (Gleeson CJ, Gummow & Callinan JJ):
24.Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General:
'[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.'
25.In his speech in Edwards (Inspector of Taxes) v Bairstow Lord Radcliffe identified an error of law as arising if 'the true and only reasonable conclusion contradicts the determination'. Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) discussed the matter comprehensively and stated the law on this topic in this country as follows in Hope v Bathurst City Council:
'Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees, which was adopted by Latham CJ in Commissioner of Taxation v Miller, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said':
"… this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred to by Lord Parker … are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally – so far as I can see, always – be a question of law."
'However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens was just such a case. The only question raised was whether the appellant's behaviour was 'insulting'. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.'
26.Earlier in Williams v Bill Williams Pty Ltd, Mason JA had observed:
'[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.'
"The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact."
27.In Hope v Bathurst City Council, Mason J pointed out that when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. His Honour's reasons make it clear that a question exclusively of law arises, as the respondent sought to argue was the position in this case, if, on the facts found only one conclusion is open.

Once an error involving 'a question of law' has been identified the District Court, by s 247(5), is to conduct a 'real review' of the arbitrator's decision: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20] ‑ [25] (Wheeler JA); Catholic Education Office of WA v Granitto (Murphy JA) [56] ‑ [57].

Relevant statutory provisions

Section 18 of the Act provides that if an injury to a worker occurs, the employer shall, subject to the Act, pay compensation in accordance with sch 1 of the Act.
'Injury' is relevantly defined in s 5 of the Act to mean:
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
…
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of that employer.
Section 5(4) of the Act, in turn, relevantly provides:
(4)For the purposes of the definition of injury, the matters are as follows –
(a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b)…
(c)the worker's expectation of –
(i)a matter; or
(ii)a decision by the employer in relation to a matter,
referred to in paragraph (a) or (b).
'Disease' is defined by s 5 as including 'any … mental aliment, disorder, defect, or morbid condition whether of sudden or gradual development'.
Section 5(5) of the Act also provides:
(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account —
(a)the duration of the employment; and
(b)the nature of, and particular tasks involved in, the employment; and
(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and
(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and
(e)matters affecting the worker's health generally; and
(f)activities of the worker not related to the employment.

Burden of proof

The purpose of the exclusions in s 5(4) is to enable an employer to take reasonable managerial decisions; FAI General Insurance v Goulding (Murray J) [13] ‑ [14]:
13.To this point it would appear to be clear that the policy of the Act, to which its terms give effect, is to extend the concept of compensable disability to any work-caused disease contracted in the course of the employment, whether at or away from the place of employment, provided that a disease caused by stress cannot constitute a compensable disability if the stress itself results from what may be described as the management processes referred to in s 5(4), unless those processes of the employer are seen to be unreasonable and harsh. (This case, of course, requires no consideration of the question whether the word 'and' in that context actually means 'or').
14.It is to be noted, however, that work-related disease which is caused by stress will not be excluded from constituting a compensable disability unless the stress wholly or predominantly arises from a matter mentioned in s 5(4). That subsection, read with the definition of 'disability', would therefore not exclude work-related disease caused by stress arising simply out of the fact that the work itself is stressful.
Steytler J said [39]:
… The obvious purpose underlying the exclusion is to prevent the bringing of claims for compensation as a consequence of stress-related diseases that wholly or predominantly arise out of specified incidents of the employment relationship which, by their very nature, are particularly stressful, but which are not harsh and unreasonable on the part of the employer.
See also Comcare v Martin [2016] HCA 43 [46] which considered similar provisions in the Commonwealth legislation.
The onus of proving that a potentially excluded matter (or the expectation of same) is not wholly or predominantly the cause of the stress is on the worker: Catholic Education Office of WA v Granitto [68] ‑ [76] (Murphy JA); O'Leary v Edith Cowan University CM-108/02 [12] – [15].
Similarly, the onus of establishing that any discipline was unreasonable and harsh also lies on the worker.

Mr Suleski's submissions

In relation to the appeal Mr Suleski submits that the grounds of appeal do not give rise to or involve a question of law and that the grounds of appeal only raises a dispute as to findings of fact made by the arbitrator and therefore do not involve a question of law.
In the hearing of the appeal before me both parties accepted that the cause of Mr Suleski's stress was being placed on the PMP at the meeting on 22 August 2013 (notwithstanding that by ground 1 of its amended notice of appeal Pilbara Iron alleges the arbitrator was wrong in law in finding that its action in implementing the PMP was a cause of the stress‑related illness). It was also apparently accepted by Mr Suleski at the arbitration hearing that the implementation of the PMP on 22 August 2013 was a significant contributing factor to his stress, as it was accepted that the implementation of the PMP was a central factor in causing the stress (closing submissions pars 369 – 376).
Therefore given the issues as defined by the parties the arbitrator was required to determine:
1.What was the cause of Mr Suleski's psychiatric condition, i.e., how was the employment a contributing factor and how did it contribute to a significant degree to the contraction of the disease caused by stress?
2.As it was accepted by the parties that being placed on the PMP was a significant contributing factor to the disease caused by stress, were there other events or incidents in the employment, such as bullying and harassment, which were also contributing factors to the stress related disease? Was there a combination of factors which contributed to the stress?
3.If placing Mr Suleski on the PMP was a significant contributing factor to the contraction of the stress (and, as I have earlier noted, that was each of the parties' positions both at the hearing and on appeal), was the implementation of the PMP 'discipline'?
4.In particular did the psychiatric condition (which the parties accepted was a disease caused by stress) arise from a matter mentioned in s 5(4), specifically 'discipline' in s 5(4)(a), or arise from Mr Suleski's expectation of 'discipline' for the purposes of s 5(4)(c)?
5.If the implementation of the PMP was both a significant contributing factor to the contraction of the stress related psychiatric condition and a matter of discipline, as distinct from an expectation of discipline, did the stress wholly or predominantly arise from that discipline or did the stress wholly or predominantly arise from other events or incidents in the employment which did not constitute discipline, such as bullying and harassment?
6.If the stress wholly or predominantly arose from discipline was the discipline unreasonable and harsh on the part of the employer Pilbara Iron?

The arbitrator's reasons

The arbitrator found that Mr Suleski contracted an injury in the course of his employment (which was a disease caused by stress) and found that the condition wholly or predominantly arose from the PMP implementation meeting on 22 August 2013. However, he also found that the PMP implementation was both unreasonable and harsh. He held [98] ‑ [99]:
98.I have no hesitation in finding (as I do) that the worker contracted a disease in the course of his employment, either in the form of an Adjustment Disorder with consequent Alcohol Abuse disorder (Dr Edwards Smith), or Major Depressive Disorder (Dr Proud), or all of those conditions, which has (or have) rendered the worker totally incapacitated to perform his pre-accident work as a supervisor, and indeed all forms of work involving heavy machinery.
99.As to whether Mr Suleski's psychiatric condition wholly or predominantly arises from an excluded s 5(4) matter, I find that it indeed predominantly arose from the PMP implementation meeting on 22 August 2013, and that the said meeting was in identifiable part a 'disciplinary' measure for the following reasons;
…
Having referred to the medical evidence upon which he based his finding that Mr Suleski's condition wholly or predominantly arose from the PMP implementation meeting on 22 August 2013 he found, at [99(d)], the PMP constituted discipline for the following reasons:
…
(d)the PMP (Exhibit B, pp 40-43) was, in identifiable part, 'disciplinary' and not unlike that described in FAI General Insurance Co v Goulding [2004] WASCA 167 at [48]-[49], [58]. It listed under background details three allegations (failing to complete the role description for transport operator; display of poor leadership; failing to hold team members to account for poor performance or inappropriate behaviour). It then gives examples of what would 'constitute failure to adhere to the plan', with the warning in bold 'consequences of any of the above may result in disciplinary action up to and including the termination of your employment'. This was clearly not purely a training tool, but was more of a probationary exercise with embedded warnings and is indistinguishable from that encountered in FAI v Goulding above. The semantic reference to future 'disciplinary action' does not distract me into believing or finding that this PMP had zero disciplinary content or context in itself, especially given the three background details described above.
He explained at [100] his reasons for finding the PMP implementation was unreasonable and harsh:
…
(a)In [88(a)], I have summarised that that (sic) the first background factor to the PMP (failing to issue warnings to subordinates) gave rise to the worker's Azmitia perception that he was being unfairly targeted because I accepted his evidence of the explanations he gave. For the avoidance of doubt, I find that it was unreasonable for the employer not to accept (or disregard) the worker's explanations given but to instead implement the disciplinary PMP;
(b)As for the alleged failure to complete the role description for transport operator, I have found at [88(e)] that there was no reasonable opportunity to do so. For the avoidance of doubt, I find that it was unreasonable for the employer not to accept (or disregard) the worker's explanations given but to instead implement the disciplinary PMP;
(c)As for the third justification for the PMP (display of poor leadership), I have made relevant findings at [88(b)], [88(c)] and [88(f)]. For the avoidance of doubt, I find that it was unreasonable for the employer not to accept (or disregard) the worker's explanations given but to instead implement the disciplinary PMP.
He also found [101]:
101.Not only do each of these matters listed at [100(a)-(c)] constitute unreasoned/unjustified, or inadequately reasoned/justified actions/behaviours and are hence 'unreasonable' within the meaning of the statute, they individually and collectively also amount to 'harsh' conduct when used as base for implementing an identifiably disciplinary probationary process (i.e. the PMP plan), against the worker's understandable and steadfast refusal to sign the same. Of course, the fact that it was un-executed made no difference to the employer's implementation of the process.
The arbitrator then, at [102] – [103], revisits causation having regard to the factors set out in s 5(5).
The arbitrator found that Mr Suleski was totally unfit for work since his last attendance at work and continuing [104].

The so-called 'Azmitia' worker's perception – ground 8 amended notice of appeal

It is convenient to first address ground 8 of the amended notice of appeal.
Throughout his reasons the arbitrator has referred to the worker's 'Azmitia' perception [46], [50], [57], 59], [60], [62], [74]. At [57] of his reasons the arbitrator found:
57.There is another grievance about the comparative unfairness (in the worker's perception) about the way he was treated … When one compares Ms Bufton's handwritten assessments of the worker and Moylan (Exhibit 2A, pages 33-37; Exhibit B, pages 31 – 37), it appears (and I find) that the worker in fact 'meets expectation' on GP 2. It also shows (and I find) that Moylan did not meet significantly more of the GP1 goals than the worker.
At [74] of his reasons the arbitrator found:
74.Ross Moylan was not called to give evidence and I find that the worker's Azmitia perception that he was being unfairly singled out for the PMP on the basis of his GP1 and GP2 when Moylan had demonstrably lower compliance and yet was not placed on a PMP and had his score maintained at 100% whilst the worker had his downgraded to 70%, as also being reasonably corroborated by Mr Hood's unchallenged evidence of the relative strengths of the worker as a supervisor.
The arbitrator later explains what he means by an Azmitia perception in the following terms [86]:
86.At the heart of resolving this dispute, lies the proper application of what was said by his Honour McCann DCJ in Department of Education v Azmitia [2014] WADC 85 at [16]. Once 'objectively proven facts' are (on a balance of probabilities) proven to exist, then if it is found that the worker's subjective perception of these facts did (on a balance of probabilities) in fact cause the stress, then the stress claim will be compensable without needing to prove the reasonableness of the perception itself. It is in this sense that throughout these reasons I have referred to an Azmitia 'perception' or 'mis-perception, for it matters not (in a causation sense) whether the worker's perception is a completely accurate reflection of objective reality – the existence of some facts could be sufficient to make compensable even a subjective mis-perception leading to psychological injury. (emphasis added)
After, at [87] referring to 'reality test' in Wiegand v Comcare, the arbitrator at [88] states:
88.I have already found that the worker has proven sufficiently objective facts and considerations in an Azmitia sense that could arguably support an ultimate finding that his perceptions or misperceptions of being unfairly treated or targeted at the workplace significantly contributed to his psychiatric disorder in a s.5(5) and Mokta v Metro Meat International ([2005] WASCA 143) sense.
The arbitrator then purports to summarise the findings he says he has already made 'that could arguably support' a finding that Mr Suleski's 'perceptions or misperceptions of being unfairly treated' significantly contributed to his psychiatric disorder.
I understand his reference to Mokta v Metro Meat International [2005] WASCA 143 to be a reference to the observations of Pullin JA (Steytler P & Wheeler JA) [39]:
In my opinion the word "significant" where used in the definition of 'disability' means 'not insignificant'. In other words, the contribution must be material. In tort actions where the issue is whether an injury was caused by a negligent act or omission, the inquiry is whether the acts or omissions materially contributed to the injury or damage. See Allianz Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 at [54] and see also Henville v Walker (2001) 206 CLR 459 at [60] - [61] and [106]; Chappel v Hart (1998) 195 CLR 232 at [8] and [27]. A contribution is 'material' if it is not negligible: Western Australia v Watson [1990] WAR 248 at 286. In short, my opinion is that there is no difference between a 'significant' contribution and a 'material' contribution.
At [88(c)] the arbitrator reiterated his finding that Mr Suleski's mid‑year review was selectively downgraded without any explanation as to why Mr Moylan's review was not similarly downgraded contributed to Mr Suleski's perception he was being treated unfairly. Although, as I will later observe, it is unclear for what purpose the arbitrator made findings that Mr Suleski perceived he was being unfairly treated, it seems the arbitrator may have found that Mr Suleski's perception was causally related to the stress suffered by him in that the perception significantly contributed to Mr Suleski's psychiatric condition but does not explain how. The arbitrator explained:
…
(c)the worker's mid-year review which was selectively downgraded on Ms Bufton's email instruction to 70% (without, I interpolate, any explanation why this was not similarly done for Moylan) in the circumstances described at [57] and [74], could logically (and did, as I find in fact) contribute, in an Azmitia sense, to the worker feeling or perceiving that he was being unfairly targeted, singled‑out or selectively discriminated against …
However, although the arbitrator has certainly made findings as to Mr Suleski's perception that he was being unfairly treated at work, the arbitrator has not made any findings that any perception of being unfairly treated has significantly contributed to a psychiatric disorder, or explained how a finding of a perception of being unfairly treated at work is relevant to a finding that that perception significantly contributed to Mr Suleski's psychiatric condition. Further, after he summarises his findings regarding Mr Suleski's so-called Azmitia perception, he does not make any finding that the perception significantly contributed to Mr Suleski's psychiatric condition. The arbitrator does not explain the relevance or significance of his findings summarised at [88]. He does not explain why in his reasons he has spent a considerable amount of time considering and addressing the so-called Azmitia perception and how that was relevant to the issues he was required to determine. Having, at [86], stated 'at the heart of resolving this dispute lies the proper application' of Azmitia the arbitrator fails to explain what is the issue he determines by a proper application of Azmitia or make any findings or determination by reference to Azmitia which finally determines the application for worker's compensation. Nowhere in his reasons does he expressly find that Mr Suleski's perception of being unfairly treated significantly contributed to his injury. Nowhere in his reasons does he explain the relevance of his findings at [88].
Even if it is accepted that the arbitrator has at [88] found that Mr Suleski's perception he was being treated unfairly significantly contributed to his injury, the finding goes nowhere. When the arbitrator at [89] ‑ [97] considers the medical evidence he does not revisit his findings at [88] and relate those findings to the medical evidence. When he (at [99]) finds that Mr Suleski's psychiatric condition wholly or predominantly arose from the PMP implementation meeting on 22 August 2013, which was discipline and therefore an excluded s 5(4) matter, he does not revisit the findings in [88] as you might have expected him to, given the considerable amount of time he has spent in his reasons in considering Mr Suleski's perception he was unfairly treated, and consider whether those findings have any relevance to his ultimate finding that Mr Suleski's injury, the disease, (which the arbitrator found was an adjustment disorder or major depressive disorder) wholly or predominantly arose from the PMP implementation on 22 August 2013. The arbitrator has failed to make any findings as to what symptoms were experienced by Mr Suleski or as to the onset of the symptoms and how they arose from his employment and how they are relevant to the disease he finds (at [98]) Mr Suleski contracted in the course of his employment. He does not make any findings that Mr Suleski's perceptions that he was unfairly treated are related to or relevant to the disease Mr Suleski contracted in the course of his employment. Nor does he refer to or rely on his findings regarding Mr Suleski's perception that he was unfairly treated in concluding that Mr Suleski's psychiatric condition predominantly arose from the PMP implementation meeting on 22 August 2013. Therefore, the arbitrator's finding as to Mr Suleski's perception about being unfairly treated would not appear to have played any part in the arbitrator's finding that Mr Suleski's psychiatric condition predominantly arose from the PMP meeting on 22 August 2013. Accordingly, despite having at [86] stated that the proper application of Azmitia lay at the heart of resolving the dispute, the arbitrator would not appear to have relied upon Azmitia or any finding regarding Mr Suleski's perception of being unfairly treated in ultimately determining that the psychiatric condition predominantly arose from the PMP implementation meeting.

Although it is unclear, it seems to me the fairest reading of the arbitrator's reasons is that he has found that the PMP implementation and Mr Suleski's perception he was unfairly treated were each significant contributing factors to Mr Suleski's disease but the PMP implementation was the predominant contributing factor. At [99(a)] the arbitrator accepts the opinion of Dr Edwards‑Smith that the PMP implementation was the most significant factor causing Mr Suleski's psychiatric condition and that it overwhelmingly caused or resulted in Mr Suleski's psychiatric condition. This analysis is consistent with McPherson v State Print (Steytler J) (8).
I will shortly consider in more detail the principle of Azmitia but it is sufficient for present purposes to state that Azmitia is only relevant if the issue to be determined is whether the employment was a significant contributing factor to the contraction of a disease. In the circumstances of this case, where the employer accepted the employment was a significant contributing factor to the contraction of the disease and the issue was how the employment significantly contributed to the contraction of the disease and whether it arose from a matter of discipline or an expectation of discipline, the application of Azmitia had a limited, if any, role to play in the determination of those issues. However, because the arbitrator's findings in reliance upon Azmitia were (apparently) not relied upon by the arbitrator in finding that the psychiatric condition predominantly arose from the PMP meeting on 22 August 2013, any reliance upon Azmitia, whether it is erroneous or not, does not give rise to any error or question of law in relation to the finding that the psychiatric condition predominantly arose from the PMP meeting. Further, any findings in reliance upon Azmitia were not relied upon by the arbitrator for his finding that the PMP implementation was a matter of discipline.

Department of Education v Azmitia[2014] WADC 85

I now turn to consider the principle for which Azmitia is authority.
At [87] the arbitrator referred to the 'reality test' in Wiegand v Comcare Australia [2002] FCA 1464 [24] as considered by McCann DCJ in Department of Education v Azmitia [2014] WADC 85. (An appeal from the decision of McCann DCJ was dismissed by the Court of Appeal in Department of Education v Azmitia [2015] WASCA 246. The grounds of appeal focused on the arbitrator's finding that the worker was totally incapacitated for work and McCann DCJ's conclusion that the finding was open on the evidence and involved no appealable error. The appeal did not raise any issue concerning the correct test of causation in a stress claim). Although the arbitrator refers to McCann DCJ's observations at [58] – [60], the paragraphs he has cited in his reasons are not from Azmitia. They are taken from McCann DCJ's judgment in Pedley v West Coast College of TAFE (Unreported, C21-2006 (McCann DCJ) 8 November 2006) which is cited at [16] in Azmitia.
In Azmitia McCann DCJ held [16], [19]:
16.A stress claim is compensable if it is caused by a worker's subjective reaction to objectively proven facts. It is not necessary for a worker to prove that his or her subjective perception of proven facts was reasonable. (See Wiegand v Comcare [2002] FCA 1464; Gallin v Central West Coast College of TAFE [2006] CM‑21/2003; Pedley v West Coast College of TAFE C21 - 2006 [26], [50] – [51]).
…
19.Thus, in this case, the onus lay on the respondent to prove, first, that she suffered a disease caused by her perception of proven facts and, second, that by reason of the disease she was totally incapacitated for work in the sense that she was wholly unfit to return to her employment as a primary school teacher in any capacity.
Wiegand v Comcare Australia, concerned an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal which held that Comcare was not liable to pay compensation to the applicant in respect of a claim for 'major depression'. The circumstances of that case, as von Doussa J noted at [14], were that the psychiatrists appeared to be in substantial agreement that all of Mr Wiegand's difficulties could not be attributed to his employment and that the predominant factor in his depressive disorder related to his basic personality, but that conclusion did not answer the question of whether, by reference to the meaning of the definition of 'disease' in the Safety, Rehabilitation and Compensation Act 1988 (Cth), Mr Wiegand was incapacitated by an aggravation of the disease that was contributed to in a material degree by his employment.
At [17] von Doussa J noted the evidence of a psychiatrist at the trial who said it was necessary to consider whether or not Mr Wiegand's perception of the workplace was in fact reality based or whether it was only determined by his basic personality. The psychiatrist was of the opinion that Mr Wiegand's presentation bordered on the paranoid but whether or not his perception was definitely paranoid 'depends on the reality or otherwise of his claims about workplace'.
In criticising the reasoning of the tribunal for failing to consider whether the depressive disorder suffered by Mr Wiegand met the statutory definition of 'disease' by being 'an aliment or aggravation that was contributed to in a material degree by the employee's employment …', von Doussa said [20]:
… To ask whether the upset in the work environment was the cause of Mr Wiegand's 'condition' is to ask a question that departs from the definition of disease, and in particular a wrong question which seeks to identify a single real cause of the condition. It is not a test which recognises that an injury, being a disease, will be compensable if it is an aggravation of an ailment to which the employment was merely one of a number of factors that contributed in a material degree.
Further, he said [21]:
… It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors. It is not the vulnerability that constitutes or may constitute an aggravation. The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.
He concluded [24]:
… All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a 'reality' test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.
Therefore Wiegand must be read in the context of the psychiatric evidence which was presented in that case where the psychiatrist was referring to the worker's perception of the workplace and whether it was in fact reality based. Wiegand was concerned with a pre-existing disease of paranoia whereas Mr Suleski was diagnosed with an adjustment disorder or depressive disorder which it was accepted was contracted by Mr Suleski in the course of his employment. The main issue in Wiegand was whether the employment was a contributing factor to an aggravation of the disease which is to be contrasted with the situation here where the parties accepted the employment was a contributing factor to the contraction of the disease and satisfied the definition of 'injury' in par (c), the issue here essentially being whether there were a number of employment related factors that significantly contributed to the disease, and, if the PMP implementation was a matter of discipline, whether it was the predominant employment factor which was the cause of the stress‑related illness. The references by von Doussa J to the worker's perception and whether it will meet a reality test for the purposes of the definition of disease is in the context of the psychiatric evidence adduced in that case and the legislative provisions which applied where the main issue was whether the employment contributed at all to an aggravation of the underlying disease. It is not a test of general or universal application. It is certainly not a test which applies universally in determining whether an injury has occurred for the purposes of par (c) in the definition of 'injury' in s 5 involving a disease caused by stress.
McCann DCJ in Azmitia in the passages I have cited states no more than that to prove an injury within the meaning of pars (c) or (d), i.e., a disease has been suffered, the worker must prove the employment was a contributing factor and contributed to a significant degree. In other words, in the case of a disease caused by stress, there must be something associated with the employment which has significantly contributed to the stress. So in the case of a person who might suffer from paranoia which causes stress, there must be something at work which has also contributed, to a significant degree, to that stress rather than the stress arising from the underlying paranoia. There must be some incident or event or state of affairs to which a worker was exposed or which he experienced during the course of his employment which significantly contributed to the stress. As von Doussa J observed, there may be a number of factors which contributed to the stress, both employment and non‑employment related. If a person's pre-existing paranoia makes him or her more vulnerable or susceptible to suffering stress when faced with certain circumstances, providing those circumstances in fact occurred, the employment will have caused, in the sense that it was a contributing factor and contributed to a significant degree, to the stress even though a person who is not suffering paranoia might not, when faced with the same circumstances, have suffered stress.
Similar issues were considered in Carson v Comcare [1998] AATA 644. Dr Carson alleged that he suffered stress and depression which he attributed to victimisation and harassment by his superiors. Dr Carson suffered from a pre-existing paranoid personality disorder or paranoid delusional condition. The employer had concerns about Dr Carson's work performance and a process, called a Performance Management Scheme, was instituted to deal with the employer's concerns about work performance. Similar to Mr Suleski's circumstances, Dr Carson felt he was being victimised and that both the process of how he was managed and how the employer rated his performance were unfair. Dr Carson perceived he had a conflict with his superior who was treating him unfairly. The issue between the parties concerned the cause of Dr Carson's incapacity.
The medical evidence established that Dr Carson suffered depression. One of the doctors attributed the condition to Dr Carson's perception of an ongoing conflict with a superior and his perception that the inefficiency procedure was designed to bring about his dismissal. Another doctor did not disagree that Dr Carson's depression was related to his perception of the work situation but also considered that Dr Carson's perceptions were due to his paranoid personality disorder rather than to the reality of the workplace. The tribunal found [23]:
… Even on that view, the events at work, and in particular the inefficiency procedures contributed in a material degree to the ailment. As Professor Goldney observed in his cross-examination, the formal inefficiency procedures, coupled with the prospect of dismissal upon failure, would be threatening to anybody, and even more threatening and likely to precipitate depression in someone who had a paranoid personality.
Allowing for the different statutory definition in the Commonwealth legislation, which requires the employment to be a contributing factor in a 'material' degree as opposed to the definition in par (c) by which the employment must contribute to a 'significant' degree, (although as explained by Pullin JA in Mokta v Metro Meat International [39] referred to at [49] above, there is no difference between a 'significant contribution' and a 'material contribution') the correct test of causation is as explained by von Doussa J at [15] ‑ [17]:
15.In Favelle Mort Limited v Murray[1976] HCA 13; (1976) 133 CLR 580 at 598 Mason J said in relation to the definition of 'injury' that appeared in s 6 of the Workers Compensation Act 1926 (NSW) that the requirement suggested by the words 'to which the employment was a contributing factor' was not as stringent as that suggested by the concept 'arising out of' the employment. His Honour said that all that needs to be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury. Given the definitions of 'injury' and 'disease' in the Act, it is at the least arguable that the requirement that the employment 'contributed to in a material degree' an ailment or aggravation is a less stringent requirement than that an injury or an aggravation of an injury arose out of the employment. The significance of the addition of the words 'in a material degree' to the requirement that the employment contributes to the ailment was considered by a Full Court of the Federal Court in Treloar v Australian Telecommunications Commission[1990] FCA 511; (1990) 97 ALR 321. Although that decision concerned the definition of disease in the Compensation, (Commonwealth Government Employees) Act 1971 (Cth) it follows from the decision that employment will contribute in a material degree to an ailment or an aggravation of an ailment if it is established that features of the employment in fact and in truth contributed to the condition complained of. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, or its aggravation. 'They must, in truth, be part of the cause. If they are not, then they do not 'contribute' ' (at 328).
16.As Dr Carson is entitled to succeed if on 24 January 1995 he suffered an injury, namely a disease being an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment, that is the question which the Tribunal should address.
17.The legal concept of causation when applied in the field of personal injury, including workers compensation, takes the person injured as he or she is found, with all dispositions and susceptibilities whatever they may be: see Mason JA as he then was in Migge v Wormald Bros Industries Limited[1972] 2 NSWLR 29 at 44 whose judgment was upheld by the High Court: (1973) 47 ALJR 236. An example, helpful in this case, is to be found in Federal Broom Co Pty Ltd v Semlich[1964] HCA 34; (1964) 110 CLR 626. The facts of that case are succinctly summarised in a headnote: a worker with a history of functional mental illness predisposing her to delusions sustained a muscular strain in the course of her work. She sought workers compensation in respect of a continuing incapacity resulting from a delusional condition following upon the physical injury. At 641 Windeyer J said:
'I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of `the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed her hypochondriacal attention to her abdominal muscles ...
The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so. (emphasis added)
Relevant to the circumstances of Mr Suleski's claim, von Doussa J found [24] – [26]:
24.It is not suggested by the respondent that the proviso to the definition of injury applies so as to exclude the ailment suffered by Dr Carson from the definition of 'injury'. The inefficiency procedure did not constitute disciplinary action, nor did it relate to a failure by Dr Carson to obtain a promotion, transfer, or benefit in connection with his employment. On the contrary, it was a procedure undertaken to ascertain if he should be dismissed from his employment on the ground that he was not able to effectively discharge the requirements of his position.
25.The Tribunal finds that the evidence establishes a clear case of Dr Carson suffering injury, namely a disease constituted by an ailment or an aggravation of an ailment that was contributed to in a material degree, which led to incapacity on 24 January 1995.
26.It is not necessary to support that conclusion to investigate the objective reality of the complaints of harassment and victimisation made by Dr Carson. Indeed, even if it were possible to satisfactorily reach conclusions on those issues after a thorough investigation of the allegations and counter allegations, that would not necessarily answer the important points made by Dr Le Page, namely that it is possible to have conflicts between a sensitive person on the one hand and assertive persons on the other hand which give rise to feelings of persecution by the sensitive person which do not justify a diagnosis of a paranoid personality disorder.
Therefore, a worker must point to some event or occurrence in the course of the employment which was a contributing factor to the contraction of the disease and without which the disease would not have been contracted. In Mr Suleski's case the event or occurrence in the course of the employment which was the significant contributing factor to the contraction of his disease was the implementation of the PMP.
I will return later when considering whether the PMP was discipline, to the relevance of the finding in Carson that the inefficiency procedure did not constitute disciplinary action.
Counsel for Pilbara Iron submitted that the decision of the High Court in Comcare v Martin [46] is authority for the proposition that for a worker to succeed in a claim for a stress-related disease arising from an administrative decision or action, the court must consider objectively whether the administrative decision or action could reasonably be the cause of a disease, that is, whether a person of normal fortitude would have suffered stress in the circumstances. It was further submitted that Comcare v Martin is authority for the proposition that in order for a worker to succeed in the claim for stress, the worker must establish that objectively his response to the administrative decision or action was reasonable rather than simply whether his subjective response, which might be unreasonable, caused the stress.

In Comcare v Martin the High Court considered similar provisions in the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) to s 5(4) of the Act. Section 5A provided:
(1)In this Act:
injury means:
(a)a disease suffered by an employee ...
but does not include a disease ... suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
...
(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
The court said [42]:
42.Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose …
Referring to s 5A (which is a similar exclusory provision as s 5(4)) in the Commonwealth legislation, the court said [45] ‑ [48]:
45.When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease 'as a result of' administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.
46.That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to 'ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers' compensation' and as including, in particular, to prevent claims 'being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of' such action. The taking of administrative action in respect of an employee's employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee's reaction.
47.Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
48.The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.
I reject counsel's submission that the test for causation in a claim for stress arising from an administrative decision or action is whether objectively a reasonable person of normal fortitude would suffer stress. It does not, with respect, correctly state the law. Comcare v Martin is not authority for that proposition. The High Court makes it clear at [47] that the causal connection is met if without the taking of the administrative action the worker would not have suffered the disease. That is, the stress‑related disease was contributed to, to a significant degree, by the employment. However, by reference to the statutory definition of 'injury' and 'reasonable administrative action' in s 5A of the Commonwealth legislation if the disease is suffered as a result of 'reasonable administrative action' taken in a reasonable manner, the disease is excluded from the definition of injury. So a reaction by a worker to 'reasonable administrative action' taken by the employer, although contributed to, to a significant degree, by the employment, is excluded. Again, as the High Court makes clear at [48]:
… The nature of the perceived consequence — whether personal or professional, direct or indirect, real or imagined — is beside the point.
In other words whatever the worker's reaction, whether it be reasonable or unreasonable, real or imagined, or whether a person of normal fortitude would have suffered stress in the same circumstances, or whether the worker's perceptions were reasonable is not relevant. If there is an event in the employment which significantly contributed to stress suffered by a worker, the worker will have established the necessary casual connection but if the stress was caused by an excluded matter the worker is not entitled to compensation. If a person is more vulnerable to stress than a person of so-called normal fortitude, the employment remains a contributing factor to that stress. If the stress‑related disease would not have been suffered but for the employment, that is, but for the employer taking the type of action referred to in s 5(4) the employment would have significantly contributed to the contraction of the disease. To prove the employment contributed to the contraction of a disease a worker does not have to prove that objectively his response to the employer's action was reasonable or that a person of normal fortitude would have suffered the same reaction.
Turning then to the circumstances of Mr Suleski, it is clear from all of the evidence that he strongly disagreed with the decision of Pilbara Iron to place him on the PMP. He regarded himself as a long-serving employee who had performed his duties well and diligently. He took exception to how his supervisor, Ms Bufton, criticised and dealt with his work performance. He regarded his work performance as good. He felt the action taken by Ms Bufton, especially the action to place him on the PMP, was unjustified. He felt he was unfairly dealt with. His complaints about bullying and harassment and being unfairly treated are in my view his reaction to being placed on the PMP with which he strongly disagreed. He felt that if any action must be taken be should be dealt with by being placed on a development plan rather than the PMP. That is why he refused to sign the PMP. He felt the employer was not justified in placing him on the PMP.
That history is consistent with the history recorded by the doctors and psychologists in their reports. It is that history that the doctors and psychologists relied upon in concluding that it was the action of placing Mr Suleski on the PMP which was the cause of the stress, or in terms of the definition of 'injury', a significant contributing factor to the disease which was caused by stress and that the stress predominantly arose from that action. Whether Mr Suleski's perception that he was treated unfairly was reasonable or unreasonable, it is clear that perception was a reaction to the decision by Pilbara Iron to place him on the PMP. If the PMP is not an excluded matter, relevantly is not discipline, Mr Suleski will have established his employment contributed to a significant degree to the contraction of the disease and will be entitled to compensation. If the PMP is discipline he will not have suffered an injury because the disease is excluded from the definition of injury unless the discipline is unreasonable and harsh on the part of the employer.
This analysis reinforces my view that Azmitia had no application or part to play in the circumstances of this case. Azmitia is concerned with a test of causation, which is uncontroversial, where the issue is whether the employment was a significant contributing factor to the contraction of a disease. That was not the issue here. If the reason for considering what was Mr Suleski's perception and for finding that his perception was that he was treated unfairly was for the purpose of determining whether there were employment factors other than the implementation of the PMP which were contributing factors and contributed to a significant degree to the contraction of the disease (and as I have explained it is unclear what was the purpose for considering what was Mr Suleski's perception) it was unnecessary to consider that matter because Mr Suleski's perception only arose from the fact of the implementation of the PMP. It is clear from the evidence, particularly the medical evidence, that the disease suffered by Mr Suleski would not have been suffered if he had not been placed on the PMP. There was no suggestion that any other incident or event within the employment or action on the part of the employer, unrelated to the decision to place Mr Suleski on the PMP, was a significant contributing factor to the disease.
In her report Dr Edwards-Smith defines her diagnosis of an adjustment disorder by reference to the criteria being met in DSM-VI attached to her report. The criteria read:
A.The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s)
B.These symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
1.Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context of the cultural factors that might influence symptom severity and presentation. (emphasis added)
…
Therefore by its very nature the disease is not a disease a person of normal fortitude would have suffered. Accordingly, if the submission of Pilbara Iron was correct it would mean that a person diagnosed as suffering from an adjustment disorder would not be able to prove the employment was a significant contributing factor to the contraction of the disease because if his reaction was disproportionate, it was objectively unreasonable.

Mr Suleski's perception of being unfairly treated

Also throughout his reasons the arbitrator refers to Mr Suleski's perception that he was being unfairly treated by characterising the perception as 'the workers Azmitia perception'.
At [46] the arbitrator said:
46.My impression of Gerald Foo's evidence was that he was a sophisticated manager and gave his evidence in a precise if not measured way. On balance, I accept his evidence that he had no actual favouritism for James Lamb and the worker's belief that Lamb was Foo's 'snitch' was not objectively correct; that is not to say that there is no basis for the worker's perception in a Department of Education v Azmitia ([2014] WADC 85) sense.
At [50] the arbitrator found:
50.The matters canvassed at [49] above also support a finding that the worker's Azmitia perception that Mr Foo was being selectively harsh or unreasonable towards him, or that Mr Foo was a cog within that systematic process. I will later evaluate all the other instances and events which I find support the worker's Azmitia perception that he was being treated unfairly.
At [59] the arbitrator found:
59.… The worker also explained (which explanation I accept and so find) that in a relevant time period when Ms Bufton was employed, there were more than five safety incidents involving other supervisors' teams, yet he (the worker) was 'singled out' by Ms Bufton (which I understood to mean that he was the only supervisor compelled to undertake a PMP) for only one safety incident involving his team. He produced a printout for the period 5 February to 29 May 2013 which supported his observation (Exhibit 2A, page 50), and I accept his evidence which I find also added to his Azmitia perception of being unfairly singled out, noting again that he was not specifically cross examined on his explanation.
At [60] the arbitrator found:
60.In the PMP, the worker was also criticised for failing to prepare a position description for the Transport Operator role regardless of follow up emails and examples provided to assist him in doing so (Exhibit B, page 40). The worker explained that Ms Bufton first sent him an email on 18 July 2013 making that request, but that was the last day of his shift. He then returned to work on 24 July 2013 for one day, before going off sick between 25 July and 28 July 2013. Between 29 July and 1 August 2013 he was on rostered days off (see Exhibit C) and between 2 August and 6 August 2013 he was on annual leave. Again between 7 August and 11 August 2013, he was on rostered days off and returned to work on 12 August 2013 to receive the email from Ms Bufton referred to earlier (Exhibit B, page 39) which also complained of that failure to develop the transport operator role description. I find that this criticism of the worker and the employer's partial justification for the PMP was unfair, and has also contributed to the worker's Azmitia perception. I note that the worker was also not specifically challenged on his explanation.
At [62] he found:
62.On the other hand, the Ross Beeton incident which clearly significantly upset the worker (and which Beeton himself reportedly expressed discomfort with), whilst not found to have amounted to actual 'bullying or harassment' of the worker by Ms Bufton, was, I find, another significant event that fostered the worker's Azmitia perception of being unfairly treated. It was described in the speak out report as something which 'could have reasonably been interpreted' by the worker as 'inappropriate' and that it would have been 'more preferable' for Ms Bufton to have used a 'different choice of words' so that the worker might then not have misinterpreted her intentions (Exhibit 2A, pages 16, 23).
When the arbitrator keeps referring to Mr Suleski's perception of whether he had been treated unfairly, as I have earlier observed, it appears it was in the context of determining what was the cause of Mr Suleski's stress‑related disease and whether the employment was a contributing factor. That is, what were the contributing factors to the stress arising from the employment which contributed to a significant degree. However, in circumstances where it was accepted by both parties that the employment was a significant contributing factor to Mr Suleski's stress, Azmitia, which was concerned with causation, was not relevant. Further, having found Mr Suleski contracted a disease in the course of his employment, either in the form of an adjustment disorder or major depressive disorder [98], which arose from the PMP [99], which was disciplinary, Mr Suleski's perception of whether he was treated unfairly was not relevant to the issues to be determined. Both Azmitia and Wiegand were concerned with whether the worker's employment was a contributing factor to his stress. That is, those cases are only relevant if the issue is whether the stress was contributed to by the employment, that is, whether the employment was a contributing factor. However, in this case there was no such issue. Once the issue was narrowed or confined in the way it was by the parties, where it was accepted the employment was a significant contributing factor, arising out of Mr Suleski being placed on the PMP, whether an injury, a stress‑related disease, occurred was not an issue and Azmitia was not relevant and had no application. Its only relevance might have been if it was an issue that the implementation of the PMP was not a contributing factor that contributed to a significant degree and if the issue was whether the cause of the stress was related to something else, for example, workplace bullying and harassment or being unfairly treated.
The parties, having accepted, and the arbitrator having found, that the stress arose from the PMP, that is, that the employment was a contributing factor and contributed to a significant degree, the worker's perception of whether he had been treated unfairly, and whether he had in fact been treated unfairly, was simply not relevant in relation to the issue to be determined, which was how the PMP was to be characterised. That is, whether the PMP implementation constituted discipline for the purpose of s 5(4)(a), and if it did whether any disease suffered by Mr Suleski was caused by stress and if it did whether the stress wholly or predominantly arose from the discipline. Even were it Mr Suleski's case that workplace bullying and harassment was a separate event or occurrence unrelated to the implementation of the PMP, and was a significant contributing factor to his stress, providing the implementation of the PMP was also a significant contributing factor, the only relevance of Mr Suleski's perception that he was unfairly treated and whether in fact he was unfairly treated or bullied or harassed, was in relation to the issue of whether the stress 'wholly or predominantly' arose from, relevantly, discipline. If the disease was caused by stress and if the stress wholly or predominantly arose from something other than a s 5(4) matter it would follow that the stress did not wholly or predominantly arise from a s 5(4) matter. A prominent cause is the 'stronger, main or leading element': McPherson v State Print (Steytler J) (8) citing the Shorter Oxford English Dictionary definitions of 'predominant'.Having found that Mr Suleski's psychiatric condition wholly or predominantly arose from the PMP implementation meeting on 22 August 2013, whether Mr Suleski perceived he had been unfairly treated or whether in fact he was unfairly treated was not relevant.
Further, as I have earlier found, his finding that Mr Suleski perceived he was unfairly treated went nowhere. The arbitrator did not do anything with that finding until he came to consider whether the employer's actions were unreasonable and harsh. Having throughout his reasons referred to Mr Suleski's Azmitia perception that he was unfairly treated, the arbitrator did not explain what was the relevance of those findings. He did not, for example, find that Mr Suleski's perception was one of a number of factors which significantly contributed to Mr Suleski's stress. He did not when he later considered whether the discipline was the whole or predominant cause of the stress return to his findings as to Mr Suleski's perception he was unfairly treated. Given his subsequent finding that the implementation of the PMP was discipline which was the predominant cause of Mr Suleski's stress it must follow that he found that Mr Suleski's perception was not the predominant cause of the stress.
The continual reference to the worker's Azmitia perception throughout the arbitrator's reasons is, with respect, confusing.
The arbitrator has not explained how Mr Suleski's perception that he was treated unfairly contributed to a significant degree to a disease suffered by Mr Suleski. Relevant to the nature of the disease the arbitrator found Mr Suleski suffered, an adjustment disorder or a major depressive disorder, the arbitrator has not explained how Mr Suleski's perception he was unfairly treated significantly contributed to that condition.

Although Mr Suleski's contract of employment entitled 'conditions of employment – residential – full-time employees – level ' was adduced in evidence before the arbitrator the other documentation and matters to which I have referred, such as written protocols or guidelines, or codes of conduct, relevant to work performance issues were not adduced in evidence. Clause 10 of the contract of employment 'Ethical business practice' requires Mr Suleski to comply with the 'Required Standard of Business Conduct Policy and Code of Good Conduct'. Clause 11 which is headed 'Safety in the Workplace' refers to various policies and procedures. Clause 12 headed 'Fair Treatment' states that if Mr Suleski believes a decision unfairly affects him in his role he can seek a review of that decision and both he and the employer are required to follow the process set out in the applicable 'Fair Treatment System Policy'. Clause 13 requires Mr Suleski to abide by all policies and procedures of the employer. Those policies and procedures were not in evidence before the arbitrator.
It is therefore unclear whether the PMP was instituted in accordance with any of the employer's policies or procedures which might assist in understanding the context in which Mr Suleski was placed on the PMP and as to whether it is discipline
At [84] the arbitrator refers to the evidence of Ms Bufton who was Pilbara Iron's superintendent whose decision it was to place Mr Suleski on the PMP. The arbitrator refers to Ms Bufton's evidence of how work performance is reviewed and the process involved. He refers to a development management plan which might be devised in certain circumstances but then at [85] rhetorically asks why Mr Suleski was not placed on a development management plan rather than on a PMP, noting that no development plan documentation was adduced. He then goes on to say:
… I consider and find that the employer departed from its own procedures in managing the worker and placing him on a PMP instead of a DP (development plan) in this case, and in any event did not satisfactorily explain and justify why (on its own processes) a PMP was justified, either or both of which again giving rise to the worker's Azmitia perceptions that he was being unfairly targeted or treated.
Although it is not entirely clear why the arbitrator found the employer departed from its own procedures in managing Mr Suleski, it seems he relied upon the evidence as to how Mr Moylan had been differently graded and treated to that of Mr Suleski and Mr Suleski's explanation as to why he ought to have been put on a development management plan rather than a performance management plan. As I have earlier explained, any finding of the arbitrator in reliance upon the evidence that Mr Moylan and Mr Suleski were treated differently and Mr Suleski's reaction to that is in error. As the arbitrator's finding that the employer departed from its own procedures by placing Mr Suleski on a PMP instead of a DMP is based upon the Moylan evidence it is erroneous. It goes beyond an error of fact.
In my view in deciding what is discipline, the three questions posed by Cooper J in Chenhall [25] (cited above [137]) are relevant and should normally be posed and answered. However, it may be that in certain factual circumstances it is unnecessary to ask the three questions posed by Cooper J. Nor will the failure to ask those questions necessarily result in an error of law being made.
I reject Mr Suleski's submissions on appeal that the implementation of the PMP was merely part of a management prerogative to efficiently manage its workforce and that the implementation of the PMP was not discipline. Further, it was not even action taken to determine whether or not disciplinary action would be taken, which is not of itself disciplinary action. It was only if Mr Suleski failed to adhere to the PMP that Pilbara Iron may take action to determine whether or not disciplinary action 'may result', referring to the wording in the PMP. It was submitted that it was only after the expiry of the PMP that Pilbara Iron 'may' consider discipline or disciplinary action. By its own description the PMP, it was submitted, was a management tool to ensure that Mr Suleski was able to carry out his work to the level expected (particularly by his new supervisor) and to provide him with 'support and assistance' to achieve that end.
In my view placing Mr Suleski on the PMP was clearly a matter of discipline. Whether further disciplinary action, up to and including the termination of employment, might be taken does not mean the PMP was not discipline. Nor does it mean the implementation of the PMP was only a preliminary step taken to determine whether disciplinary action might be taken.
During the appeal hearing counsel for Mr Suleski submitted that the meaning of 'discipline' is narrowly defined to mean punishment. That the proper meaning of the word 'discipline' in s 5(4)(a) is not merely training or education. Any action taken by an employer to address concerns about a worker's work performance short of a formal reprimand or some sort of punishment or adverse impact upon a worker's terms and conditions would not, it was submitted, meet the ordinary and natural meaning of discipline in s 5(4)(a). Such a narrow or restricted meaning is, it was submitted, consistent with the other actions referred to in s 5(4), dismissal, retrenchment, demotion, transfer or redeployment. The meaning of discipline must be more than training to do the job properly. Essentially counsel submitted that the meaning of 'discipline' refers to action taken by an employer in response to misconduct on the part of an employee.
I reject those submissions. In my view the meaning of 'discipline' cannot be so narrowly defined. If the word 'discipline was given the meaning suggested by counsel, it would leave very little, if any, room for the operation of the other actions referred to which are excluded matters. It is hard to think of what action could be taken by an employer which would meet the meaning of the word 'discipline' as submitted by counsel other than by dismissal, retrenchment, demotion, transfer or redeployment. It would mean that an employer who acting reasonably rather than punishing a worker for poor work performance seeks to take some other form of action to address poor work performance issues, such as re‑training or closely supervising the worker or restricting the worker's ability to act, would not constitute discipline. If the worker disagreed with the employer's action and took exception to the action and as a result suffered stress, the worker would be entitled to compensation. In my respectful view that would lead to a result contrary to the purpose of s 5(4) which enables an employer to take action to properly and efficiently manage its workforce without being exposed to a risk that a worker who might suffer from stress as a result of those actions was entitled to compensation. The very nature of taking the sort of action contemplated by s 5(4) is that they will often be stressful to workers but providing the employer's actions are not unreasonable and harsh, the worker is excluded from an entitlement to claim compensation: FAI General Insurance v Goulding (Steytler J) [39].
I am of the view that a warning letter from an employer to its employee raising concerns about the employee's work performance, and actions taken in respect of unsatisfactory work performance to manage and address the employer's concerns about work performance, would generally be regarded as discipline for the purposes of s 5(4)(a). I am supported in that view by Murten and Goulding.
In summary, in my view, and notwithstanding the apparent failure to adduce evidence of any relevant policies, codes of conduct or practice or guidelines relevant to Mr Suleski's of employment and work performance, the placing of Mr Suleski on the PMP falls within the natural and ordinary meaning of the word 'discipline' in s 5(4)(a) in that it involves instruction designed to train to proper conduct, to subject a person to rules of conduct of behaviour or to maintain a state of order by training and control or to bring to a state of order and obedience by training and control. The arbitrator's finding that the PMP implementation meeting on 22 August 2013 was a matter of discipline was correct and was not in error. Accordingly, I dismiss ground 2 of the amended notice of appeal. I also dismiss Mr Suleski's cross-appeal.

Whether the stress wholly or predominantly arose from actual discipline or an expectation of discipline – ground 3 amended notice of appeal

A further issue arises as to whether each of the matters in subparagraphs (a), (b) and (c) of s 5(4) can exist together at the same time or whether they are mutually exclusive.
Specifically, in this case, whether the stress can wholly or predominantly arise from both discipline or an expectation of discipline. Although a worker's stress might arise from both being disciplined and having an expectation of being further disciplined, it must follow from the meaning of the expression 'wholly or predominantly' that if the stress wholly or predominantly arises from one of the excluded matters, it could not have wholly or predominantly arisen from another excluded matter. So, if the stress wholly or predominantly arises from actual discipline, even though the stress might have been contributed to by an expectation of further discipline, the stress could not by definition wholly or predominantly arise from the expectation of further discipline. Therefore, in my view, once the arbitrator found that the stress suffered by Mr Suleski wholly or predominantly arose from discipline, being the implementation of the PMP, he implicitly found that the stress did not wholly or predominantly arise from an expectation of discipline. As, in my view, he was correct in his finding that the stress wholly or predominantly arose from the implementation of the PMP, which was a matter of discipline, it follows he was correct in failing to find that the stress wholly or predominantly arose from an expectation of discipline.
It is true that in determining Mr Suleski's psychiatric condition wholly or predominantly arose from the PMP implementation meeting on 22 August 2013 which was discipline, the arbitrator failed to specifically address in his reasons Pilbara Iron's argument that the stress wholly or predominantly arose from an expectation of discipline rather than actual discipline. However, as I have just explained, it is implicit in his reasons that because he has found the PMP implementation was a matter of discipline he has rejected the submission that the PMP involved only an expectation of discipline which was the predominant cause of the stress. That finding was a factual finding. It was also, in my view, consistent with and supported by the evidence to which I have earlier referred. Although there was some evidence from the accused that he was concerned he was being set up and wanted to be placed on a development plan rather than PMP because the development plan did not carry with it a risk of termination of employment, the evidence, in my view, pointed more strongly to the conclusion that the PMP concerned a matter of discipline. In my view, the finding that the PMP was a matter of discipline which was the predominant cause of the stress was the correct finding.
Therefore, for this further reason, I dismiss grounds 2 and 3 of the amended notice of appeal.

'Unreasonable and harsh' – ground 1 amended notice of appeal

I now turn to consider the challenge to the arbitrator's finding that the employer's actions in implementing the PMP were unreasonable and harsh.
The words in the expression 'unreasonable and harsh' in the definition of 'injury' in s 5 must be given their ordinary and natural meaning: Housing Industry Association Limited v Murten (Le Miere J) [24] ‑ [25].
'Unreasonable' means 'not guided by reason or good sense; not based on or in accordance with reason or sound judgment; exceeding the bounds of reason; immoderate; exorbitant': Macquarie Dictionary (5^th ed). It can also mean 'irrational, not based on or acting in accordance with reason or good sense, going beyond what is reasonable or equitable, excessive': New Shorter Oxford English Dictation.
'Harsh' means 'unpleasant in action or effect': Macquarie Dictionary (5^th ed).
It can also mean 'an action which is severe, rigorous, cruel, unfeeling': New Shorter Oxford English Dictionary.
What is unreasonable and harsh will vary according to the circumstances of the case. For example, where an industrial award provides that termination of employment shall not be harsh or unreasonable an employer is under an obligation to give procedural fairness, the content of which will vary according to the circumstances: Byrne and Frew v Australian Airlines Limited [1994] FCA 888 [6]; (1994) 120 ALR 274, 276 per Black CJ.
In Bostik (Australia) Pty Ltd v Gorgevski [No 1] [1992] FCA 209; (1992) 36 FCR 20 Sheppard & Heerey JJ (28) said of the meaning of the expression 'harsh, unjust or unreasonable' in an industrial award regulating termination of employment:
These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct.
The unsuccessful appellants in Bryne and Frew appealed to the High Court. The High Court dismissed the appeal and upheld a cross appeal. In Byrne and Frew v Australian Airlines Limited (1995) 131 ALR 422, McHugh and Gummow JJ said in relation to the meaning of the expression 'harsh, unjust or unreasonable' (461):
… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
Further, referring to the remarks of Sheppard & Heerey JJ in Bostik (Australia) cited above they said (463):
The above propositions should be accepted as applicable to the present appeals. However, it should be emphasised that the present task is to construe the award and that nothing now said necessarily determines the meaning of the phrase 'harsh, unjust or unreasonable' in any other setting.
Notwithstanding that cautionary note and cognisant that the expression 'unreasonable and harsh' in the definition of an 'injury' is contained in a different statutory context to the expression 'harsh, unjust or unreasonable', considered in Bostik, I am of the view that reasoning can be applied in determining the meaning of the expression 'unreasonable and harsh'.
Applying that reasoning to the expression 'unreasonable and harsh' in the definition of 'injury' an arbitrator must decide whether the s 5(4) matter was, viewed objectively, unreasonable and harsh having regard to the circumstances which led to the decision to take the s 5(4) action, the process by which the action was taken and how the worker was dealt with and the effect of the action on both the employer and the worker. The seriousness or gravity of the worker's behaviour or work performance will also be relevant: see also Azmitia [30] ‑ [32].
Whether discipline of a worker is unreasonable and harsh on the part of an employer is a question of fact and degree: Housing Industry Association Limited v Murten (Le Miere J) [33]. However, the true scope of the inquiry undertaken by an arbitrator in deciding whether a worker's discipline is unreasonable and harsh on the part of the employer must be ascertained on a proper construction of the Act and therefore does involve a question of law. It is not to the point that the ultimate decision as to whether the discipline was unreasonable and harsh on the part of an employer also involves questions of fact: Jenkins v Western Australian Department of Training [1999] WASCA 199 [35] (Anderson J (Malcolm CJ & Ipp J agreeing); Bednarczyk v Natcorp Investments Limited (Unreported, FCt WASC, Library No 970363, 23 July 1997) [5] ‑ [6] (Franklyn J).
Anything that is capable of making the discipline unreasonable and harsh on the part of the employer must be given proper consideration by an arbitrator in determining whether the discipline was unreasonable: Jenkins v Western Australian Department of Training [37] (Anderson J).
Whether the action of the employer is unreasonable would normally be considered by reference to the decision of the employer, how it was arrived at and the process involved in taking action including any issue of procedural fairness, whereas whether an employer's action is harsh is more focused upon the consequences to the worker or because it was disproportionate to the gravity of the worker's conduct: compare Byrne v Australian Airlines Limited (1995) 131 ALR 422 (461) (McHugh & Gummow JJ).
In their written submissions, Pilbara Iron submits:
32.Further, it is submitted that the Arbitrator erred in finding that the appellant’s implementation of the PMP was unreasonable and harsh. In particular, the Arbitrator erred in:
a.having regard to Mr Brian Moylan’s mid-year performance review which the Worker was not privy to prior to the WorkCover proceedings and could not be causative of symptoms and in any event, was not relevant to the issues in dispute (paragraphs 57 and 88(c) of the Reasons);
b.concluding that Worker’s mid-year performance review was selectively downgraded on Ms Bufton's email instruction when this finding was not reasonably open to Arbitrator to make on the evidence and further, was not a matter that the Worker would have been privy to prior to the WorkCover proceedings (paragraph 85 of the Reasons);
c.finding that Pilbara Iron departed from its own procedures in placing the respondent on a PMP when such a finding was not reasonably open to the Arbitrator to make when regard is had to Ms Bufton's evidence (paragraphs 85 and 88(f) of the Reasons);
d.finding that Pilbara Iron was not justified in implementing the PMP notwithstanding evidence at the hearing that:
i.Ms Bufton's uncontested evidence that she had 'an in depth handover of character performance, KPIs, teams, footprints, areas of accountability';
ii.the Worker conceding that Ms Bufton was entitled to manage his performance;
iii.Ms Bufton's uncontested evidence that the Worker was not performing the pre-start instructions appropriately;
iv.Ms Bufton's uncontested evidence that the Worker performed poorly in the safety reset exercise;
v.Ms Bufton's uncontested evidence that the Worker would received [sic] hazards or faults for his team and he believed that it was 'managements job to fix' – the hazards or faults included pot holes and turntables on trucks needing replacement; and
vi.Ms Bufton's uncontested evidence that she repeatedly counselled the Worker in relation to his performance issues.
33.With the exception of items (ii) and (iv), the evidence in 34(d) above was not referred to in the Arbitrator's Reasons.

I have earlier found that the arbitrator was in error in the findings he made based upon the so-called Azmitia perception and findings he made that Mr Suleski felt he was being unfairly treated, but the error did not lead to or result in any error in the ultimate finding that the PMP implementation was a matter of discipline which was the predominant cause of Mr Suleski's stress-related disease. I have also found that the arbitrator erred in finding that Mr Suleski's stress arose in part because of his perception he had been treated unfairly compared to how another employee Mr Moylan had been treated. I have also observed that the evidence of how Mr Suleski was treated compared to how Mr Moylan was treated was only relevant to the issue of whether the stress wholly or predominantly arose from the discipline of Mr Suleski, that is, placing him on the PMP, and if so whether it was unreasonable and harsh.
In my view the arbitrator erred in law in the way in which he approached the determination of whether the implementation of the PMP was unreasonable and harsh as set out in his reasons [100]. The correct approach was to determine whether in all of the circumstances, looked at objectively, the action of the employer in placing Mr Suleski on the PMP was unreasonable and the consequences were harsh. The relevant circumstances included all of the circumstances leading up to the decision to implement the PMP, including how Mr Suleski was informed of the decision, which in turn must be considered in the context of all of the policies, guidelines and codes of conduct which regulate Mr Suleski's conditions of employment and work performance, how he was informed of the decision to implement the PMP and how the PMP impacted upon Mr Suleski after it was imposed, both in relation to his work performance and any personal issues. An opportunity to address poor work performance would in my view not normally be unreasonable or harsh, depending on the procedure that was followed and what any internal guidelines or codes of conduct require and depending on what are the consequences to the worker.
In [100(a)] the arbitrator refers to his finding at [88(a)] which in part refers to an earlier finding that Pilbara Iron accorded Mr Suleski selectively differential treatment compared to other workers. That finding was based on the Moylan evidence. I am satisfied that any finding of the arbitrator by application of the so-called Azmitia perception based upon Mr Suleski's belief that he was unfairly targeted because of learning how Mr Moylan was differently treated is in error because there was no proper basis upon which such findings could be made. There was no evidence, or no admissible evidence, to support such a finding. Further, the worker's belief as to whether he was being unfairly targeted was not relevant to whether the employer's actions were unreasonable and harsh. Even if the worker's beliefs were relevant, to the extent that they were based on the Moylan evidence, there was no basis for them. For the reasons I have earlier explained there could not have been any such belief when the disease was contracted. Therefore it could not have been unreasonable for Pilbara Iron not to accept or to disregard Mr Suleski's explanations that he was unfairly treated, because he could not have had any such belief based on the Moylan evidence.
Further, the worker's belief that he was being unfairly targeted was not relevant to whether the actions of the employer were unreasonable and harsh. The arbitrator has, with respect, confused issues which were relevant to causation in determining whether the actions of the employer were unreasonable and harsh. He has failed to apply the proper statutory construction of the meaning of the expression 'unreasonable and harsh' in the definition of 'injury'. In my view the arbitrator has confused his finding that Mr Suleski perceived he was being unfairly treated, which as I have earlier observed was an unnecessary finding and went nowhere, with the relevant matters he had to consider when determining whether the employer's actions were unreasonable and harsh. His finding based on the so-called Azmitia perception, especially to the extent the finding was based on the Moylan evidence, has tainted his findings at [100] ‑ [102] that the actions of the employer were unreasonable and harsh. The focus on Azmitia, which is about causation, has, with respect, distracted him from properly construing the expression 'harsh and unreasonable' and properly determining whether the actions of Pilbara Iron in placing Mr Suleski on the PMP were harsh and unreasonable. Mr Suleski's perception that he was treated unfairly was not relevant to the determination of that issue. Whether he was, looked at objectively, treated unfairly is certainly a relevant consideration in determining whether the action of Pilbara Iron to place him on the PMP was unreasonable and harsh, but his perception, which could only have been relevant to causation, was not relevant to whether the employer's actions were unreasonable and harsh. Otherwise, if whenever a worker perceived or believed he was being unfairly treated it would follow the employer's actions would be unreasonable and harsh.
In each of subparagraphs (a), (b) and (c) in [100] the arbitrator finds that it was unreasonable for the employer not to accept or disregard Mr Suleski's explanations but to instead implement the PMP. I have earlier said that it is, with respect, difficult to understand exactly what the arbitrator has found and for what purpose. In my view the arbitrator erred in finding the implementation of the PMP was unreasonable and harsh based upon his finding that it was unreasonable for the employer not to accept the worker's explanations. Whether it was unreasonable not to accept the worker's explanations does not answer the question of whether the discipline by the employer, the implementation of the PMP, was in all of the circumstances unreasonable and harsh looked at objectively. Whether the employer's actions were unreasonable and harsh must be judged by having regard to all of the circumstances that I have earlier outlined, including the circumstances leading up to the decision to implement the PMP, the way in which the decision was made and how Mr Suleski was informed of it, in the context of any work policies or procedures or codes of conduct and how it impacted upon Mr Suleski personally. In focusing on Mr Suleski's belief or perception that he was being unfairly treated, the arbitrator failed to have regard to the proper statutory construction and purpose of s 5(4) by which an employer is entitled to take administrative action to manage the performance of its workforce, the purpose of which, as observed by the High Court in Comcare v Martin [46], would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee's reaction to the administrative action.
I accept the matters identified at [32(d)] of the appellant's submissions are the type of matters which the arbitrator was required to consider in determining whether in all of the circumstances the employer's actions were unreasonable and harsh. In my view the arbitrator, except for subparagraphs (d)(ii) and (iv), failed to consider those matters and has failed to consider all of the circumstances relevant to whether the discipline was unreasonable and harsh. The arbitrator has therefore erred in the correct statutory construction of the meaning of the expression 'unreasonable and harsh' in the definition of 'injury'. Such an error is an error of law.

Conclusion

It follows I would uphold ground 1 of the notice of appeal insofar as it alleges the arbitrator was wrong in law in finding the implementation of the PMP was unreasonable and harsh and set aside that finding.
I dismiss ground 1 of the notice of appeal insofar as it alleges the arbitrator was wrong in law in finding that the implementation of the PMP was the cause of Mr Suleski's stress.
I also dismiss grounds 2, 3 and 8.
In light of my finding that ground 1 must be upheld, it is unnecessary for me to consider grounds 3 and 4 of the notice of appeal. However, it follows from my decision to uphold ground 1 that the finding the subject of ground 4, concerning the arbitrator's order for weekly payments of compensation, and the finding challenged in ground 7 that interest be awarded, be set aside.
I also dismiss Mr Suleski's cross-appeal.
At the appeal hearing counsel for Pilbara Iron submitted that if I did uphold the ground of appeal alleging the arbitrator erred in law in finding the implementation of the PMP was unreasonable and harsh, it must mean that Mr Suleski failed to discharge the onus of proof upon him that the exclusion did not apply and that the application for compensation must be dismissed.
Counsel for Mr Suleski submitted that if the appeal is upheld in relation the finding that the employer's actions were unreasonable and harsh the application should be referred back to an arbitrator to finally determine the application in accordance with these reasons or any order I might make. He submitted the matter should be remitted to be heard by a different arbitrator.
In Bobic v City of Armadale [2013] WADC 126 [52] ‑ [56], I discussed the considerations which apply in determining whether if an appeal was upheld a matter can be remitted to an arbitrator and if so, the same or a different arbitrator. I noted that in Ausden Joinery v PJ WACC C4-2011 McCann P determined that normally a rehearing in respect of any remaining issues would be ordered before another arbitrator as arbitrators are the primary fact finders at WorkCover. I also referred to McKay v Commissioner of Main Roads [2013] WASCA 135.
By s 247(7)(a) of the Act:
…
(7)On hearing an appeal made under this section, the District Court may —
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
…
In my view the consequence of the basis upon which I uphold the appeal is that the remaining issue to be determined is confined to the determination of whether the implementation of the PMP was unreasonable and harsh within the meaning of that expression in the definition of 'injury'. In my view the demands of justice in the circumstances of this case, where I have allowed the appeal on one ground and set aside the finding of the arbitrator that the implementation of the PMP was unreasonable and harsh, because the arbitrator erred in the way in which he approached his fact finding and the test he applied, requires that that discrete issue be remitted to an arbitrator for further determination in accordance with these reasons. I am also satisfied that the remaining issue be remitted for further hearing before a different arbitrator. If that arbitrator also found that the implementation of the PMP was unreasonable and harsh, the arbitrator would then be required to consider afresh the issue of Mr Suleski's incapacity for work and what order would be made in respect of the application for weekly payments of compensation.

Orders

I therefore order:
1.Leave to appeal be granted.
2.The appeal be allowed.
3.The decision that the implementation of the performance management plan (PMP) was unreasonable and harsh be set aside.
4.The issue of whether the implementation of the PMP was unreasonable and harsh be remitted to the Workers' Compensation and Arbitration Service to a different arbitrator for further determination in accordance with these reasons.
5.Orders 1, 2 and 3 of the orders made by the arbitrator be set aside.
6.The cross-appeal be dismissed.
I will hear the parties as to costs.