Purcell v Bunnings Warehouse - [2021] NSWPIC 76

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Purcell v Bunnings Warehouse [2021] NSWPIC 76
APPLICANT:	Marie Purcell
RESPONDENT:	Bunnings Warehouse
MEMBER:	Mr Cameron Burge
DATE OF DECISION:	13 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly benefits; whether accepted psychological injury was predominantly caused by the reasonable actions of the respondent with respect to performance appraisal and/ or discipline; no issue as to capacity or the applicant’s preinjury earnings; section 11A of the 1987 Act discussed; meaning of “wholly or predominantly” discussed; relevant test of causation is a common-sense evaluation of the evidence; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 followed; Meaning of “reasonable” discussed; Irwin v The Director-General of Education NSWCC 14068/97, 18 June 1998 (unreported), Commissioner of Police v Minahan [2003] NSWCA 239 and Melda v Ausbowl Pty Ltd [1997] 15 NSWCCR 454 followed; Held- the cause of the applicant’s injury was multi-factorial, and the respondent had not discharged its onus of proof in establishing its actions with respect to discipline and performance appraisal were the predominant cause of it; in any event, the actions relied upon by the respondent were not reasonable in the circumstances; respondent ordered to pay the applicant weekly compensation from 28 July 2020 to date and continuing.
DETERMINATIONS MADE:	1. Leave is granted to amend the deemed date of injury to 28 July 2020 and to make a claim for medical expenses pursuant to section 60 of the Workers Compensation Act 1987. 2. The applicant suffered a psychological injury in the course of her employment with the respondent, with a deemed date of injury of 28 July 2020. 3. The injury referred to in (2) above was not wholly or predominantly caused by the reasonable actions of the respondent with regards to performance appraisal and/or discipline. 4. As a result of the subject injury, the applicant has been and remains wholly incapacitated for employment from 28 July 2020 to date and continuing. 5. The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $492.10 per week from 28 July 2020 to date and continuing. 6. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Australia Notice of Charges.

STATEMENT OF REASONS

BACKGROUND

The applicant commenced employment with the respondent in Darwin in or about 2013. She moved to the Nowra store in approximately 2017 as a store person/gatekeeper.
There is no issue the applicant suffered a psychological injury in the course of her employment with the respondent by way of adjustment disorder and anxiety. All medical experts retained in the matter agree the injury was by way of an aggravation of a pre-existing condition.
On 7 July 2020, the respondent’s insurer issued a section 78 notice in which it denied liability on the grounds the applicant's injury was wholly or predominantly caused by the respondent's reasonable actions with regard to performance appraisal and/or discipline.

ISSUES FOR DETERMINATION

The only issue in dispute is whether the applicant’s accepted injury was wholly or predominantly caused by the respondent's reasonable actions with respect to performance appraisal and/or discipline (section 11A) of the Workers Compensation Act 1987 (the1987 Act). No issue was taken as to the applicant’s capacity for employment or her preinjury average weekly earnings (PIAWE).

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours to facilitate an agreed resolution to the proceeding, however, have been unable to do so.
The matter proceeded to a conciliation/arbitration hearing before me on the MODRON audio-visual platform on 8 March 2021. On that occasion, Mr Andrew Parker of counsel instructed by M Rowney, solicitor appeared for the applicant and Mr Fraser Doak instructed by Mr R Elder, solicitor appeared for the respondent.

EVIDENCE

Documentary Evidence

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

(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    Respondent’s Application to Admit Late Documents (AALD) and attached documents dated 1 March 2021; and
(d)    Applicant’s AALD and attached documents dated 2 March 2021.

Oral Evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Section 11A

There being no issue the applicant suffered a workplace psychological injury, the only matter for determination is the applicability of section 11A of the 1987 Act. That section relevantly provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers."
The applicant's duties at the respondents Nowra store meant she was responsible for the security gate and ensuring all deliveries and pickups were performed safely and without loss/theft from the store. She described the role as a difficult one, as some tradespeople and other customers would feel “distrusted" by the applicant asking them to show her the back of their utes or to get out of their vehicles and uncover them for a security inspection. She noted the role also included being responsible for the hiring, maintenance and movement of trailers at the store together with bringing gas cages and bottles out for the swapping over under the “easy go swap and go" barbecue gas bottle scheme.

The respondent relies upon the following conduct in support of its defence under section 11A, which it says predominantly caused the applicant's injury:
·        A performance appraisal carried out in March 2019;
·        Meetings held on 2 September 2019 and 4 September 2019 regarding a loss prevention issue leading to the applicant receiving a first and final warning;
·        The applicant being stood down on 25 February 2020 following a further loss prevention incident the previous day; and
·        A meeting held on 27 February 2020 regarding the property loss matter, during the course of which the applicant tendered her resignation.
An employer which seeks to make out a defense pursuant to section 11A carries the onus of establishing that defense: Pirie v Franklins Ltd [2001] NSWCC 167, and Department of Education and Training v Sinclair [2005] NSWCA 466.
“Wholly" and "predominantly" are separate concepts and a finding of one or the other needs to be considered. In this matter, Mr Doak indicated at the outset of the hearing the respondent alleges only that the applicant's injury was predominantly caused by the respondent's reasonable actions with respect to discipline and performance appraisal.
The phrase “wholly or predominantly caused" has been held to mean “mainly or principally caused." The test of causation to be applied is that described Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. That is, having regard on a common-sense basis to the totality of the evidence, the issue will be whether the reasonable actions of an employer have wholly or predominantly caused the employee’s psychological injury. In Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad), the Commission made it clear that in cases such as this where a psychological injury is said to have been occasioned by a number of contributory factors, it will be necessary to provide medical evidence which addresses the relative causative contributions before a finding can be made as to whether the reasonable actions of a respondent wholly or predominantly caused the injury at issue.
In order to successfully raise a defense under section 11A, the respondent must not only show the requisite causal connection between its actions and the applicant's injury, it must also satisfy the Commission that its actions were reasonable.
Considering the meaning of reasonableness, Geraghty J in Irwin v The Director-General of Education NSWCC 14068/97, 18 June 1998 (unreported) said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity but more demanding than the test of convenience. The test of “reasonableness” is objective and must weigh the rights of employees against the objects of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness."
It is also important to consider not only the end result of an employer's actions, but the manner in which those actions were effected in determining whether they were reasonable (see Ivanisavic v Laudet Pty Ltd (unreported, 24 November 1998 per PRTRUSSCCJ).
Each of these requirements were found to be necessary by the Court of Appeal in Commissioner of Police v Minahan [2003] NSWCA 239. In that decision, Foster AJA (Sheller and Santow JJA agreeing) said:
"The words “reasonable action”, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at Common Law against the employer, founded upon a breach of duty of care."
Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action (see Burke J in Melda v Ausbowl Pty Ltd [1997] 15 NSWCCR 454. In Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45, Armitage J stated, “only if the employer’s action in all the circumstances was fair could it be said to be reasonable.”
In this matter, the applicant submits the causes of her injury are multi-factorial. Mr Parker took the Commission to the applicant's statement, in which he referred to the following matters which were unrelated to either performance appraisal or discipline and which she maintains contributed to her injury:
·        Increased workload owing to mixing gatekeeper duties with responsibility for hire trailers and gas bottle exchange, which the applicant says had required her to leave her post as gate keeper from time to time;
·        Regularly dealing with abusive and aggressive customers who did not like having their vehicles inspected;
·        A specific incident where a customer resented having their heavy vehicle examined and verbally abused the applicant, including making a reference to being the applicant's manager’s brother-in-law;
·        Difficult interpersonal relationships with her store manager Mr Jenkins and Assistant Manager Ms Agland;
·        The incident which led to the applicant receiving her warning, which she states involved a customer refusing to allow her to inspect his vehicle and revving the car whilst she stood in front of it, as though to run her over. In the same incident, the applicant says the customers were having a domestic argument with a young child present.
Mr Parker submitted these incidents demonstrate the respondent's actions regarding performance appraisal and discipline were not the predominant cause of the applicant's injury. He also noted the general practitioner’s clinical records relating to the applicant's attendances which include references as early as 8 February 2018 regarding issues at work such as being allocated more hours than she was contracted to carry out.
A general practitioner entry on 21 February 2018 revealed concerns regarding work/life balance against the background of previous non-work-related stressors.
On 17 April 2018, the applicant consulted her general practitioner who again noted she suffered anxiety “trying new jobs at work, difficulty coping with new situations". On 3 July 2018, an entry stated “work is now better" which is plainly consistent with a previous problem with work.
On 13 November 2019, the applicant again consulted her general practitioner who noted the applicant was “looking at a career change as Bunnings environment is not healthy for her anxiety.”
I accept these injuries demonstrate some issues with the applicant's workplace, and that to a large extent they predate and do not coincide with the elements of performance appraisal and discipline relied upon by the respondent's in his defense pursuant to section 11A.
Additionally, the applicant's treating psychologist Ms Veljaca provided a report dated 4 December 2020. That report contained a history of multiple stressors causing and contributing to the applicant's injury. They included excessive workload, unrealistic demands, feelings of being targeted by management and incidents involving abusive customers.
Ms Veljaca ruled out the applicant's injury being caused by the respondent's performance appraisal and discipline.
Although Mr Doak noted Ms Veljaca’s report postdated the applicant's resignation and the denial of liability, I am inclined to accept it. Ms Veljaca is a treating professional, and the history provided to her is consistent both with the matters complained of by the applicant throughout her claim and with the complaints the applicant made to her general practitioner over several years regarding her mental health and problems she was having both inside and outside her workplace.
Although the general practitioner’s clinical entries do not contain comprehensive histories of the applicant's workplace issues, they provide some assistance in establishing the applicant was having problems over the course of her employment.
Moreover, even if the respondent is correct in submitting the treating practitioner records provide no corroboration of the applicant's complaints, this is not necessarily fatal to the applicant's claim. In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, Deputy President Roche said:
“83. The arbitrator's conclusion, on this issue really amounts to a finding that he did not accept that Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in the civil case (Chanaar v Zarour [2011] NSWCA 199 at [86]) and, to the extent that the Arbitrator for that such corroboration was necessary, he erred.
84. Moreover, as Beazley JA (as her Honour then was) (Campbell and McFarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary [or even a relevant consideration] that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find the psychological illness. The true question is whether the person suffering symptoms, which properly diagnosed, constitute an illness. Dr Stevans made that diagnosis on 27 September 2013 and the Arbitrator did not properly consider that evidence.
85. I make one last observation in passing on this issue. Several of the events about which Mr Baker has complained occurred within a few months or days of 26 September 2013. The absence of complaints to a general practitioner may have been entitled to significant weight if Mr Baker had failed to complain of bullying and harassment for several months after he ceased work. That is not what happened. He complained on the day he stopped work.”
Although Baker dealt with the question of whether a worker had suffered an injury at all, in my opinion the Deputy President’s comments are equally applicable in circumstances where issues of causation are raised in the context of a section 11A defense. That is, the absence of corroboration is not fatal to an injured worker’s claim.
The applicant’s general practitioner Dr Siddiqi provided a report dated 29 April 2020. Although that report postdates the applicant leaving work, the general practitioner provided the following opinion in relation to causation:
“The precise circumstance is difficult to assess, as it was an ongoing process. Two main instances that Marie mentioned are one when a customer left without paying and he created such a scenario by arguing with his wife, that Marie did not feel safe confronting him. Marie did not receive any support from the employer, until she asked for it herself. Two, she was suspended for an incident where a customer did not pay for a door. She was then called into a meeting about this, where again, she felt that she had no support, and was suspended. She was asked to do other jobs while she was doing a gatekeeper job as well…
Marie does have underlying previous history of anxiety. However she had been coping well when I had seen her in the past. The employment has resulted in exacerbation of her symptoms. With her pre-existing hearing disability, Marie has been actively working for years now. However the employment has resulted in her losing self-confidence and an exacerbation of her anxiety…
In my medical opinion, multiple circumstances have been a contributing factor to her condition. As stated above. These incidents have resulted in Marie feeling anxious, low self-esteem and loss of self-confidence."
The applicant also provided a detailed history to the respondent's independent medical examiner (IME) Dr Whetton. Relevantly, that history includes the following:
"In 2019 the Nowra store moved premises around April and May and she said she was told she would be a gatekeeper.
After a couple of weeks she states that she realized that she had not been trained and told about the details of a gatekeeper in that particular store.
She emphasized that the role of gatekeeper is “to stay at the post”.
She said that there would then be demands that she leave her post to attend other matters such as unlocking the gas bottle locker. There was an instance when in August 2019 there was a customer complaint regarding his receiving an empty gas bottle from the claimant.
It was reported that at the end of August 2019 there was a loss incident at the store and Ms Purcell did not report the loss incident and this resulted in a formal meeting and the issuing of a first and final warning.
She described an incident on 30 September when she was asked to check a customer's car regarding purchased items. She said that upon approaching the car there were screaming and shouting and swearing and the male occupant of the car was in an agitated state.
She said that she became intimidated, frightened and panicked and let the car out of the gate and that subsequent to this she had continued symptoms of anxiety and panic. She described herself as being “interrogated by Richard and Sarah" and made to feel as though she had let the store down with a financial loss.
She continued to work and said that she wanted to hold on to her job.
There was a further incident in early 2020 when she described a busy time at the store and a customer came in to collect an item. She said that she check the car as it was leaving but didn’t look for the receipt for the item which it appeared had not been paid for.
Following this she said that her manager wanted to see her, she was offered a support person. She was fearful that she had done something wrong. She states that in that meeting she didn’t hear and understand what the manager had said. She subsequently spoke to HR and in a state of continued anxiety, effectively broke down and ceased work.”
It is important, in my opinion to make clear the applicant has a serious hearing difficulty, a matter which was known to store management.

It was apparent Dr Whetton was provided with a history of multiple work-related stressors by the applicant. He then provided an opinion on page 12 of the Reply that her condition was predominantly caused by performance appraisal and discipline.
Dr Whetton provides that assessment without explanation, and provides no reason as to why the actions regarding performance appraisal and discipline were the predominant cause of the applicant's injury, rather than one of many stressors, including the other workplace issues of which she complained in her history to him.
In a supplementary report dated 18 January 2021, Dr Whetton had a more fulsome history regarding the applicant's pre-existing psychological problems. He nevertheless accepted the applicant suffered a workplace injury, however, maintained that injury was predominantly caused by the respondent's actions with respect to performance appraisal and discipline. Dr Whetton again failed to deal at all with the other work-related stressors as recounted by the applicant to him at the time of his first examination of her. Indeed, Dr Whetton recounted extraneous matters such as familial issues and a prior history of domestic violence as stressors but did not take into account issues concerning abusive customers and overwork, or perceived issues between the applicant and her managers.
On balance, I do not accept Dr Whetton's opinion. It is apparent in my opinion that the causes of the applicant's work injury are multifactorial. In so finding, I have taken into account the IME evidence of Dr Whetton for the respondent together with that of
Assoc Prof Robertson for the applicant, and the treating medical practitioners. Whilst I have little doubt matters regarding performance appraisal and discipline played a part in causing the applicant's injury, there were multiple work-related factors which played a part. That being so, the respondent has not discharged its onus of proof in establishing that its actions with respect to performance appraisal and discipline were the predominant cause of the applicant's injury.
Although many of the factual matters raised by the applicant concerning allegations of bullying by management are contested by the respondent, there seems little doubt the applicant was having issues at work with customers from time to time and in her relationships with co-workers including management.
In my opinion, even if Mr Jenkins did not bully the applicant and was not objectively difficult to deal with, it is apparently the applicant's perception was that there were issues between them. As noted in the Attorney General's Department v K [2010] NSWWCCPD 76, Deputy President Roche noted a number of important considerations in determining the cause of psychological injuries.
Among those factors is the fundamental point that employers take their employees as they find them. There is an “eggshell psyche" principle which is the equivalent of the “eggshell skull principle" found at common law. Moreover, a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment. That is, if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established. So long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events.
In my view, the applicant plainly had a perception that each of Mr Jenkins and Ms Agland had problems with her and were not supporting her efforts in the workplace. Those perceptions related to real events – to meetings and interactions surrounding the applicant’s duties in the workplace.
In any event, even if the respondent's actions with respect to performance appraisal and discipline were the predominant cause of the applicant's injury, I do not accept those actions were reasonable.
The applicant was given a first and final warning in or about September 2019 owing to the incident recounted above where a customer revved his car at her and there was a domestic argument going on, a situation which she describes as being very traumatic and which caused her to fear for her safety. She describes the meeting with Mr Jenkins and being surprised at being issued with a warning given the circumstances of what went on. Taking into account both Mr Jenkins and the applicant’s evidence surrounding the meeting and the evidence of the applicant regarding the incident which gave rise to it, I do not consider the issuing of so serious a step as a first and final warning to be reasonable. The applicant had been in a position where she had to deal with an abusive customer whose actions and words threatened her. She explained her delay in reporting the incident was caused by taking time to compose herself after being upset. Mr Jenkins seems not to have taken those circumstances into account, nor had due regard to the applicant’s state of mind and well being in the immediate aftermath of the incident. In my view, his actions in issuing a first and final warning were not reasonable given the circumstances of the particular incident at issue.
I note the applicant was stood down with immediate effect in February 2020 at a meeting after a further loss incident. In her statement at [37], the applicant recounts the first meeting at which she was stood down. For his part, Mr Jenkins does not go into detail, but confirmed he called the applicant in and suspended her on the spot.
In my opinion, that conduct with respect to discipline cannot be said to be reasonable. There is no suggestion the applicant behaved dishonestly. The evidence establishes she oversaw hundreds of vehicles egressing the store over the course of her employment as a gatekeeper. The respondent points to two loss events on the applicant's watch over many months and considers them to be a reasonable basis for immediately standing down a long‑term employee.
Such conduct is not, in my view, reasonable given the circumstances. Particularly against a background of the respondent being aware of the circumstances of the first incident, which the applicant had found traumatic and fearful.
It is apparent from the evidence that the meetings in February 2020 were heated. Mr Jenkins provided a supplementary statement in which it is apparent he took a dim view of the applicant. For example, he asserted that if an interaction between the applicant and the man who asserted himself to be Mr Jenkins’ brother-in-law affected the applicant then "she should have reported it to her leader." He accepted that it was the applicant's perception he was unapproachable, and that it was also her perception that he screws his face up when he speaks to her.
At [19] of his supplementary statement, Mr Jenkins downplays the effect the incident with a hostile customer had on the applicant psyche. He said “I do not recall Marie saying that she feared for her life. I think I recall she said that she feared for her safety. She said that there was a bit of a domestic going on in the car but no one else heard anything and it took four or five hours for her to report that incident." It is apparent from this statement that Mr Jenkins was therefore aware the incident had had an effect on the applicant’s emotional wellbeing, yet he sought to down play the incident by seeking to differentiate between the applicant fearing for her safety, as opposed to fearing for her life.
I note the applicant addresses the delay in reporting this incident by saying that she was affected by it, and it took her that period of time to compose herself and to report the incident. I accept that evidence, and in my opinion, it is unreasonable of the respondent to hold that delay against the applicant in circumstances where she was clearly emotionally affected by the incident which had taken place. That Mr Jenkins did not accept the applicant’s emotional state as a reason for the delay in reporting the incident is, in my view, unreasonable conduct on his part, particularly in the context of his using the incident as the basis for issuing a first and final warning to the applicant.
At [25] Mr Jenkins refers to the applicant “tried to make the excuse" she had missed inspecting two cars out of hundreds which had gone past. He dismissed that point by saying the gatekeeper’s role was to ensure inspections are done and that all stock which leaves the store is paid for. One might as blithely note a manager’s role is to take reasonable steps to ensure the wellbeing of their staff, and to take into account their state of mind when addressing disciplinary matters in the workplace.
Mr Jenkins then referred to the applicant “raising another excuse" that she saw a pit bull terrier sitting next to a baby in the car. He stated he could not understand how this could be traumatizing for the applicant and surmised the dog was probably protecting the baby. How Mr Jenkins as a manager of a retail store purports to have any understanding of what should or should not be traumatizing to another person is unclear. Much of his supplementary statement ceases to be evidence and enters the realm of advocacy.
For example, Mr Jenkins briefly states “if Marie felt unsupported then she should take it up with the union." With respect to Mr Jenkins, if every employee who did not feel supported was forced to take up the matter with their trade union rather than approach their manager, they would spend a great deal of time interacting with their union rather than carrying out their work. He then referred to the applicant attempting to “deflect the blame" onto another team member. He said that if there was a problem in communications between the applicant in her role as gatekeeper in the trade team “it is up to her to follow them up". He said “I believe she is grasping at straws to make excuses and cover for her performance warnings."
It is apparent from the content and tone of Mr Jenkins’ statement that he does not view the applicant favorably. He is dismissive of her concerns, and as indicated already, delves into the realm of pseudo-medical diagnosis as to what should or should not cause trauma to another person and also into the realms of advocacy. To the extent there are discrepancies between his evidence and not of the applicant, I prefer the evidence of the applicant.
Lastly, at [37] Mr Jenkins says “I do not believe that the performance issues or her allegations that I bullied her are the reason for her mental health issues." In making that statement, Mr Jenkins is entering into the realm of medical diagnosis. There is no place for a lay witness to make such a statement, and to the extent that aspect of Mr Jenkins’ statement is relied upon by the respondent, I reject it out of hand.
It follows that for the above reasons that I do not accept the respondent's actions in relation to discipline and/or performance appraisal were reasonable in the circumstances of this matter. Combined with my earlier findings that those aspects of the employment relationship were not in any event the predominant cause of the applicant's injury, it follows the respondent's defense pursuant to section 11A of the 1987 Act fails.

SUMMARY

There being no issue in relation to capacity or the applicant’s pre-injury average weekly earnings, it follows from the above findings that there will be an award in favour of the applicant in the terms set out on page 1 of the certificate of determination.

Cameron Burge
MEMBER

13 April 2021