Ponce v Department of Education and Training - [2010] NSWWCCPD 77

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Ponce v Department of Education and Training [2010] NSWWCCPD 77
APPELLANT:			Filomena Ponce
RESPONDENT:			Department of Education and Training
INSURER:			GIO General Limited
FILE NUMBER:			A1-5440/09
ARBITRATOR:	Ms A Simpson
DATE OF ARBITRATOR’S DECISION:			10 March 2010
DATE OF APPEAL HEARING:		20 July 2010
DATE OF APPEAL DECISION:			23 July 2010
SUBJECT MATTER OF DECISION:			Psychological injury; relevance of worker’s perception of events; application of State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286
PRESIDENTIAL MEMBER:			Acting President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr G Horan, instructed by R J Thomas
Respondent:		Mr L Morgan, instructed by Moray & Agnew
ORDERS MADE ON APPEAL:			The Arbitrator’s determinations of 10 March 2010 and 10 May 2010 are revoked and the following orders made: “1. The Application to Resolve a Dispute registered on 10 July 2009 is amended to add to Part 5.3 ‘Hospital and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987’)’. 2. The respondent employer is to pay the applicant worker weekly compensation at the statutory rate for a worker with one dependent child under section 37 of the 1987 Act from 6 December 2008 to 1 December 2009 and at the statutory rate under section 37 of the 1987 Act for a worker with no dependants from 2 December 2009 to date and continuing. 3. The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the 1987 Act upon production of accounts or receipts. 4. The applicant worker’s claim for compensation for whole person impairment as a result of her psychological injury is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The deemed date of injury is 13 December 2007. The referral is to include all documents save for the report from Dr Teoh dated 5 August 2008. 5. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed. The matter is certified as complex with an uplift of 30 per cent.”
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed as $2,200.00 plus GST.

BACKGROUND

The appellant worker, Filomena Ponce, started working for the respondent employer, the Department of Education and Training (‘the Department’) as a library technician in May 2005. The position was initially temporary, but was renewed on several occasions.
Ms Ponce alleged that she received two injuries in the course of her employment with the Department. The first was a psychological injury (anxiety and depression) alleged to have been caused by “harassment, discrimination and victimisation” at her place of employment between 17 January 2007 and 13 December 2007. The second was an injury to her neck, back, left shoulder and right shoulder as a result of a motor vehicle accident on 10 October 2007 whilst driving from her residence to her place of employment.
In an Application to Resolve a Dispute (‘the Application’) registered with the Commission on 10 July 2009, Ms Ponce claimed weekly compensation from 13 December 2007 to date and continuing, together with lump sum compensation in respect of a 23 per cent whole person impairment as a result of her psychological injury and 24 per cent whole person impairment in respect of her orthopaedic injuries due to the car accident in October 2007.
In respect of the claim for lump sum compensation arising out of the car accident, Ms Ponce was examined by Professor Oakeshott, Approved Medical Specialist (‘AMS’), on 22 December 2009. In a Medical Assessment Certificate (‘MAC’) issued by Professor Oakeshott on 15 January 2010, he assessed Ms Ponce to have nil whole person impairment as a result of her physical injuries. As a result of Professor Oakeshott’s MAC, the Commission issued a Certificate of Determination determining the worker’s whole person impairment as a result of the injury on 10 October 2007 to be nil.
The parties agreed that the following issues were disputed:
(a)     whether Ms Ponce suffered a psychological injury arising out of or in the course of her employment with the Department and, if so, whether employment was a substantial contributing factor to that injury;
(b)     whether Ms Ponce’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the Department with respect to performance appraisal and/or discipline, and
(c)     whether Ms Ponce had recovered from the effects of the injuries received in the motor vehicle accident on 10 October 2007.
Whilst the Application did not make a formal claim for the payment of outstanding hospital and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), counsel for Ms Ponce stated at the arbitration that the claim was for weekly compensation “together with a general order for medical expenses” in respect of both injuries (T10.1). Counsel for the Department agreed that, if the worker succeeded, it would be appropriate that a general order be made for the payment of section 60 expenses (T11.44-50). Notwithstanding this agreement, the Application was not formally amended to claim section 60 expenses. Whilst that omission was unfortunate, it has caused no prejudice to the Department, and it is appropriate that that amendment now be made.
The arbitration proceeded on 22 January 2010 with lengthy submissions from the parties’ legal representatives, but neither side called any oral evidence. In a reserved decision delivered on 10 March 2010, the Arbitrator found:
(a)     Ms Ponce had not suffered any psychological injury in the course of or arising out of her employment with the Department;
(b)     any aggravation to Ms Ponce’s underlying psychological condition as a result of the motor vehicle accident on 10 October 2007 was minor and short-lived, and had ceased by early December 2007, and
(c)     the Department should pay any outstanding medical expenses in respect of Ms Ponce’s underlying psychological condition from the date of the motor vehicle accident until 13 December 2007, when the insurer ceased weekly benefit payments.
The Commission issued a Certificate of Determination on 10 March 2010 in the following terms:
“The Commission determines:
1. That there is an award for the Respondent with respect to the Applicant’s claim for weekly benefits in respect of a psychological injury on 17 January 07.
2. That the Respondent pay the Applicant any outstanding s60 Workers Compensation Act 1987 medical expenses in respect of her psychological condition only, from the date of the motor vehicle accident in October 07 until 13^th January 07 when weekly benefit payments ceased.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
By letter dated 19 March 2010, the Department’s solicitors made an application for reconsideration on the grounds that the Application made no claim for medical expenses.
In a letter dated 30 March 2010, Ms Ponce’s solicitor opposed the application for reconsideration. He advised that the worker’s counsel indicated at the arbitration that a general order was sought for the payment of section 60 expenses and that counsel for the Department took no objection. The matter proceeded to arbitration on that basis. He also noted that the Department placed no reliance on section 10 at the arbitration hearing.
On 7 April 2010, the Commission referred the Department’s application for reconsideration to the Arbitrator for determination.
On 10 May 2010, the Arbitrator issued a further statement of reasons. The first 102 paragraphs of this decision are identical to those in the decision issued on 10 March 2010, but paragraphs [103] to [107] have been deleted and different and additional paragraphs substituted in their place from [103] to [110]. The Commission issued a Certificate of Determination on 10 May 2010 in the following terms:

“The Commission determines:
1. That there is an award for the Respondent with respect to the Applicant’s claim for weekly benefits in respect of a psychological injury on 17^th January 07.
2. That there is no order as to costs.”

In light of the Arbitrator’s new Statement of Reasons, the Commission wrote to both parties on 18 May 2010, seeking submissions on how they wished to proceed with the appeal. The solicitors for the Department submitted by letter on 21 May 2010 that the appeal should be discontinued and a new Notice of Appeal filed in accordance with the new Certificate of Determination. The worker’s solicitors replied by letter on 24 May 2010 that the Arbitrator’s new Statement of Reasons did not change their client’s appeal and that they did not wish to make any additional submissions, other than that both Certificates of Determination and Statements of Reasons should be included in the appeal papers.

The Department’s solicitors filed submissions in opposition to the appeal on 26 May 2010. The Commission extended time for Ms Ponce to file submissions in response until 10 June 2010. No further submissions have been received.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

It is not disputed that the monetary thresholds in section 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

PRELIMINARY MATTER – SECTION 60 EXPENSES

Relying on the reconsideration power in section 350(3) of the 1998 Act, the Arbitrator made a new determination on 10 May 2010. However, she did not revoke her earlier determination.
At the arbitration hearing, Mr Horan, counsel for the worker, indicated that his client sought a general order for the payment of hospital and medical expenses under section 60 of the 1987 Act (T11.22). Counsel for the Department did not oppose that order. Unfortunately, the Arbitrator did not amend the Application to reflect that agreement.

At the appeal hearing, Mr Horan again submitted that his client sought a general order for the payment of section 60 expenses. Mr Morgan did not oppose the Application being amended to reflect that fact. The Application is therefore amended to add to Part 5.3 “Hospital and medical expenses under section 60 of the 1987 Act”.
Given the parties’ agreement at the arbitration as to the claim for section 60 expenses, the Arbitrator erred in finding in the determination of 10 May 2010 that she did not have jurisdiction to deal with that part of the claim. That determination is therefore revoked and the appeal will proceed against the determination of 10 March 2010. Save for the Arbitrator’s finding as to jurisdiction with respect to the claim for section 60 expenses, the Arbitrator’s reasons were the same in each determination.

THE EVIDENCE

Lay evidence

Ms Ponce

Ms Ponce’s evidence is set out in a letter that she wrote to Ms Hill, manager, TAFE Library Services, dated 17 January 2007, and in statements she gave on 16 January 2008 and 6 July 2009.
Ms Ponce was born in Chile in 1959 and completed her schooling to the Australian equivalent of Year 12 in 1978. She then worked in a number of different positions, including as a cashier, a nurse, and in the retail industry. She worked in that area for a period until she started work as a library assistant at the University of Santiago in 1984. She was in charge of a specialised library in the Faculty of Science from May 1987 until July 1993. She worked in different secretarial positions between 1993 and coming to Australia in July 1995.
At the time Ms Ponce arrived in Australia, she spoke no English. She worked voluntarily at the library at Fairfield primary school and also did volunteer work at the Uniting Church at Fairfield. She commenced studying a Diploma of Library Technician at Ultimo TAFE in 1997. Whilst studying, she was placed with Fisher Library at Sydney University and then with Bankstown City Library. She completed her course in 2001 and started work as a casual library assistant with Marrickville Library in the same year. Ms Ponce commenced work with the Department at the TAFE Library Collection Services as a library technician in May 2005. She described this position as a “long temporary position” that was initially for a couple of months. Her appointment was renewed several times between 2005 and 2007.
In the longer of her two statements, dated 6 July 2009, Ms Ponce stated that she suffered harassment and discrimination as soon as she started working with the Department. Her manager, Cherylene Fanner, often assumed that, if anything went wrong, it was the worker’s fault. The feedback to Ms Ponce was never private, but was “very public by yelling, shouting and screaming” at the worker. On one occasion, the senior library technician, Kathleen Hughes, started to shout at the worker in front of other people. Ms Ponce gave other examples where either Ms Fanner or Ms Hughes yelled at her about work issues. She was blamed for many errors that were alleged to have been committed by her, but she was never sure if they were her errors because they were not shown to her or explained.
Ms Ponce felt socially isolated in the workplace and started to withdraw from the rest of the group. After about three months in the job, Ms Ponce requested Ms Hughes to terminate her contract, as she did not wish to continue to accept “that sort of ugly treatment and bullying”. Ms Hughes responded by saying, “Didn’t I tell you that you are doing a good job?” Ms Ponce felt that Ms Hughes found almost all of her work was wrong. She criticised her work publicly by yelling at her and did not show her the right way or demonstrate what the worker had done wrong.
Ms Ponce felt that Ms Fanner and Ms Hughes had accused her of stealing things from the Department. She felt that Ms Fanner and Ms Hughes had both invaded her personal space many times.
Ms Ponce’s additional allegations may be summarised as follows:
(a)     she felt that Ms Hughes pressured her to give her a lift so that she could visit her boyfriend;
(b)     Ms Fanner treated her like her personal assistant, as was demonstrated by the fact that the worker usually prepared and cleaned up after morning tea;
(c)     when the worker was selling chocolates for Ms Fanner (presumably to raise funds for Ms Fanner’s school), Ms Fanner told another staff member that the worker was her servant;
(d)     on one occasion, Ms Fanner placed her “whole abdomen” on the worker’s hand, pressing it against the table. The worker felt offended and embarrassed;
(e)     a group of five workers was travelling back to the office from the University of New South Wales. The worker started to sit in the front passenger seat when Ms Hughes “started to scream as usual” that the worker had to sit in the back seat;
(f)   on one occasion, Ms Ponce went to work dressed in green and Ms Fanner “started to scream uncontrollably”, saying that she would not allow anybody on her staff to dress in colours that she disliked;
(g)     almost everything the worker did or said was a “big fuss all the time”. The worker felt she had been subjected to verbal abuse by Ms Fanner and Ms Hughes. She gave an example of when she made a comment about Schapelle Corby’s sentencing and Ms Hughes yelled at her;
(h)     Ms Fanner and Ms Hughes made fun of the worker at “any opportunity”;
(i)   Ms Ponce started to see “a number of doctors and Dr Verma” during the period before 17 January 2007. She talked to Dr Verma about the problems at work for the first time on 18 January 2007. He said that her condition fell within the workers compensation provisions, but she did not want to “go into workers compensation”. She did not want to accept that there was something wrong with her mental state and she was reluctant to see a psychiatrist. She told Dr Verma that she was “strong” and would “fight back”;
(j)   on 19 January 2007, Ms Ponce made a complaint about Ms Fanner and Ms Hughes for “Harassment, Discrimination and breach of Defamation laws”;
(k)     Ms Ponce was never shown the right way of doing what she had supposedly done wrong;
(l)   after Ms Fanner spoke with Ms Hughes on 17 January 2007, she walked to the worker’s desk and called her “stupid”;
(m)   after the meeting in January 2007, Ms Fanner checked all of the worker’s “audio-visuals … effectively applying a zero-tolerance policy” on the worker. Despite not being able to demonstrate any error by the worker, Ms Ponce was the only worker who had her work checked until 9 October 2007. Ms Fanner doubted the worker’s capacity to cope with the Horizon System, a system that was ultimately not implemented;
(n)     neither Ms Fanner nor Ms Hughes produced any proof of “wrong doing” by Ms Ponce, despite checking her work until October 2007 and despite the work overload she had been subjected to prior to her last check. Though there was not much work available, Ms Fanner overloaded Ms Ponce with work;
(o)     simple details on how to “streamline” Ms Ponce’s work were “kept secret”;
(p)     Ms Ponce was off work on 18 and 19 January 2007. When she returned to work on 22 January, Ms Fanner told her that she had not received any complaint against her and did not have any details of the “alleged record”. She insisted that the worker apply for a position held by a co-worker (identified only as David) and said she would recommend her for it. She offered to “stand on her knees to beg for [the worker’s] pardon”;
(q)     Ms Ponce met with Tony Rae, regional director of human resources, and Lucy Hill on 22 January 2007. Mr Rae said that the worker did not obtain the position with the Northern Sydney Institute because they were looking for specific experience in TAFE libraries. Rosie had been selected because she had more library experience than the worker;
(r)   at a meeting on 23 January 2007 between the worker, Ms Hill, Ms Fanner and Ms Hughes, Ms Hill said, after Ms Fanner and Ms Hughes left the room, “Those two have to learn how to treat people.” At the meeting, Ms Hughes “attacked” the worker, saying that she (the worker) was really after David’s position to become available in the future;
(s)   Ms Hughes never understood the worker’s English, to the point where the worker ended up showing her with hand gestures. That had happened since the worker started with the Department in May 2005;
(t)   at a meeting on 15 February 2007, Ms Hill threw a copy of a formal complaint form on the floor. Everybody looked happy with that action. A number of “verbal attacks started”, especially from Ms Hughes, who allegedly shouted at the worker, asking why she had been called to the meeting when she was busy and had things to do. Ms Hughes yelled, “You already brought in the Union, what are you doing next?” Ms Hughes seemed to be out of control, “with a menacing expression on her face”. Ms Ponce felt intimidated. Ms Hill did not stop the abuse. Ms Hughes stated that everyone made mistakes and told a story of a mistake she made. She added that everything was “fixable”. The worker referred to errors having been acknowledged in emails on 20 April 2007 and 27 August 2007. She added that those errors were acknowledged by Ms Fanner and that print-outs were produced for everyone to see, though no individual was identified. However, in her case, she was “individualised without showing the error or the way to do it correctly”. Things were getting worse and so Ms Ponce wrote to the managing director of TAFE, Mr Andrew Cappie-Wood, on 10 March 2007;
(u)     the worker disagreed with the investigation by Ms Dix and she expressed her views in a letter of complaint to Mr Coutts-Trotter dated 13 May 2007. Ms Ponce complained that she had only received five minutes’ notice of the meeting (presumably the meeting on 15 February 2007) and that Ms Dix had difficulty understanding her English. Ms Dix repeated “again and again” that the worker’s husband’s political activities must have been influencing her performance with the Department. Instead of concentrating on finding out about the worker’s problems at work, Ms Dix was “more interested” in the worker’s husband’s political business and the worker’s personal life;
(v)     on 30 May 2007, a co-worker complained that the worker had referred to her as a “Dear Mrs Helen” instead of just “Helen”;
(w)   on 2 November 2007, the worker was informed of the result of the investigation carried out by the Human Rights and Equal Opportunity Commission (‘HREOC’). There was insufficient evidence to draw a case of racial or political discrimination, but the investigator found “bases for [the worker’s] allegations of harassment” and called for conciliation. Ms Ponce informed HREOC that, as per medical advice, she was unable to attend a conciliation hearing. Her complaint was finally dismissed and no conciliation meeting took place;
(x)     Ms Fanner told the worker on the morning of 27 November 2006, two weeks before receiving official notification from human resources, that her job application at Northern Sydney Institute had been unsuccessful, but that she had been placed on an eligibility list. No such eligibility list existed;
(y)     Ms Ponce unsuccessfully applied four times for internal positions at TAFE. She missed out on 10 positions available at the Northern Sydney Institute, in contravention of TAFE’s own policy of giving priority to displaced staff within TAFE. One successful applicant, Rose Olk, had only a fraction of the worker’s work experience. The worker felt that her 15 years’ experience at the University of Santiago and in the public library in Chile did not count in Australia. Ms Guy complained that the worker’s experience at Marrickville Library was “too basic” and that her experience in Chile was “too far”;
(z)     Ms Fanner checked one of the worker’s job applications. Because she had left a question unanswered, she asked Ms Hughes to look at the application for her. Ms Hughes changed what Ms Fanner had done, “leaving a mess” in the application. As a result, Ms Ponce asked Patricia Marasco to check the application. Ms Marasco said it was “absolutely wrong” and that, as it was, the worker would not have a chance of even getting an interview. Ms Marasco helped the worker to correct the application. The worker later found out that Ms Fanner had also checked Ms Olk’s application, but “in her case was quite diligent and effective”;
(aa) Ms Fanner insisted on serving as a referee for the worker. What Ms Fanner and Ms Hughes wrote on their reference was “defamatory, inaccurate, senseless and very unethical”. What they were actually saying was that the worker was “not performing [her] current job” and that she would not be able to do a job for which she had about 15 years’ experience, even with six months’ training;
(bb) during the interview for the Northern Sydney Institute position in November 2006, Sue Brinsley interrupted the worker in the course of her answer to the first question and said to Cathy Guy, “Don’t you know that we don’t have time for this interview?” Ms Ponce felt down and frustrated by the way she had been treated. Ms Brinsley made “contemptuous gestures” while the worker was handing out documents demonstrating her skills in creating web pages. Ms Olk, on the other hand, had been given plenty of time to check her notes and answer with no pressure of any kind. Ms Guy’s statement that the worker was “an untrained library worker” was pejorative. Ms Guy’s statement that the worker only cleared boxes at the Department and only organised invoices for payment and merger records was in contradiction of the worker’s then current statement of duties. Ms Guy sent the worker to the wrong venue for the interview: Meadowbank College instead of the Northern Sydney Institute;
(cc) Ms Ponce injured her back, neck and shoulder in a car accident on her way to work on 10 October 2007. Ms Fanner displayed a “lack of care” for the worker’s wellbeing. After complaining about her pain, Ms Fanner and Ms Brown told her to go home. Ms Fanner knew that the worker had no sick leave entitlements, as she had run out “mainly due to the harassment at work”. Neither Ms Fanner nor Ms Brown mentioned the possibility of taking workers compensation. She had never previously claimed workers compensation and she did not know “how it worked”. When Ms Ponce returned to work, Ms Fanner asked her for a clearance from her doctor, but did not ask how she was. Every time the worker asked Ms Fanner about her entitlements, Ms Fanner did not know and answered in a rude way. On one occasion, Ms Fanner “screamed that she was not going to sign some workers compensation documents coming from the CRS and that she was not coming to work the next day, adding at the end, ‘I do not care’”;
(dd) Ms Ponce advised “the administration” in an email how Ms Fanner was making her feel at a difficult stage of her life after the car accident. She asked to be released from Ms Fanner’s supervision. At a subsequent meeting with Ms Hill and Ms Brown, Ms Brown said that the worker had to build up her relationship with Ms Fanner. Ms Ponce received an email on the same day of the meeting (5 December 2007) in which it was emphasised that she had to “build up [her] relationship with [her] manager”;
(ee) soon after the meeting on 5 December 2007, Ms Ponce “suffered a nervous breakdown” and could not continue “facing the harsh reality of having to endure Cherylene’s mistreatment” of her while trying to recover from the car accident at the same time;
(ff)    Ms Ponce felt that she had been badly treated by Jo Clarke, psychologist retained by the insurer. Ms Clarke made her sign an “affidavit like document taking advantage of [her] mental state and acted in three different roles against any legal and ethical consideration”. Ms Clarke violated the worker’s privacy by spreading “false and inaccurate details and statements”. The worker felt that her right not to be publicly defamed was violated and it was now difficult for her to trust anybody again;
(gg) despite everything, Ms Ponce always considered returning to work as soon as her health allowed her;
(hh) because of the applications Ms Ponce made for positions with TAFE, she lost the opportunity of obtaining employment elsewhere;
(ii)    Ms Ponce had never previously suffered from depression or anxiety, or seen a psychologist or psychiatrist. Against Dr Verma’s advice, she delayed seeing a psychiatrist because she thought she could handle the situation, up to when she was unable to cope with Ms Fanner’s bullying after the car accident;
(jj)    working for the Department has been a nightmare for Ms Ponce. Ms Fanner and Ms Hughes always ridiculed her in front of other staff and harassed her for anything they did not like, often raising their voices in an intimidating manner. They kept “close surveillance” on Ms Ponce, by looking over her shoulder or walking around her workstation. At one stage, Ms Ponce told Ms Hughes to terminate her contract “due to this undue pressure and harassment”. The stress she experienced depended on Ms Fanner’s and Ms Hughes’s mood swings;
(kk) after Ms Ponce lodged her complaint, she feared for her safety. She tried not to use the fridge, as she thought “they” may tamper with her food. She tried not to be alone at any time during working hours. When walking in the street, she felt afraid of Ms Fanner and Ms Hughes coming after her from behind to try to hurt her, and
(ll)    Ms Fanner and Ms Hughes and the management at TAFE ruined her life.

Ms Ponce wrote a letter of complaint to Ms Hill on 19 January 2007, relating to a meeting held with Ms Fanner on 17 January 2007. The letter stated, among other things:
“Mrs Fanner approached me and her first words to me were ‘Filomena, Is your husband’s candidature is [sic] affecting you [sic] to perform your job [’]. Then she continue [sic] to say that she had been receiving many complaints about records allegedly processed wrongly by me. She mentioned about a specific record done wholly wrong. Mrs Fanner also said that David, one of the Library Technician[s] currently overseas had resigned but she added ‘Filomena is [sic] going to be very hard for you to get that job’. ‘You have to show me a 100% you are able to do it.’ Mrs Fanner also said that from now on she would check all my audiovisual work. She also said that she was worry [sic] because there were always video stacks in my trolley and She [sic] thought I was straggling [sic]. She also added that I would not be able to cope with the Horizon system soon to be implemented at TAFE.”
Ms Ponce complained that Ms Fanner and Ms Hughes had “stepped up their attacks” on her after they found out about her husband’s personal business. Ms Ponce stated that that was wrong. Ms Ponce’s main points in her letter were:
(a)     Ms Fanner and Ms Hughes had been unable to produce any proof of any wrongdoing by her, such as titles or order numbers, and they were unable to show her the right way. She had worked for the Department for almost two years and nobody had previously told her of any mistakes she had made;
(b)     Ms Fanner and Ms Hughes believed themselves to be mistake-free and applied a “zero-tolerance policy” on the worker. That policy meant “picking on [Ms Ponce] and having a go every time there [was] something they did not like”. They were “spying” around Ms Ponce’s workstation to see what she was doing;
(c)     Ms Ponce wanted to know why she had not been successful in her job application at the Northern Sydney Institute and what part Ms Fanner and Ms Hughes played in that decision. Ms Ponce believed that the real reason she did not get the position was because of actions by Ms Fanner and Ms Hughes, including the references they had given to her. Ms Fanner said “it was very hard for Kathleen (Mrs Hughes) to give references about [the worker]”. When told about this comment, Ms Hughes angrily responded, “She shouldn’t have said that”. The worker did not ask Ms Fanner for a reference; Ms Fanner offered it and insisted on being her referee. If there was an issue about her work performance, they should have told Ms Ponce at the time. Their behaviour was “completely unethical, dishonest and senseless”. It was aimed to “undermine” Ms Ponce as a person and to limit her possibilities to find alternative income;
(d)     Ms Ponce had recently asked Ms Fanner to provide a written reference for her. She initially agreed to do so, but, after weeks of “hesitation”, said that she was unable to do so, as TAFE staff were not allowed to provide written references with the TAFE logo. Ms Ponce claimed that Ms Fanner had provided her with a reference some time ago when she showed work to library students from Mount Druitt;
(e)     Ms Fanner told the worker about two weeks before the official notification that her job application at the Northern Sydney Institute had been unsuccessful. The worker complained that she should not have done so, because the information was confidential. Ms Fanner warned the worker that it would be quite difficult for her to get the next internal position available at the Department.
Ms Ponce also gave a statement to Ms Clarke on 16 January 2008. At paragraph 5 of that statement, she said:
“On 17 January 2007 (date of injury), Cherylene Fanner, my Manager told me that my husband’s business was affecting me because I was doing my job wrong and she had received many complaints against me because I am [sic] doing things wrong. Then [sic] was an audio visual record that she said that I had done [sic] wrong. There was a permanent member of staff who was resigning and she said that if I wanted this position I had to show that I could do the job 100%.”
The January 2008 statement also dealt with the car accident on 10 October 2007. The worker said that she took three to four weeks off work after the accident and returned to work on four hours per day until she submitted her workers compensation claim for stress on 13 December 2007. When she returned to work after the car accident, Ms Fanner never asked how she felt. On one occasion, Ms Ponce was “crying from the pain” in her back and Ms Fanner gave her more work.
Ms Ponce felt upset that Ms Fanner told her about errors, but had not shown her what she had done. Ms Hughes said that “they had already fixed the records and so they could not show [her]”. Ms Ponce had “been crying every day and night since this time about this”. She did not feel she had any future.
Ms Ponce felt that she did not get the position in 2006 because Ms Fanner told the library manager that she was too slow. Both Ms Fanner and Ms Hughes gave her references and said that, if they employed Ms Ponce, “they need plenty of time to train [her] on a one-to-one basis”. Ms Ponce felt that she deserved to have a permanent job, but because she was an “old person”, nobody was going to employ her with the recommendation that she needed intensive training. She had plans to commit suicide. She wanted to know why she did not get the job in the Northern Sydney Institute restructure. She did not think she would be able to work with Ms Fanner, Ms Hughes or Ms Hill again.
At the time of the statement to Ms Clarke, the worker was on what she described as “workers compensation leave” for depression and her back. She thought she could “go back to work straight away” if she were given another position, not working with Ms Fanner or Ms Hughes.

Margaret Dix

Ms Dix was the manager, staff learning and development, with the Department. On 22 March 2007, the institute director, Ardyce Harris, appointed her to investigate the complaints in Ms Ponce’s letter of 19 January 2007. In the course of her investigations, Ms Dix spoke with the worker, Ms Fanner, Ms Hughes and Ms Hill. Ms Dix also considered a letter from Ms Marasco dated 19 February 2007. In her report of 13 April 2007, Ms Dix identified the following issues:
(a)     Ms Ponce’s work performance;
(b)     recent recruitment action where Ms Ponce was an unsuccessful candidate for a position, and
(c)     communication between Ms Ponce and her managers, Ms Fanner and Ms Hughes.
Ms Dix concluded that a number of the worker’s allegations could not be proved or disproved because there were different versions of the events that took place. Ms Dix understood that:
(a)     evidence of Ms Ponce’s errors that led to the meeting on 17 January 2007 did not exist, but copies of errors are now collected for feedback;
(b)     at the first meeting organised between the parties, Ms Fanner apologised for the fact that Ms Ponce was so upset by the meeting on 17 January 2007;
(c)     the references provided by Ms Fanner and Ms Hughes did not appear to be negative;
(d)     copies of the referee reports had been forwarded to Ms Ponce;
(e)     the interview panel reports did not indicate that the referees’ reports were the reason that Ms Ponce was unsuccessful, and
(f)   she could find no evidence that the appropriate policies, regulations and processes had not been applied to the situations outlined in Ms Ponce’s complaint.
Ms Dix recommended that Ms Ponce be advised:
(a)     that her allegations had been investigated and there was no conclusive evidence that she had been treated unfairly or discriminated against in the recent recruitment actions or discriminated against in the workplace;
(b)     that in recognition of the need for consistent and timely feedback for all staff a performance management approach would be introduced to enable regular performance reviews to be undertaken;
(c)     that the action plan that was agreed to at the initial meetings between the parties would be implemented to ensure that:
(i)Ms Ponce’s audio-visual work was monitored by Ms Fanner for a week or other suitable period to ensure timely feedback and any necessary training would be available, and
(ii)extra care be taken with the issue of instructions and priorities, to ensure that all team members were aware of the requirements.
Ms Dix recommended that Ms Fanner be advised that:
(a)     Ms Ponce’s allegations had been investigated and that there was no conclusive evidence that she had been treated unfairly or discriminated against in the recent recruitment actions, or discriminated against in the workplace;
(b)     a clear and transparent process of performance management should be implemented in the section, and it was strongly recommended that Ms Fanner participate in a performance management workshop in Northern Sydney Institute to underpin that approach, and
(c)     the team’s induction process be amended to include a clear explanation of the process for identifying and correcting errors and mistakes, and that that process be developed in consultation with the team.
Ms Dix recommended that Ms Hughes be advised that:
(a) Ms Ponce’s allegations had been investigated and that there was no conclusive evidence that she had been treated unfairly or discriminated against in the recent recruitment actions, or discriminated against in the workplace;
(b) a clear and transparent process of performance management should be implemented in the section, and it was strongly recommended that Ms Hughes participate in a performance management workshop in Northern Sydney Institute to underpin that approach.
It was recommended that Ms Hill be provided with similar advice to that provided to Ms Fanner and Ms Hughes.
Ms Dix also signed a statement on 1 January 2009. In respect of her interview with Ms Ponce for her investigation, she said that she found it difficult to identify any “substantive complaint”. There was a lot of “emotion” and a lot of “hyperbole”, and it took some time to clearly identify the issues. In addition to interviewing Ms Fanner and Ms Hughes, Ms Dix also spoke over the phone to Ms Guy.

Catherine Guy

Ms Guy was the library manager at Northern Sydney Institute and was the convenor of the library technician interviews conducted in late 2006. She provided a statement on 21 May 2007 relating to Ms Ponce’s unsuccessful application for a full-time position as a library technician. After the outcome of the interview was known, the worker telephoned Ms Guy to get feedback on her interview. She did not believe that she told Ms Ponce that she did not have sufficient experience for the position. The interview panel took into consideration all of Ms Ponce’s work experience, including her experience at the University of Santiago. Her recollection was that Ms Ponce’s work at the University was as an untrained library worker whose role included “administrative and library”. She was aware that Ms Ponce’s more recent experience as a library assistant was at the Marrickville Library and was at a “basic level” and that, at the Department, she cleared boxes, organised invoices for payment and merged records. Ms Ponce had been unable to demonstrate operational and collection maintenance tasks to the same level as that of the successful candidates, many of whom had worked in college libraries or had good work experience in high-demand corporate library environments.

Cherylene Fanner

Ms Fanner provided a statement on 24 December 2007. In respect of the meeting on 17 January 2007, she said:
“On 17/1/07 I asked Filomena to come outside. We have a culture here that if someone has made a mistake we prefer to discuss it in private. Up until then she and I had what I would term a friendship. I had been to her house twice, once by myself when she cooked a meal for me and once with a group of people. We had a friendly relationship. She and I went outside to discuss an error that she had made when editing a record. We receive records from the National Library for the purpose of entering books and new library materials into the catalogue. When we receive a record it has to be edited to our standards. In this particular instance Filomena’s job was to edit the record to match the item we physically held in our library. The record she had amended was incomplete and thus did not match the physical item meaning that it would have made it difficult for anyone looking for that item. It would have also made more work for the next person in our area if we ever received a second copy of that item. In fact we did receive a second copy which was how Filomena’s original error was detected and brought to Katey’s [Ms Hughes] attention. Katey then brought it to my attention. I could have sent Filomena an email but I preferred to meet with her because it is more personal.”
Ms Fanner knew that the worker’s husband was running for Parliament in the New South Wales State election. At the meeting, Ms Fanner asked the worker how it was all going, as a precursor to her discussion. Ms Fanner added:
“I wanted to ask Filomena if she had a problem editing particular records and to ascertain whether she needed a refresher with that task. She was very unhappy with what I was saying but I didn’t know why. She seemed to be very offended and she also did not like me asking about the campaign. She apparently viewed my enquiry about her husband’s campaign as an insinuation that it was impinging on her ability to do her job. That was not in any way in my mind at the time, it was just a friendly enquiry. The discussion started at about 8.30 am and finished at 8.55 am. I reinforced to Filomena that it was only one error and I made the point that these things happen with other staff as well and that she was not in any trouble. I made a point of that as did my team leader Katey who has also been named in the claim.”
Ms Fanner told the worker that she should get feedback in respect of the full-time position for which she was interviewed in either November or December 2006. The worker responded that she had already contacted Ms Guy. Ms Fanner noted that the worker was upset that she had mentioned the interview. The worker had been unhappy for virtually the entire 25 minutes of the discussion on 17 January. It really surprised Ms Fanner that the worker “seemed to be taking everything the wrong way”. Ms Fanner had another meeting at 9.00 am, and she asked the worker to wait while she went and got Ms Hughes. She told Ms Hughes about her discussion with the worker and that the worker seemed upset. She asked Ms Hughes to see if the worker was okay. Ms Hughes spoke with the worker and explained that the mistake was not major in nature and that she was not in trouble. Ms Hughes reported back to Ms Fanner that the worker seemed fine. Ms Fanner stated that the worker seemed quiet that afternoon.
The next day, the worker seemed to Ms Fanner to be “very quiet and withdrawn” so she approached her and asked if she was okay. Ms Ponce responded that she felt “betrayed” concerning the things that Ms Fanner said the day before. Ms Fanner said that she was “sorry that [the worker] had taken everything the wrong way”. Ms Fanner asked if their friendship was over and the worker replied that she felt betrayed. Ms Fanner said that she was “just so amazed that [the worker’s] reaction had been so extreme”, considering the relatively minor nature of their discussion and their friendship. Ms Fanner tried to lighten the mood by suggesting that she get down on her knees and apologise. She was attempting to convey that the worker’s “oversight was not regarded as being major”. She left the meeting (presumably on 18 January 2007) feeling that it was the end of their friendship and that the worker was “very offended”.
Ms Fanner stated that she had no idea why the worker was so offended. In her opinion, there was nothing unreasonable about the meeting (presumably the meeting on 17 January 2007). Ms Fanner added that the worker had made errors when she first came to the Department, but not since. Looking back on it, Ms Fanner thought that the worker had “seemed embarrassed” when it was raised. She had not agreed that she had made the error in question. Ms Fanner did not have a print-out of the error, which was irretrievable because it had since been corrected. The correction had been made by Eva Popoff. Ms Popoff had also dealt with other errors, some of which had been traceable, but others had not.
Ms Fanner did not recall Ms Ponce ceasing work after her meeting. Ms Ponce sent an email to Ms Hill within a week of the meeting, making a complaint about Ms Fanner and Ms Hughes. Ms Dix conducted an investigation and, in the course of that investigation, a number of meetings were held. The first meeting, held on 23 January 2007, was attended by the worker, Ms Hill, Ms Hughes, Ms Hanlon and Ms Fanner. Ms Ponce raised a number of issues that “astounded” Ms Fanner, as they had nothing to do with the meeting on 17 January 2007. The issues raised by Ms Ponce at the first meeting included the following:
(a)     an allegation that, at the meeting on 17 January 2007, Ms Fanner had alleged that the worker made lots of errors;
(b)     that Ms Ponce was annoyed about a referee report that Ms Fanner had supplied in support of a position for a permanent role. Ms Fanner did not consider the referee report to be unflattering and added that she had volunteered to be a referee. This was the first time she had heard that the worker was unhappy with the reference. Ms Ponce felt that it was not good enough and did not reflect her true worth;
(c)     in applying for another role outside the Department, Ms Ponce had asked Ms Fanner for a written reference. Ms Fanner replied that the Department did not approve of written references, which was confirmed with Human Resources. Ms Ponce’s claim that Ms Fanner had previously provided a reference was incorrect. Ms Fanner had previously provided a letter on the Department’s letterhead thanking her for her part in a “visitor demonstration”. That was done for all temporary staff so it could go on their CVs. Ms Ponce produced that document at the meeting and “slammed it down on the table” with a look of “hatred in her eyes”. As a result, Ms Fanner started crying because she was “so shocked at the venom in [the worker’s] approach”. Ms Fanner said that the worker seemed like “a different person to the woman [she] thought [she] knew”;
(d)     the worker mentioned that Ms Fanner had “insinuated that her husband’s politics were getting in the way of her doing her job properly”;
(e)     the worker asked why, if it was felt that she was so bad at her job, she was allowed to work independently.
After this meeting, Ms Fanner thought that the issues had been resolved. The worker went on sick leave and was away for around a week. When she returned, she was treated like any other staff member.
Ms Hill arranged for a second meeting on 15 February 2007 to see how everything was going. The same parties attended as were present at the first meeting, but Ms Ponce arranged for a union representative to be present. The same issues were discussed at the second meeting as had been discussed at the first. In the worker’s mind, nothing had been resolved. Ms Ponce referred to a print-out relating to the error discussed on 17 January 2007. She accused Ms Fanner and Ms Hughes of lying. Arrangements were then made for Ms Popoff to attend the meeting and confirm that there was no print-out. After Ms Popoff left the meeting, the worker said that no-one would speak against Ms Fanner and Ms Hughes, and that she felt there was a conspiracy. At the end of the meeting, Ms Ponce did not confirm that all issues had been resolved to her satisfaction, and she subsequently made a written complaint which led to the investigation by Ms Dix. At Ms Dix’s recommendation, Ms Fanner and Ms Hughes both completed a course on performance management.

Ms Fanner noted that the worker got through her work “like everyone else” from May 2007 until she ceased work on 10 December 2007. In that period, she gave no indication that she was still unhappy.
Ms Fanner gave a further statement on 22 December 2008. She confirmed that she was the manager for a team of 13. Ms Hughes was the worker’s direct supervisor. In relation to errors, a team meeting some years earlier determined that, if an error had been made, the supervisor would speak to the individual directly and in private, not to the whole team. That is what happened on 17 January 2007. Ms Fanner agreed that she did discuss “the political campaigning involving [the worker’s] husband”. She also agreed, however, that when she brought up the political campaign, “the whole tone of [the worker’s] response changed”.
Ms Fanner added that:
“I only realised later that [the worker] might have considered that I was possibly insinuating that the campaign of her husband may have been impacting on her work, which is something that I never thought of at the time. The conversation with Filomena took place at 8.30 am. I had another meeting at 9.00 am. I could see that Filomena was a little upset, she didn’t seem to understand that the issue that I had brought up was not of any great significance, I was merely pointing out a simple error. Because I had to leave, I spoke to Katey and had her go out and speak to Filomena, just to make sure that things were alright.”
As per her December 2007 statement, Ms Fanner confirmed that the worker seemed very quiet later that day and also the following day. She confirmed that the worker said she felt she had been “betrayed”. Ms Fanner tried to reinforce that the worker was not in trouble and that it was not a “big thing”. She confirmed that she offered to apologise and even to get down on her knees. After the second meeting, Ms Fanner continued to check Ms Ponce’s editing work, which was mostly fine.
Ms Fanner found the worker’s conduct and allegations at the second meeting to be insulting, as she was questioning her integrity. She found it very wearing and she ended up seeing a counsellor. She lost confidence in her management skills and, at one stage, wanted to leave.
In respect of the worker’s specific allegations against her, Ms Fanner responded as follows:
(a)     she has never yelled at any staff member and never yelled at Ms Ponce in any circumstances. She added that Ms Hughes speaks very quietly and she has never heard her scream or yell at any staff member;
(b)     books were always stored on the top shelf of the compactus, with a footstool available for shorter staff;
(c)     the office rubbish bin was not used on the weekends because cleaners did not work during that period;
(d)     it was ridiculous to suggest that she had prohibited any workers speaking to any other workers, either during or outside breaks;
(e)     Ms Ponce had never been accused of theft and there was no suggestion that she had ever been involved in such an activity;
(f)   she denied having ever forced Ms Ponce to invite her to her home;
(g)     she had no recollection of ever touching Ms Ponce;
(h)     she has nothing against the colour green;
(i)   she never called Ms Ponce stupid or used any offensive terms towards her, and
(j)   Ms Ponce kept stating that she was fine after the car accident. Ms Fanner insisted that she complete a workers compensation form, even though Ms Ponce was distrustful of them and did not wish to complete them within the required time limits.

Lucy Hill

Ms Hill has provided three statements, the first dated 6 June 2007, the second dated 24 December 2007 (given as part of Ms Clarke’s inquiry) and the third dated 15 December 2008. Ms Hill was the manager of TAFE Library Services. She confirmed that Ms Ponce had her temporary employment contract renewed on several occasions and received a pay increment in line with her length of service. The renewal process involved a consideration of her work performance and, at all stages, she had been considered to be a “generally reliable worker and co-operative team member”.
Ms Hill first became aware that the worker had an issue with her work environment in January 2007. She raised the issue with Tony Rae, the regional manager of Human Resources. Meetings were held on 23 January and 15 February 2007. Arrangements were made for the worker to obtain work experience in a college library. Before that could be finalised, the worker went on leave. At no stage during the negotiations, or the team meetings, did the worker raise any issue regarding discrimination based on her ethnic background or immigrant status. Nor did she raise any allegations in relation to her political opinions.
In Ms Hill’s second statement, she said that the first time she became aware that the worker was making a claim for a psychological injury was about 17 December 2007. She then recounted the performance issue raised by Ms Fanner in 2007. Ms Hill had no reason to believe it was an ongoing issue because the worker’s contract had been renewed several times prior and subsequent to January 2007. The Department was satisfied with her work performance.
Ms Hill said that Ms Fanner was a “very easygoing, empathetic manager” who managed an ethnically-diverse team. She was sensitive to their needs and had an open communication style. At a meeting with the worker and Mr Rae on 22 January 2007, Ms Hill explained the complaint process. Mr Rae suggested negotiation as the appropriate first step, but made it clear that Ms Ponce had the right to make a written complaint.
After the first meeting with the worker, Ms Fanner, Ms Hughes and Ms Hanlon, Ms Hill felt the matter was at an end. The meeting had been conducted calmly, without any raised voices. Ms Ponce had been given ample opportunity to raise whatever issues she wanted. The worker seemed to believe that the meeting with Ms Fanner on 17 January 2007 implied that she had made similar errors previously. She was therefore concerned because the problem had not previously been brought to her attention. The worker had never been under a program of performance management. It was agreed at the meeting that Ms Ponce’s work in audio-visual records would be scrutinised for a couple of weeks.
Ms Ponce saw Ms Hill again on 5 February 2007 and said that she would lodge a formal complaint. Ms Hill explained the process. A second meeting was held on 15 February 2007, with all of the participants from the first meeting, but including a union representative. The same issues were discussed. Ms Hill confirmed that there was no record of the worker’s error.
It seemed to Ms Hill that the worker had become upset originally because she misunderstood Ms Fanner’s intention in bringing a mistake to her attention. She confirmed that Ms Fanner and Ms Hughes reiterated at both meetings that the mistake was not indicative of anything, that it was a small mistake that anyone could have made, and they did not think it was a big issue. Both Ms Fanner and Ms Hughes were very surprised at how the worker had reacted. Ms Hill felt that the issues were being resolved. Ms Ponce then submitted a formal complaint in March 2007 and the Department appointed Ms Dix to conduct an investigation in April 2007. That investigation concluded that there was no case to answer, but recommended that Ms Fanner and Ms Hughes attend performance management training, and that the induction process include information about how mistakes would be identified and rectified. Ms Hill did not believe that either Ms Fanner’s or Ms Hughes’s identification of the worker’s error was unreasonable at any stage. It was appropriate to speak with her privately and the team had previously requested that errors be brought to the attention of the team member in private.
Ms Hill had been very surprised by the entire course of action. In general terms, Ms Ponce had been regarded as a good worker by all of those around her, including her co-workers and her managers. Her contract extensions and placement on eligibility lists underlined the Department’s overall satisfaction with her performance. As late as 4 December 2007, the worker indicated that she loved working with the Department. Ms Hill felt that the stress the worker alleged to have suffered seemed out of all proportion to the issues she outlined. Ms Hill was not aware of any external issues in the worker’s life that could have accounted for her condition, other than the car accident in October 2007, when she sustained ongoing physical injuries.
In her December 2008 statement, Ms Hill confirmed that various meetings had been held in an attempt to resolve the issues. The discussion at the meetings had been calm and measured. There had been no shouting or verbal attacks.
Ms Hill denied having ever offered to contact Ms Marasco and she never spoke to her about this matter.

Kathleen Hughes

Ms Hughes was the worker’s immediate supervisor. In her statement dated 15 December 2008, she said she had worked with the Department for about 18 years. Initially, her relationship with the worker was a good one. They worked together closely and well. Ms Ponce had to learn from scratch. However, Ms Hughes found that she was “quite willing to learn and asked plenty of questions”. Ms Hughes had visited the worker’s home on a number of occasions, and had picked her up to take her to work a couple of times. To her mind, there were never any personal issues.
While Ms Hughes was on holidays, Eva Popoff found an editing error. By the time she had returned from holidays, Ms Popoff had corrected the error. It was not a significant problem; it was merely something that had to be identified and corrected. Ms Fanner spoke privately to the worker about the problem.
Because the worker was upset, Ms Hughes also spoke to the worker and things seemed to settle down from there. The next thing Ms Hughes knew was that Ms Hill called a meeting. Ms Hughes attended the meeting and understood that everything had been resolved and a plan developed to improve communications. From Ms Hughes’s perspective, she had no communication issues with the worker.
Ms Hughes recalled the second meeting, when Ms Popoff attended. She also recalled that the worker had been asked if there were any other issues and that she responded along the lines that she did not know yet. At that stage, there had been no day-to-day problems with the worker because no other workers, except for Ms Popoff, knew what had happened. Because of the things Ms Ponce said about Ms Fanner, Ms Hughes felt a little uncomfortable and did not want to say anything to the worker unless a witness was present.
Ms Hughes felt that Ms Fanner was trying to groom the worker for the next permanent position. Ms Fanner saw herself as being able to give somebody a hand in the profession. Ms Hughes emphasised that the worker was not in any real trouble over the original editing mistake. All staff were spoken to individually if errors occurred. Ms Ponce would not have been aware if other staff had been spoken to about their errors.
In Ms Hughes’s experience, there had never been any yelling or shouting at the workplace. She had never heard Ms Fanner shout at anyone. Ms Hughes had no recollection of ever directing the worker to fix something without telling her what the problem was.
Ms Hughes did not recall the worker asking to be terminated, but did have a vague recollection that she asked whether she was up to standard. Ms Hughes would have responded, “Yes”. In her view, the worker was progressing well. She always asked questions and that was a good thing.
Ms Hughes never accused the worker of stealing. Although a whiteboard went missing, no accusation had been made against Ms Ponce.
No direction had ever been issued that workers not speak with Ms Ponce.
Ms Hughes recalls attending the University of New South Wales with other staff members. On the return journey, she said that Ms Ponce would have to sit in the back seat because she would tell Ms Hughes how to drive and she found that distracting. It was more of a joking thing between them.
In respect of clothing at work, Ms Hughes confirmed that there were no uniform requirements and that people had never been told how to dress.
Ms Hughes had no recollection of a conversation relating to Schapelle Corby.
Ms Hughes never had any trouble understanding Ms Ponce’s English. In her view, the worker spoke quite well.
Ms Hughes recalled giving the worker a positive reference.
Ms Hughes denied ever having sworn at the worker or raising her voice to her.

Tony Rae

Mr Rae provided a statement on 19 December 2008 in which he confirmed Ms Hill’s evidence of the steps taken to deal with the worker’s complaints. He also confirmed that Ms Ponce never raised the issue of racial discrimination until after the conclusion of Ms Dix’s investigation. He was aware that Ms Ponce was involved in a motor vehicle accident in October 2007. As a result, she was off work from the time of the accident until 6 November 2007, when she returned to work on suitable duties, until she finally ceased work in December 2007. Her position with the Department was terminated on 29 August 2008 because her temporary employment contract had ceased.

Susan Brinsley

Ms Brinsley also provided a statement on 19 December 2008. She has been the library manager at the Northern Sydney Institute for about 12 years. She recalled the interview process when Ms Ponce applied for the position of a library technician with the Northern Sydney Institute in November 2006. She was a member of the interview panel. She recalled that all candidates were advised of the time period of the interview and that Ms Ponce was still answering the first question near the end of the allocated time for the whole interview. She was reminded of the time limit and the fact that there were quite a few questions to be answered. She believes that Ms Ponce was probably given a longer period of time in the interview because of this. She also recalled that the worker needed some prompting to answer a number of questions.
The whole panel agreed that Ms Ponce had “not come anywhere near the standard of other applicants”. The panel concluded that, in fairness to Ms Ponce, they would do a referee check with Ms Fanner and Ms Hughes. The responses from the referees were “largely positive”. However, they were not such that they swayed the panel from the impression the panel members had formed as a result of the interview. It was the unanimous decision of the panel that Ms Ponce not be offered a position.

Louise Rimmer

Ms Rimmer provided a statement on 22 December 2008. She has worked with the Department for about 15 years. She worked with Ms Fanner and Ms Hughes from about October 2007. She has never seen Ms Fanner or Ms Hughes shout or scream at a staff member. She has never been told what clothes she was to wear to work or been criticised for her clothing. Any mistakes she made at work were dealt with in a confidential manner. She described the work environment as “reasonably pleasant and fairly cheerful”, though fairly hierarchical.

Jenny Kallias

Ms Kallias also provided a statement on 22 December 2008. She worked at the Department for about four years as a library technician. She worked with Ms Fanner’s team and also worked with Ms Hughes. She had never seen either Ms Fanner or Ms Hughes shout or scream at any staff member. She had never been directed with regard to clothing to wear at work or criticised for her clothing. She admitted to having made mistakes at work and said that, when mistakes are made, approaches are made discreetly, in a “nice tone and manner”.

Lidia Kacprzak

Ms Kacprzak also provided a statement on 22 December 2008. She has worked for the Department for about 13 years as a library technician. She worked in Ms Fanner’s team and also worked with Ms Hughes. She had never heard Ms Fanner or Ms Hughes shout or scream at any staff member, and had never been advised what clothing to wear to work.

Other witness statements

Statements have been obtained from Hala Armanios, Rosemarie Olk, Natalie Frolov, Lourdes Punsalan and Hien Ngo, all library technicians who worked in Ms Fanner’s team and have also worked with Ms Hughes. They all confirmed that they had never seen Ms Fanner or Ms Hughes scream or shout at any staff members. They were not required to wear any uniform and had never been criticised for their clothing. They all described the work environment with Ms Fanner’s team as friendly. If errors were made, the person concerned was spoken to privately and politely.

Patricia Marasco

Ms Marasco worked as the acting resource processing manager at TAFE Library Collection Services for eight weeks between November and December 2007. In support of Ms Ponce, Ms Marasco wrote a letter dated 19 February 2007 in which she made the following points:
(a)     she checked Ms Ponce’s application for a position as a library technician at the Northern Sydney Institute after it had been checked by Ms Fanner and found it to contain many spelling mistakes;
(b)     on an unidentified date, Ms Ponce seemed upset. She said that she had been told by Ms Fanner that she did not get the job at the Northern Sydney Institute, but was on an eligibility list. Ms Marasco said that Ms Fanner should not have said anything because the information was confidential and Ms Ponce had not yet received her official letter. Ms Marasco was informed that no eligibility list had been created;
(c)     on an unidentified date, Ms Fanner told Ms Marasco of a conversation she had with a panel member about Ms Ponce’s application for the job at the Northern Sydney Institute. That information was confidential and should not have been discussed by Ms Fanner;
(d)     Ms Fanner told Ms Marasco that Ms Ponce was “slow at her work”, had “a lot of problems doing her work”, and that her English was “not very good”;
(e)     Ms Marasco was shocked to hear Ms Fanner speak about Ms Ponce in such a negative manner. While Ms Marasco worked as the acting resource processing manager, she found her team, including Ms Ponce, to be excellent workers and very helpful. Ms Ponce was always ready and willing to do a little extra. She never had an issue with Ms Ponce’s language. She was very competent at her work and at communicating with people.

References

Ms Fanner and Ms Hughes both provided references for Ms Ponce on 29 November 2006. Ms Fanner’s reference reads as follows:
“Question 1
Could you comment on the candidate’s ability to work as a team and their customer service skills?
Filomena enjoys being [in] a team environment. She is a helpful person by nature and likes to help others with their work, when we have tours, and volunteers for special tasks. She tries at all times to do the best work she can.
Question 2
What computer software skills does this candidate use as part of their current position, that you are aware of?
Acquisitions, Cataloguing, Reflections module of Dynix; Libraries Australia searching and downloading, Microsoft Word, Access, Excel, Outlook, various publisher and library supplier sites on the Internet.
Question 3
To your Knowledge is there any aspect of the applicant’s behaviour, actions or activities that would make them unsuitable for working with children?
No, nothing at all, Filomena is honest, reliable and very kind-hearted.
Question 4
If you were in a position to employ this person would you do so?
I would employ Filomena again provided the work allowed sufficient time to train her on a one-to-one basis.”
Ms Hughes provided the following reference:
“Question 1
Could you comment on the candidate’s ability to work as a team and their customer service skills?
Filomena gets on well with other team members and is always willing to volunteer for extra duties.
Filomena has demonstrated procedures on several occasions to our customers when they have come to TLCS for a tour.
Question 2
What computer software skills does this candidate use as part of their current position, that you are aware of?
Filomena is experienced in the use of Dynix to Order, Receive, Copy add and Edit Marc records.
Filomena searches and Down Line Loads records from Libraries Australia to Dynix.
Filomena also uses Excel, Word and Access.
Question 3
To your Knowledge is there any aspect of the applicant’s behaviour, actions or activities that would make them unsuitable for working with children?
No.
Question 4
If you were in a position to employ this person would you do so?
If a situation arose where there was sufficient time and resources for intensive training then I would consider employing Filomena. Filomena is very willing to learn and is comfortable in asking questions.”

Interview panel recommendation

The interview panel report in respect of Ms Ponce’s application with the Northern Sydney Institute included, among other things, the following observations:
(a)     Ms Ponce did not demonstrate the same level of ability to perform operational and collection maintenance tasks as the higher ranked applicants;
(b)     Ms Ponce’s referees indicated “despite 18 months experience as a Library Technician at TLCS she still requires time, resources and extensive training on a one-to-one basis”;
(c)     Ms Ponce was willing to learn, but, as demonstrated at the interview, she did not have communication skills to the same level as the successful applicants;
(d)     Ms Ponce showed poor time management at the interview, and
(e)     Ms Ponce did not demonstrate to the extent of the successful applicants the ability to use a range of electronic information sources.
The interview panel concluded:
“Filomena came across as a very willing worker with a strong determination; however there were a number of criteria where she did not, to the same level as the successful applicants, meet the selection criteria. That factor plus her referee reports which indicated she required time and resources for intensive training does not indicate she has readily transferable skills and for these reasons Filomena is not recommended.”

Medical evidence

Dr Verma

Dr Verma is the worker’s regular general practitioner. Whilst his clinical notes are in evidence, they are exceptionally difficult to decipher. There is an entry for 19 January 2007 which appears to refer to headache and abdominal pain. It also refers to anxiety and “stressing at work feels being harassed”. There also appears to be a reference to “being discriminated against” and to “counselling”.
Ms Ponce attended on Dr Verma again on 20, 24 and 25 January 2007. Again, the doctor’s notes are difficult to decipher, but there is a clear reference to anxiety and “stress over problem at work”. The notes also refer to “attitude of the boss” and to a recent meeting with “head boss”. The notes refer to counselling on 24 and 25 January 2007.
Ms Ponce saw Dr Verma on 12 February 2007. His notes for that date refer to, among other things, “stress and anxiety”. They also appear, though it is far from certain, to refer to “work-related problems”.
Ms Ponce saw Dr Verma again on 15 February 2007. The notes clearly refer to “severe anxiety” and that Ms Ponce felt she was “being harassed and picked on”. She felt unwell and did not feel like eating.
Ms Ponce saw Dr Verma again on 1 March 2007, complaining of anxiety and stress. The notes clearly refer to “work-related problem”.
The doctor’s notes for 5 March 2007 again refer to stress (being) “work-related”. There is also a reference to “accused of not doing her job properly and allegations of wrongdoing”.
Ms Ponce saw Dr Verma again on 9, 12, 25 and 29 March 2007. Whilst these entries are difficult to decipher, there are clear references to headaches and work, and to what seems to be a reference to “feeling betrayed”, but again, the writing is unclear. On 29 March 2007, Dr Verma prescribed Zoloft.
Dr Verma’s entry for 16 April 2007 appears to refer to anxiety and depression, and a further script for Zoloft.
An entry for 29 May 2007 also refers to anxiety, as does the entry for 26 June 2007. The latter entry also refers to an unresolved matter at work and difficulty sleeping. There appear to be two further entries relating to anxiety prior to October 2007, but the exact dates cannot be determined from the notes.
Ms Ponce saw Dr Verma on 12 October 2007 and gave a history of having been involved in a motor vehicle accident when her car was struck from behind. Ms Ponce complained of neck, shoulder and back tenderness. The notes also record that Ms Ponce’s anxiety disorder was “still continuing”. Dr Verma provided a further script for Zoloft. Ms Ponce again attended on 13 October 2007, when the notes record a reference to anxiety and “work-related problem”.
On 15 October 2007, Ms Ponce attended on Dr Verma, complaining of lower back pain.
Ms Ponce attended on Dr Verma on multiple occasions thereafter, complaining of back and neck pain, and anxiety symptoms.
Dr Verma provided Ms Ponce with non-WorkCover medical certificates declaring her unfit for various periods because of “headache anxiety” on 12 February 2007, “anxiety stress” on 16 February 2007, 19 February 2007, 26 February 2007, “anxiety depression” on 5 March 2007, “severe anxiety” on 8 March 2007, “anxiety” on 26 March 2007 and “anxiety depression” on 29 March 2007.
Dr Verma issued his first WorkCover medical certificate on 12 October 2007, certifying Ms Ponce unfit for work for two days as a result of a soft tissue injury to the cervical and thoracic spine, and both shoulders. The doctor continued to certify her unfit until 6 November 2007, when she was certified fit to return to work on light duties for four hours a day, five days per week.
Dr Verma reported to GIO on 2 June 2008 noting that a history of depression was recorded by him in January 2007 “as a result of [a] work place incident”. He recorded the following history:
“Mrs Ponce reported that she was being harassed at work and was unreasonably criticised by her senior library technician at TAFE Library Collection Services at Strathfield. This work place difficulty was going on prior to this for a few years constantly.
She felt that she was unfairly accused of wrong doings which were proven otherwise and was being criticised in front of her colleagues and others [sic] managers to the extent that she felt teary. She thought that there was an element of discrimination due to her accent and background. She was being subject to mental harassment by the actions of her supervisor. She put forward a complaint which was not dealt with properly. She tried to leave the job at various occasions, due to such humiliation but resisted in the hope that things might improve.
Mrs Ponce became very anxious and depressed at work when she consulted me on 12th Feb 07. She reported her symptoms of [a] generalised feeling of being unwell, nausea, insomnia, poor appetite, headache, generally low mood, poor appetite, headache and poor motivation. I provided her with Psychotherapy and Anxiotytic medication.
She was reluctant to accept to consult [a] Psychiatrist due to her fear of being branded ‘crazy’.
Her condition did not improve much with medications and Psychotherapy.”
In respect of the motor vehicle accident, Dr Verma recorded that Ms Ponce was stopped at a red traffic signal when her vehicle was struck from behind with considerable force. She felt pain in her neck, shoulders and the whole of her back soon after. She attended at the Warringah Medical Centre the next night and had x-rays of her neck and back, and was prescribed treatment for the pain. She saw Dr Verma on 12 October 2007, complaining of pain in her neck, both shoulders and back. Examination revealed diffuse tenderness on palpation over the cervical spine and the upper back. Cervical spine movements were considerably restricted in all directions due to pain, but there were no neurological signs in the upper limbs. He prescribed analgesic medication and certified her unfit due to soft tissue injuries.
Ms Ponce’s symptoms from her motor vehicle accident got worse, with widespread pains over her neck and back. She complained of an inability to sleep because of the pain. Further examination revealed diffuse cervical, thoracic and lumbar spine muscular tenderness, with restricted movements in all directions. Her x-rays did not reveal any bony injuries. She reported difficulty in carrying out daily activities and housework due to stiffness and pain, as well as disturbed sleep. Dr Verma referred her to Dr Dalton for treatment. A bone scan revealed minimal inflammation in the lower cervical facet joint at C5/6. Dr Dalton recommended physiotherapy and started Ms Ponce on Endep.
Ms Ponce returned to suitable duties at work for four hours a day, five days a week, but continued to experience increasing pain in her neck, shoulder and upper back. She felt that she could not carry out her prescribed duties due to the severe discomfort. Due to the deterioration in her physical condition, Dr Verma certified her unfit for work from 12 December 2007. In his report of 2 June 2008, Dr Verma stated that Ms Ponce remained totally unfit for work.
Dr Verma noted that “the other factor contributing in [sic] her physical condition is ‘major depression’”. The doctor noted that this condition “became unbearable for her” after the motor vehicle accident, when she agreed to see a psychiatrist and decided to lodge a WorkCover claim for her psychological injuries.
Dr Verma replied to a questionnaire from Ms Clarke on 1 February 2008. He stated:
1. His diagnosis was Major Depression and Anxiety.
2. Ms Ponce started suffering her condition on 17 January 2007.
3. The condition had been caused by workplace arguments, harassment, and [a] stressful interpersonal relationship.
4. The specific precipitating factor to Ms Ponce ceasing work in December 2007 was an “on going problem at work with the immediate [sic] manager culminating into severe depression”.
5. Ms Ponce had no history of suffering from any clinical psychological conditions.
6. Not applicable.
7. There were no personal factors that could have been stressors to Ms Ponce’s symptoms.
8. He was not aware of any pre-existing vulnerability or personality factors that could be contributors to Ms Ponce’s symptoms.
9. It was unpredictable when Ms Ponce could return to work.

Dr Seamus Dalton

Dr Dalton examined Ms Ponce on referral from Dr Verma in November 2007. He took a consistent history of the motor vehicle accident and of the development of back pain shortly after the accident. She had been referred for physiotherapy and, as a result, her lumbar pain was improving, but she was getting mid-thoracic pain which was aggravated by prolonged sitting. The pain woke her almost every night and only settled when she got out of bed and moved around. During the day, her back ached with prolonged sitting and she preferred to be mobile. She had no history of prior back problems. On examination, there was mild generalised stiffness through the thoracic spine, with discomfort on left rotation. She had a good range of lumbar spine motion, with no paravertebral spasm. X-rays of the thoracic spine revealed a mild scoliosis and possible slight wedging of T9, and some degenerative spondylosis.
Dr Dalton concluded that Ms Ponce’s symptoms represented mechanical back pain related to mild degenerative thoracic spondylosis exacerbated by her sedentary work. He suggested a trial of Endep and explained that her exercise program needed to focus on core stability.
Dr Dalton reported on 11 December 2007 that the worker had a positive response to Endep, was sleeping better and had less irritability. He also recorded that Ms Ponce mentioned that there had been some stress-related issues at work and, she claimed, some harassment. He suspected that workplace stressors had been a factor (presumably, to her presentation).
In his next report on 5 February 2008, Dr Dalton recorded that Ms Ponce had become very depressed “and was seeing a psychiatrist”. She continued to complain of diffuse upper thoracic and interscapular pain. Objectively, she was moving quite freely. Dr Dalton felt that the worker was “clearly very depressed” and he noted that she was “quite tearful throughout the interview”. He thought that the management of her depression was an “absolute priority”, but, from the point of view of her back and neck pain, she needed to continue with her exercise program. She had a good insight into the relationship between chronic pain and depression.
Dr Dalton reported on 4 March 2008 that, from a physical point of view, Ms Ponce presented reasonably well, although she had generalised stiffness through her thoracic spine with diffuse periscapular tenderness. There was no spasm, and movements of the lumbar and cervical spines were essentially “painless and unrestricted”. Dr Dalton considered the biggest issue to be “managing her depression and sorting out her workplace issues”. He did not think he needed to review Ms Ponce again with regard to her back, provided she maintained her exercise program, as he did not feel that any other intervention was going to be beneficial until the depression and workplace issues were sorted.
Dr Dalton reviewed the worker on 23 September 2008. He noted that she continued to receive treatment for depression, but had resisted efforts to admit her to hospital. She continued to take Endep, the only antidepressant that she could tolerate. She also took Nurofen from time to time and had been swimming, on average three times per week. She continued to complain of constant thoracolumbar pain.
Ms Ponce presented with a fairly depressed affect, but was not teary and did not display overt pain behaviours. She remained fairly stiff and tight through the thoracolumbar spine, but movements were symmetrical, with no evidence of paravertebral spasm. Elevation of both shoulders was limited by muscular tightness. There was also a mild restriction of external rotation in abduction and Dr Dalton was concerned about the possibility of her developing a secondary capsulitis if she continued to restrict her mobility. He concluded that her depression was obviously an ongoing issue, but, from her musculoskeletal point of view, she needed a more comprehensive exercise program.

Dr Chris Walls

Dr Walls, occupational physician, saw Ms Ponce at the request of GIO for the purpose of an injury management consultation on 18 April 2008. In addition to examining Ms Ponce, Dr Walls also contacted and spoke to Dr Verma. They both agreed that Ms Ponce was “profoundly depressed” and unfit for work. In parallel with her depression, her widespread body pain had deteriorated and she was “severely affected” by that.
Dr Walls took a history of the motor vehicle accident in October 2007. She worked for the next two days, but then took time off because the pain was more severe. She developed difficulty sleeping. She attempted to return to work on reduced hours, but her pain deteriorated. Dr Dalton prescribed Endep in November 2007. Over the next few weeks, Ms Ponce became “more and more depressed”, which she attributed to workplace issues. She was ultimately referred to Dr Barnard, consultant psychiatrist.
When Dr Walls examined the worker on 18 April 2008, she presented as being very depressed. She had marked difficulty in sleeping. She described her mind as “racing” and her memory and concentration as “poor”. She also complained of pain in her neck, shoulders, and her thoracic spine and lower back. She denied any previous history of depression. On examination, she had a very limited range of motion of her neck. Her shoulders had about half their normal range of motion and lower back movements were limited because of lack of effort. Dr Walls concluded that Ms Ponce was unfit for work. The primary reason was her severe depression. He added:
“If she were not depressed Mrs Ponce would cope much better with her widespread discomfort. She would be fit for full duties and full hours but would be working at a reduced rate of efficiency in her work as a library technician.”
In respect of Ms Ponce’s widespread pain, Dr Walls felt that she may fit into the “fibromyalgia category”.
Dr Walls reported to GIO again on 5 May 2008, after having again spoken to Dr Verma on that day, but without having examined Ms Ponce again. Dr Walls agreed with Dr Verma’s opinion that Ms Ponce was unfit for work. Dr Walls concluded that Ms Ponce would be “a difficult rehabilitation” and that she would have little work output in her current state.

Dr Richard Barnard

Dr Barnard examined Ms Ponce on referral from Dr Verma on 27 December 2007. He took a history that Ms Ponce received some negative feedback in the early days of her career with the Department and that she considered leaving, but was actively encouraged to remain. Things settled, but, from 2005 on, criticisms by her manager and the senior library technician continued and increased. Ms Ponce felt that the criticisms were ill-founded and she asked for specific evidence, but little or none was forthcoming. Ms Ponce believed that proper mechanisms were not in place for constructively addressing difficulties she experienced at work and no effective education was provided in regard to perceived shortcomings on her part. She was concerned about what she believed was an “intolerant attitude” on the part of her superior officers regarding her Chilean accent. When a position became available at the end of 2006, she was unsuccessful following a “hurried interview” and the position was given to another employee with less experience. She understood that her experience in Chile was not recognised. She made a complaint and was told that her complaint had been written on the wrong form. A couple of months later, she sent a formal complaint to HREOC. When the matter was discussed with her manager in February 2007, she was “berated in front of other staff by her manager”. In the wake of this, Ms Ponce became agitated and depressed, and was unable to continue work. She saw Dr Verma, who started her on Zoloft and saw her regularly for supportive psychotherapy. After a month or so off work, she returned.
She continued working in a “still somewhat tense and depressed state” until she was involved in a motor vehicle accident on 10 October 2007 on her way to work. Her orthopaedic surgeon (presumably Dr Dalton) prescribed the tricyclic antidepressant, Endep, to assist with pain control, and she was also taking Ducene, which had been prescribed by her general practitioner. After being off work for one month, she returned on reduced hours and with frequent breaks. She said that she was still criticised and given “little consideration by her superior officers”. She found the work environment to be “increasingly intolerable and her depression and anxiety increased”. She finally sought psychiatric assistance for her depression in December 2007. Ms Ponce had never previously suffered from depression or any other psychiatric illness. She was not aware of any family history of psychiatric illness.
Dr Barnard recorded that Ms Ponce had become increasingly depressed since mid-January 2007 and, though her medication had initially been helpful, she was feeling very depressed, wishing that she would “disappear”. She felt that dying would be “the best thing”. She was sleeping poorly and would frequently wake crying in the middle of the night. Her appetite was diminished and she had lost 3 kg in weight. She felt nauseated and suffered headaches. Her energy, motivation and concentration were all diminished, and she experienced difficulties with her memory. Her anxiety levels were high and her self-confidence was greatly diminished. She had socially withdrawn and disliked going out.
Ms Ponce had been “significantly troubled” by an interview with Ms Clarke, psychologist, “feeling that she had been pressured when considerably unwell”, and was further troubled in March 2007 by the expectation of her employer that she was to return to her old work environment, which she found intolerable.
Throughout 2008, Dr Barnard modified Ms Ponce’s medication, with variable results. In August 2008, she considered self-harm. Dr Barnard had already discussed with her admission to hospital, but she was very much against that suggestion. By 21 August 2008, Ms Ponce was a little more settled, but still significantly depressed, and was ruminating over the difficulties she experienced at work.
In his report of 26 August 2008, Dr Barnard diagnosed Ms Ponce to be suffering from a Major Depressive Illness with significant anxiety. On the basis of the information provided to him by Ms Ponce, it was his opinion that her employment had been a substantial contributing factor to her condition. She was completely unfit for any work.

At the appeal hearing, Mr Morgan properly conceded that Ms Ponce suffers from a Major Depressive Disorder. However, he submitted that the chronology did not support a connection between that disorder and the events on 17 January 2007. He noted that Ms Ponce had time off work in early 2007 for anxiety but had no further time off until her car accident in October 2007. After the car accident, she returned to work on suitable light duties until, he submitted, she received advice about her complaint to HREOC. He submitted there was a lack of evidence of what happened after the motor vehicle accident.

Mr Morgan further submitted that the worker reconstructed in her mind that the incident on 17 January 2007 was the culmination of a sustained period of harassment and there was no evidence that that was the case. He argued that there was a difference between an erroneous perception and an irrational perception. Whilst the worker placed weight on Ms Marasco’s evidence, it was not clear when the matters in her statement came to the worker’s attention.
Essentially, Mr Morgan submitted that, if the worker’s perception of the event in question was irrational, it was not something that arose from the employment because it had been “imported by the worker”. The worker wrongly felt that the criticism by Ms Fanner on 17 January 2007 related to her background and her accent. It was argued that, if the worker brought extraneous events to the meeting, namely her irrational belief that she was being victimised, that belief informed or coloured the meeting, and no injury could be said to have resulted, because the initiator was an irrational belief that she had been harassed. He added that the events between March 2007 and October 2007 resulted in no more than a mere emotional upset that did not amount to a psychological injury.
I do not accept the submissions made on behalf of the Department.
The Arbitrator’s reasoning was inconsistent and cannot stand. It was not open to find, on the one hand, that the events complained of by Ms Ponce “were not real” and, on the other hand, conclude that she was “wont on occasion to misinterpret what was being said”. If the worker misinterpreted what was said, then the fact that something was said was obviously real.
It is not the law that a worker can only recover compensation if his or her reaction to events that happened at work was rational and reasonable. This issue was discussed in Attorney General’s Department v K [2010] NSWWCCPD 76 where, after reviewing the authorities, it was noted (at [52]) that:
(a)employers take their employees as they find them. There is an “eggshell psyche” principle which is the equivalent of the “eggshell skull” principle (Spigelman CJ in Chemler at [40]);
(b)a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13);
(e)there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Wiegand v Comcare Australia [2002] FCA 1464 at [31]), and
(f)it is not necessary that the worker’s reaction to the events must have been rational, reasonable and proportionate before compensation can be recovered.

The Arbitrator also erred in placing weight on the fact that Ms Ponce’s complaints to HREOC were dismissed. Those complaints related to specific allegations of discrimination on the basis of race and immigration status under the relevant legislation. The issue of Ms Ponce’s entitlement to compensation under the 1987 Act posed totally different questions and legal tests.

These errors mean that the matter must be re-determined. As the Arbitrator heard no oral evidence, I am in as good a position to conduct that re-determination and that is the course I propose to adopt. Neither side submitted to the contrary.

The undisputed evidence was that Ms Ponce functioned effectively, both at work and socially, until the events on 17 January 2007. Those events included:
(a)     a meeting between Ms Ponce and her superiors, Ms Fanner and Ms Hughes, about work issues;
(b)     Ms Fanner informing the worker that she had made a mistake in her work;
(c)     Ms Fanner being unable to provide proof of the mistake, because it had been corrected and no longer existed, and
(d)     a conversation about Ms Ponce’s husband’s political campaign.
It was not disputed that the first three events occurred. It was also not disputed that the worker became very upset at the meeting and that Ms Fanner later apologised to her. The main area of controversy involved the fourth point. On this issue, Ms Fanner’s evidence was unsatisfactory as it did not set out what she said in the conversation, but merely recounted a summary of what she wanted to talk to the worker about and that the worker was unhappy and offended with what was said. Rather than saying what she said about the political campaign, Ms Fanner’s evidence merely stated that the worker did not like being asked about the campaign.
The suggestion that Ms Fanner merely “enquired about her husband’s campaign” (with no reference to Ms Ponce’s work performance having been affected by it) was inconsistent with the Department’s response to HREOC. That response stated that the supervisor (Ms Fanner) “asked whether her [the worker’s] activities in relation to her husband’s pre-selection could be a potential external factor that may be impacting on her work accuracy”. This version is very similar to the worker’s version in her letter of 19 January 2007, prepared just a few days after the event. It is inconceivable that the Department’s response to HREOC had been prepared without seeking Ms Fanner’s detailed instructions. It establishes that, as Ms Ponce has always claimed, Ms Fanner did ask about the campaign and if it was impacting on the worker’s accuracy at work. In light of this document, I accept Ms Ponce’s version of the conversation on 17 January 2007.
It follows that all of the critical events on 17 January 2007 were real and not imagined. Ms Ponce’s distress was also real and clearly resulted from those events. Given the friendship that had existed between Ms Ponce and Ms Fanner, Ms Ponce felt “betrayed” and, as Ms Fanner has openly conceded, was visibly upset by what happened. Whilst I accept that Ms Fanner meant no malice by her comment, I also accept that Ms Ponce was deeply offended by what she perceived to be an unjustified attack on her. That the worker may have overreacted to the incident was not to the point. As Dr Barnard noted in his handwritten response to Ms Clarke, as a migrant, Ms Ponce was at an increased risk in regard to the effects of psychological stressors. Dr Snowdon also commented on the likely contribution from “individual cultural factors” (see [162] above). Employers take their workers as they find them.
Dr Verma’s notes for 19 January 2007 provide persuasive corroboration that Ms Ponce was seriously distressed by the events that happened at work on 17 January 2007 and that she felt she had been harassed and unreasonably criticised. Her distress continued into 2007. I accept Dr Verma’s evidence that Ms Ponce’s condition did not improve much in 2007, despite being treated by him with psychotherapy and medication (Zoloft). I also accept Dr Verma’s evidence that Ms Ponce was reluctant to see a psychiatrist “for fear of being branded ‘crazy’”. Whether her reluctance has contributed to the severity of her symptoms is not discussed in the evidence, but Dr Verma’s reference to it demonstrates that the question of a referral was certainly discussed well before Ms Ponce saw Dr Barnard in December 2007. That suggests that Dr Verma considered Ms Ponce’s symptoms to be much more than a mere emotional upset.
I accept that the allegation of inappropriate management of errors was real and not imagined. This was confirmed by Ms Dix’s recommendation of the introduction of a clear and transparent management process of performance management, that Ms Fanner participate in a performance appraisal workshop (which, to her credit, she did), and that the induction process be amended to include a clear explanation of the process for identifying and correcting errors. This demonstrates that the process adopted by Ms Fanner for the management of errors was, through no fault of hers, less than ideal. Given the way the events on 17 January 2007 were handled, I accept that those deficiencies contributed to Ms Ponce’s feeling that she had been harassed and victimised.
Ms Marasco’s evidence corroborated Ms Ponce’s concern that her managers (at least Ms Fanner) did think that her English was “not very good”. Whilst it is not known when Ms Marasco told Ms Ponce of her knowledge, that is not the issue. Ms Marasco’s evidence is merely corroborative of the fact that Ms Ponce’s concerns on that issue were real and not imagined. Similarly, Ms Marasco’s evidence that Ms Fanner said that the worker was “slow at her work” and had “a lot of problems doing her work” corroborated the worker’s concerns that Ms Fanner had been unsupportive of her and treated her unfairly in the reference she provided. The worker’s concerns had a basis in fact and were not imagined.
There is no dispute that Ms Fanner and Ms Hughes gave job references to the worker. Ms Ponce’s belief that those references were unsupportive was based on the statement by Ms Fanner that she would employ the worker again “provided the work allowed sufficient time to train her on a one on one basis”. Given Ms Ponce’s experience in the Department since 2005, it is understandable that she perceived the statement to be unfair and insulting. However, Ms Ponce’s description of Ms Fanner’s and Ms Hughes’s behaviour as “completely unethical, dishonest and senseless” was an overstatement and I do not accept that description. Nevertheless, that was her perception and it was based on real events. The references did express reservations about Ms Ponce’s abilities and capacity to learn and, given Ms Ponce’s work experience, it is understandable that she felt the references demonstrated prejudice and a lack of good faith, especially in circumstances where Ms Fanner offered to be a referee.
The statements referred to under “other witness statements” at [90] above are of little probative value and I place no weight on them. As submitted by Mr Horan, they appear to have been prepared in response to leading questions. More importantly, they have only dealt with their general experiences. The Commission is concerned with the worker’s particular circumstances.
The incident at the University of New South Wales (see [29(e)] above) is a good example of the relevance of perception in cases of this kind. Ms Ponce felt offended by having been asked by Ms Hughes to sit in the back of the car. Ms Hughes agreed that she said the worker would have to sit in the back, but clearly saw it as a joke and intended no offence. The event was real, but the respective participant’s reactions to, and descriptions of, the event were quite different. Ms Ponce’s reaction may well have been erroneous or irrational, but her reaction was to a real event that, in her mind, provided a further example of unfair treatment.
Whilst many of the things complained of by Ms Ponce may not have occurred in the way that she perceived them, I am comfortably satisfied that she genuinely believed that, based on real events, such as the meeting on 17 January 2007 and the references, she had been treated unfairly. Because of her personality and background, Ms Ponce was particularly vulnerable to small slights that other people would not have even noticed.
The medical evidence is unanimous that Ms Ponce suffers from Major Depression, a recognised psychiatric disorder (section 11A(3) of the 1987 Act). It is also accepted that, under section 11A(3), that disorder is a psychological injury. The question for the Commission is whether that injury has arisen out of or in the course of her employment and, if so, whether her employment was a substantial contributing factor to the injury. Essentially, this is a causation issue that requires the application of a commonsense test (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452).
I accept Ms Ponce’s evidence, supported by Dr Verma, that she has not previously been treated for a psychiatric illness or disorder. She had a good work record in Chile and Australia. The fact that her temporary contract with the Department had been renewed on several occasions attests to her competence and application in her work. It is extremely unlikely that her contract would have been renewed had she displayed significant emotional problems of the kind that were obvious after 17 January 2007.
The evidence is overwhelmingly to the effect that Ms Ponce’s psychiatric injury has resulted from the circumstances of her employment with the Department on and from 17 January 2007 in general and the events on that day in particular. As Ms Fanner observed, Ms Ponce’s demeanour and attitude changed significantly on that day and she never recovered. That her condition has resulted from her employment is supported by Drs Verma and Barnard and Ms Clarke. Given the lack of psychological symptoms before January 2007, and given Ms Ponce’s attendance on Dr Verma within days of 17 January 2007, I am comfortably satisfied that the necessary causal connection between employment and the injury is established.
Dr Snowdon also concluded that, in all likelihood, Ms Ponce’s “psychological issues” “originated” in the meeting on 17 January 2007. This conclusion is compelling and consistent with the evidence of Ms Ponce’s good work performance up to that date and Dr Verma’s evidence of continuing symptoms after it and into 2007. Dr Snowdon restated his conclusion at page 23 of his February 2009 report where he said that Ms Ponce’s psychiatric diagnosis (Severe Major Depression accompanied by Prominent Paranoid Features and Adjustment Disorder) resulted primarily from the events on 17 January 2007. He stated (at page 27) that, were it not for the circumstances of 17 January 2007, Ms Ponce would not have developed her psychological condition. Though the doctor noted that Ms Ponce’s condition “also resulted, substantially, from her own premorbid propensities”, this opinion did not detract from his earlier statement on causation. A condition can have more than one substantial cause.
The Department relied on Dr Snowdon’s supplementary report of 19 May 2009, where the doctor reviewed his earlier report in the light of additional evidence in the form of the insurer’s factual investigation together with further witness statements. He recorded that most of Ms Ponce’s allegations had been denied. He concluded that “Ms Ponce’s issues” had originated in significant premorbid paranoid features to her personality and were not related to the workplace.
I do not accept that Dr Snowdon’s supplementary report has altered the weight to be attached to the opinions expressed in his earlier report. First, as the doctor properly acknowledged, he did not have Ms Marasco’s statement, which corroborated several of Ms Ponce’s complaints. Second, Dr Snowdon did not say that Ms Ponce’s injury would have developed at about the same time or same stage of her life regardless of her work with the Department. Third, employers take their employees as they find them (Chemler). Ms Ponce demonstrated no evidence of a paranoid personality prior to 17 January 2007. That she may have been predisposed to the development of her illness because of a paranoid tendency did not, on its own, prevent employment from being a substantial contributing factor to the injury. Last, Dr Snowdon seems to have incorrectly assumed in his supplementary report that all of Ms Ponce’s complaints were completely baseless. That was not correct. I have found several of Ms Ponce’s perceptions, especially those relating to the events on 17 January 2007, and the job references, were based on real workplace events and therefore resulted from her employment. Those events played a critical role in causing Ms Ponce’s injury.
Other than Dr Snowdon’s reference to Ms Ponce being predisposed to the development of her illness, there are no other factors, apart from her work circumstances, that may have caused or contributed to her injury. Though Mr Morgan referred to the worker’s involvement in her husband’s political campaign, that campaign ended in March 2007 and was not a relevant factor. I am comfortably satisfied that her employment was a substantial contributing factor to the injury.
Mr Morgan argued that, as Ms Ponce worked from March 2007 until December 2007, there was no connection between her incapacity and the events on 17 January 2007. This submission is inconsistent with Ms Ponce’s evidence of continuing symptoms through 2007, which is corroborated by Dr Verma. It also overlooks the continuing tension that Ms Ponce felt as a result of having to work with Ms Fanner. I accept Ms Ponce’s evidence, consistent with her email of 30 November 2007 to Helene Brown, that she felt that Ms Fanner was “rude, careless and unhelpful” towards her and that that made her recovery (presumably from the motor vehicle accident) more difficult. I also accept Ms Ponce’s evidence that she felt that Ms Fanner and Ms Hughes displayed indifference to her condition after the motor vehicle accident. Given the history of the events on 17 January 2007, it is not surprising that Ms Ponce felt aggrieved by that perceived indifference.
I do not accept that Ms Ponce’s cessation of work on 13 December 2007 coincided with her receiving notice from HREOC that her complaints had not been substantiated. That fact was communicated to her on 2 November 2007 (see [194] above), not in December. The evidence from Ms Clarke suggested that the Department received notice from HREOC on 11 December 2007. There is no evidence that Ms Ponce’s ceasing work on 13 December was connected with the receipt by the Department of that notice.
In all the circumstances, I am comfortably satisfied that Ms Ponce received a psychological injury, Major Depression with Anxiety, as a result of the events that occurred at work on 17 January 2007 and thereafter, and that, though Ms Ponce may have had a pre-existing vulnerability to the development of such a condition, her employment was a substantial contributing factor to that injury.
The Department relied on a defence under section 11A. Mr Morgan sensibly conceded that none of the relevant events complained of came within “discipline”. However, he relied on performance appraisal. The employer carries the onus of proof under section 11A. No compensation is payable if the worker’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer. The Department’s evidence on this issue is unpersuasive.
Though Dr Snowdon referred to section 11A in his February 2009 report, his only observation was that “the issues to which she was responding adversely at that time, were related to addressing of [sic] performance, which would seem to invoke section 11A considerations under the Act, in any case”. Merely “addressing” performance is not sufficient to establish a defence under section 11A. As noted by Geraghty CCJ in Irwin v Director General of School Education (NSWCC, No 14068/97, 18 June 1998, unreported) a performance appraisal is “somewhat like an examination… more like a limited, discrete process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance”. The procedure on 17 January 2007 was not a performance appraisal. Ms Ponce was informed of a mistake and asked questions about her husband’s political campaign and whether that might have affected her work. Even if the events on that day could be characterised as performance appraisal, I am not satisfied that, in asking about the worker’s husband’s political campaign, Ms Fanner’s conduct was reasonable.

To the extent that the monitoring, or checking, of Ms Ponce’s work after 17 January 2007 could be described as performance appraisal (and I don’t accept that it could be) there is no evidence that that monitoring, or checking, was the whole or predominant cause of the injury.
Ms Clarke also alluded to section 11A when she observed that the feedback to the worker on 17 January 2007 had been given to her in a “professional and sensitive manner” and that Ms Ponce had been “managed appropriately, professionally and in accordance with departmental guidelines at all times”. As I have noted, I do not accept that Ms Ponce’s performance was being appraised on 17 January 2007 or after that date and, therefore, section 11A has no application. In any event, whether an employer’s conduct is reasonable must be determined by an objective standard and compliance with “departmental guidelines” will not, of itself, establish reasonableness, if those guidelines are deficient. I do not accept that, in all the circumstances, Ms Fanner’s conduct on 17 January 2007 in asking about the worker’s husband’s campaign and whether it was affecting her work was reasonable. Further, the investigation by Ms Dix suggested that both Ms Fanner and Ms Hughes required further training, and that a clear and transparent process of performance management should be implemented. This also suggests that the Department had not acted reasonably.

The motor vehicle accident

The Arbitrator concluded that it was unlikely that the motor vehicle accident had aggravated the worker’s underlying psychological condition and, if it had, the aggravation was “minor and short-lived”. As Ms Ponce had already been paid weekly compensation up to 13 December 2007, the Arbitrator made an order for the payment of section 60 expenses up to that date.

It was not disputed that Ms Ponce received injuries in a motor vehicle accident on her way to work on 10 October 2007. Her claim was accepted and compensation paid. The dispute was whether Ms Ponce recovered from the effects of her injuries. The Department relied on Dr Harbison’s report of 22 September 2008 in support of its decision to dispute liability from 5 December 2008.
At the arbitration, Mr Morgan submitted that the issue was whether Ms Ponce’s symptoms after the motor vehicle accident were a result of the injuries sustained in that accident or merely a manifestation of the underlying psychological condition. He argued that whatever role the motor vehicle accident played, it had been subsumed by the worker’s obsession with the events at work. He said that, if the worker’s symptoms related to the motor vehicle accident by way of aggravation, it was necessary to look at when the aggravation ceased.

On appeal, it has been submitted on behalf of Ms Ponce that:
(a) Dr Snowdon concluded that Ms Ponce had a Pain Disorder of the type associated with psychological factors which related to the motor vehicle accident of 10 October 2007, in that she would not have developed her ongoing complaint of pain were it not for the accident, and
(b) Dr Snowdon did not state that the Pain Disorder had ceased and there was no proper basis upon which the Arbitrator could have determined that the psychiatric injury that arose from the motor vehicle accident was “minor and short-lived” and ceased on 13 December 2007.

The Arbitrator erred in her approach.
Ms Ponce suffered a soft tissue injury to her neck, shoulders and arms, and back in the car accident. There was no evidence that Ms Ponce’s symptoms had resolved and it was therefore not open to the Arbitrator to find that any aggravation was minor and short lived. Ms Ponce’s unchallenged evidence was that the symptoms from the motor vehicle accident were continuing. Dr Harbison’s evidence was that Ms Ponce had received soft tissue injuries in the accident and, in view of the length of time since the accident, he did not believe she still had those injuries. He thought that her symptoms were due to “depression and/or illness behaviour which would be better assessed by a psychiatrist”.
The injury was assessed by a psychiatrist, Dr Snowdon. He concluded that Ms Ponce’s pain was not consciously exaggerated and, accordingly, he saw her complaints of pain as work-related. He diagnosed a Pain Disorder of the type “associated with psychological factors and a general medical condition”, by which was implied that psychological factors were “judged to have an important role in the onset, severity, exacerbation and maintenance of the pain”. He added that the Pain Disorder related to the motor vehicle accident on 10 October 2007 and that Ms Ponce would not have developed it were it not for the accident. It follows that Ms Ponce’s continuing complaints of pain have resulted from the motor vehicle accident and the need for reasonable hospital and medical treatment has also resulted from that accident.

CONCLUSION

Having conducted a review on the merits, I have concluded that the worker suffered a psychological injury as a result of the circumstances of her employment with the Department between 17 January 2007 and 13 December 2007, including, in particular, the events on 17 January 2007, and that her employment was a substantial contributing factor to her injury. The Department has not established a defence under section 11A of the 1987 Act. I have also concluded that the worker suffered soft tissue injuries to her neck, shoulder and arms, and back in a motor vehicle accident whilst on her way to work on 10 October 2007 and that, as a result, she developed a Pain Disorder. The effect of that Pain Disorder is continuing.
As the Department has properly conceded that Ms Ponce was and is totally unfit, and as there is only one insurer involved, it is not necessary to apportion liability between the psychological injury and the motor vehicle accident. For the reasons noted above, I find that Ms Ponce’s incapacity has resulted from her Major Depression and the consequences of the motor vehicle accident on 10 October 2007, and that she has been totally unfit for work from 13 December 2007 to date and continuing. Were is necessary to decide it, I would be satisfied that Ms Ponce has been and remains totally unfit as a result of her Major Depression, regardless of the effects of the motor vehicle accident.
The Department has conceded that Ms Ponce had one dependent child at all material times up to 1 December 2009. She is therefore entitled to an award at the maximum statutory rate for a worker with one dependent child until 1 December 2009 and thereafter at the rate for a worker with no dependants.

DECISION

The Arbitrator’s determinations of 10 March 2010 and 10 May 2010 are revoked and the following orders made:
“1. The Application to Resolve a Dispute registered on 10 July 2009 is amended to add to Part 5.3 ‘Hospital and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987’)’.
2.    The respondent employer is to pay the applicant worker weekly compensation at the statutory rate for a worker with one dependent child under section 37 of the 1987 Act from 6 December 2008 to 1 December 2009 and at the statutory rate under section 37 of the 1987 Act for a worker with no dependants from 2 December 2009 to date and continuing.
3. The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the 1987 Act upon production of accounts or receipts.
4.    The applicant worker’s claim for compensation for whole person impairment as a result of her psychological injury is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The deemed date of injury is 13 December 2007. The referral is to include all documents save for the report from Dr Teoh dated 5 August 2008.
5.    The respondent employer is to pay the applicant worker’s costs, as agreed or assessed. The matter is certified as complex with an uplift of 30 per cent.”

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, assessed as $2,200.00 plus GST.

Bill Roche
Acting President

23 July 2010

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE