Port Stephens Shire Council v Pearsall
[2019] NSWWCCPD 8
•14 March 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Port Stephens Shire Council v Pearsall [2019] NSWWCCPD 8 | |
| APPELLANT: | Port Stephens Shire Council | |
| RESPONDENT: | Andrew Pearsall | |
| INSURER: | StateCover Mutual Limited | |
| FILE NUMBER: | A1-3096/18 | |
| ARBITRATOR: | Mr P Young | |
| DATE OF ARBITRATOR’S DECISION: | 28 September 2018 | |
| DATE OF APPEAL DECISION: | 14 March 2019 | |
| SUBJECT MATTER OF DECISION: | Psychological injury; failure to give adequate reasons – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied; failure to consider relevant evidence – Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 applied | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Moray & Agnew |
| Respondent: | Carroll & O’Dea | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 28 September 2018 is revoked. 2. The matter is remitted for re-determination by another Arbitrator. | |
INTRODUCTION AND BACKGROUND
Mr Andrew Pearsall was employed by Port Stephens Shire Council (the Council) in the position of Assistant Trades Gardener in the Parks and Gardens team. He commenced that employment in 2012 and was initially placed at the Medowie Depot.
Mr Pearsall made a number of allegations of being bullied and harassed by his supervisor, Mr Nicholas Brady. Eventually, because of the difficulties between Mr Pearsall and Mr Brady, Mr Pearsall was transferred to the Heatherbrae Depot, which had a larger team of workers.
Mr Pearsall continued to raise allegations of being bullied and harassed by various staff members and alleged that he was being discriminated against in respect of various employment matters. Allegations were also made against Mr Pearsall by some of the staff. Those allegations were investigated and a number of meetings between the Council and Mr Pearsall were organised to discuss the issues and to counsel Mr Pearsall on his behaviour. Mr Pearsall was eventually suspended from duty following alleged breaches of the Council’s Code of Conduct. A meeting with Mr Pearsall was arranged by the Council for 8 November 2017, to give Mr Pearsall the opportunity to show cause as to why his employment should not be terminated.
On 7 November 2017, Mr Pearsall attended a general practitioner, Dr Caitlin Raschke, complaining of psychological symptoms. Mr Pearsall had not previously attended that doctor, and did not have a regular general practitioner. On that day, Dr Raschke issued a WorkCover certificate, certifying Mr Pearsall as having no capacity for employment and providing a diagnosis of adjustment disorder with anxiety and depression.[1] He did not attend the meeting on the following day, and his employment was terminated.
[1] Application to Resolve a Dispute (ARD), pp 28–30.
Mr Pearsall lodged a workers compensation claim, which was disputed by the Council.
The matter proceeded to an arbitration hearing. The issues for determination were identified by the Council to be:
(a) whether Mr Pearsall suffered an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) whether employment was not a substantial contributing factor to the alleged injury (s 9A of the 1987 Act), or alternately, if the alleged injury was a disease, or aggravation, acceleration or exacerbation of a disease, employment was not the main contributing factor pursuant to ss 4(b)(i) or 4(b)(ii) of the 1987 Act;
(c) alternatively, if Mr Pearsall did suffer an injury, whether it was caused by reasonable action taken or proposed to be taken by the Council in respect of Mr Pearsall’s transfer, discipline or termination (s 11A of the 1987 Act);
(d) whether that Mr Pearsall was incapacitated for employment, and
(e) whether Mr Pearsall’s medical treatment was compensable.
The Arbitrator found that Mr Pearsall suffered an injury pursuant to s 4(a) of the 1987 Act, with the final onset of symptoms occurring in May 2017, and awarded Mr Pearsall continuing weekly payments of compensation and treatment expenses.
The Council appeals from that decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that the appeal can be determined ‘on the papers’ and an oral hearing is not required.
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The Arbitrator’s decision is not interlocutory as the issues between the parties have been determined finally and conclusively.[2]
[2] Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439
THE EVIDENCE
It is convenient to firstly review the extensive documentary evidence filed by the Council in its Application to Admit Late Documents (AALD) dated 11 July 2018. The AALD contained an investigation report prepared by Worksite Investigations dated 16 January 2018, together with annexures. The investigation report was also annexed to the Council’s Reply to Application to Resolve a Dispute (Reply) but the annexures were not included.
The annexures comprised of the following documents:
(a) An unsigned document, the author of which was not identified but relates to a “catch up with Andrew Pearsall” on 29 May 2015.[3] The document listed a number of concerns raised by Mr Pearsall, namely that:
[3] AALD dated 11 July 2018, pp 126–128.
(i)Mr Brady was driving a heavy vehicle without the appropriate licence and was supervised by a day labourer who had not completed the necessary induction;
(ii)on 22 April 2015, following severe storms, Mr Brady instructed Mr Pearsall to cut and move a tree limb, but Mr Pearsall refused to do so because there was a powerline wrapped around the tree and he felt unsafe. Mr Pearsall left without saying anything to Mr Brady;
(iii)Mr Brady instructed Mr Pearsall to fell a tree, but Mr Pearsall refused because he had not completed the chain sawing course. Mr Brady replied, saying “that’s okay, only do it if you feel comfortable”;
(iv)when Mr Brady commenced working, he did not have a “white card”, yet he worked with Mr Pearsall and other crew, and was giving instructions;
(v)also, on the day of the severe storms, Mr Pearsall and Mr Brady were walking towards the Medowie Depot when a branch fell from a tree. Mr Brady instructed Mr Pearsall to cut up the branch, but because it was still windy and the ground was wet and soft, Mr Pearsall felt it was too dangerous. Mr Pearsall said that Mr Brady became “moody”, said “I quit” and got into his vehicle and drove away. Mr Pearsall reported the incident to personnel at Raymond Terrace Depot, and worked the rest of the day with the team at Heatherbrae Depot. The following day Mr Brady cut up a fallen tree in the same area, without supervision and despite not having a chain saw ticket;
(vi)on 28 May 2015, Mr Pearsall and Mr Brady went to mow an oval, but there were children from a child care centre playing there. As Mr Brady said nothing, Mr Pearsall decided they should procced to mow two other ovals. Mr Pearsall reported that Mr Brady asked him how he could get a transfer, that he had been struggling with the position, then suddenly said “I quit”. He threw his personal mobile telephone about 6 meters away, and his work telephone in the back of the truck and aggressively said Mr Pearsall could have the Trades Gardener position. Mr Pearsall then reported the incident to Mr Priestley, as well as the incidents on 22 April 2015, because he was concerned about what Mr Brady would do. Mr Pearsall said that since those incidents, he was very cautious about working with Mr Brady;
(vii)Mr Pearsall said that Mr Priestley and Mr Reay were aware of what was happening, that he had a meeting with Mr Reay and Mr Brady, but Mr Reay said that he was “over it” and suggested they “move on”. Mr Pearsall felt that Mr Priestley and Mr Reay had not taken the complaint seriously; and
(viii)Mr Pearsall sought legal advice and was concerned about Mr Brady’s ability to be a supervisor, and about the duty of care to employees and the community. Mr Pearsall expressed concerns that Mr Brady had mentioned he suffered from depression, that Mr Brady’s behaviour might affect the manner in which he drove and people’s safety. He felt that Mr Reay and Mr Priestley had not handled these concerns appropriately.
(b) A letter dated 27 January 2016 from the Council to Mr Pearsall, advising him that he was required to attend a counselling meeting on 1 February 2016. The letter was signed by Mr Peter Matwijow, the section manager. The purpose of the meeting was to discuss Mr Pearsall’s unwillingness to follow work instructions issued by Mr Brady on 12 January 2016. The employee assistance service was offered, Mr Pearsall was informed he could have a union representative also attend, and a copy of the Council’s disciplinary proceedings enterprise agreement was attached to the letter.[4]
[4] AALD dated 11 July 2018, pp 129–132.
(c) An email dated 11 April 2016 from Mr Pearsall to Mr Reay and a reply from Mr Reay to Mr Pearsall.[5] Mr Pearsall’s email read:
[5] AALD dated 11 July 2018, p 133.
“Mick
All went well no issues, but certainly a well worth day to come in and to spend a full day contributing towards the community.”
Mr Reay’s reply was in the following terms:
“Thanks mate good job on getting it done.
Don’t criticise the 4 day week though if that is what you mean. We could send you there any day to do this”
(d) A further letter signed by Mr Priestley and dated 4 May 2016, notifying Mr Pearsall that he was required to attend a counselling meeting on 9 May 2016.[6] The letter indicated that the interview was to discuss issues with the relationship between Mr Brady and Mr Pearsall, particularly that on 4 May 2016, Mr Pearsall:
[6] AALD dated 11 July 2018, pp 134–135.
(i)showed lack of respect and unwillingness to follow instructions;
(ii)displayed threatening behaviour towards Mr Brady by threats to take legal action against Mr Brady;
(iii)was unwilling to communicate and raise issues in an appropriate manner, such as when Mr Priestley approached Mr Pearsall to discuss the incident, offer support and provide a solution, Mr Pearsall refused to discuss the matter and said that it was in the hands of his solicitor;
(iv)did not clearly understand the specific requirements of his role.
Mr Pearsall was advised that he could request a union representative to attend with him, the disciplinary procedures were attached to the letter, and Mr Pearsall was provided with details of the employee assistance service.
(e) A letter dated 17 May 2016 from Mr Reay to Mr Pearsall, recording Mr Pearsall’s responses and the outcome of the above meeting, which was rescheduled to 17 May 2016.[7] Mr Pearsall’s responses to the allegations were as follows:
[7] AALD dated 11 July 2018, pp 138–141.
(i)he was always willing to follow instructions from Mr Brady;
(ii)he sometimes felt discriminated against and felt uncomfortable because he was working a nine-day fortnight, and the others were working a four-day week. His lunch and ‘smoko’ breaks had changed and he was unable to clean down the machines every day;
(iii)he normally arrived at work at 5.45 am in order to complete his time sheets and diary, but Mr Brady was giving him work instructions before 6.30 am, which was when he officially started work;
(iv)he did not consider that telling staff he was seeking legal advice was a threat;
(v)he agreed to raise future issues in an appropriate manner, and he had no concerns in relation to his position description. He understood work, health and safety requirements, including rotating tasks, and
(vi)he was concerned that he was expected to work through his lunch break and work an extra half of an hour without being asked during work time.
The Council’s responses were:
(vii)the Council was trialling a four-day week, but was trying to accommodate Mr Pearsall’s desire to remain on a nine-day fortnight. This meant that at times it was more convenient to clean the machines later in the day because the other staff were finishing their work later;
(viii)it was confusing for Mr Brady to see Mr Pearsall at work prior to his start time and Mr Brady had assumed Mr Pearsall was working. In future Mr Pearsall was not to attend work before 6.15 am, which would give him time to have a coffee before starting work;
(ix)Mr Pearsall telling people he was seeking legal advice could be perceived by those people as a threat. Mr Pearsall should raise any issues with Mr Andrew Ryals, in order to attempt a resolution;
(x)All staff were expected to have a lunch break, and Mr Pearsall should raise any such concerns with his supervisor, and if the issue was not resolved should then elevate the concern to Mr Priestley or Mr Reay.
The above solutions were agreed to, and a meeting was scheduled for 14 June 2016 in order to ensure the strategies were working effectively and the relationship between Mr Pearsall and Mr Brady had improved. Mr Pearsall was reminded that the employee assistance service was available;
(f) A letter from the Council, signed by Mr Reay and dated 18 July 2016, confirming that a further meeting had occurred on 15 July 2016, which was for the purposes of reviewing and discussing the strategies initiated in the meeting that took place on 17 May 2016.[8] A further issue appeared to have arisen that Mr Pearsall had “incited” confusion amongst staff by discussing what Mr Pearsall perceived to be a greater entitlement to leave than those working on a four-day week. Additionally, Mr Pearsall complained that Mr Priestley had made inappropriate comments when he said that Mr Pearsall should apply for a position at Newcastle City Council and that Mr Pearsall would be transferred to the foreshore at Newcastle City Council. Mr Reay agreed to follow that issue up with Mr Priestley, and that as Mr Pearsall had been able to sustain positive changes to his behaviour, the counselling process was concluded. Mr Reay congratulated Mr Pearsall for his efforts.
[8] AALD dated 11 July 2018, pp 142–143.
(g) An email complaint from Mr Pearsall to Mr Ryals dated 25 August 2016[9] in which Mr Pearsall complained that:
[9] AALD dated 11 July 2018, p 144.
(i)he had been applying chemicals such as Bioactive Roundup on a number of occasions and had not been sent to be chemically tested, when other workers, including Mr Brady and Mr Priestley, had been sent for such testing. He said he felt discriminated against;
(ii)Mr Priestley had not offered him the opportunity to be trained in the use of the frontend loader, when Mr Priestley had provided training to Mr Brady, who had reached the level to undergo a competency test, and
(iii)on 17 June 2016, Mr Priestley was operating the frontend loader without giving Mr Pearsall the opportunity to learn its operation, while Mr Pearsall had no other tasks to perform.
(h) A letter dated 20 October 2016 directed to Mr Pearsall from Mr Wayne Wallis, general manager of the Council, dealing with seven grounds of complaint made by Mr Pearsall under the Council’s Code of Conduct.[10] The allegations were that Mr Pearsall had been the subject of bullying and harassing behaviour by Mr Brady, Mr Priestley and Mr Reay. The allegations were dealt with as follows:
[10] AALD dated 11 July 2018, pp 145–152.
(i)Allegation one: that on 4 May 2016, Mr Brady gave instructions in relation to the work to be done by reading what was written on the white board before 6.30 am and before Mr Pearsall had started work for the day. Further, that Mr Pearsall had expressed an entitlement to seek legal advice, which Mr Brady reported to Mr Priestley and Mr Priestley considered to be threats. Mr Pearsall alleged that he was wrongfully defamed by Mr Priestley during working hours.
The Council responded by referring to the previous agreement that Mr Pearsall would not arrive at work until 6.15 am, and that Mr Pearsall’s supervisors would not discuss work with him prior to his starting time of 6.30 am. In relation to obtaining legal advice, Mr Pearsall was reminded that he agreed during the counselling meetings that such statements could be intimidating and that the appropriate mechanism for resolving issues was to raise the issue with the supervisor, and if not resolved, to escalate it to Mr Reay and then either to the Human Resources Unit or the Union. The Council stated that there was no evidence to substantiate that Mr Priestley had “wrongfully defamed” Mr Pearsall during work hours;
(ii)Allegation two: that on 10 August 2016, during Mr Pearsall’s lunch break, Mr Brady contacted him and instructed him to go to an oval to unlock the toilet block. Mr Pearsall had contacted Mr Ryals by text, but nothing was done.
The Council responded that this issue had already been addressed by Mr Brady, Mr Reay and Mr Priestley. The Council maintained that there was no evidence to suggest that Mr Brady’s actions were unreasonable. The Council reported that at interview, Mr Brady advised that contacting Mr Pearsall while Mr Pearsall was in the location was a more efficient approach to the work task, and that he did not intend for Mr Pearsall to cut short his lunch break before returning to the work site. The Council considered the instruction to be lawful and reasonable. Further, it was noted that Mr Pearsall had previously been instructed by Mr Reay and Mr Priestley that if there was an issue in respect of being contacted during the lunch break, Mr Pearsall did not have to answer his phone;
(iii)Allegation three: that on 29 July 2016, while Mr Pearsall was spraying weed killer at a skate park, Mr Reay handed him a letter instructing him not to commence work before the commencement time of 6.30 am. Mr Pearsall complained that this was an instruction given outside of work time. Mr Pearsall also alleges that Mr Reay said that he could have been moved to a four-day week, which Mr Pearsall described as being bullied into changing to the four-day week.
The Council responded that there was no evidence to substantiate that the meeting took place prior to 6.30 am. The purpose of the visit was to deliver the letter summing up the prior counselling session, and to ensure that Mr Pearsall understood the content of the letter. Further, there was no evidence to substantiate that Mr Reay had threatened Mr Pearsall in respect of changing the flexible working arrangement from a nine-day fortnight to a four-day week. The Council referred to the clause in the Enterprise Agreement that allows for an individual to apply for an alternate flexible work arrangement to accommodate work/life balance, however pointed out that it is subject to the operational needs of the Council. Given the degree of friction it was causing within the team, the Council indicated that Mr Reay was correct to say that the arrangement may need to be reviewed in order to ensure operational viability in the future;
(iv)Allegation four: that Mr Reay and Mr Priestley appeared at Medowie Depot at 6.40 am and questioned him about being at work before the start time. Mr Pearsall complained that they had no right to question him before his start time, and that when he told them that he had spoken to Mr Ryals about Mr Brady speaking to him during his lunch time, Mr Reay questioned him about what he told Mr Ryals. Mr Pearsall felt that this was an invasion of privacy between himself and Mr Ryals.
The Council responded that there was no evidence that Mr Priestley or Mr Reay questioned Mr Pearsall again about the issue or that they were invading his privacy. The Council said that their intent was to review the contents of the counselling letters because Mr Pearsall was not doing what was agreed to at the meetings. As Mr Pearsall had become agitated, Mr Reay and Mr Priestley ended the discussion with him;
(v)Allegation five: being encouraged to leave the organisation.
The Council said that this issue had already been dealt with during the counselling sessions, and that Mr Reay had promised to follow this up, which he did. The Council said that Mr Pearsall’s account differed from Mr Priestley’s, and it was never Mr Priestley’s intent to make Mr Pearsall feel that he was trying to remove Mr Pearsall from the organisation. Mr Priestley said that it was a misunderstanding, and he was simply advising of job opportunities, which he did with all staff. Further, the comment about going to work on the Newcastle foreshore was intended to be a compliment that all the team were doing such a good job that after the proposed amalgamations of councils, they would be able to work on the Newcastle foreshore. Mr Priestley also attempted to explain and offered an apology, which Mr Pearsall would not accept;
(vi)Allegation six: failure to undertake chemical testing.
The Council responded that there was no evidence that Mr Pearsall had been excluded from chemical testing and thus discriminated against. The Council said that in relation to the dates and times provided by Mr Pearsall as to when he performed work with chemicals, it could be concluded that the extent of his use did not meet the definition set down by the independent provider, Hunter Industrial Medicine, and that could be the reason for not arranging for Mr Pearsall to be tested. In any event, Mr Pearsall had not raised this concern with any of his supervisors. If he had done so, the Council would have immediately organised a test;
(vii)Allegation seven: that Mr Priestley did not provide Mr Pearsall with training to drive a frontend loader.
The Council responded that Mr Pearsall had in fact been given the opportunity to drive the frontend loader under Mr Priestley’s supervision, but that Mr Pearsall had never asked his supervisor, Mr Brady, to sign it off in his log book, despite having been instructed to do so. Further, Mr Brady’s position description required Mr Brady to have the ability to obtain credentials in plant operation, while Mr Pearsall’s did not;
The document concluded that the investigation also disclosed that there was some concern and angst within the Medowie Parks team, so that there would be intervention by the cultural development manager designed to promote further awareness of individual behaviours and acceptance of differences. In addition, the Human Resources Unit and Mr Matwijow, in consultation with the Union, was to facilitate communications between the members in order to reach an agreement in relation to expectations and to establish a Code of Behaviour. Mr Pearsall was directed to undertake further development classes in order to enhance his understanding of co-operation, communication and working effectively with others. Mr Pearsall was reminded of the employee assistance service.
(i) An email dated 11 November 2016 from Ms Rodway directed to the members of the Medowie Parks unit, including Mr Pearsall, setting out the following matters as being agreed to be the code of behaviour:[11]
[11] AALD dated 11 July 2018, pp 153–154.
(i)respect each other’s point of view and once a decision in relation to operational requirements has been made, agree to accept it;
(ii)Mr Pearsall will arrive at work no earlier than 6.15 am, start work at 6.30 am, and not be given any instructions before that time;
(iii)Mr Pearsall does not want to discuss anything that is not work related, and if the team merely greet him he will not construe that as being ostracised from the group;
(iv)morning tool box meetings for weekend work will include what breaks are to be taken. Stretch breaks are recommended but are not compulsory, and if not taken the time should be spent performing work tasks;
(v)Mr Pearsall will be given regular feedback about his progress in the role, with a follow up email from his supervisor confirming the conversations, to ensure there is no confusion;
(vi)Mr Pearsall will answer his telephone during lunch breaks, but will advise his supervisor that any work tasks requested will be done after the break;
(vii)work tasks will be allocated using the team work schedule board and, if possible, then communicated to the team at the start of the day. If that is not possible, Mr Pearsall will be responsible for reading and understanding the board. If there is any confusion, Mr Pearsall is to discuss it with his supervisor;
(viii)discussions will be undertaken with Mr Pearsall’s supervisor about training needs;
(ix)the above arrangements would be reviewed in one month, and
(x)if Mr Pearsall had any issues, he should raise those with his supervisor at first instance and if not satisfied, the Union delegate.
(j) A further letter dated 21 March 2017 signed by Mr David Roberts, parks program officer, confirming a counselling meeting had taken place on 16 March 2017.[12] There were a number of issues discussed that had arisen after Mr Pearsall was transferred to the Heatherbrae Depot. The issues and Mr Pearsall’s responses were as follows:
[12] AALD dated 11 July 2018, pp 155–157.
(i)Mr Pearsall was unclear of the requirements of his role, in particular he believed he was not required to clean and grease the machines in the afternoon. Mr Pearsall’s response was that he was happy to clean and grease the machines. The Council noted that there would need to be some flexibility due to operational requirements;
(ii)Mr Pearsall did not understand why he was excluded from arriving at work at Heatherbrae Depot before 6.15 am, which had been the requirement at Medowie Depot. Mr Pearsall complained that he was being left out of morning and afternoon discussions, which was why he arrived earlier in the mornings. The Council explained that all formal workplace discussions were scheduled within Mr Pearsall’s working hours but it was inevitable that he would miss out on informal discussions because he was on a different flexible working arrangement; which was why it was necessary for the Trades Gardener, Mr Tim Boyd, to induct him at the white board each day. Mr Pearsall complained that he was happy to read the instructions for the day for himself. The Council advised that if any questions arose as to the work schedule, he should raise them with Mr Boyd or Mr Roberts.
(iii)Mr Pearsall was unwilling to communicate appropriately in relation to the differences between the nine-day fortnight and the four-day week. Mr Pearsall complained that he was being targeted and discriminated against. Mr Pearsall alleged that Mr Chris McKenzie accused him of not being a team player because he was working a nine-day fortnight, and that Mr Pearsall was going to lose his job. The Council indicated that it would address the issue with Mr McKenzie. The Council and Mr Pearsall discussed the issues associated with Mr Pearsall working a different flexible arrangement to the rest of the team, and the “continued frustration and angst” that it was causing both Mr Pearsall and the rest of the team. The Council noted that Mr Pearsall was willing to commence a trial of the four-day week in an attempt to create cohesion in the team. The trial would commence on 18 April 2017, and run for a three-month period.
(iv)Mr Pearsall was again reminded of the employee assistance service. The change in flexible working hours, and the operational requirements were confirmed in a separate letter from Ms Rodway dated 21 March 2017.[13]
[13] AALD dated 11 July 2018, pp 158–159.
(k) A letter dated 15 May 2017 from Mr Reay to Mr Pearsall advising Mr Pearsall that he was required to attend a disciplinary meeting on 18 May 2017.[14] The issues identified were as follows:
[14] AALD dated 11 July 2018, pp 160–163.
(i)Mr Pearsall’s continuing lack of clarity in respect of the duties of his role, in particular that Mr Pearsall did not believe that he was required to carry out brush cutting or operate a tractor. It was also alleged that Mr Pearsall continuously questioned the tasks he was allocated and was confused as to who was responsible for certain tasks;
(ii)Mr Pearsall’s continued claims that he was being victimised and discriminated against, namely that he:
·felt it was alright to make fun of something with other team members but when they responded, Mr Pearsall claimed he was being victimised;
·believed he was being victimised by being asked to do certain tasks, and
·directed Jason, the apprentice gardener, to drive the truck in an authoritative and unfriendly manner. When Jason responded that he had enough experience in driving trucks, Mr Pearsall left for the day, claiming he was being victimised but was observed to be smirking.
(iii)Mr Pearsall’s unwillingness to discuss issues with Mr Reay in order for Mr Reay to support him in his role, and Mr Pearsall’s avoidance of any discussion by leaving work and claiming sick pay for the day.
Mr Reay pointed out his concern that these issues were ongoing, which the council had attempted to address over a considerable period of time under three different supervisors. Mr Reay said that the recent move from Medowie Depot to Heatherbrae Depot was implemented because of the impact Mr Pearsall’s behaviour was having on Mr Bray, and in an effort to create a working life comfortable for both Mr Bray and Mr Pearsall. Mr Reay commented that the staff at Heatherbrae Depot also expressed frustration in working with Mr Pearsall, because of Mr Pearsall’s continued allegations and threats of victimisation. Mr Reay said that the staff described Mr Pearsall’s behaviour as being blunt and authoritative and that they did not feel comfortable working with him in isolation. Mr Reay observed that the alleged behaviour was having a direct impact on the cohesiveness of the team, and for the sake of the morale and well-being of the team, had to be addressed. Mr Reay advised Mr Pearsall that he could have a union representative or other representative of his choice attend the meeting, drew Mr Pearsall’s attention to Clause 26 of the Council’s enterprise agreement disciplinary procedures (which were attached), and reminded Mr Pearsall of the employee assistance service.
(l) A letter dated 23 May 2017[15] from Mr Pearsall’s legal representatives, confirming that Mr Pearsall was to attend a disciplinary meeting, and that he intended to lodge a complaint to the Council against Mr McKenzie, mainly in relation to Mr McKenzie alleging Mr Pearsall was a child molester, and that Mr Pearsall’s employment was going to be terminated.
[15] AALD dated 11 July 2018, pp 164–165.
(m) A document which appears to be a document written by Mr Pearsall at the request of his legal representatives, setting out the following complaints:[16]
[16] AALD dated 11 July 2018, pp 166–167.
(i)that on 21 April 2017, Mr Boyd, who appeared to be in an angry mood and was speaking aggressively, told him that Mr McKenzie said that he wanted to “bash [Mr Pearsall’s] lights out”. Mr Pearsall reported that he was shocked and concerned that Mr McKenzie would physically assault him, but he continued to carry out his tasks for the day;
(ii)following this, on 4 May 2017, Mr Pearsall was in the lunch room at Heatherbrae Depot, in the company of Jason Polglase, Mr Boyd and Mr McKenzie. Mr Pearsall said that Mr McKenzie made comments that implied Mr Pearsall was molesting children. Mr Pearsall said that Mr Boyd handed him a badge which bore a picture of a fist, which Mr Pearsall considered had a sexual connotation and was disgusted. Mr Pearsall said that both Mr McKenzie and Mr Boyd were laughing,
(iii)while working with Mr McKenzie on 5 May 2017, Mr McKenzie told Mr Pearsall that he could not attend the upcoming field trip. Mr Pearsall said that he was upset, and tried to contact Mr Matthew Knight, Mr Roberts and Mr Boyd, but there was no answer, so he contacted Mr Ryals and informed him he was sick and it was best he went home. As he was loading up the truck, Mr Knight arrived. Mr Pearsall said that he told Mr Knight what had happened, but did not mention the incident on 4 May 2017. Mr Pearsall said he finished work at 10.am.
(n) A grievance form dated 26 May 2017, signed by Mr Roberts, Mr Polglase, Mr Boyd, Mr McKenzie and Mr Knight.[17] The signatories to the document complained that Mr Pearsall, who had been moved to Heatherbrae Depot because of relationship issues at Medowie Depot, had caused issues that were raised with the Council and said by the Council to have been addressed. The signatories said that they felt uncomfortable that relationship issues were being raised again, and that they would like to be consulted about those issues. They indicated that Mr Pearsall was challenging them in relation to the tasks that were being performed and challenging people who allocated tasks to him that he believed he should not have to perform. They reported that Mr Pearsall’s tone was authoritarian and abrupt. They said that the issues were affecting the team’s engagement, health and well-being, as well as job satisfaction, which caused worry and concern that someone might retaliate against Mr Pearsall’s attitude. The signatories indicated that they were seeking advice from their Union, and that other workers who were not union members required guidance from the Council on how the situation could be resolved.
[17] AALD dated 11 July 2018, pp 168–172.
(o) A letter dated 20 June 2017 from Mr Matwijow directing Mr Pearsall to attend a fact-finding interview on 27 June 2017, arranged for the purposes of discussing specific allegations raised by Mr Pearsall about members of the Heatherbrae team, and a number of issues subsequently raised by those members about Mr Pearsall.[18] The issues identified were:
[18] AALD dated 11 July 2018, pp 173–175.
(i)Mr Pearsall actively participated in inappropriate banter of a sexual nature, which it was alleged was initiated by Mr Pearsall and about which all team members were laughing, including Mr Pearsall. Further, it was alleged that Mr Pearsall willingly made fun of team members, particularly Mr Boyd, to whom Mr Pearsall allegedly gave a pornographic movie, but said it was the latest Star Wars movie. It was also alleged that Mr Pearsall made Mr Boyd pack up his lunch so that he could use the truck, but when Mr Boyd did so, Mr Pearsall said he was “just kidding”.
(ii)Mr Pearsall’s repeated inability, on a daily basis, to follow instructions to do work Mr Pearsall did not want to do, such as manual or labour-intensive work;
(iii)team members were afraid to work alone with Mr Pearsall or talk to him because their conversations may be taken out of context and used against them later, Mr Pearsall was frequently threatening legal action, and making strange statements about owning unregistered guns and hacking into pornographic streams.
Mr Pearsall was advised that the concerns were reported to the Council’s General Manager under the Council’s Code of Conduct, and that a determination would be made following the investigation as to whether a breach of the code had occurred. Mr Pearsall was advised he should not discuss the matters with anyone other than Ms Rodway or Mr Matwijow and that he could have a representative at the meeting. His attention was drawn to clause 26 of the Council’s disciplinary agreement, and he was reminded of the employee assistance service. An extract from the disciplinary agreement was annexed to the letter.
(p) An email from Ms Rodway dated 28 June 2017 confirming and providing more detail of the further allegations discussed in the letter dated 20 June 2017, rescheduling the interview to 29 June 2017, and reminding Mr Pearsall that he should not discuss the matters with anyone he works with.[19]
[19] AALD dated 11 July 2018, pp 178–179.
(q) Transcript of the fact-finding interview, which occurred on 11 July 2017.[20]
[20] AALD dated 11 July 2018, pp 180–213.
(r) A letter dated 14 July 2017, directed to Mr Pearsall and signed by Mr Matwijow, directing Mr Pearsall to attend a disciplinary/counselling meeting on 19 July 2017.[21] The intention of the meeting was to address further issues that had arisen in respect of Mr Pearsall’s behaviour and inappropriate comments. The issues were that Mr Pearsall made comments to Mr Polglase that:
[21] AALD dated 11 July 2018, pp 214–215.
(i)the only thing Mr Knight had done was get them warm gloves;
(ii)Mr Knight had not done any work on the tools and just sat in his office, and
(iii)Mr Knight would not be able to be a team leader because he would have to use the tools.
The letter also alleged that Mr Pearsall had told Mr Polglase that there was no room for him in the restructure, and he should apply for any other positions except as the Assistant Trades Gardener (Mr Pearsall’s position). Mr Matwijow reminded Mr Pearsall that he had spoken to Mr Pearsall on the morning of 12 July 2017 in respect of other inappropriate comments about a man’s shoes and a child’s shoes in a toilet block, and that Mr Pearsall’s response was that it was an “hilarious prank”. Mr Matwijow reminded Mr Pearsall that at that meeting, Mr Matwijow had reinforced that behaviour of that type was completely unacceptable and must cease immediately, which Mr Pearsall appeared to acknowledge. Once again Mr Pearsall was directed to clause 26 of the disciplinary procedures agreement, was advised he could have a representative with him and reminded him about the employee assistance service.
(s) A trail of emails sent on 13 July 2017, 14 July 2017 and 21 July 2017.[22] The first email, sent from Ms Brooke Tisdell to Mr Knight, was a weekly training reminder for Mr Knight’s staff in relation to asbestos training. Mr Knight replied, asking whether Mr Pearsall was included in the training. Ms Tisdell replied that Mr Pearsall did not appear to be on the list, but that he could be added, which she did. The email dated 21 July 2017 was sent by Mr Knight to Mr Lee Bradbury, Mr McKenzie and Mr Pearsall, advising them that they were to attend training in respect of safe work around powerlines on 25 July 2017.
[22] AALD dated 11 July 2018, pp 218–220.
(t) A letter dated 24 July 2017 from Mr Matwijow to Mr Pearsall confirming the outcome of the disciplinary meeting conducted on 19 July 2017.[23] Mr Pearsall’s response to the allegations was that his comment in relation to the gloves was more of an appraisal than an insult, that Mr Knight was a great supervisor and he would like to continue to work under him, and that he did not say anything negative about Mr Knight. Mr Pearsall conceded that he had had a conversation with Mr Polglase about the restructuring of positions.
[23] AALD dated 11 July 2018, pp 222–223.
Mr Matwijow recorded that Mr Pearsall thought the reason there were complaints about him was that he had spoken up about their behaviours and it was “tit for tat”. Mr Matwijow reminded Mr Pearsall that he had expressed that he was uncomfortable having personal conversations and joking with the staff. Mr Matwijow said that it would be best if he and the team only discussed matters that were associated with the workplace. Mr Matwijow said that this would assist in avoiding confusion and conversations being taken out of context in the future.
(u) A letter from Mr Wallis to Mr Pearsall dated 28 August 2017 advising of the outcome of the Code of Conduct investigation.[24] The investigation found that there was no evidence that the treatment Mr Pearsall was receiving amounted to workplace bullying. It found that:
[24] AALD dated 11 July 2018, pp 224–231.
(i)there was no evidence that Mr McKenzie had said he would “bash [Mr Pearsall’s] lights out;
(ii)Mr Pearsall actively participated in the highly inappropriate conversation in the lunch room on 4 May 2017, and was joking and laughing with the other staff;
(iii)there was no evidence that Mr McKenzie deliberately tried to exclude Mr Pearsall from the field trip, or tried to bully him, and the conversation was friendly banter. The investigation found that as there were no witnesses to the conversation, Mr McKenzie did not have control over who attended the field trip, Mr Knight had sent Mr Pearsall the invitation, and Mr Pearsall had elected to take an annual leave day on the day of the field trip, the allegation had not been made out;
(iv)although Mr Pearsall denied telling Mr Boyd to pack up his lunch so he could use the truck, a number of eye witnesses confirmed that the event occurred;
(v)while Mr Pearsall denied that he had an inability to follow instructions, there were a number of sources at both Heatherbrae Depot and Medowie Depot that confirmed that Mr Pearsall did have an issue in relation to following instructions from supervisors and working effectively with other members of the team;
(vi)both the previous code of conduct and the current investigation confirmed that “there was clearly an issue with [Mr Pearsall’s] perception of conversations/interactions with staff.”
(vii)Mr Wallis pointed out the inconsistency between Mr Pearsall’s desire not to discuss personal matters, and his admission that in July 2017, he had initiated a conversation about YouTube clips and the shoes under the toilet door, which Mr Pearsall found amusing. Mr Wallis commented that a review of the difficulties within the team, and considering Mr Pearsall had the same difficulties working at two depots under three different supervisors, disclosed that Mr Pearsall had an inability to assimilate into a team environment, which had a significant impact on the team.
(viii)Mr Pearsall’s allegations were vexatious, that there was a breach of the Council’s Code of Conduct, that Mr Pearsall’s conduct was unsatisfactory and a formal warning was issued.
Mr Pearsall was advised that any future breaches may result in termination of employment and that he was required to undertake further training in relation to the obligations and responsibilities of his employment. He was required to work with Mr Reay to establish an improvement plan in relation to his work performance. Mr Pearsall was advised of the employee assistance service.
(v) Two emails from Mr Adin Stanley, the Acting Trades Gardener, dated 8 and 10 September 2017 directed to Mr Matwijow, Ms Rodway and Mr Priestley.[25] Mr Stanley reported a long conversation he had with Mr Pearsall on the morning of 8 September 2017 in which Mr Pearsall repeatedly accused Mr Stanley of harassing him by expecting him to carry out work that he could not complete. Mr Pearsall said he would report the matter to Mr Matwijow. Mr Stanley said that he had told Mr Pearsall that he was only allocating tasks that he was told to give to the team, and not to worry if he could not complete the work in the day. That evening, Mr Stanley received a telephone call from Mr Pearsall out of work hours, in which Mr Pearsall again complained that Mr Stanley harassed him, and threatened to “do something about it”. Mr Stanley said that he felt shaky, anxious, and kept checking over his shoulder to see if he was being followed. He said he found the telephone call intimidating and disturbing and after discussing the event with Ms Rodway, Mr Priestley and his partner, he reported the matter to Newcastle Police.
[25] AALD dated 11 July 2018, pp 233–238.
(w) An undated notice of Suspension of Duty signed by Mr Greg Kable, Group Manager – Facilities & Services.[26] The notice alleged that on 7 September 2017, Mr Pearsall had revealed confidential information to Mr McKenzie about the Code of Conduct investigation and asked Mr McKenzie to “back him up”, The Notice also referred to the Council being extremely concerned that Mr Pearsall continued to:
[26] AALD dated 11 July 2018, pp 239–242.
(i)challenge authority;
(ii)threaten with legal or other action;
(iii)falsely accuse colleagues of harassment;
(iv)behave in a manner that negatively impacts productivity, team morale and the mental health of the team, and
(v)make the staff feel unsafe working with him and not want to come to work.
Mr Pearsall was advised that due to the serious nature of the allegations, he was suspended on full pay until the investigation was complete. The matter was to be externally investigated, and he was required to attend an interview.
(x) A transcript of the record of interview undertaken on 11 October 2017 by Winton consulting;[27]
(y) A letter dated 2 November 2017 from Mr Wallis to Mr Pearsall, advising of the Code of Conduct investigation outcomes.[28] After reviewing the report issued by Winton Consulting dated 27 October 2017, the Council adopted the conclusions reached. The following findings were made:
(i)the complaint that Mr Pearsall breached the confidentiality of the investigation by giving specific details of the investigation to a day labourer (Mr McKenzie) was partially substantiated;
(ii)Mr Pearsall’s allegations (which were first raised at the interview on 11 October 2017) that there was no team meeting on 8 September 2017, and on that day the white board which normally listed the day’s duties was blank, were untrue. The investigation found that Mr Roberts had scheduled the daily tasks on the white board that day, and a team meeting took place. Mr Roberts also handed out printed work schedules at the meeting because Mr Stanley had only been acting in the role of Trades Gardener for a week. The complaint that Mr Pearsall had an inability to follow instructions from his supervisor, Mr Stanley, was substantiated;
(iii)the complaint that Mr Pearsall contacted Mr Stanley after work hours and deliberately harassed and intimidated Mr Stanley was partially substantiated, and
(iv)despite Mr Pearsall’s allegation of being treated unfavourably by the Heatherbrae parks team, it was substantiated that Mr Pearsall’s behaviour affected team engagement, caused stress and impacted on the health of the team, so that the staff no longer felt safe working with him.
Mr Wallis added that the investigation disclosed discrepancies between Mr Pearsall’s account of events and that of the Heatherbrae parks team and the Council, which led the Council to conclude that the information provided by Mr Pearsall was not credible or reliable. Further, the team had changed their behaviour in order to accommodate Mr Pearsall, such as having no conversations with each other of a personal nature, and remaining in their cars until start time because of a fear of having one-on-one conversations with Mr Pearsall. Mr Pearsall’s behaviour had a significant impact on the health and well-being of staff at both Heatherbrae and Medowie depots.
Mr Wallis identified the relevant breaches of the Council’s Code of Conduct and the Workplace Equity & Diversity Management Directive – December 2015 (employee’s responsibilities). Mr Wallis advised that, having regard to the investigation and Mr Pearsall’s history of poor behaviour, the Council had formed the preliminary view that it was appropriate to terminate Mr Pearsall’s employment. Mr Wallis advised Mr Pearsall that before the Council made a final decision in relation to disciplinary action or termination, a meeting was scheduled for 8 November 2017, to give Mr Pearsall an opportunity to respond to the proposed course of action. Mr Wallis informed Mr Pearsall that if he did not attend the meeting, the Council would proceed to make a decision on the basis of the information already available to it.
[27] AALD dated 11 July 2018, pp 247–300.
[28] AALD dated 11 July 2018, pp 301–307.
Statements from Mr Pearsall, Ms Rodway, Mr Reay and Mr Matwijow were also annexed to the Worksite Investigations report. Additionally, Mr Pearsall’s statement was filed as an annexure to the ARD. The Worksite Investigations report noted that it was intended that other employees would be interviewed, but that Ms Rodway instructed Worksite Investigations not to interview the rest of the team who had been involved in the allegations. This was said to be because the staff were fearful of potential litigation against them by Mr Pearsall and there was the potential that it would lead other staff to suffer stress and anxiety and further workers compensation claims may result. In addition, Mr Brady was physically ill on the day he was scheduled to be interviewed.[29]
[29] Worksite Investigation report; AALD, p 4.
Mr Pearsall’s evidence
Mr Pearsall was interviewed by Worksite Investigations between 6 December 2017 and 8 December 2017, and signed a forty-one page statement dated 8 December 2017.[30]
[30] ARD, pp 60–100.
Mr Pearsall provided a history of various previous employment roles. He then undertook a horticultural course, during which he obtained work with a labour hire company. Mr Pearsall indicated that he initially performed work for the Council through a labour hire agreement for about 22 months and then was employed directly by the Council on 19 November 2012. He was employed as a gardener/operator, but his title changed to Assistant Trades Gardener in about 2014. He said he was employed to work a nine-day fortnight, from 6.30 am to 3.30 pm each working day.
Mr Pearsall said that in about mid-2016, the Council introduced an eight-day roster. He said that because that impacted his holiday and sick leave days, he was not keen on the new roster. Following pressure from management and his supervisors, he agreed to trial the new roster. Mr Pearsall said that he was not happy with working an extra hour each day because he became fatigued in the afternoon, so after consultation with his Union and some deliberation on the part of the Council, the Council agreed to let him go back to a nine-day fortnight.
Following this, Mr Pearsall said that his co-workers, co-ordinators and supervisors accused him of not being a team player.
Mr Pearsall said that when he commenced employment with the Council, he was initially placed at Medowie Depot, which was a two-man crew. He said he worked with Mr Matthew Knight, with whom he had no difficulties. Mr Knight was transferred about seven months later and Mr Brad Priestley, who was promoted to the position of parks program officer, began overseeing both Medowie and Malabula Depots. Mr Pearsall said that Mr Priestley was expected to share time between both depots, but was seldom at Medowie, which resulted in increased duties for him.
Mr Pearsall described Mr Priestley as a bully by the dictatorial manner and tone in which he gave instructions. As an example, Mr Pearsall said that Mr Priestley instructed him to pick up cigarette butts in wet conditions at a sports complex (which he had to do crawling on hands and knees), while Mr Priestley sat in his car. Mr Pearsall said he found the experience degrading. He did not however make a complaint or lodge a grievance because he thought it would not be dealt with.
Mr Pearsall stated that he was employed at the Medowie Depot for about two and a half years. He reported that in the last three months at that depot, Mr Nicholas Brady was appointed to the position of Trades Gardener, which was a more senior position to him, and Mr Brady became his supervisor in respect of on-site duties. Mr Pearsall described Mr Brady as incompetent in areas such as supervisory duties, decision-making, and conducting risk assessments. He was also unsociable, such as he would sit in his car until starting time.
Mr Pearsall advised that he lodged several grievances against Mr Brady. In particular, there were two significant grievances. These were that Mr Brady instructed him to use a chain saw to cut a fallen tree that had an electrical power line running through it, without making the necessary checks to make sure the power line was not alive. He said the tree was in a dangerous position, and neither he nor Mr Brady were qualified to assess the tree.
Mr Pearsall reported that after lodging those grievances, Mr Brady bullied him by giving him instructions to work through his authorised breaks, by yelling and verbally abusing him, and on two occasions by throwing his mobile telephone.
Mr Pearsall said that Mr Michael Reay was the co-ordinator, to whom Mr Brady reported. Mr Pearsall described Mr Reay as untrustworthy and biased. He said Mr Reay played favourites with certain members of staff, and would go out of his way to make life difficult for people he did not like. Mr Pearsall alleged that Mr Reay made false allegations against him. As an example, Mr Reay verbally abused Mr Pearsall when Mr Pearsall complained that he was discriminated against because he was not given an opportunity to act in a short-term role as the trades gardener. Mr Pearsall reported that he made a written complaint to Mr Reay, and was appointed in the acting position for two weeks, when the others had been given four weeks.
Mr Pearsall indicated that Mr Reay reported to Mr Peter Matwijow, the section manager. Mr Pearsall felt that Mr Matwijow spoke down to him and usually dismissed whatever Mr Pearsall said. As an example, Mr Pearsall said that in meetings relating to the grievances he lodged against Mr Brady, Mr Matwijow commented that “people make mistakes”, which made Mr Pearsall feel anxious because he considered Mr Brady was putting his life at risk. Mr Pearsall added that within the previous three months, Mr Matwijow had also overlooked offering him an acting position as the Trades Gardener. Mr Pearsall considered Mr Matwijow to be a bully in meetings he had attended.
Following a transfer to Heatherbrae Depot, Mr Pearsall said he was required to report to Mr David Roberts, the parks program officer, who in turn reported to Mr Reay. Mr Pearsall considered Mr Roberts to be lazy, but said he had no conflicts or issues with Mr Roberts.
In respect of ongoing training, Mr Pearsall said that he had received some training, but had been excluded from some training course, such as courses run in 2017 for:
(a) safe work near powerlines;
(b) asbestos awareness;
(c) supervision of chemicals, and
(d) application of chemicals.
As a result of being excluded, Mr Pearsall said he felt degraded. He made a complaint, after which he was sent to the courses. He said, however, that he had never received any training in respect of the Council’s Code of Conduct. Further, he had attended in house group training in respect of bullying and harassment, but had never received any literature about that topic.
Mr Pearsall asserted that he had never been the subject of any performance issues, or placed on a performance management program. He did however undergo performance appraisals twice per year, conducted by Mr Knight (which were generally favourable) and then in 2017 by Mr Priestley, which were less than favourable and false in parts. Mr Priestley wrote that Mr Pearsall did not work overtime and did not participate in demonstration days for plant and equipment.
Mr Pearsall explained that he did work some, but not all overtime offered. Further, he did participate in demonstration days and in fact there was a photograph of him operating a cylinder mower at a demonstration day. Mr Pearsall conceded he did not participate in operating a zero-turn ride on lawn mower because he had not operated one before and would be embarrassed if he had operated it incorrectly. Mr Pearsall said he challenged some of Mr Priestley’s comments at the appraisal and wrote about the photograph of him operating the cylinder mower on the appraisal. He said Mr Priestley became hostile and told him he should not do such things.
Mr Pearsall said that, as far as he was aware, there had been no grievances lodged against him, but there were some complaints which he believed were acts of revenge because of the grievances he had lodged.
Mr Pearsall advised that he made the first written complaint to the Council on 29 September 2015. The complaint involved the incidences with Mr Brady, where Mr Brady instructed him to cut down the two trees, the occasion when Mr Brady threw his mobile telephone, and a third incident when Mr Brady was driving a vehicle without the appropriate licence.
Before he lodged the complaint, Mr Pearsall sought legal advice from a Mr Steven Parrot, solicitor, in relation to bullying and harassment in the workplace and being required to perform unsafe work. Mr Parrot provided him with some advice. Mr Pearsall then spoke to Mr Peter Hull, the then work health and safety officer at the Council, who wrote the letter of complaint and delivered it to Human Resources. He did not receive any response in writing, nor did the Council hold a meeting with him in relation to the complaint.
Mr Pearsall said about a month later he was asked to attend a meeting with Mr Priestley, Mr Brady and Ms Cindy Turner of Human Resources. Mr Reay was also in attendance. The meeting was said to be to air any issues with a view to ensuring a good working relationship.
Mr Pearsall expressed his concerns at working with Mr Brady, adding that Mr Brady expected him to work during his break. Further, Mr Brady would verbally give his instructions before work started, sometimes as early as 6.00 am, when the instructions were already written on the whiteboard. Mr Pearsall complained that those actions made him feel degraded and treated like a child. He said Ms Turner warned Mr Brady not to give those instructions in that manner, and if it persisted, something would need to be done.
Mr Pearsall stated that he did not derive any satisfaction from the meeting, and from time to time Mr Brady continued to give him instructions before 6.30 am throughout 2015 and up to about May 2016.
Mr Pearsall reported that there was a further incident on 12 January 2016 when Mr Brady observed that the ride on mower Mr Pearsall was using was leaking oil. Mr Brady instructed Mr Pearsall to continue mowing as it was only a minor leak. Mr Pearsall said that later that day, Mr Roberts came to the work site (which was outside of Mr Roberts’ usual area). He told Mr Pearsall that there had been allegations that Mr Pearsall had called Mr Brady a “dumb shit greenkeeper”. Mr Pearsall said that he denies that he ever said this to Mr Brady.
On 27 January 2016, Mr Pearsall received notification that he was required to attend a counselling meeting, which took place on 1 February 2016. Mr Pearsall attended with Mr Andrew Ryals, a Union delegate. Ms Turner and Mr Matwijow were present. Mr Pearsall reported that Mr Matwijow accused him of not following Mr Brady’s instructions, but when requested, could not give Mr Pearsall any examples or instances when that had occurred.
When the meeting concluded, Mr Pearsall was given the opportunity to raise any other issue. Mr Pearsall took the opportunity to report that he had been excluded from first aid training in 2015, which the employees usually attended as a group. He reported that he had told Mr Priestley his certificate ran out in July 2015, and Mr Priestley said he could attend the training in August 2015. Mr Pearsall stated that he was not sent to the training, so took a day off work and attended a course in his own time and paid for it himself.
Mr Pearsall added that at the meeting, he gave an example of the respect he held for Mr Brady. He described an incident in December 2015 or January 2016, when he offered to buy Mr Brady lunch because Mr Brady had forgotten his wallet, and Mr Brady accepted.
Mr Pearsall considered that the meeting on 1 February 2016 was a non-event, and there were no outcomes.
Mr Pearsall referred to the change of roster to the eight-day fortnight, which occurred in about March 2016, and that he remained working on the nine days each fortnight. The arrangement was that when he was working on the ninth day, he would work alone but reported to Mr Brady on the work achieved that day. On 11 April 2016, Mr Pearsall reported by email to Mr Brady that it had been a good day at work without any issues. Mr Pearsall said that Mr Brady responded as follows:
“Thanks mate good job on getting it done. Don’t criticise the 4-day week though if that is what you mean. We could send you there any day to do this.”
Mr Pearsall stated that he felt that Mr Brady was “having a go” at him for working a nine-day fortnight and was threatening to make him work the eight-day roster contrary to his enterprise agreement. Mr Pearsall said he did not like the tone of the email.
Mr Pearsall advised that he sought legal advice again from Mr Parrot because Mr Brady continued to give him instructions before 6.30 am. On 3 May 2016, Mr Brady again gave work instructions before 6.30 am, and Mr Pearsall told him that he was seeking legal advice. Mr Brady then informed Mr Priestley that Mr Pearsall had made legal threats against him.
Mr Pearsall was then asked to attend a meeting on 4 May 2016, attended by Mr Ryals, Ms Melissa Rodway, Mr Priestley, and Mr Matwijow. There were four bullet points Mr Pearsall was asked to address, which Mr Pearsall said he answered as best he could. Mr Pearsall said he felt the meeting was totally biased in favour of Mr Brady’s account of events. A letter dated 17 May 2016 purported to record Mr Pearsall’s responses given at the meeting. Mr Pearsall disputed that was an accurate record of his responses.
A further meeting was held four weeks later, which Mr Pearsall again thought was biased towards Mr Brady, and achieved no improvement in the working relationship between him and Mr Brady.
Mr Pearsall reported that further issues occurred, which he raised through Mr Ryals. On 15 July 2016, a follow-up counselling meeting took place and he was advised the counselling process had concluded. At that meeting, Mr Pearsall raised concerns that Mr Priestley had suggested he should apply for a position at Newcastle City, and on another occasion told him he would be transferred there. Mr Pearsall said he felt Mr Priestley wanted him gone, and he felt bullied. He complained, and was told that Mr Priestley was only making a joke.
Mr Pearsall said he lodged a further grievance on 23 August 2016. The grievance related to issues raised in emails in respect of:
(a) not being tested for chemicals after using Bioactive Roundup;
(b) being given no opportunity for front end loader training;
(c) being given work instructions before 6.30 am, and at lunch time;
(d) remarks made by Mr Priestley, and
(e) him obtaining legal advice.
Mr Pearsall stated that the Council replied by issuing him with a Code of Conduct letter dated 20 October 2016, without him having the opportunity of being interviewed, and he was disappointed. He responded to the Code of Conduct letter, refuting allegations made and contesting the explanations given by the co-workers he complained about.
Mr Pearsall advised that a meeting run by Ms Rodway was then held on 11 November 2016 to discuss the code of behaviour expected of staff. He said he felt that meeting was directed at him.
Mr Pearsall said that about a month later, he was required to attend a further meeting with Ms Rodway and Mr Matwijow, in which he was advised that Mr Priestley and Mr Brady had informed the Council that they no longer wanted to work with him. He was advised that he was being transferred to Heatherbrae Depot. Mr Pearsall stated he was “gutted, upset, felt set-up and bullied when told this.”[31]
[31] Mr Pearsall’s statement dated 8 December 2017; ARD, p 78, [140].
Mr Pearsall said that he did not want to leave Medowie Depot and he felt victimised. He said he had come forward with issues of bullying and harassment, yet he was the one being transferred. He said he felt trapped because he had been told not to contact the Union Organiser, but instead to contact the Union delegate who was an employee based at Nelson Bay Works Depot, who he did not know.
Nonetheless, Mr Pearsall accepted the transfer to Heatherbrae Depot and commenced there on 7 February 2017. His role, duties and work schedule were the same, but he reported to Mr Roberts.
Mr Pearsall said that Mr Roberts questioned the work schedule in relation to Mr Pearsall not being required to clean the machines on Tuesday, Wednesday and Thursday, and arranged a meeting with Ms Rodway and Mr Matwijow. Mr Pearsall was surprised that the meeting was more formal than he had expected, and was in fact a counselling session. He felt the entire meeting was against him.
At the meeting, Mr Pearsall raised a further issue that he was excluded from tool box meetings, which were held at 6.00 am, but he was not allowed to attend work before 6.15 am. Mr Pearsall said that no solution was offered and the issue remained unresolved while he continued to work a nine-day fortnight. He also raised issues, of the tasks on the whiteboard being read to him, being accused of not being a team player because he worked a nine-day fortnight, and that Chris McKenzie had told him his employment would be terminated.
Mr Pearsall reported that there was no outcome from the meeting, other than that he was required to clean the machines each day, which he was happy to do. Mr Pearsall said that following the meeting, on 15 May 2017, he received a letter in relation to the matters discussed. Mr Pearsall refuted much of what was said in the letter.
Mr Pearsall agreed to and commenced working an eight-day fortnight on 18 April 2017. In October 2017, he was given the option of returning to a nine-day fortnight, but decided to remain working an eight-day roster for a further three months.
Mr Pearsall alleges that on 4 May 2017, in the presence of Mr Boyd and Mr Polglase, Mr McKenzie accused him of child molestation and of watching pornographic films. As a result, he lodged a grievance. A fact-finding meeting was arranged, which eventually occurred on 11 July 2011. Mr Pearsall said that Ms Rodway attended, as well as Mr Matwijow and Mr Ryals. The meeting was recorded and a transcript made available. Mr Pearsall denied:
(a) allegations made by Mr McKenzie that he gave another co-worker pornographic movies, and watched pornography;
(b) he had ever refused duties of a manual or labour-intensive nature;
(c) he had ever threatened to take legal action against anyone, and
(d) he had owned or discussed with co-workers that he had guns.
Mr Pearsall said that he felt very distressed and upset after the meeting. He started losing sleep and was anxious about the outcome, given the severity of the accusations against him. He was concerned about how the workplace would perceive him, since Mr McKenzie had implied he was a paedophile.
Mr Pearsall then received a letter advising him he was required to attend a Disciplinary/Counselling meeting on 19 July 2017, again with Mr Matwijow, Ms Rodway and Mr Ryals. Mr Pearsall refuted the allegations made against him, and said that the allegations made against him that he had made sexual suggestions caused him distress and anxiety. Mr Pearsall said there were no outcomes from that meeting, which further distressed him and he felt victimised. He said that the Council “turned a blind eye” to Mr McKenzie’s comments.
On 28 August 2016, Mr Pearsall received a second Code of Conduct letter, which alleged he had been the perpetrator of inappropriate conduct. He denied such conduct. Mr Pearsall said that he felt further distressed and anxious about those accusations, but nonetheless continued to try to get on with his job, working in the same team as Mr McKenzie, who had made threats of violence against him.
Mr Pearsall said that on 8 September 2017, Mr Stanley directed him to do more work than he was able to achieve in the day, which was work that was normally done by four people. Mr Stanley told him to do as much as he could, and did not offer him any assistance. Mr Pearsall said that he was concerned that he was being set up, so after work that day he contacted Mr Stanley and asked him for a reason for being given so much work. He said Mr Stanley indicated he could not talk to him at that time. Mr Pearsall said that he was also asked to do some further tasks on that day by Mr Priestley, which were required to be done in preparation for the Saturday work scheduled for the following day.
Mr Pearsall stated that on that evening, he received a telephone call from Mr Priestley, advising that the Saturday work had been postponed, and that Mr Priestley said to him that “I will have you gone.”
On Monday 11 September 2017, Mr Pearsall, who was on a rostered day off, was contacted by Mr Steve Thomas of Lake Macquarie Council, who requested him to attend a meeting that day with him and the Union organiser, Mr Daniel Orwell. Mr Pearsall was asked to tell them what had happened at work on 7 and 8 September 2017. He said he told them about the unreasonable workload and the difficulties he had completing it, and they took notes of what he said.
After the meeting, at 4.20 pm, Mr Pearsall received a further telephone call from Mr Thompson, advising him of another meeting to be held at 9.00 am the following day (12 September 2017). Mr Pearsall inquired as to whether his employment was to be terminated and Mr Thomas replied that it was not.
At the meeting, he was issued with a Suspension from Duty letter. He was not given the opportunity to read it or respond, but was told the letter was strictly confidential, and he was not to discuss it with anybody. He was offered assistance through the Employee Assistance Program. Mr Pearsall said he was devastated and felt physically ill. Mr Orwell told him that the suspension was for six weeks.
Mr Pearsall stated that he remained off work. At the Council’s request, he attended an interview with Winton Consulting on 27 September 2017. He described the interview as biased. He described feeling stress and anxiety on receipt of a transcript of the interview, which had been provided to him. He said he made an appointment to attend Dr Raschke, which was scheduled for 25 October 2017, but was rescheduled to 7 November 2017 by the doctor because of her unavailability.
On 2 November 2017, Mr Pearsall received a third Code of Conduct letter, which was based on the findings made by Winton Consulting, He refuted the allegations, which he said were largely one person’s word against another, and he said it was factually incorrect. The Code of Conduct letter requested that he attend a meeting with the Council on 8 November 2017.
Mr Pearsall consulted Dr Raschke on 7 November 2017, who certified him as having no capacity for work and referred him to Ms Danielle Collins, psychologist.
Mr Pearsall described his treatment regime thereafter. He said he had not replied to the Code of Conduct letter dated 2 November 2017, as he wanted to seek legal advice. He said he enjoyed his job and wanted to work. He indicated that he was removed from Medowie Depot without procedural fairness, and he wanted to return to work there.
In an undated supplementary statement, Mr Pearsall confirmed that he had been off work since 7 November 2017, and continued under the care of his psychologist, Ms Clifford. His general practitioner, Dr Raschke, increased the dosage of his medication. He described his ongoing difficulties. He said the allegations that he molested children upset him greatly.
In a further statement dated 26 July 2018, Mr Pearsall advised that he had resolved an unfair dismissal claim against the Council for payment of nine months of pay, plus part payment of his legal costs.
Mr Pearsall advised that he lodged an application under the Government Information (Public Access) Act 2009 in order to obtain a copy of the investigation conducted by Winston Investigations, as the extracts he had read indicated to him that the investigation was flawed and contained inconsistencies. Mr Pearsall complained that the termination letter went beyond the four allegations that were raised in 2017, and included a grievance he made in 2016, which had been turned into an argument that he was harassing staff. Mr Pearsall said that it was difficult to accept, he felt that it was unfair and made him feel that he was targeted.
Mr Reay’s evidence
Mr Reay provided a signed statement dated 18 December 2017.[32]
[32] AALD dated 11 July 2018, pp 91–104.
Mr Reay said that he had been the co-ordinator of the crews in which Mr Pearsall worked for the entire time Mr Pearsall was employed by the Council. He reported that Mr Pearsall required a lot of supervision to ensure that he performed the correct tasks, and completed them. He said that Mr Pearsall tended to get side-tracked and failed to follow directives.
Mr Reay indicated that when the four-day per week roster came into effect in about mid-2016, Mr Pearsall was the only worker who chose not to work the new roster. Mr Pearsall later did, however, change to the new roster.
Mr Reay asserted that the Council went out of its way to cater for Mr Pearsall’s roster. He did not believe that Mr Pearsall was ostracised or isolated as result of working the nine-day roster, or that any co-workers, co-ordinators or supervisors accused him of not being a team player.
Mr Reay further asserted that he did not believe that Mr Pearsall’s duties increased after Mr Priestley became his supervisor, and described Mr Priestley as an exceptional worker.
Mr Reay stated that he could not recall any specific incident or complaint lodged by Mr Pearsall in relation to having to pick up cigarette butts in the rain.
Mr Reay advised that Mr Brady commenced at Medowie Depot as a Trades Gardener about three years previously, and was Mr Pearsall’s supervisor. He described Mr Brady as a competent worker, with a good work ethic and easy to get along with.
Mr Reay said that Mr Pearsall lodged a number of grievances against Mr Brady. The first was in March 2015 when there were severe storms and Mr Brady asked Mr Pearsall to cut down a tree, which Mr Pearsall alleged had an electric power line running through it. Mr Pearsall also alleged he was required to cut down a tree in windy conditions. Mr Reay undertook the investigation of the complaint, and established that the area had underground power, and Mr Brady could not identify what power lines Mr Pearsall was referring to. Mr Reay said that the allegations were a “major exaggeration” on Mr Pearsall’s part, and not substantiated. Mr Reay described Mr Pearsall’s manner in making the complaints as aggressive, and he persistently raised that he had sought legal advice which was going to cost him $50,000.
Mr Reay observed that Mr Pearsall lodged a formal grievance in relation to those allegations about six months after the incidents were said to have occurred. Because of Mr Pearsall’s persistence with the allegations, a counselling meeting was scheduled for 1 February 2016. Mr Reay could not recall whether Mr Pearsall attended.
Mr Reay stated that by this time, Mr Pearsall’s mindset appeared to be that he perceived he was being discriminated against. Mr Reay said that Mr Pearsall had applied for a promotion to a Trades Gardener position on two occasions, one in early 2015 and then again in April 2017. He was unsuccessful because he lacked the trade and supervisory skills required. Mr Reay advised that Mr Pearsall was offered training to improve in those areas, which Mr Reay believed Mr Pearsall accepted.
Mr Reay said that Mr Pearsall was transferred away from Medowie Depot because “of the trouble he was causing”. Mr Reay gave examples of somewhat petty complaints, which led to the conclusion that it was untenable for Mr Brady and Mr Pearsall to be working alone together, so Mr Pearsall was transferred to Heatherbrae, which was a larger team.
Mr Reay indicated that there were issues within a few weeks of Mr Pearsall commencing at Heatherbrae Depot. Mr Pearsall questioned duties given to other staff, and his own routine. He made a big issue about being discriminated against by being told he was not to clean the machines because he finished earlier than the others. Mr Pearsall made complaints that he was excluded from a number of training courses, Mr Reay said that Mr Pearsall was not discriminated against and that the training was offered according to merit. A comparison between training offered to Mr Pearsall and others showed that he had as many opportunities as others of the same grade.
Mr Reay reported that Mr Pearsall was the subject of performance issues in respect of not following instructions and damage to plant and equipment due to operator error.
Mr Reay referred to the written complaint made by Mr Pearsall on 29 September 2015 in relation to being asked to cut the two trees, Mr Brady not having a heavy vehicle licence and Mr Brady throwing his telephone. Mr Reay thought that Mr Roberts handled that complaint. He said that there was a meeting held about one month after this complaint, in which Mr Pearsall raised issues about Mr Brady calling Mr Pearsall during the lunch break, giving instructions before Mr Pearsall’s start time and reading out instructions that were written on the white board.
In relation to the email dated 11 April 2016 referring to the four-day week, Mr Reay said that he was simply responding to what he considered to be Mr Pearsall’s “dig about being at work, when everyone else was off work.” Mr Reay said that he did not consider his response to be threatening.
Mr Reay said that things reached the point where Mr Pearsall was speaking aggressively to staff, making issues about nothing, questioning staff about their duties and threatening to consult his lawyer about bullying and harassment. Thereafter, Mr Pearsall made complaints through the Union.
Mr Reay referred to the counselling meeting on 15 July 2016, following which the counselling process was concluded because Mr Pearsall ceased making allegations and complaints for the time being.
Mr Reay said that Mr Pearsall lodged a further grievance on 23 August 2016, which was the subject of the Code of Conduct letter dated 20 October 2016. Mr Pearsall lodged yet another grievance in respect of incidents on 21 April, 4 May and 5 May 2017. Mr Reay was not involved in the process for either of those grievances. Mr Reay recalled that at some stage, Mr Pearsall complained that staff had accused him of being a child molester.
Mr Reay was not involved in the balance of Mr Pearsall’s ongoing complaints, but observed that Mr McKenzie did not have a track record of fighting, and was an exemplary employee who had worked for the Council for 10 years.
Mr Matwijow’s evidence
Mr Matwijow provided a signed statement dated 18 December 2018.[33]
[33] AALD dated 11 July 2018, pp 105–111.
Mr Matwijow stated that he attended numerous investigative meetings with Mr Pearsall and as a result had addressed several letters to Mr Pearsall. He said he first became involved in an investigative capacity at about the time of the Code of Conduct letter issued on 20 October 2016. Mr Matwijow said that most of the allegations were trivial, such as that someone had asked Mr Pearsall how his weekend had been, and that the allegations were basically Mr Pearsall’s word against another staff member. Mr Matwijow said that nonetheless, the Council always endeavoured to cater for Mr Pearsall’s demands, such as directing staff not to talk to Mr Pearsall before his 6.30 am start time. At the same time, the Council was mindful of the welfare of others.
Mr Matwijow said that the decision in late 2016 to transfer Mr Pearsall to the Heatherbrae Depot was done for two reasons. Firstly, there were issues between Mr Pearsall and Mr Brady, most of which were instigated by Mr Pearsall, to the point that Mr Brady said he would leave if he had to continue to work with Mr Pearsall. The second reason was that Mr Pearsall had expressed an interest in becoming a Trades Gardener, and there would be more opportunity for him to be trained at the Heatherbrae Depot.
Mr Matwijow reported that soon after the transfer, Mr Pearsall began to raise issues, some of which appeared trivial. Issues were also raised by Mr Roberts in respect of Mr Pearsall’s work performance and workplace behaviour. This resulted in Mr Pearsall being required to attend the counselling meeting on 16 March 2017. Mr Matwijow observed that shortly after the meeting, Mr Pearsall reverted to his former behaviour.
Mr Matwijow said that he was involved in the investigation of Mr Pearsall’s grievance in respect of incidents on 21 April, 4 May and 5 May 2017. The outcome of the investigation was that Mr Pearsall’s allegations differed to the evidence from other staff. Mr Matwijow remarked that Mr McKenzie did not have a past history of threats or violence, and there was no reason to doubt the version of events put forward by Mr McKenzie and Mr Boyd. It was found that Mr Pearsall was a willing participant in the discussions of a sexual nature. Mr Pearsall’s complaint that he was excluded from the field trip was also not substantiated.
Mr Matwijow also spoke to Mr Pearsall in relation to Mr Pearsall’s conversation relating to shoes in the toilet block, which Mr Pearsall did not deny, but was indifferent in his attitude. Further, at the fact-finding interview on 11 July 2017, Mr Pearsall’s attitude was “smug”. Mr Matwijow said that allegations by and against Mr Pearsall went on for months, requiring further meetings with Mr Pearsall. He said that the only disciplinary action taken against the other staff was the requirement for them to attend Code of Conduct training.
In relation to Mr Pearsall being overlooked for training, Mr Matwijow refuted the allegation. In relation to chemical testing, Mr Pearsall was in line to be tested, but those at highest risk were tested first.
Mr Matwijow stated that the decision to suspend Mr Pearsall was made on 11 September 2017. On the following day (12 September 2017), a meeting was held to discuss the further allegations made against Mr Pearsall. Those allegations involved breaching confidentiality, failing to follow Mr Stanley’s instructions on 8 September 2017, as well as allegedly threatening Mr Stanley over the telephone that evening. Mr Pearsall was handed the letter of suspension at that meeting. Mr Matwijow observed that Mr Pearsall appeared nonchalant and indifferent at that meeting.
Mr Matwijow concluded that the Council had always acted with consideration for Mr Pearsall’s health and well-being, as well as that of his colleagues.
Ms Rodway’s evidence
Ms Rodway also provided a signed statement, dated 20 December 2017.[34]
[34] AALD dated 11 July 2018, pp 112–125.
Ms Rodway confirmed that Mr Pearsall had received training in respect of the Council’s Code of Conduct and in workplace bullying and harassment.
Ms Rodway stated that she first became involved in issues related to Mr Pearsall in May 2016 but she was aware that Mr Pearsall first lodged a complaint in September 2015. The complaint related to Mr Brady not having a heavy vehicle licence, Mr Brady throwing his telephone and Mr Brady instructing Mr Pearsall to cut down trees in dangerous situations. Ms Rodway said that an undocumented informal meeting was convened to discuss the issues and try to ensure a good working relationship.
As a result of ongoing issues, a letter dated 17 January 2016 was sent to Mr Pearsall and he was required to attend a further meeting on 1 February 2016.
Ms Rodway confirmed that the Council introduced a four-day week roster in March 2016, to which all staff agreed, except Mr Pearsall. Ms Rodway referred to the email from Mr Reay dated 11 April 2016 asking Mr Pearsall not to criticise the four-day week, and said that Mr Pearsall raised this email in a counselling meeting, but did not make a formal complaint about it. Ms Rodway observed it to be rather ironic that Mr Pearsall alleged he was being discriminated against because he was working on the nine-day roster, when it was Mr Pearsall’s election to do so.
Following correspondence to Mr Pearsall on 4 May 2016, Mr Pearsall was required to attend a counselling meeting with her on 9 May 2016. Mr Ryals was also present. The issues raised were Mr Pearsall’s apparent lack of respect and threatening behaviour towards Mr Brady, unwillingness to follow instructions, refusal to do certain tasks, communication with Mr Brady, and lack of clarity in relation to the requirements of his role.
Ms Rodway observed that during the meeting, Mr Pearsall appeared withdrawn and reluctant to answer questions. There was no disciplinary action taken by the Council at that stage, and the Council decided to mediate and monitor Mr Pearsall’s behaviour. Mr Pearsall denied threatening legal action. Ms Rodway said that the letter dated 17 May 2016 covered Mr Pearsall’s responses, the expected outcomes and the issues with which Mr Pearsall agreed. Ms Rodway said that in that meeting and others, when issues were put to Mr Pearsall, he would retaliate by raising further issues. Ms Rodway said that it was a common occurring theme that Mr Pearsall would allege something had been said, it would be investigated, and on most occasions, it would appear Mr Pearsall had misconstrued what had been said.
Ms Rodway stated that the workplace situation improved and Mr Pearsall sustained positive changes following the meeting on 17 May 2016, so that on 15 July 2016, the counselling process was completed.
Ms Rodway said that the positive changes were short-lived, and in emails dated 23 August and 25 August 2016, Mr Pearsall made seven further complaints, which she and Mr Matwijow investigated. Mr Priestley, Mr Reay, Mr Brady and Mr Pearsall were all interviewed. The outcome of the investigation was as set out in the letter from Mr Wallis dated 20 October 2016, summarised at [15(h)] above.[35]
[35] AALD dated 11 July 2018, pp 145–152.
On 11 November 2016, Ms Rodway held a meeting with parks and gardens staff to discuss an appropriate Code of Conduct. One of the matters was to put in place a strategy that if Mr Pearsall had any issues, he was to first raise them with his supervisor, and if it was not resolved, to then approach Mr Lee Bradbury, the Union delegate, before involving Mr Ryals. After this meeting, Mr Pearsall continued to go directly to Mr Ryals, which Ms Rodway said was an example of how Mr Pearsall would agree to resolutions and then proceed to do the opposite.
Ms Rodway confirmed that Mr Pearsall was transferred to Heatherbrae Depot on 6 February 2017 because of ongoing issues between Mr Pearsall and Mr Brady, and the effect it was having on Mr Brady. Ms Rodway said that it was normally against public policy to transfer staff with issues, but on this case Mr Pearsall did not want to associate with his co-workers and it was thought that it would be easier for him in a larger team. Further, it would be better for Mr Brady. Ms Rodway said Mr Pearsall accepted the transfer, but after he commenced at the Heatherbrae Depot he complained that he had lost his job. Ms Rodway said that issues arose shortly after Mr Pearsall commenced at the Heatherbrae Depot, such as questioning the duties of other staff, his routine (which was different to staff working the four-day week), and not being allowed to clean the machines. A meeting was held on 16 March 2017, and the matters discussed and outcomes reached were recorded in the letter sent to Mr Pearsall dated 21 March 2017.
Because of ongoing issues, Mr Pearsall was required to attend a disciplinary/counselling meeting on 18 May 2017, to discuss issues outlined in a letter to Mr Pearsall dated 15 May 2017, summarised at [15(k)] above. Mr Pearsall denied the behaviour alleged, and at the end of the meeting said that he had been accused by team members of molesting children and was going to lodge a grievance. Mr Pearsall lodged the complaints in letter form, that related to incidents on 21 April, 4 May and 5 May 2017. Ms Rodway investigated the matters and interviewed all staff concerned. Ms Rodway said it became evident that Mr Pearsall would often instigate inappropriate conversations, and then when others joined in, he would take offence. Ms Rodway stated that staff did not know what to expect from Mr Pearsall from day to day, and that Mr Pearsall had a “variable line” which staff found difficult to know when they were going to cross.
The outcome of the investigation was that the allegations were not substantiated and were vexatious in nature. Mr Rodway asserted that the weight of the evidence against Mr Pearsall was overwhelming, and was Mr Pearsall’s word against several others. No disciplinary action was taken against any staff, but they were required to re-attend a Code of Conduct refresher course.
A joint grievance against Mr Pearsall was lodged by five of the staff on 26 May 2017, in which they advised they could no longer work with Mr Pearsall. As part of the investigation, further issues arose and Mr Pearsall was required by letter dated 20 June 2017 to attend a fact-finding interview, which eventually occurred on 11 July 2017. Mr Pearsall denied the allegations.
The following day, Mr Pearsall made the inappropriate comments about shoes in the toilet block, and a further counselling meeting was arranged for 19 July 2017 to discuss the matters referred to in the letter dated 14 July 2017. At that meeting, Mr Pearsall complained that he had been excluded from training. Mr Rodway followed this up, and found that Mr Pearsall had declined the training and taken an annual leave day. Ms Rodway said that the matters discussed and the outcome of the meeting were in accordance with the letter from Mr Matwijow dated 24 July 2017. Mr Pearsall was given a Code of Conduct letter dated 28 August 2017 in which it was found that Mr Pearsall had breached the Code of Conduct. Mr Pearsall was given a formal written warning. Mr Pearsall failed to adhere to the Code of Conduct letter, by reports that he:
(a) was harassing staff;
(b) had discussed the confidential nature of the Code of Conduct matter;
(c) failed to follow Mr Stanley’s instructions, and
(d) contacted Mr Stanley at home, threatening him.
Mr Pearsall was suspended from duty on 12 September 2017 until the matter was externally investigated by Winton Investigations. As a result of those investigations, Mr Pearsall was required to show cause as to why his employment should not be terminated and a meeting was scheduled for 8 November 2017, which Mr Pearsall failed to attend.
Ms Rodway observed that Mr Pearsall’s attendance records were exemplary, and he had 561 sick leave days accrued at the time of his suspension. He had not taken any time off prior to the suspension in respect of any anxiety or stress related to the workplace.
Ms Rodway confirmed that she had requested that in the investigation of the claim, no staff from parks and gardens were to be interviewed as some of them were fearful of potential litigation against them, it would not take much for the staff to become stressed and anxious to the point where they may also lodge a claim, and she was concerned about their welfare. Further, Mr Brady was physically ill on the day of the proposed interview.
Ms Rodway also gave oral evidence at the arbitration.[36]
[36] Transcript of Proceedings (T), Pearsall v Port Stephens Council [2018] NSWWCC 234; Arbitrator Young, 22 August 2018, T 6.11–24.21.
Ms Rodway was asked about a deed of release that had been entered into between Mr Pearsall and the Council. It was noted that the deed was a settlement of an unfair dismissal claim brought by Mr Pearson in the Industrial Relations Commission. The deed recorded that the claim was resolved for the sum of $40,364.64, which was the equivalent of nine months of Mr Pearsall’s weekly pay, plus legal costs.
Ms Rodway said that the Council settled the matter because it resolved the Council’s liability without a finding that the dismissal was unfair. Ms Rodway said that the key factors in the settlement were that it took a long time to resolve the matter, that the Council had a duty of care to the other staff and the Council had to ensure their well-being by resolving the matter. She said that because the matter was ongoing and showed no signs of resolving, the Council offered an incentive above the standard amount to ensure a resolution.
Ms Rodway confirmed that they did not want Mr Pearsall to return to work with them as the relationship was untenable. Ms Rodway said that the investigation report that led to Mr Pearsall’s termination was not released to Mr Pearsall because it was against Council policy, as there was a need to protect the other individuals involved. Ms Rodway said that in any event, there were other factors that were considered, including Mr Pearsall’s pattern of behaviour.
Ms Rodway said that there were threats made by Mr Pearsall towards a number of staff and some staff feared for their safety. She said there was some talk about Mr Pearsall owning illegal firearms. Because of staff concerns, the Council put in place some strategies so that employees were not alone in the company of Mr Pearsall. Ms Rodway agreed that the Council had spoken to Mr Pearsall about the possession of firearms.
The medical evidence
The clinical notes recorded by Dr Raschke from 7 November 2017 to 8 March 2018 were in evidence.[37] The history recorded by Dr Raschke at the consultation on 7 November 2017 was that Mr Pearsall had been discriminated against and harassed in the workplace. Each time Mr Pearsall reported something to his employer, nothing was done and others made up something about him. A new employee had nearly killed him. He was accused of molesting children. He was not allowed to discuss his complaints with anyone. The doctor noted that Mr Pearsall was sleeping badly.[38] Dr Raschke provided a WorkCover certificate of capacity, certifying Mr Pearsall as suffering from an adjustment disorder with anxiety and depression as a result of injury in “May 2017, before and after”, and that Mr Pearsall had no capacity for employment. Dr Raschke also noted on the certificate that Mr Pearsall was first seen at the practice on 7 November 2017, but that a previous appointment had been cancelled by her office.[39]
[37] ARD, pp 53–59.
[38] ARD, p 54.
[39] ARD, pp 28–30.
Mr Pearsall consulted Dr Raschke again on 15 November 2017. Dr Raschke noted weight loss of 12–13 kilograms. Dr Raschke prescribed an antidepressant and medication for occasional insomnia. Dr Raschke also referred Mr Pearsall to Newpsych, psychologists. Further notes recorded on 29 November and 10 December 2017 were unremarkable. During subsequent consultations, Dr Raschke took a more comprehensive history of Mr Pearsall’s alleged stressors, that included that Mr Pearsall was “sent over the edge” by the allegation of child molestation. The symptoms recorded were of anxiety at times, anhedonia and waking in the middle of the night, as well as worrying that he would run into people from work. On 2 March 2018, Dr Raschke noted that Mr Pearsall complained of suicidal thoughts.
On 25 July 2018, at the suggestion of Ms Danielle Clifford, psychologist, Dr Raschke wrote a referral for Mr Pearsall to see Dr Ashwinder Anand, psychiatrist, noting that Mr Pearsall was continuing to struggle with the effects of the workplace stressors.[40]
[40] AALD dated 14 August 2018, p 9.
Mr Pearsall relied on a number of further WorkCover certificates of capacity issued by Dr Raschke.[41] Each certificate repeated the diagnosis, the date of injury and that Mr Pearsall had no capacity for employment. The most recent WorkCover certificate of capacity provided by Dr Raschke was dated 9 August 2019, and continued to state that Mr Pearsall had no capacity for employment.[42]
[41] ARD, pp 31–51 and AALD dated 14 August 2018, pp 11–18.
[42] AALD dated 14 August 2018, pp 15–19.
Dr Danielle Clifford, clinical psychologist, provided a report directed to Dr Raschke dated 30 November 2017.[43] Dr Clifford recorded that Mr Pearsall was neatly dressed, cooperative, and his speech was normal, with no issues of concentration, memory or formal thought disorder. Dr Clifford observed that Mr Pearsall’s mood was dysthymic, and his affect was flat.
[43] ARD, pp 12–13.
Dr Clifford took a history of anxiety and stress related to workplace bullying and harassment since 2013 that included working long hours and through authorised breaks, doing work he was not qualified to do and being abused. He was accused of child abuse and received threats of bodily harm. She diagnosed severe anxiety and extremely severe depression, and that his symptoms met the criteria of a major depressive episode.
Dr Clifford’s clinical records were also in evidence.[44] The documents do not add anything further to Dr Clifford’s medical report.
[44] ARD, pp 14–27.
Mr Pearsall’s legal representatives sought a medico-legal opinion from Dr Ash Takyar, consultant psychiatrist, who examined Mr Pearsall by video conference on 1 May 2018. He provided a report dated 11 May 2018.[45]
[45] ARD, pp 1–10.
Dr Takyar recorded the history of Mr Pearsall’s allegations in relation to the period when he was supervised by Mr Brady and also after Mr Pearsall was transferred to the Heatherbrae Depot. The history largely accorded with the events described in Mr Pearsall’s statement. Dr Takyar noted Mr Pearsall’s “current symptoms” were depression, anhedonia and low energy, sleeping difficulties, short term memory loss, lack of concentration, low appetite, reduced self-worth and self-harm ideation. Mr Pearsall described anxiety every day for most of the day.
Dr Takyar took the history that there had been no previous psychological symptoms or treatment and no family history of psychiatric conditions. There had also been no other non- work-related stressors. Dr Takyar summarised Mr Pearsall’s history as a degradation in his mental state that began in 2014 and escalated progressively with a build-up of psychiatric symptoms until 2017, when he eventually had to cease work. During that time, Mr Pearsall was degraded and demeaned by his supervisors and a team member accused him of sexually molesting children, which significantly worsened his mental state. Dr Takyar said that he was unable to confirm which account of events was correct, but said that there was no internal inconsistency in Mr Pearsall’s account.
Dr Takyar expressed the view that the history described of multiple events occurring appeared to be the causative factors in the development of Mr Pearsall’s psychological condition. Dr Takyar believed that Mr Pearsall had no capacity for employment, and would probably never be able to return to his pre-injury employment.
Dr Takyar proceeded to respond to specific questions posed by Mr Pearsall’s legal representatives. He diagnosed an adjustment disorder with mixed anxiety and depressed mood, that developed in the context of the described workplace stressors. He opined that there was no pre-existing condition, and employment was a substantial contributing factor to the injury.
The Council arranged for Mr Pearsall to be examined by Dr Peter Ashkar, forensic psychologist and clinical neuropsychologist. Dr Ashkar examined Mr Pearsall on 19 March 2018 and provided a report dated 3 April 2018.[46]
[46] Reply, pp 1–8.
Dr Ashkar took a history of the alleged workplace stressors that was consistent with Mr Pearsall’s evidence and included the workplace events leading up to Mr Pearsall having to show cause as to why his employment should not be terminated.
In respect of the impact of the alleged injury on Mr Pearsall’s daily functioning, Dr Ashkar said that Mr Pearsall did not mention any difficulties with self-care. Mr Pearsall reported that his concentration and motivation were low, he no longer felt “comfortable” in pursuing his previous sporting activities, and had ceased interacting with people.
Dr Ashkar noted the inconsistency between the fact that Mr Pearsall was able to travel by train with his mother to the appointment, and the demonstrated anxious behaviour. Further, his appearance was “clean”, he did not appear to be tired as claimed, and his reported difficulty with concentration was at odds with his assertion that he enjoyed reading two books at a time. Although his mood was flat, Dr Ashkar did not consider that Mr Pearsall appeared clinically depressed. Mr Pearsall was appropriately orientated, was able to focus and sustain attention, and his memory for facts and events was good. Psychometric testing administered by Dr Ashkar was inconclusive, in Dr Ashkar’s opinion, and indicated that Mr Pearsall’s responses were unco-operative and disingenuous, which undermined the validity of his claim. Dr Ashkar said that, on the basis of the above, questions about symptoms, diagnosis, capacity, and need for treatment could not be answered.
Dr Ashkar added, however, that he found no evidence in Mr Pearsall’s presentation to support a clinical diagnosis. Although there was no psychological condition, Mr Pearsall’s “behaviour” appeared to be a direct response to performance management and disciplinary action, in particular, the notification to terminate his employment.
Dr Ashkar concluded that, for the same reasons, he could not comment on work capacity, but added that Mr Pearsall’s presentation did not suggest a psychological incapacity for employment. Further, there was no need for psychological treatment. Dr Ashkar said that there was considerable evidence to suggest a pattern of insincere and uncooperative behaviour that “speaks unfavourably to his character”.
THE ARBITRATOR’S REASONS
The Arbitrator identified the issues he was required to determine as follows:
(a) whether Mr Pearsall suffered an injury pursuant to s 4 of the 1987 Act;
(b) if so, whether employment was a substantial contributing factor to the injury;
(c) whether the injury was wholly or predominantly caused by reasonable action taken by the Council with respect to the “matters identified in” s 11A of the 1987 Act;
(d) whether Mr Pearsall suffers incapacity for work and the extent of the incapacity, and
(e) whether the treatment Mr Pearsall received was reasonably necessary as a result of the injury.
The Arbitrator noted the documentary evidence before him, including the “investigation report” (the date of which was not identified) contained in the Council’s AALD dated 11 July 2018. The Arbitrator observed that Mr Pearsall had objected to the investigation report being admitted, but it was admitted on the basis that, in the absence of statements to support it, consideration would be given as to the weight it should be afforded. The Arbitrator also noted that the previous Arbitrator had called for production of the deed of release in respect of the unfair dismissal proceedings, and that document was also in evidence.
The Arbitrator proceeded to consider the evidence of Ms Rodway, who had provided a statement and had given oral evidence at the arbitration. The Arbitrator referred to Ms Rodway’s explanation for resolving the unfair dismissal claim.
The Arbitrator summarised the submissions of both parties, which were provided in writing as the allocated time for arbitration had been exhausted.
Turning to the issues in relation to ss 4 and 9A of the 1987 Act, the Arbitrator referred to aspects of Mr Pearsall’s evidence as follows:
(a) prior to 7 November 2017, Mr Pearsall did not have a treating general practitioner;
(b) when Mr Pearsall elected to work a nine-day fortnight, he was accused of not being a team player;
(c) Mr Priestley issued instructions in a dictatorial tone and manner and instructed Mr Pearsall to pick up cigarette butts, and
(d) Mr Pearsall lodged grievances against Mr Brady and Mr Reay, and had not received training in respect of the Council’s Code of Conduct.
The Arbitrator observed that Mr Pearsall did not lodge a complaint in respect of the directive to collect cigarette butts, but accepted Mr Pearsall’s explanation. The Arbitrator said that the circumstances were so unusual or bizarre that he could not imagine a person would make up such a story. The Arbitrator further observed that Mr Priestley had not denied the event.
The Arbitrator said that Mr Reay’s statement confirms that Mr Pearsall made a written complaint to the Council on 29 September 2015 that included allegations concerning use of the chain saw, dangerous powerlines and Mr Brady throwing his telephone. He remarked that there did not seem to be any statement from Mr Brady refuting those allegations. Further, the Arbitrator noted that that there was a meeting in relation to those matters, that in Mr Reay’s opinion, Mr Pearsall was making a “big issue out of nothing”. The Arbitrator observed that while Mr Reay said that the area had underground powerlines, he did not comment on whether the complaints were established. There was no record of the outcome of the meeting.
The Arbitrator said that it was clear from Mr Reay’s statement that Mr Pearsall did make complaints and lodged grievances in relation to various issues, including that Mr McKenzie had told Mr Brady that he was going to “punch [Mr Pearsall’s] lights out”, although there was no direct evidence that such a statement was made. The Arbitrator said it was also clear that Mr Pearsall had lodged grievances on 23 August 2016 in relation to incidents on 4 May, 17 June, 29 July, 10 August and 23 August 2016, as well as incidents on 21 April, 4 May and 5 May 2017.
The Arbitrator noted Ms Rodway’s evidence that the complaints were considered “vexatious in nature”, and yet Mr Pearsall, Mr Polgase, Mr McKenzie and Mr Boyd were required to attend a refresher course in relation to the Council’s Code of Conduct. The Arbitrator thought that action odd, if the allegations were in fact vexatious.
The Arbitrator considered it significant, that a number of staff lodged a joint grievance against Mr Pearsall on 26 May 2017, about which there were no specific details other than the staff could no longer work with him and wanted the Council to do something about that. The Arbitrator noted that following that, things seemed to escalate with:
(a) an interview on 11 July 2017;
(b) an allegation on the following day that Mr Pearsall had made inappropriate comments;
(c) disciplinary counselling on 19 July 2017;
(d) correspondence from Mr Matwijow dated 24 July 2017;
(e) a Code of Conduct letter being issued on 28 August 2017, and
(f) allegations of threats made by Mr Pearsall by telephone to Mr Stanley on 8 September 2017.
The Arbitrator commented that although Ms Rodway referred in her evidence to “threats”, there was no mention in the letter headed “Suspension of Duty” of any firearms or comments allegedly made by Mr Pearsall that he could “hack into” computers. The Arbitrator noted that the transcript of the fact-finding interview confirmed that Mr Matwijow had told everyone to stop the conversations of a sexual nature on the previous Friday, which Mr Matwijow considered inappropriate. The Arbitrator took the view that there would have been no need for Mr Matwijow to speak to everybody if he had been unconvinced that the comments had been made.
The Arbitrator said that Ms Rodway’s evidence also confirmed that Mr McKenzie’s response to the allegation, that when he told Mr Pearsall that he would cause Mr Pearsall’s employment to be terminated, was that he was only joking. The Arbitrator expressed the view that it was too serious a matter to joke about, and the comment was entirely inappropriate.
The Arbitrator considered that in the absence of evidence to the contrary, he was satisfied that the evidence established that:
(a) the “cigarette butt” incident did occur;
(b) the telephone was thrown at Mr Pearsall in 2015;
(c) Mr Pearsall’s transfer to the Heatherbrae Depot was motivated solely by a joint protest grievance by fellow workers;
(d) sexual allegations against Mr Pearsall concerning children were made in May 2017;
(e) Mr Pearsall was made to work through his meal breaks, and
(f) Mr McKenzie made the threat in relation to Mr Pearsall’s employment.
The Arbitrator concluded that, on the basis of the above, he accepted that Mr Pearsall was subjected to bullying and harassment in the course of his employment with the Council, that Mr Pearsall had no prior history of psychological symptoms, and that the events caused Mr Pearsall to experience symptoms of anxiety and depressed mood, in particular after the sexual abuse allegations made in May 2017.
The Arbitrator formed the view that the weight of the opinions of Dr Takyar and Dr Raschke and the psychological opinion of Ms Clifford, which all accepted that Mr Pearsall suffered a psychological injury, should be preferred over the opinion of Dr Ashkar. His reasons were that:
(a) the treating doctors are in a far better position to obtain a detailed history of the symptoms and provide a clinical opinion;
(b) Dr Takyar, a psychiatrist, is better placed to make a diagnosis than Dr Ashkar, who is a psychologist, and
(c) the various exposures to degrading behaviour Mr Pearsall experienced, which were detailed by Dr Takyar, from a common-sense point of view are consistent with the development of such a condition.
The Arbitrator determined that Mr Pearsall suffered from an injury in the nature of an adjustment disorder and/or major depression which “was caused or materially contributed to by bullying and harassment which occurred cumulatively in the workplace between 2014 and 2017 with the final onset of severe symptoms occurring following allegations by co-workers that [Mr Pearsall] was molesting children in May 2017.”[47]
[47] Reasons, [46].
The Arbitrator further determined that the injury was a personal injury within the meaning of s 4(a) of the 1987 Act, and that Mr Pearsall’s employment was a substantial contributing factor to the injury.
In respect of the defence raised pursuant to s 11A of the 1987 Act, the Arbitrator observed that the Council bore the onus of proof. He further noted that both Mr Pearsall and the Council relied on the decision of Deputy President Snell in Hamad v Q Catering Limited.[48]
[48] [2017] NSWWCCPD 6.
The Arbitrator formed the view that the transfer was motivated by a grievance letter from fellow employees that contained only a broad allegation that they could not work with Mr Pearsall. He said that it would have been fair to Mr Pearsall to know the detailed reasons, the issue should have been investigated, and there should have been counselling provided to everyone, and a resolution reached. He said that as far as the dismissal was concerned, Ms Rodway’s evidence was that the Council had made the decision on the basis of broad and unsubstantiated allegations that Mr Pearsall was a safety risk to its employees. He considered that the allegations should have been referred to police for investigation, which did not occur. The Arbitrator noted that Mr Pearsall denied making threats and having firearms, and the letter suspending Mr Pearsall from duty made no reference to such threats.
The Arbitrator concluded that the termination of Mr Pearsall’s employment did not give him the opportunity to address the “very serious allegations which underscored the reason for his dismissal.”[49] Further, the Arbitrator concluded that Mr Pearsall’s psychological injury had already occurred in May 2017, so that he was not satisfied that it was caused by the dismissal which occurred several months later. The Arbitrator said that he could not accept Dr Ashkar’s opinion that Mr Pearsall’s “behaviour” was a direct response to the performance management and disciplinary action, in particular the letter notifying Mr Pearsall of the intention to terminate his employment. The Arbitrator said that the injury had already occurred, and that the termination of Mr Pearsall’s employment “simply added fuel to [Mr Pearsall’s] fire.”[50]
[49] Reasons, [50].
[50] Reasons, [50].
The Arbitrator determined that he was not satisfied that the Council had established on the balance of probabilities that Mr Pearsall’s injury was wholly or predominantly caused by reasonable action or proposed action by the Council. The Arbitrator said that Mr Pearsall had established that his injury was caused by him being subjected to bullying and harassment, degrading and in many cases baseless behaviour of co-workers which was not properly or fairly addressed by the Council. The Arbitrator determined that the defence under s 11A of the 1987 Act had not been made out.
On the basis of those findings, the Arbitrator considered that it was not necessary for him to determine whether the deed of release amounted to a concession in relation to whether the termination of employment was fair.
In respect of Mr Pearsall’s incapacity, the Arbitrator noted that both Dr Takyar and Dr Raschke were of the opinion that Mr Pearsall had no capacity for work. He further noted that Dr Ashkar expressed an inability to provide an opinion on capacity because Mr Pearsall had been unco-operative. The Arbitrator said that the opinions of Dr Takyar and Dr Raschke were dominant. In addition, Mr Pearsall had provided a supplementary statement that his condition was not under control, he was on medication, continuing to receive treatment from his psychologist and it was suggested that he be referred to a psychiatrist.
Noting the agreement in relation to Mr Pearsall’s pre-injury average weekly earnings, the Arbitrator found that Mr Pearsall had no capacity for work since 7 November 2017.
The Certificate of Determination issued on 28 September 2018 records:
“1. Award for the applicant:
(a)pursuant to section 36 (1) of the Workers Compensation Act (NSW) 1987 as amended (1987 Act) for weekly payments of compensation from 7 November 2017 to 6 February 2018 in the sum of $1,002.38 per week.
(b)pursuant to section 37 (1) of the 1987 Act for weekly payments of compensation from 7 February 2018 to date and continuing in the sum of $844.11 per week.
2. The respondent is ordered to pay the applicant’s medical and related expenses pursuant to section 60 of the 1987 Act.”
GROUNDS OF APPEAL
The grounds of appeal upon which the Council relies are that the Arbitrator erred as follows:
(a) Ground one: in finding injury;
(b) Ground two: in finding bullying and harassment, when no complaints were made of any conduct before Mr Pearsall’s dismissal;
(c) Ground three: in finding bullying and harassment on the histories given to Mr Pearsall’s doctors, when they did not consider the suspension or termination of employment;
(d) Ground four: in applying the incorrect test for causation by applying s 9A of the 1987 Act, when he should have applied s 4(b);
(e) Ground five: in failing to find that the Council had acted reasonably in relation to the complaints made by and against Mr Pearsall, and that s 11A provided a defence to the matter;
(f) Ground six: in failing to properly consider the evidence as to Mr Pearsall’s capacity to work, and
(g) Ground seven: failing to give any, or any adequate, reasons for the decision.
SUBMISSIONS
Grounds one, two, three and seven – “injury”
The Council’s submissions
The Council submits that injury depends on an incident or series of incidents which cause a pathological change. The Council submits that the incidents found by the Arbitrator did not cause a pathological change, so that they did not cause injury.
The Council submits that the Arbitrator was in error in finding the incidents recorded at [83] above occurred. It contends that the events were investigated and found not to have happened, in particular the allegation of child sexual assault in which Mr Pearsall was given the opportunity to put forward his version and at least two witnesses contradicted Mr Pearsall’s account of what was said. The Council asserts that the investigations made must call into question the significance of the allegations Mr Pearsall made and whether they were capable of constituting bullying and harassment.
In relation to Mr Pearsall being required to collect cigarette butts in the rain, the Council refutes the Arbitrator’s observation that the more bizarre the story is, the more likely it is that it is true. The Council says that the fact remains that Mr Pearsall made no complaint about the incident, either to his employer or his doctor.
The Council maintains that the prolific number of complaints made by Mr Pearsall were dealt with by the Council. Further, at the time of making those complaints, Mr Pearsall did not allege any injury or seek any treatment at the time the complaints were made. The complaints were made, they were dealt with, and Mr Pearsall continued to work. It was not until Mr Pearsall was suspended from his employment and had received the “show cause’ letter, that he made his complaints of psychological symptoms.
The Council says that it raised this point in its submissions to the Arbitrator and that it also raised the point that Dr Takyar recorded an inaccurate history. The Council complains that in finding Mr Pearsall was injured, the Arbitrator simply accepted Mr Pearsall’s evidence without any real explanation or reasoning other than that:
(a) the treating doctors were in a far better position to obtain a detailed history of the symptoms and provide a clinical opinion;
(b) Dr Takyar, a psychiatrist, is better placed to make a diagnosis than Dr Ashkar, a psychologist, and
(c) the degrading behaviours Mr Pearsall experienced, were consistent with the development of such a condition.
The Council submits that the contemporaneous history shows that Mr Pearsall attended the general practitioner the day after he received the “show cause” letter. The Council contends that the Arbitrator was required to deal with the suspension of duties and the termination, which was not considered by Mr Pearsall’s medical evidence and in a temporal sense, was clearly causative of the need for treatment and the alleged incapacity for work.
The Council asserts that in the circumstances where Mr Pearsall did not seek treatment at the time the events occurred, the treating doctors are not in any better position than Dr Ashkar to provide an opinion on causation.
In respect of the Arbitrator’s reasoning that Dr Takyar, as a psychiatrist, is better placed to provide a diagnosis than Dr Ashkar, a psychologist, the Council says that there is no basis for that approach. It argues that both psychiatrists and psychologists understand how the brain works, a person’s emotions, feelings and thoughts, and can provide psychological treatments. The Council says that the fact that a psychiatrist can prescribe medication and a psychologist cannot, does not detract from the ability of a psychologist to make a diagnosis when it is warranted. The Council submits that the Arbitrator failed to analyse Dr Ashkar’s credentials and made no suggestion that Dr Ashkar could not make a diagnosis. The Council concludes that it is unclear as to how the Arbitrator formed a conclusion about the ability of Dr Ashkar to make a diagnosis.
The Council further submits that the Arbitrator’s conclusion that the facts relied on by Mr Pearsall were established was arrived at without a consideration of the competing facts which might have led to a different conclusion. In essence, the Arbitrator has failed to conduct an analysis of the whole of the evidence.
Citing Deputy President Fleming’s decision in Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage,[51] the Council submits that the Arbitrator’s decision must be based on logical and probative facts in evidence and supported by adequate explanation and reasons. The Council maintains that the reasons given by the Arbitrator for finding injury were insufficient.
[51] [2004] NSWWCCPD 31.
The Council concludes that the Arbitrator did not provide sufficient reasons for finding that Mr Pearsall had suffered injury as alleged.
Mr Pearsall’s submissions
Mr Pearsall submits that while the Council takes issue generally with the Arbitrator’s findings of fact in relation to various incidents, the Council only relies on the examples of the “child sexual assault” and the “cigarette butt” incidents.
Mr Pearsall says that his evidence in relation the “child sexual assault” was provided to the Council in his statement taken between 6 and 8 December 2017 and nominated Mr McKenzie as the accuser and Mr Boyd and Mr Polglase as witnesses. He submits that despite the considerable period of time that the Council had access to that evidence, it did not adduce any evidence from those three people to contradict Mr Pearsall’s evidence. In the absence of evidence from those material witnesses, Mr Pearsall says it was open to the Arbitrator to accept Mr Pearsall’s evidence.
Mr Pearsall submits that this is also the case in relation to the “cigarette butt” incident, where the perpetrator (Mr Priestley) was identified, and the Council failed to adduce any evidence to rebut Mr Pearsall’s evidence. Mr Pearsall contends that in the absence of any evidence to the contrary, it was open to the Arbitrator to accept the event occurred, regardless of the Arbitrator’s comments in relation to the bizarre nature of the incident.
In relation to ground two of the appeal, Mr Pearsall submits that the allegation that there was a lack of complaint by Mr Pearsall in relation to the conduct is unfounded. He says that there were a multitude of grievances brought by him, which was confirmed by Mr Reay.
In respect of the failure to complain to a medical practitioner, Mr Pearsall points to his evidence that the onset of symptoms was at the time of the “child sexual abuse”, but at that time he did not have a general practitioner. Further, Dr Raschke noted in the initial WorkCover certificate dated 8 November 2017 that an earlier appointment arranged by Mr Pearsall had to be cancelled by her.
Mr Pearsall further submits that the Arbitrator was correct to find that Dr Takyar was better placed to provide a diagnosis. Mr Pearsall points out that:
(a) Dr Ashkar was unable to make a diagnosis,
(b) Dr Takyar is a psychiatrist, and
(c) Dr Takyar recorded a history that was consistent with his own evidence, which the Arbitrator accepted.
The Arbitrator provided those reasons for preferring the evidence of Dr Takyar, and no error was demonstrated.
Grounds four and seven – s 9A
The Council’s submissions
The Council submits that if Mr Pearsall’s medical case is accepted, then the condition is in the nature of a disease, and it is the nature of the employment, not one specific incident, which has led to the pathological change. The relevant provision is therefore s 4(b) of the 1987 Act and the test is one of whether employment was the main contributing factor, rather than a substantial contributing factor in accordance with s 9A of the 1987 Act.
The Council asserts that the Arbitrator did not deal with this issue and has therefore fallen into error.
Mr Pearsall’s submissions
Mr Pearsall contends that the Arbitrator’s finding was that the nature of injury suffered by Mr Pearsall was a “personal injury simpliciter” within the meaning of s 4(a) of the 1987 Act, which was correct, and which required a consideration of s 9A of the 1987 Act, rather than s 4(b) of the 1987 Act.
Mr Pearsall asserts that the Council did not submit to the Arbitrator that the nature of the injury was a disease, despite Mr Pearsall having submitted that the appropriate test on causation was s 9A of the 1987 Act.
In any event, Mr Pearsall relies on the High Court authority of Military Rehabilitation and Compensation Commission v May,[52] which was applied by Deputy President Snell in Ky v Blue Leaf Food Group Pty Ltd.[53] Mr Pearsall quotes May as follows:
“However, as the Full Court correctly held ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.”[54]
And
“More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to ‘getting hurt’ (an injury might be constituted by nothing more than ‘something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel’) but that suffering an injury involves something more than merely ‘becoming sick’. An injury, it has long been repeatedly explained, is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’. The universality of that explanation has been questioned, and the comment has fairly been made that ‘a distinct physiological change is not itself an expression of clear and definite meaning’. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.”[55]
[52] [2016] HCA 19 (May).
[53] [2016] NSWWCCPD 55.
[54] May, [47] (emphasis in original, footnotes omitted).
[55] May, [75] (footnotes omitted).
Mr Pearsall submits that, applying May to the facts in his case and consistent with the findings of the Arbitrator, the injury was an identifiable, distinct pathological change following the “child sexual assault” allegations in May 2017.
Mr Pearsall contends that even if the Arbitrator erred in finding injury pursuant to s 4(a) of the 1987 Act, and the injury was a disease within the meaning of s 4(b), it would have made no difference to the outcome. He submits that had the Arbitrator been required to determine whether employment was the main contributing factor to the injury, because there was no evidence of any previous injury or complaints, and there were no other extrinsic causes of the condition, employment was obviously the main contributing factor.
Grounds five and seven – section 11A
The Council’s submissions
The Council submits that the Arbitrator failed to consider relevant evidence in arriving at his decision that the Council had not established that Mr Pearsall’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken in respect of discipline and/or dismissal. The Council says that the Arbitrator found that Mr Pearsall’s injury was not caused by the dismissal because he had found that the psychological injury had occurred some months earlier, in May 2017. The Council submits that there were no contemporaneous complaints to doctors to support the conclusion that the injury occurred in May 2017.
Further, the medical evidence relied on by Mr Pearsall to support that proposition is based on an incorrect history, which ignores the disciplinary action taken against Mr Pearsall, and does not address the fact that Mr Pearsall did not seek medical attention until after the disciplinary action was taken.
The Council contends that the Arbitrator failed to provide sufficient reasons as to why he discounted Dr Ashkar’s opinion, when Dr Ashkar said that, while he could not find a diagnosis, Mr Pearsall’s behaviour was a direct response to performance management and disciplinary action, particularly the notice of intention to terminate Mr Pearsall’s employment. In doing so, the Arbitrator failed to address relevant evidence.
The Council relies on the decision in Whiteley Muir& Zwanenberg Ltd v Kerr,[56] and alleges that a factual error will be made out where:
“… Material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn, or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
[56] (1966) 39 ALJR 505 per Barwick CJ, 506.
The Council maintains that, despite a number of events having occurred, there was no record of Mr Pearsall complaining of, or suffering any of the alleged symptoms until after he received the “show cause” letter, immediately following which, he attended on his general practitioner. That was the first time (that is, on 7 November 2017), the Council says, that Mr Pearsall considered he required medical attention.
The Council submits that the medical evidence does not support a psychological injury having occurred prior to that time, and the totality of the medical evidence supports that Mr Pearsall’s alleged psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken in respect of discipline and/or dismissal from employment.
The Council maintains that the Arbitrator overlooked material facts and ignored relevant material, causing him to fall into error.
In respect of the “reasonableness” component of the test in s 11A of the 1987 Act, the Council points out that there were set procedures in place for dealing with grievances and employee complaints. The Council says that after numerous complaints were made by both Mr Pearsall and other employees, the Council engaged external consultants to investigate the complaints made against Mr Pearsall.
The Council contends that the conduct must be considered in the context of what the employer knew at the time the conduct took place.[57]
[57] Citing Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair).
The Council says that what it knew when it suspended Mr Pearsall was that Mr Pearsall’s fellow workers felt they could not work with him, and the Council’s operations were thereby compromised. The fellow workers had said that they had been threatened by Mr Pearsall, and as consequence, did not want to be seen to give evidence against him.
As a result, the Council engaged an external investigation, and suspended Mr Pearsall during that process. It says, however, that Ms Rodway’s evidence was that Mr Pearsall broke the confidentiality clause, and as a consequence his employment was terminated. The Council argues that it acted reasonably through that process, and the Arbitrator fell into error in not considering the serious situation in which the Council found itself, and that Mr Pearsall breached confidentiality while the investigation process was undertaken.
The Council concludes that Mr Pearsall’s medical case did not give consideration to the causative effect of the suspension and termination of employment.
Mr Pearsall’s submissions
Mr Pearsall contends that the Council is seeking to dispute the Arbitrator’s finding against it in respect of the s 11A issue on the basis that the Arbitrator failed to consider relevant evidence and failed to provide sufficient reasons.
Mr Pearsall submits that the only alleged failure to give reasons was in relation to the Arbitrator’s rejection of the opinion of Dr Ashkar.
Mr Pearsall asserts that the opinion relied on by the Council was that Dr Ashkar was of the view that the injury was a direct result of disciplinary action taken by the Council in November 2017. Mr Pearsall says that that opinion is in direct conflict with Dr Ashkar’s opinion that there was no evidence of injury. Further, it is in direct conflict with the Arbitrator’s finding that Mr Pearsall was already suffering from “severe” symptoms.
Mr Pearsall referred to the Arbitrator’s reasons, expressed as:
“Further, I am not satisfied that [Mr Pearsall’s] psychological injury (which had already occurred in May 2017) was caused by a dismissal which occurred several months later. To that extent I cannot accept Dr As[h]kar’s opinion that [Mr Pearsall’s] behaviour was a ‘direct response to performance management and disciplinary action’, in particular, the notification of intention to terminate his employment in November 2017. The injury had already occurred. The termination of employment to my mind simply added fuel to [Mr Pearsall’s] fire.”[58]
[58] Reasons, [50].
Mr Pearsall submits that the reasoning is sufficient, given the Arbitrator had already found that the onset of symptoms began in May 2017. Mr Pearsall says that as a consequence of that finding, it was not open for the Arbitrator to accept Dr Ashkar’s opinion on causation. Mr Pearsall asserts that the injury had already occurred.
Mr Pearsall contends that, given the multitude of events that gave rise to injury and the absence of evidence to support a defence pursuant to s 11A, this ground of appeal must fail.
Mr Pearsall submits that the Council alleges error on the part of the Arbitrator in failing to address the contemporaneous evidence of the general practitioner and the failure by Mr Pearsall to seek medical attention. Mr Pearsall says that the Council maintains that that must mean the injury did not occur until he attended for treatment.
Mr Pearsall asserts that the lack of contemporaneous complaints is not conclusive evidence of the absence of symptoms or that an injury had not occurred at a particular time, relying on Bugat v Fox.[59]
[59] [2014] NSWSC 888.
Further, Mr Pearsall submits that the general practitioner clearly recorded that the symptoms commenced in May 2017, and recorded in the WorkCover medical certificate dated 7 November 2017 that Mr Pearsall described the injury as occurring in “May 2017, before and after”. Additionally, the general practitioner recorded that Mr Pearsall had a previous appointment that was cancelled by the general practitioner.
Mr Pearsall submits that this evidence is consistent with the finding made by the Arbitrator. He says that the Arbitrator’s findings are not inconsistent with the general practitioner’s records and in fact the Arbitrator preferred the opinions of the treating doctors, including Dr Raschke because they were in a better position to obtain a detailed history.
Mr Pearsall contends that it follows that the weight of the medical evidence supported the Arbitrator’s finding that the Council had not made out its defence pursuant to s 11A of the 1987 Act. The Arbitrator gave consideration to the general practitioner’s notes, and provided succinct reasons for rejecting Dr Ashkar’s opinion.
Mr Pearsall submits that even if the Council’s submission was correct that it acted reasonably in its conduct of the disciplinary process, that was only one limb of what is required to satisfy s 11A and would not change the outcome. This is so because the Council must first establish that the injury was caused by the matters identified in s 11A.
Mr Pearsall further submits that the decision in Sinclair does not stand for the proposition advanced by the Council. In any event, Mr Pearsall says that even if the conduct was found to be reasonable, there were a multitude of events that in the views of Dr Takyar, Dr Raschke and Ms Clifford were causative of the injury.
Grounds six and seven – capacity
The Council’s submissions
The Council says that the Arbitrator found that Mr Pearsall had no capacity for employment on the basis that Dr Ashkar said that he was unable to comment on capacity because the worker was unco-operative. The Council submits that Dr Ashkar also said that he found no evidence that would suggest a psychological incapacity for work. The Council further submits that the Arbitrator did not consider that evidence and therefore failed to sufficiently deal with the medical evidence on the question of capacity.
Mr Pearsall’s submissions
Mr Pearsall submits that the overwhelming weight of the evidence supports that Mr Pearsall has no capacity for employment. He says that the Arbitrator relied on the frank admission by Dr Ashkar that he was unable to comment on capacity, that it was open for him to do so, and to accept the balance of the medical evidence together with Mr Pearsall’s evidence.
The relief sought
The Council seeks to have the Arbitrator’s Certificate of Determination revoked, and an award made in its favour.
Mr Pearsall seeks to have the appeal dismissed and the Certificate of Determination confirmed.
DISCUSSION
Grounds one and seven: alleged error in finding injury and in failing to give any, or adequate, reasons for the decision
The parties’ submissions in respect of both these grounds of appeal are noted and have been considered.
The Arbitrator approached the question of injury by considering Mr Pearsall’s factual assertions and found he was satisfied that:
(a) Mr Pearsall was directed by Mr Priestley to collect cigarette butts in the rain;
(b) in March 2015 Mr Brady directed him to use a chainsaw and to cut down a tree that had powerlines through it;
(c) Mr Brady threw his mobile telephone at Mr Pearsall;
(d) Mr Pearsall’s transfer to the Heatherbrae Depot was motivated “solely by a joint grievance by fellow workers”;
(e) sexual allegations were made about children that involved Mr Pearsall;
(f) Mr Pearsall was made to work through his meal breaks;
(g) Mr McKenzie made threats about Mr Pearsall’s employment, and
(h) a worker informed Mr Pearsall that Mr McKenzie was going to “punch [Mr Pearsall’s] lights out”.
The Arbitrator concluded that Mr Pearsall was subjected to bullying and harassment in the course of his employment.
The Arbitrator found the “cigarette butt” incident occurred partly because the circumstances were so unusual and bizarre that it was unimaginable that the story would be false. He also took into account that there was no evidence from Mr Priestley denying the event occurred.
The Arbitrator’s conclusion that the event occurred because it was bizarre lacks logic. The Arbitrator’s role was to evaluate the assertion by considering it in the context of the surrounding body of evidence. In determining whether evidence should be accepted, it was necessary for the Arbitrator to weigh the evidence as a whole, not simply to evaluate the evidence on an issue, then consider whether other evidence denied that evaluation.[60]
[60] Agbaba v Witter (1977) 14 ALR 187, per Barwick CJ (Mason and Stephen JJ agreeing), at 191.
The event was said to have occurred in 2014. Despite Mr Pearsall lodging a number of written complaints, and making numerous allegations in response to questions asked of him during counselling and Code of Conduct meetings, Mr Pearsall did not raise any such complaint until his statement was taken in December 2017, after his employment was suspended. The only other documented evidence recording that complaint was the report of Dr Takyar dated 11 May 2018. Those matters were raised in submissions by the Council in the arbitration proceedings and the Arbitrator failed to address those submissions.
The absence of evidence denying the event occurred is a factor that weighed in favour of accepting it was probable, but the explanation for the absence of that evidence was also relevant. In the context of the many complaints and grievances raised by Mr Pearsall, some of which were contradicted by other evidence and others which were unsubstantiated, it was incumbent upon the Arbitrator to assess the reliability of Mr Pearsall’s evidence, which he did not do.
In relation to the Arbitrator’s three findings that Mr Brady threw his mobile telephone at Mr Pearsall, Mr Pearsall’s transfer to the Heatherbrae Depot was motivated “solely by a joint grievance by fellow workers” and Mr Pearsall was made to work through his meal breaks, no such assertions were made by Mr Pearsall and the findings are not factually correct.
While Mr Pearsall complained that Mr Brady threw his telephone, he did not assert that the telephone was thrown at him. Even on Mr Pearsall’s evidence, it is apparent that Mr Brady’s comments and actions were an expression of his own frustration, and the context in which those actions occurred ought to have been afforded some consideration by the Arbitrator.
Mr Pearsall’s transfer to the Heatherbrae Depot was initiated in late 2016 and took effect on 6 February 2017. Mr Pearsall consented to the transfer. Ms Rodway’s evidence was that the transfer was put in place because of the difficulties between Mr Pearsall and Mr Brady, and because the Council thought Mr Pearsall would work better in a larger team.[61] Mr Reay confirmed that evidence,[62] and Mr Matwijow said that the transfer would also give Mr Pearsall the opportunity to gain the necessary experience to be promoted to the position of a Trades Gardener.[63]
[61] Ms Rodway’s statement, AALD dated 11 July 2018, pp 117–118, [47]–[49].
[62] Mr Reay’s statement, AALD dated 11 July 2018, p 96, [45]–[47].
[63] Mr Matwijow’s statement, AALD dated 11 July 2018, p 107, [21].
The “joint grievance by fellow workers” referred to by the Arbitrator did not occur until some months after Mr Pearsall had been transferred to the Heatherbrae Depot. The document initiating the grievance was dated 26 May 2017.[64]
[64] AALD dated 11 July 2018, pp 168–172.
Mr Pearsall’s statement evidence does not allege that he was required to work through his authorised breaks. There is a reference to Mr Pearsall making a complaint at the meeting on 17 May 2016 that he was expected to work through his lunch break,[65] and the allegation is recorded by Dr Clifford in her report dated 30 November 2017.[66] There are no details of when and in what circumstances this was alleged to have occurred and the Arbitrator failed to apply any reasoning process to his determination that this event in fact did occur.
[65] AALD dated 11 July 2018, pp 138–141.
[66] ARD, pp 12–13.
In relation to the remaining factual findings summarised at [225] above, the Arbitrator did not give any consideration to the evidence adduced by the Council as to what, on its version, actually occurred. A failure to consider all of the material relevant to a particular issue is an error in the process of fact finding and itself amounts to an error of law.[67]
[67] Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816, [130] per Hayne J (McHugh and Gummow JJ agreeing).
As Meagher JA observed in Beale v Government Insurance Office of NSW,[68] while an Arbitrator’s reasons do not need to be elaborate or lengthy, there are three fundamental elements of the duty to give reasons. Firstly, a judge should refer to the relevant evidence. Secondly, where the evidence is important to the proper determination of the matter, and the judge does not refer to it, on appeal it may be inferred that the judge overlooked, or failed to give consideration to the evidence. Where evidence is accepted over other significant evidence, the judge should set out his or her findings as to how he or she came to accept that evidence over the other. Thirdly, a judge should provide reasons for making the relevant findings of facts, and conclusions reached. The process of reasoning should be understandable and logical.
[68] (1997) 48 NSWLR 430, 443–444.
It is apparent from the Arbitrator’s reasons that he did not sufficiently engage with the evidence. It is further apparent that the Arbitrator did not provide a logical reasoning process for his conclusions that Mr Pearsall was accused of molesting children, made to work through his lunch breaks, and threatened by Mr McKenzie.
The Arbitrator found that Mr Pearsall suffered a psychological injury as a result of bullying and harassment occurring cumulatively from 2014 to 2017, with a severe onset of symptoms in May 2017.[69] He further concluded that the notice of intention to terminate Mr Pearsall’s employment was not causative of the injury because the “injury had already occurred.”[70]
[69] Reasons, [46].
[70] Reasons, [50].
As Basten JA said in State Transit Authority of New South Wales v Chemler[71] (citations omitted):
“In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor. If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established.”
[71] [2007] NSWCA 249; 5 DDCR 286, [69].
It was not incumbent upon the Arbitrator to find that Mr Pearsall was bullied and harassed.
The medical evidence in support of Mr Pearsall’s case did not support the Arbitrator’s conclusion that the events after May 2017 and up to the termination played no part in Mr Pearsall’s psychological injury. Dr Raschke cited the date of injury to be “May 2017, before and after.”[72] Dr Clifford was silent as to causation, and Dr Takyar concluded that, on the basis of Mr Pearsall describing events that began in 2014 and escalated over time, there was a build-up of psychiatric symptoms up to 2017 when he eventually ceased work.[73] Further, Mr Pearsall himself described his reaction when he received the letter suspending him from duty as follows:
“I was devastated when issued the suspension letter. I felt physically sick.”[74]
[72] ARD, pp 28–30.
[73] ARD, p 7.
[74] Mr Pearsall’s statement dated 8 December 2017, [245].
The Arbitrator’s conclusion as to the effect of the suspension from duty and the termination on Mr Pearsall’s psychological condition was not supported by the medical evidence, or Mr Pearsall’s own evidence and the finding was not open to him.
It follows that error is established and grounds one and seven of the appeal succeed.
The Council raised a further ground of appeal (ground four) in respect of the Arbitrator’s determination that the injury was a personal injury pursuant to s 4(a) of the 1987 Act, rather than a disease to which s 4(b) of the 1987 Act applies. Although the issue was flagged as an issue to be determined, the submissions made in the arbitration proceedings did not agitate any real argument for or against the classification of the alleged injury. Submissions made on this appeal included a short submission from the Council, without reference to any authority. Mr Pearsall submitted that, on the basis of the High Court decision in May, the injury was a personal injury pursuant to s 4(a) of the 1987 Act, and the requirement that the employment was a main contributing factor to the injury, or aggravation, acceleration or exacerbation of the injury (s 4(b)(i) and 4(b)(ii)) does not apply. In Rail Corporation New South Wales v Hunt,[75] Deputy President Roche considered the authorities relevant to the distinction between a personal injury and a disease and concluded that Ms Hunt’s condition of anxiety and depression was properly classified as a disease of gradual process, and s 4(b) of the 1987 Act applied. A number of Presidential decisions followed suit.
[75] [2009] NSWWCCPD 114, [46]–[50] (Hunt).
The decision in Hunt pre-dated the High Court decision in May. As neither party has addressed in relation to the decision in Hunt, or have submitted on the effect (if any) the decision in May has on the Presidential decision, it is not appropriate for me to determine this issue on appeal. As the appeal has succeeded in establishing error on the part of the Arbitrator, and the matter is to be remitted for re-determination, it is not necessary for me to determine this ground or the remaining grounds of appeal.
It is also appropriate that the matter is remitted for re-determination by a different Arbitrator In view of the significant factual matrix, much of which was not dealt with at the original arbitration.
DECISION
The Arbitrator’s Certificate of Determination dated 28 September 2018 is revoked.
The matter is remitted for re-determination by another Arbitrator.
Elizabeth Wood
DEPUTY PRESIDENT
14 March 2019
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