Quiambao v Douglas Hanly Moir Pathology Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Quiambao v Douglas Hanly Moir Pathology Pty Limited [2023] NSWPIC 411
APPLICANT:	Karen Quiambao
RESPONDENT:	Douglas Hanly Moir Pathology Pty Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	15 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted primary psychological injury; defence under section 11A(1) raised with respect to discipline; section 66 permanent impairment claim disputed; weekly benefits and treatment and related expenses disputed; Northern NSW Local Health Network v Heggie, Department of Education and Training v Sinclair, Kushwaha v Queanbeyan City Council, Webb v State of New South Wales, Hamad v Q Catering Limited, and Van Vliet v Landscape Enterprises Pty Ltd considered and applied; Held – the respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s accepted primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline within the meaning of section 11A(1).
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not discharged its onus of establishing on the balance of probabilities that the applicant’s accepted primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline within the meaning of s 11A(1) of the Workers Compensation Act 1987. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 31 March 2020 (deemed) – disease. (b) Body system: psychological/psychiatric disorder. (c) Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute dated 30 January 2023 and attached documents; (b) Application to Admit Late Documents filed by the applicant dated 10 February 2023 and attached documents; (b) Reply dated 28 February 2023 and attached documents; (c) Application to Admit Late Documents filed by the applicant dated 3 April 2023 and attached document, and (d) this Certificate of Determination and Statement of Reasons. 4. Following the issue of the Medical Assessment Certificate, the matter is to be listed for a further preliminary conference to deal with the outstanding disputes, namely, the claim for weekly payments of compensation. 5. The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury deemed to have occurred on 31 March 2020 under s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ms Karen Quiambao, is a 41-year-old woman who was employed by the respondent, Douglass Hanly Moir Pathology Pty Limited (Douglass), as a laboratory technician.
Ms Quiambao alleges that throughout her employment with Douglass, she was subjected to bullying and harassment as a result of unfounded allegations that she was having an affair with her supervisor. She then began to experience bullying at the hands of that supervisor. As a result, she suffered psychiatric injury.
Ms Quiambao lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
On 28 September 2020, AAI Limited t/as GIO (GIO), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) relying on a defence under s 11A of the 1987 Act, namely, that Ms Quiambao’s psychological injury was wholly or predominantly caused by the reasonable actions of Douglass in connection with discipline and/or performance appraisal. On that basis, GIO denied an entitlement to weekly benefits compensation under s 33 of the 1987 Act and reasonably necessary medical and related treatment expenses under s 60 of the 1987 Act.[1]
[1] Application to Resolve a Dispute at pages 21-30.
On 27 October 2020, Ms Quiambao, through her lawyers, requested a review of the decision contained in GIO’s dispute notice dated 28 September 2020 under s 287A of the 1998 Act.[2]
[2] Application to Resolve a Dispute at page 35.
On 10 November 2020, GIO issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability.[3] However, the review outcome omitted the reference to performance appraisal in respect of the defence under s 11A of the 1987 Act.
[3] Application to Resolve a Dispute at pages 37-41.
On a date not identified in the evidence, Ms Quiambao, through her lawyers, claimed permanent impairment compensation under s 66 of the 1987 Act in respect of her alleged primary psychological injury.
On a date not identified in the evidence, Ms Quiambao, through her lawyers, requested another review of the decision contained in GIO’s dispute notice dated 28 September 2020 under s 287A of the 1998 Act.
On 10 August 2022, GIO issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability and amended it to include a denial to an entitlement to permanent impairment lump sum compensation under s 66 of the 1987 Act.[4] Again, the review outcome omitted the reference to performance appraisal in respect of the defence under s 11A of the 1987 Act.
[4] ARD at pages 42-45.
Ms Quiambao, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 30 January 2023 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming weekly benefits compensation from 31 March 2020 to 28 September 2022 under ss 36 and 37 of the 1987 Act; reasonably necessary medical and related treatment expenses under s 60 of the 1987 Act; and permanent impairment compensation under s 66 of the 1987 Act as a result of the injury sustained in the course of her employment with Douglass deemed to have occurred on 31 March 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Douglass’ defence pursuant to s 11A(1) of the 1987 Act has been made out, namely, whether it has established that Ms Quiambao’s accepted primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of Douglass with respect to discipline;
(b) if Douglass’ defence is not made out, Ms Quiambao’s entitlement to weekly payments of compensation within the meaning of ss 32A, 33, 36 and 37 of the 1987 Act arising from her accepted primary psychological injury between 31 March 2020 and ongoing;
(c) if Douglass’ defence is not made out, Ms Quiambao’s entitlement to medical and related treatment expenses under s 60 of the 1987 Act, and
(d) if Douglass’ defence is not made out, Ms Quiambao’s entitlement to lump sum compensation under s 66 of the1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 6 April 2023. Mr Craig Tanner of counsel appeared for Ms Quiambao, instructed by Mr Thomas Schembri, solicitor and Mr John Gaitanis of counsel appeared for Douglass, instructed by Ms Mersina Kikinis, solicitor.
During the conciliation phase the parties agreed as follows:
(a) there is no dispute that Ms Quiambao sustained a work-related primary psychological injury;
(b) the issue of Douglass’ defence under s 11A(1) of the 1987 Act be determined first and if determined in Ms Quiambao’s favour, the matter be remitted to the President for referral to a Medical Assessor to assess Ms Quiambao’s whole person impairment in respect of injury, and
(c) following the issue of the Medical Assessor’s certificate, the matter be relisted before me for a further preliminary conference to deal with the outstanding dispute, namely, the claim for weekly payments of compensation.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD dated 30 January 2023 and attached documents;
(b)    Application to Admit Late Documents (AALD) lodged by Ms Quiambao dated 10 February 2023 and attached documents
(c)    Reply to ARD (Reply) dated 28 February 2023 and attached documents, and
(d)    AALD lodged by Ms Quiambao dated 3 April 2023 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Karen Quiambao’s evidence dated 5 May 2020

In evidence, there are statements by Ms Quiambao dated 5 May 2020,[5] 6 October 2020,[6] 26 July 2022[7] and 27 January 2023.[8]
[5] ARD at pages 1-12.
[6] ARD at pages 13-14.
[7] ARD at pages 15-19.
[8] ARD at pages 19-20.
I will now refer to the relevant parts of Ms Quiambao’s statement dated 5 May 2020, taken by an investigator engaged by GIO.
Ms Quiambao stated that she commenced employment with Douglass on 21 March 2016 as a laboratory technician. She was made aware of company policies including its Code of Conduct, Bullying and Harassment Policy and Discrimination, Harassment, Bullying and Grievance Procedure.
Ms Quiambao stated that her duties included processing specimens; doing cultures for the specimens; setting up at night; and the microscopy for the slides so that the results were ready for the morning staff. She worked in a team of other technicians and about 30 staff on the night shift. Sometimes, there were two to three people working at the same bench. If she finished her work early, she would try to help other staff so that they all finished on time.
Ms Quiambao stated that she reported to Mr Samuel Tan, the night shift supervisor. He had been her supervisor for two years. Mr Tan reported to Mr Richard Jones.
Ms Quiambao stated that she had not undergone any formal performance appraisals at work. There had been no formal issues raised regarding her work performance.
Ms Quiambao stated that “things started to go bad“[9] for her at work in March 2020. She was close to Mr Tan as a workmate and considered him a friend. He was also her pastor at Hillsong Church. Mr Tan had invited her to attend the church and offered to help her join. After church, they would always have a coffee and chat with his friends. Once she had settled in at the church, she would often go by herself and would not always see Mr Tan.
[9] ARD at page 4 at [23].
Ms Quiambao stated that, when Mr Tan became her supervisor, she stepped back from the friendship because she did not want to be seen to be too close to him at work.
Ms Quiambao stated that in January 2020, a friend at work informed her that Mr Tan had said that Ms Quiambao liked him. Ms Quiambao felt ashamed by the comment and when she returned to work on 10 February 2020, she approached Mr Tan and said:
“I’m sorry if there has been a misunderstanding. I only like you as a friend.”[10]
[10] ARD at page 4 at [25].
Ms Quiambao stated that she also told Mr Tan that she was worried that Mr Jones would think less of her after hearing this rumour and that she did not want to lose her job because she needed it.
Ms Quiambao stated that, on 23 March 2020, she saw Mr Tan talking to some staff at work and asking them in for a meeting. Ms Quiambao was the last one to be called in to speak with Mr Tan. Mr Tan confronted her saying that she had been spreading rumours that he was her boyfriend. She denied the allegation and assured Mr Tan that he was only a friend.
Ms Quiambao stated that, during the meeting on 23 March 2020, Mr Tan told her that other staff did not want to work with her and that some of them were afraid to work with her. Ms Quiambao was really shocked. Mr Tan said that he would pull her out of the team to train some staff at work so that she did not have to work with “those people”.[11] Mr Tan also advised her to stop creating gossip and rumours. She insisted that she just did her work and went home. She felt ashamed that she was going to be pulled out to do training for staff and thought that such a move would create more gossip amongst the staff.
[11] ARD at page 5 at [27].
Ms Quiambao stated that, on 25 March 2020, she saw Mr Jones and apologised to him about what had been going on. Mr Jones told her not to worry about it and joked about it. When she went to work, Mr Tan did not stop to talk to her and he continued meeting with other staff. She did not know what was going on. She continued to work but felt very anxious and alone. She wanted to prove them wrong and she acted like nothing had happened.
Ms Quiambao stated that, on 26 March 2020, she tried to speak with Mr Tan about her annual leave but he ignored her. She felt very disrespected. She thought he was her friend and it felt like he had turned on her.
Ms Quiambao stated that, on 27 March 2020, Mr Jones asked her into his office. Mr Tan was also present. Mr Jones informed her that people at work had complained about her. One girl had been crying in the car park and was afraid to come to work because of Ms Quiambao. The allegation was that Ms Quiambao had tried to manipulate staff. The staff were afraid they would lose their jobs because of what Ms Quiambao had said to them and because she had acted like she was one of the bosses. The staff were afraid that if they made a mistake in front of Ms Quiambao, they might lose their job. Staff were leaving and going to work with “PCR next-door”[12] (another department in the organisation) because they were afraid of Ms Quiambao. Ms Quiambao stated that these allegations were untrue and were a big shock to her.
[12] ARD at page 6 at [34].
Ms Quiambao stated that, during the meeting on 27 March 2020, she answered Mr Jones’ questions but she had no idea of what was going to be raised.
Ms Quiambao stated that, during the meeting on 27 March 2020, Mr Jones had asked her why she had shown staff that she had received backpay in December 2019 and told staff she had received a bonus. He alleged that she had told staff that he had paid her more because he wanted to sleep with her and then said that he should not have given her backpay because she did not deserve it. Ms Quiambao conceded that she had joked with staff on one occasion that she was like Mr Tan’s personal assistant but that they all knew it was a joke. It was just banter. Ms Quiambao felt “very attacked”[13] by Mr Tan and Mr Jones. She described her brain as being confused during the meeting.
[13] ARD at page 7 at [37].
Ms Quiambao stated that, during the meeting on 27 March 2020, Mr Jones alleged that she had told staff that she was having sex with Mr Tan and that, as a result, contracted a sexually transmitted disease. The accusation really upset her. She explained that one day she had told Mr Tan that she required sick leave because she had a problem with pimples on her private parts and needed to see a doctor. The doctor advised her to swab herself. She sought Mr Tan’s permission to do the swab and culture at work. Mr Tan told her that when her culture was ready she should speak to the pathologist about the results. She was open with Mr Tan when she had the discussion because she trusted him as a friend. One of the female staff observed the test Ms Quiambao was doing and asked her if Mr Tan had given her a sexually transmitted disease. She replied in the negative. When she consulted the pathologist, she was informed that there was nothing wrong but was advised to consult a doctor. Ms Quiambao advised Mr Tan of the pathology outcome and informed Mr Tan that it might be because she was “getting Brazilians by laser”.[14] Mr Tan told her to stop doing laser. She consulted a doctor, who advised her that it was just a cyst.
[14] ARD at page 7 at [39].
Ms Quiambao stated that, during the meeting on 27 March 2020, Mr Jones alleged that a staff member had informed him that Ms Quiambao had told her that she had stopped doing laser because Mr Tan “liked hairy”[15] and pointed to Ms Quiambao.
[15] ARD at page 8 at [40].
Ms Quiambao stated that, during the meeting on 27 March 2020, she felt very embarrassed and upset. Mr Jones stated that she had ruined Mr Tan’s reputation. She denied that she and Mr Tan were in a relationship. She stated that she had received a lift in Mr Tan’s car but denied that she was sleeping with him.
Ms Quiambao stated that, during the meeting on 27 March 2020, Mr Jones alleged that she had posted a picture of Mr Tan on Facebook. She agreed that she had done so but explained that in the year before, she had brought a cake into work for Mr Tan’s birthday and posted a picture of that on Facebook. Mr Jones alleged that by posting the picture she was trying to show that she had a relationship with Mr Tan, which she denied. She had previously told Mr Tan that work was like her second family.
Ms Quiambao stated that, during the meeting on 27 March 2020, Mr Jones said:
“You think you’re hot and that all the boys want to be with you.”[16]
[16] ARD at page 8 at [44].
Ms Quiambao stated that she felt like Mr Jones and Mr Tan were calling her a slut. She felt very upset.
Ms Quiambao stated that, after the meeting on 27 March 2020, she begged Mr Tan not to take the matter to the human resources department. Mr Tan and Mr Jones informed her that they had already lodged a complaint with the human resources department and that there were seven staff who were willing to put their name to the complaint. She apologised to Mr Tan. She did not want to lose her job. It was a big shock that they had held a meeting about her. Mr Jones accused Ms Quiambao of running after staff in the car park to ask them what had happened in their meetings. Mr Jones accused her of being a liar and that, in the 40 years he had worked with Douglass, he had not experienced such an issue. Mr Jones informed her that he would talk to her again the following Monday (30 March 2020).
Ms Quiambao stated that she waited for someone from the human resources department to contact her so that she could defend herself, but nobody called. She was very upset because she felt like everybody at work from February 2020 onward had been talking about her. Further, Mr Tan had been behaving differently towards her and treating her differently to other staff.
Ms Quiambao stated that, over the weekend, her husband told her that she could resign if the issue was causing her so much trouble. He felt that her health was more important. She had even written a letter of resignation but did not hand in. She felt like Mr Jones and Mr Tan wanted her to resign.
Ms Quiambao stated that, in the meeting on 30 March 2020, Mr Jones and Mr Tan raised further questions. They alleged that she had told staff that she was travelling overseas in January 2020 and was taking Mr Tan with her to introduce him to her parents. She actually went overseas because her sister had recently separated and her mother was really upset by it. She had confided in Mr Tan about this because he was a friend.
Ms Quiambao stated that, in the meeting on 30 March 2020, Mr Jones asked her if she wanted to comment on the allegations made against her.
Ms Quiambao stated that, in the meeting on 30 March 2020, she told Mr Jones that staff were “moving next door for PCR”[17] because of Mr Tan and not because of her. Mr Tan had treated a female staff member differently and also had not allowed her to take a Saturday off work when she requested it. She had told that staff member to tell Mr Jones about wanting to apply to work for the company next door.
[17] ARD at page 10 at [50].

Ms Quiambao stated that, in the meeting on 30 March 2020, she told Mr Jones that the staff member crying in the car park was not upset with her but needed advice about leaving her fiancé. Ms Quiambao told the staff member that, if she needed advice, she could also talk to Mr Tan because he was a pastor in the church and she could trust him. She later saw the staff member speaking with Mr Tan. Later, the staff member reported to her that Mr Tan had given her good advice. Ms Quiambao stated that it was not her intention to create rumours.
Ms Quiambao stated that, on 30 March 2020, Mr Jones told her to take two days off work whilst he conducted further investigations into the allegations. He told her not to come back until Wednesday. She told Mr Jones that, the next time she had a meeting with him, she wanted a proper letter from the human resources department before the meeting and that she wanted to be able to bring a support person with her. After that, she had a panic attack and was taken to a medical centre by her husband.
Ms Quiambao stated that her last day at work was on 30 March 2020. When she went off work, she felt anxious about her job and very upset about people at work talking about her. She could not handle going into work anymore. The comments made by Mr Jones were so personal and hurtful that she is unable to stop thinking about them. The comments keep going around in her brain. She felt humiliated and she also felt that her reputation had been damaged.
Ms Quiambao stated that she consulted Dr Nurul Islam, general practitioner. Dr Islam certified her unfit for work for two weeks. However, her condition worsened and he prescribed her Aropax 20mg daily. She was referred to a psychologist and a counsellor.
Ms Quiambao stated that she continued to be unwell. She did not want to resign. She wanted to fight for her rights. She wanted her reputation back. She had difficulty sleeping and had been vomiting and suffering from diarrhoea.
In respect of the factors that led her to going off work, Ms Quiambao described them as follows:
“The main factors that have led to me going off work are the false allegations that have been made about my character by Richard Jones and Sam Tan. It has also hurt me that Sam tells me he is not my friend anymore. I have been humiliated and disrespected and my reputation has been damaged. Richard’s personal comments have particularly hurt me.”[18]
[18] ARD at pages 11-12 at [60].
Ms Quiambao stated that there were no non-work-related factors that might have contributed to her condition.

Mr Samuel Tan’s evidence dated 7 May 2020

In evidence, there is a statement by Mr Samuel Tan dated 7 May 2020 taken by an investigator engaged by GIO.[19] I will now refer to the relevant parts of that statement.
[19] Reply at pages 23-36.
Mr Tan stated that he commenced his employment with Douglass in 2004. He is the night supervisor in microbiology located at the Douglass Macquarie Park premises. He is responsible for 44 staff. Mr Tan’s role is to ensure the laboratory is functioning and that things are being processed correctly and in accordance with procedure. He is also required to keep the peace with staff members and ensure that the work environment is safe and comfortable for staff. He reports to Mr Richard Jones, who is the manager of the microbiology laboratory.
Mr Tan stated that he first met Ms Quiambao about four years ago. He had socialised with Ms Quiambao outside of work on one occasion and brought her to his church once or twice three years earlier. Ms Quiambao was a laboratory technician, whose duties included processing samples appropriately in accordance with procedures. Ms Quiambao’s role also included the training of other staff members on certain benches in the laboratory. Ms Quiambao reported to him and he had been her supervisor since she commenced work with Douglass. Ms Quiambao’s usual shifts were Monday to Friday from 5.00pm to 1.06am.
Mr Tan stated that he was not aware of any formal performance issues having been raised concerning Ms Quiambao until issues were raised with her in March 2020. There may have been some errors committed by her that were listed as non-conformance.
Mr Tan stated that there had been staff who complained about Ms Quiambao and her behaviour and interactions at work. One staff member had approached him in respect of Ms Quiambao’s behaviour which led him to approach other staff to clarify the information he had been given. Mr Tan stated:
“On some occasions they were quite reserved with me, and I needed to clear up with them that I am not in a relationship with Karen.”[20]
[20] Reply at page 26 at [21].
Mr Tan stated that he was prompted to investigate because he wanted to clear up a rumour being spread about a staff member. He spoke to the person and she told him that Ms Quiambao was spreading the rumour and a number of other rumours.
Mr Tan stated that, in 2019, Mr Jones told him that he had heard that he, Mr Tan, was dating Ms Quiambao. Mr Tan spoke to Ms Quiambao and told her that she needed to stop saying those things. Ms Quiambao apologised to him and he told her that they were not that close.
Mr Tan stated that, in February 2020, he spoke to the former night supervisor, Alma and reported that Ms Quiambao was demonstrating some weird behaviour at work. He advised Alma that, if he was talking to someone, Ms Quiambao would walk past and smack his “butt”.[21] On other occasions, he would walk through the laboratory and Ms Quiambao would say that he looked sexy in front of other workers. As she had been good friends with Ms Quiambao, he requested Alma to speak with Ms Quiambao to remind her that her behaviour was inappropriate. At about the same time, he told Mr Jones that Ms Quiambao was getting too close for comfort.
[21] Reply at page 27 at [24].
Mr Tan stated that, on her return from holidays in February 2020, Alma spoke to Ms Quiambao. Ms Quiambao then approached him and apologised for her behaviour.
Mr Tan stated that he had also heard that Ms Quiambao had been telling people that she was his personal assistant, which was untrue. He spoke to Ms Quiambao about that.
Mr Tan stated that he had spoken to a staff member, Ms Jessica Innes, about a rumour that Ms Quiambao was spreading that she was dating someone in the laboratory. Ms Innes complained about Ms Quiambao’s behaviour and that a stop had to be put to it as she was not comfortable with it and had had enough. Ms Innes believed that Ms Quiambao had bad work ethics. Ms Innes found it stressful being trained by Ms Quiambao and she had been in tears after one session of training with her. Ms Innes provided him with the names of four staff members who had also had bad experiences with Ms Quiambao. Mr Tan spoke with those staff members and they reported to him that they felt Ms Quiambao’s training was bad, as were her work ethics. The staff members explained that they had not come to Mr Tan earlier because they were under the impression that he and Ms Quiambao were in a relationship and so, they were not comfortable in approaching him. Ms Quiambao had told them that she had connections with Mr Tan, Mr Jones and Alma.
Mr Tan stated that, in a conversation with another staff member, Maryam, she advised that she was discussing a science article with Ms Quiambao about being bisexual. She later discovered that Ms Quiambao had told other staff members that Maryam was a lesbian and that she got married to cover it up. She also advised that Ms Quiambao told people that Maryam liked her. Maryam felt uncomfortable but other staff advised to not to say anything because Ms Quiambao could get her fired because of her relationship and connections with the managers.
Mr Tan stated that, on one occasion, he gave Ms Quiambao a lift home. She later told other staff that he would drop her home on a regular basis, which was untrue. Ms Quiambao told staff that they sat together to do the rostering and that they saw each other every Sunday at church, which was untrue.
Mr Tan stated that Maryam had told him that Ms Quiambao said that he had asked the latter to leave her children to be with him, which was untrue. Ms Quiambao told Maryam that he was going to accompany her to the Philippines to see her family. Ms Quiambao also told Maryam that he liked Ms Quiambao to have a hairy vaginal area and that was why she was no longer undergoing laser treatments.
Mr Tan stated that Ms Marwa Momtaz had told him that Ms Quiambao said that he liked oral sex and that is how Ms Quiambao had contracted a sexually transmitted disease from him.
Mr Tan stated that the reports about Ms Quiambao’s behaviour prompted him to speak to other staff. He needed to advise them that he was not in a relationship with Ms Quiambao and reassure them that they could come to him with any issues or concerns.
Mr Tan stated that he spoke to a staff member who had moved to the department next door. The staff member told him that, when she was on her way to see him, Ms Quiambao stopped her to tell her not to tell him about the things she had said to her. The staff member advised him that she had left because she could not handle Ms Quiambao anymore due to the inappropriate things she was saying to her at work. She needed to leave for her mental health.
Mr Tan stated that, during the week commencing 23 March 2020, he and Mr Jones met with Maryam, Ms Innes, Ms Momtaz and Mr Brendan Lane, his second in charge (2IC) to reassure staff that Ms Quiambao did not have any influence in running the laboratory or rostering staff and that staff did not have to feel afraid or uncomfortable about working in the laboratory.
Mr Tan stated that, on 27 March 2020, Ms Quiambao harassed Maryam after he and Mr Jones had spoken to Maryam. Ms Quiambao told Maryam that she did not want any trouble at work and that she was getting engaged to a pilot.
Mr Tan stated that, at that time (27 March 2020), he and Mr Jones believed that they needed to speak with Ms Quiambao to ask her to clarify what had been happening and to respond to the allegations made against her. Ms Quiambao again apologised for everything and in doing so, admitted that she had been spreading rumours. Mr Jones advised Ms Quiambao that he would need to consult with the human resources department and take the issue to them. Ms Quiambao repeatedly apologised and stated that she did not want them to take the matter to the human resources department. Mr Tan maintained that they had to do so because it was the third occasion that they had seen that type of behaviour from Ms Quiambao. Ms Quiambao was not distressed or crying.
Mr Tan stated that he and Mr Jones had another meeting with Ms Quiambao on 30 March 2020 to follow-up. They did not offer a support person at the meeting because it was just to clarify some further issues. They needed to ask her about some other allegations made by staff. Ms Quiambao’s behaviour on 30 March 2020 was very different. She maintained that she did not spread the rumours and did not know anything about it. Then she started speaking about her Brazilian laser treatment and said that there was a pilot chasing her. It was put to Ms Quiambao that she had told staff she had undergone a vaginoplasty in the Philippines because Mr Tan liked it. When they questioned her about it, she responded by saying it was a private matter and she would not discuss it.
Mr Tan stated that Mr Jones told Ms Quiambao to take two days off, with pay, to give them time to meet with the human resources department and decide what should be done next. On 31 March 2020, Mr Jones received a telephone call from a union representative alleging that Ms Quiambao had been unfairly dismissed.
Mr Tan stated that, during the week commencing 30 March 2020, there were four staff members who had complained about Ms Quiambao. He approached other staff members to ask whether they had experienced any problems working with Ms Quiambao.
Mr Tan stated that a male staff member, Robin, disclosed that Ms Quiambao would come up to him when he was washing his hands, touch his shoulder and say, “You are so buff”.[22] Robin told him that he believed it was inappropriate touching and it made him feel uncomfortable. However, he did not say anything because he believed that Ms Quiambao was dating Mr Tan.
[22] Reply at page 31 at [44].
Mr Tan stated that another male staff member had been told by Ms Quiambao in front of another male work colleague that she had undergone a vaginoplasty whilst in the Philippines. Ms Quiambao’s openness in speaking about it made them feel uncomfortable. Ms Quiambao also told them that if they needed anything, they could approach her and she would look after them with work or rosters.
Mr Tan stated that Mr Lane had heard Ms Quiambao tell another staff member that she would visit Mr Jones at home and drink wine with him and with Alma.
Mr Tan stated that a staff member, Danica, told him that, during their breaks, Ms Quiambao told them that she had connections with management. She told him that Ms Quiambao would grab her around the waist and whisper in her ear, which made her feel uncomfortable. Danica also referred to an incident in the sample processing room where Ms Quiambao had told her that she had better be nice otherwise, she would tell Mr Tan and she would be in trouble. Ms Quiambao had said to Danica that she was in love, referring to Mr Tan.
Mr Tan stated that a staff member, Tim, told him that he felt pressured to give Ms Quiambao lifts home from work. She would ask him to take photographs of her in different poses in the building and she would ask him whether she looked sexy. Tim told him that he felt very uncomfortable around Ms Quiambao because of her behaviour. He felt manipulated and forced to give her lifts home, which also made him feel uncomfortable.
Mr Tan stated that two female staff members, Zip and Jay, who were partners, told him that Ms Quiambao told them that she was in a sexual relationship with Mr Tan and that he took her to motels to have sex with her. She also told them that Mr Tan had asked Ms Quiambao to leave her children to be with him but she had declined and Mr Tan was taking the break up badly. Mr Tan was aware that Ms Quiambao often said “bad things”[23] about Zip and Jay.
[23] Reply at page 33 at [50].
Mr Tan stated that Ms Quiambao had told staff that she received an end of year bonus in 2019 in the sum of $8,000 because of her new role. She told other staff that Mr Jones gave her the money because he wanted to look after her. None of those statements were true. The money she received was by way of backpay and he was in the meeting with Ms Quiambao and Mr Jones when the latter explained it to her. When he and Mr Jones asked Ms Quiambao about the above statements to staff, she could not explain it.
Mr Tan stated that a staff member, Vanessa, reported that Ms Quiambao had informed her that she controlled who got trained and that if Vanessa wanted to get trained, then Ms Quiambao could get it done. This was untrue.
Mr Tan stated that there were occasions when Ms Quiambao took leave at the same time he did. Ms Quiambao would tell staff that she was taking time off to spend “with a special someone”,[24] implying Mr Tan. Mr Tan stated that they were not on the same holiday.
[24] Reply at page 33 at [54].
Mr Tan stated that there was an occasion when Ms Quiambao told him that she suspected she had a problem or a sexually transmitted disease. He was aware she did a swab herself and carried out the test at work. He was not aware of her telling him about the results. She mentioned it in the meeting with him and Mr Jones and advised that it was actually a cyst.
Mr Tan stated that he was aware that Ms Quiambao wanted to talk to him in the week leading up to 27 March 2020. However, he was busy. If she had approached him when he was talking to another staff member, he was not going to stop and talk to her. He did not want to be alone with her in the laboratory once he had heard the allegations made by staff. He did not think it was a good idea.
Mr Tan stated that, in the meeting with Mr Jones, Ms Quiambao did not appear overly upset and said that she was sorry for her behaviour. He denied that she was attacked (verbally) by him or Mr Jones during the meeting. They simply asked her some basic questions in a calm manner. Mr Tan did not hear Mr Jones say to Ms Quiambao that she believed she was hot. Ms Quiambao did say that she had to worry about her reputation. He did not believe her because of all the stories she had manufactured about her relationships with him and Mr Jones, which were untrue.
Mr Tan stated that he was unaware of the steps the human resources department might take next as they would be speaking with Mr Jones. He stated that Ms Quiambao’s last day of work was on Monday, 30 March 2020.
Mr Tan stated that about 15 staff members had opened up to him and advised him that Ms Quiambao’s behaviour at work had made them feel uncomfortable, or that they had heard rumours she was spreading about being in a relationship with Mr Tan.
Mr Tan stated:
“It was shocking to me how long it had been going on, that Karen had been telling these lies to the staff.”[25]
[25] Reply at page 34 at [55].

Mr Richard Jones’ evidence dated 8 May 2020

In evidence, there is a statement by Mr Richard Jones dated 8 May 2020 taken by an investigator engaged by GIO.[26] I will now refer to the relevant parts of that statement.
[26] Reply at pages 36-43.
Mr Jones stated that he commenced his employment with Douglass in 1989. He is the manager of the microbiology and infectious diseases laboratory located at Macquarie Park. He is responsible for the overall running of the laboratory. Mr Tan is the night supervisor and reports to him.
Mr Jones stated that he first met Ms Quiambao when she commenced in her role with Douglass about four years ago. He interviewed her for her role. She came recommended as a friend of Ms Alma Meteoro, the former night supervisor.
Mr Jones stated that he did not socialise with Ms Quiambao outside of work. He had observed that she had always been very upbeat at work.
Mr Jones stated that Ms Quiambao was a laboratory technician. She worked on different benches within the laboratory. She was also a trainee supervisor and had been involved in training some of the staff on the swab bench. Ms Quiambao worked the evening shift, Monday to Friday from 5.00pm to 1.06am. Mr Tan was Ms Quiambao’s supervisor.
Mr Jones stated that he was not aware of any formal performance issues having been raised in respect of Ms Quiambao prior to the present situation. Mr Jones described the present situation in the following terms:
“When we spoke to staff they said they did not report complaints about the claimant initially because, as it turned out, they were afraid of her. The claimant was indicating to staff that she was Sam's girlfriend and that she had a direct line to me and Sam. She told staff she regularly socialized with us, drinking wine with me by my pool. None of that was true. She has never been to my house. Some of our staff are very young and straight from university and the claimant would become their friend, but then become quite manipulative with them.”[27]
[27] Reply at page 39 at [18].
Mr Jones stated that he was aware that Ms Quiambao “encouraged the younger Filipino staff to call her Aunty, which gave her a kind of status.”[28] He was aware of a staff member who had moved to another department, Carissa, who was asked by Mr Tan whether she had any issues with Ms Quiambao and broke down in tears. She admitted to Mr Tan that she had left the laboratory because of Ms Quiambao.
[28] Reply at page 39 at [19].
Mr Jones stated that he first became aware of concerns about Ms Quiambao’s behaviour at work when Mr Tan reported to him in late 2019 that she was telling staff that he was her boyfriend. This was false and he asked Mr Tan to talk to Ms Quiambao about it. It occurred again at the beginning of 2020. Mr Tan approached Ms Quiambao and told her she had to stop that behaviour. It was at that time that Mr Jones and Mr Tan noticed a divide in the department with staff on the night shift. Mr Lane had become a bit distant and another staff member stopped talking to him. He requested Mr Tan to address the issue. At that time, neither he nor Mr Tan were aware of what Ms Quiambao was telling people.

Mr Jones stated that, on another occasion at the end of 2019, it was discovered that Ms Quiambao had not been paid at the correct rate. Payroll was requested to make the correction and Ms Quiambao received backpay of about $8,000. It later came to Mr Jones’ attention that Ms Quiambao had told staff that she had received a bonus from him, suggesting that they were close.
Mr Jones stated that, on 26 March 2020, one of the female staff told Mr Tan what Ms Quiambao had been saying to her at work. Mr Jones stated that it appeared that she was being bullied by Ms Quiambao. Mr Jones and Mr Tan later discovered that seven other staff had the same complaint.
Mr Jones stated that he then asked all of those staff members to come into a meeting room, where he reassured them that Ms Quiambao did not have the ability to influence their jobs or get them fired. He confirmed that Ms Quiambao was not having a relationship with Mr Tan or with him and that she did not have the power she was saying she had. He assured the staff members that their names would be kept confidential.
Mr Jones stated that, on 26 March 2020, Ms Quiambao followed one of the staff members down to the staff car park and “tried to pump her for information about the meeting.”[29]
[29] Reply at page 40 at [24].
Mr Jones stated that, on 27 March 2020, he informed Mr Tan that he needed to speak with Mr Greg Henry of the human resources department to get some direction about how to proceed. They had a duty of care to those staff to provide a safe working environment. So, they needed to address the issue in respect of Ms Quiambao. The human resources manager was not able to see Mr Jones on that day as he was busy dealing with other urgent matters because of the COVID-19 situation. He still needed to speak with Ms Quiambao and did so.
Mr Jones stated that he met with Ms Quiambao on 27 March 2020 with Mr Tan. They advised Ms Quiambao that people had come forward with the information she had been spreading. They suggested that she had told people that she had been to Mr Jones’ home drinking wine and that she had told people that she was in a sexual relationship with Mr Tan. They asked her to explain why she had spread those rumours.
Mr Jones stated that, during the meeting on 27 March 2020, Ms Quiambao kept apologising. She said that she had said those things but was just joking. Mr Jones further stated:
“A lot of the comments were very sexual in nature. She had accused Sam of giving her a sexually transmitted infection. I told her that what she was saying was terrible, and inappropriate and it was not ok. A couple of times I asked her to keep to the facts. She was talking in circles. She started accusing staff of making things up. She then said she promised she would not do it again and begged us not to get HR involved.”[30]
[30] Reply at page 41 at [26].
Mr Jones stated that he told Ms Quiambao that they would meet again on Monday (30 March 2020) after he had spoken to the human resources department. Ms Quiambao again pleaded not to get the human resources department involved. He advised her that she could bring someone with her to the meeting on Monday but she said that she did not need to.
Mr Jones observed that the meeting on 27 March 2020 was quite amicable and Ms Quiambao did not appear to be distressed at all. She left the meeting and walked outside. Another staff member asked her what the meeting had been about and she told them that she was telling us about becoming engaged to a pilot.
Mr Jones stated that, in the meeting on 30 March 2020, Ms Quiambao’s demeanour was quite different. She was adamant that the other staff were making things up. He informed her that there were now 10 people that had come forward and told them the same stories that she had been spreading. They had all heard her talking about getting a sexually transmitted disease from Mr Tan after having oral sex and that she had told them that she had a vaginoplasty in the Philippines because Mr Tan wanted her to do that.
Mr Jones stated that, in the meeting on 30 March 2020, he confronted Ms Quiambao with an allegation from a young Iranian staff member, who had had laser on her bikini line. The allegation was that Ms Quiambao warned her that she should not remove all the hair there because Mr Tan liked “a hairy one”.[31] Ms Quiambao went off on a tangent talking about how she liked to get a Brazilian wax herself.
[31] Reply at page 42 at [30].
Mr Jones stated that, in the meeting on 30 March 2020, he also raised allegations from male and female staff about inappropriate touching that included, rubbing a male staff member’s leg, hugging staff, grabbing them around the waist or slapping people on the bottom. Mr Jones also raised the allegation that Ms Quiambao had told staff that, every night after work, she would leave with Mr Tan in his car and they would go to a hotel to have sex.
Mr Jones denied that he or Mr Tan verbally attacked Ms Quiambao during the meeting. He did ask her if she wanted to be seen as one of the senior people within the laboratory and she agreed that she did want to be seen like that by staff. He denied calling Ms Quiambao a liar. He denied saying to Ms Quiambao that she thought she was hot and that all the guys wanted to sleep with her.
Mr Jones stated that, at the conclusion of the meeting on 30 March 2020, he told Ms Quiambao that she should take two days of paid leave in order to give them time to consult the human resources department and that they would have another meeting with her and a human resources representative on 1 April 2020 to discuss the matter further.
Mr Jones stated that, on 1 April 2020, he was contacted by a union representative advising that she represented Ms Quiambao. He advised her that Ms Quiambao was due to come in later that day for another meeting. Two hours later, Ms Quiambao emailed a workers compensation certificate to Douglass giving her two weeks leave, which was later extended.
Mr Jones stated that he believed the next stage would be a disciplinary meeting where Ms Quiambao would be asked by the human resources department to respond to the complaints. That process would potentially lead to a formal warning of sorts, depending on the procedure the human resources department wanted to follow.
Mr Jones stated that Ms Quiambao’s last day of work was 30 March 2020. He had sent her home after the meeting and before her shift had started.

Ms Marwa Momtaz’s evidence dated 18 May 2020

In evidence, there is an unsigned statement by Ms Marwa Momtaz dated 18 May 2020 taken by an investigator engaged by GIO.[32] The unsigned statement formed part of the Procare Factual Investigation report dated 25 May 2020 and was referred to as a draft.
[32] Reply at pages 44-49.
Mr Gaitanis referred to Ms Momtaz’s unsigned statement in his written submissions.[33] Mr Tanner only touched on it very briefly in passing.[34] Mr Tanner did not raise an objection.
[33] Douglass’ written submissions dated 18 May 2023 at [67] and [80]-[85].
[34] Ms Quiambao’s written submissions dated 12 May 2023 at [31].
Below is a summary of the matters recorded in the unsigned and unadopted statement by Ms Momtaz.
Ms Momtaz commenced her employment with Douglass in October 2018 as a laboratory technician at the microbiology laboratory located at Macquarie Park. She reported to Mr Tan. She worked the night shift where testing of samples and specimens were conducted.
Soon after she commenced her employment with Douglass, Ms Momtaz first met Ms Quiambao in 2018. Staff told her to be careful about what she told Ms Quiambao because she was best friends with Alma, the supervisor.
Ms Quiambao always tried to show other staff that she had power at work. She told Ms Momtaz that if she wanted anything, she should let her know because Alma was her best friend and she could get her any training that she wanted.
By the time Mr Tan became the night shift supervisor, Ms Momtaz was friends with Ms Quiambao and they would sit together on breaks. Ms Quiambao told Ms Momtaz and other staff that she went to church with Mr Tan and Alma every Sunday and then went out for coffee. Ms Quiambao also said that she went to social gatherings with Mr Jones and that he had a lot of respect for her. She often went to lunch with Mr Jones and Mr Tan before their shift started.
In early 2019, Ms Quiambao went on a trip to the Philippines and told staff that she and Mr Tan had become very close. She provided inappropriate information that was quite sexual in nature and it made Ms Momtaz feel uncomfortable. Ms Quiambao told staff that Mr Tan wanted her to leave her children so that she could be with him.
Later in 2019, Ms Quiambao went to the Philippines for four weeks and told staff that Mr Tan would take two weeks and join her in order to spend time together. Mr Tan did take holidays at the same time. Staff then thought that Ms Quiambao had the power to get them fired or get them trained because she and Mr Tan were serious about each other.
Ms Quiambao was in charge of the genital bench in the laboratory and was the sub-supervisor of that bench. She told staff that Mr Jones had given her a bonus of thousands of dollars for taking on that bench. That led staff to believe that Ms Quiambao was very close to management. Ms Momtaz then became quite scared to talk in front of Ms Quiambao about any work issues in case the latter spoke to Mr Tan and Mr Jones.
In 2019, Ms Momtaz held a birthday party and invited some close friends from work, including Ms Innes. She did not invite Ms Quiambao to the party. Later, Ms Quiambao started rumours about Ms Innes holding hands with another staff member at the party. Ms Innes approached Mr Tan about the rumour and told him that Ms Quiambao had spread a lot of rumours about her relationship with him. Mr Tan was shocked.
Mr Tan asked Ms Momtaz and another staff member, Maryam, about the rumours of his relationship with Ms Quiambao. Mr Tan insisted that Ms Quiambao did not have the power she suggested she had with management. He denied he was in a relationship with Ms Quiambao. They told him that they had not come to him before about the rumours because they felt that it was a personal matter. Mr Tan told them that Ms Quiambao had complained that Ms Momtaz, Ms Innes and Maryam were telling stories about him and Ms Quiambao dating. Ms Momtaz denied the allegation and told Mr Tan that it was Ms Quiambao telling those stories at work.
Ms Quiambao spread other rumours including one that Mr Tan had given her a sexually transmitted disease. She told staff that she had a vaginoplasty in the Philippines because she could enjoy sex more with a tight vagina. She also told some male staff members about the surgery. She told staff that Mr Tan did not like her having Brazilian laser treatment on her bikini line anymore because he preferred her to be hairy. Other staff members had complained about Ms Quiambao’s behaviour at work.
On 26 March 2020, Mr Jones and Mr Tan called her and some other staff into a meeting room. They were told that Ms Quiambao was not in a relationship with Mr Tan and that she did not have any power or influence with management. After the meeting, Ms Quiambao followed Maryam down to the staff car park and tried to get information from her about the meeting. Ms Quiambao knew something was happening.
Ms Momtaz had seen Ms Quiambao touching other staff at work. She was like that with all the men, flirting with them and touching their arms or legs.
A statement which has not been signed and has not been adopted by the witness is not, in effect, evidence at all. Unsigned statements must be approached with caution and whether they can be considered evidence or given any weight, depends on the circumstances of the case.
There was no explanation provided as to why the statement was unsigned. The Procare Factual Investigation report noted that a signed statement was yet to be received and would be forwarded on receipt.[35]
[35] Reply at page 10 at [5].
Accordingly, I give little weight to the unsigned and unadopted statement by Ms Momtaz.

Ms Jessica Innes’ evidence dated 19 May 2020

In evidence, there is an unsigned statement by Ms Jessica Innes dated 19 May 2020 taken by an investigator engaged by GIO.[36] The unsigned statement formed part of the Procare Factual Investigation report dated 25 May 2020 and was referred to as a draft.
[36] Reply at pages 50-54.
Mr Gaitanis referred to Ms Innes’ unsigned statement in his written submissions.[37] Mr Tanner only touched on it very briefly in passing.[38] Mr Tanner did not raise an objection.
[37] Douglass’ written submissions dated 18 May 2023 at [67] and [86]-[89].
[38] Ms Quiambao’s written submissions dated 12 May 2023 at [31].
Below is a summary of the matters recorded in the unsigned and unadopted statement by Ms Innes.
Ms Innes commenced her employment with Douglass in February 2019 as a laboratory technician at the microbiology laboratory located at Macquarie Park. She reported to Mr Tan. She worked the night shift. She met Ms Quiambao on her first shift at work.
Ms Innes observed that Ms Quiambao seemed quite experienced in the laboratory but that over time, she noticed that she would take shortcuts. She could be lazy and sometimes, took advantage of new workers by getting them to work harder than she did.
Ms Quiambao told her and other staff about being in a relationship with Mr Tan. She liked to hint that something was going on between them. Ms Innes did not always assume what Ms Quiambao was saying was true. Ms Quiambao hinted that Mr Tan had gone to the Philippines with her. However, Mr Tan had told staff that he was going on a conference. She learned that Ms Quiambao often tried to spread and make up stories. Ms Quiambao did not have conversations with her that made her uncomfortable. She could see what Ms Quiambao was like and tried not to get involved with her.
Ms Quiambao spread rumours about Ms Innes. Ms Quiambao spread rumours that Ms Innes had cheated on her ex-partner with someone at work. She started a rumour about Ms Innes holding hands with a co-worker at a party held by Ms Momtaz in 2019. The rumours were untrue. She started speculating about who Ms Innes might be involved with at work.
One night, Mr Tan asked Ms Innes whether any of Ms Quiambao’s rumours were true. That made Ms Innes feel extremely uncomfortable. She told Mr Tan that Ms Quiambao said a lot of things that should not be taken seriously, including rumours that she spread about her being in a relationship with him. Ms Innes felt that Ms Quiambao was trying to bring down her reputation at work. She had had enough. Ms Innes had witnessed Ms Quiambao making new male staff members feel uncomfortable at work. Ms Quiambao’s behaviour was not appropriate.
Mr Jones and Mr Tan called staff into a meeting on 26 March 2020. Ms Innes was at that meeting with five other staff members. Mr Jones and Mr Tan told them that Ms Quiambao was not in a relationship with Mr Tan and that she did not have any power or influence with management. They informed those present that they would take steps to address the behaviour and that they were not in any trouble for raising the issue.
Following the meeting on 26 March 2020, Ms Quiambao approached Ms Innes and asked what had been discussed in the meeting. Ms Quiambao knew something was happening.
Ms Innes’ last contact with Ms Quiambao was on 30 March 2020 when she came in for a meeting but went home before her shift commenced.
Again, there was no explanation provided as to why the statement was unsigned. The Procare Factual Investigation report noted that a signed statement was yet to be received and would be forwarded on receipt.[39]
[39] Reply at page 10 at [5].
Accordingly, I give little weight to the unsigned and unadopted statement by Ms Innes.

Ms Karen Quiambao’s evidence dated 6 October 2020

In evidence there is a further statement by Ms Quiambao dated 6 October 2020.[40] I will now refer to the relevant parts of that statement.
[40] ARD at pages 13-14.
Ms Quiambao acknowledged that she had read the statements provided by Mr Tan, Mr Jones, Ms Momtaz and Ms Innes and provided her responses to the same.
Ms Quiambao stated that, over the course of her employment with Douglass, she and her co-workers had frequently engaged in banter and conversation that was, occasionally, sexualised in nature. It was something that, essentially, all staff engaged in and there was never any indication given to her that it was frowned upon.
Ms Quiambao stated that it was a complete surprise to her when, during the meetings of 27 March 2020 and 30 March 2020, Mr Jones and Mr Tan had stated that her conduct over the time of her employment had, in some way, been inappropriate. It had never been raised with her before and those allegations were suddenly put to her by two managers in meetings that were arranged without any notice and without any opportunity for her to obtain a support person.
Ms Quiambao stated that some of the things that were put to her by two males in those two meetings were very accusatory and extremely confronting for her as a married woman. She was not permitted to give her side of the story during those meetings. Instead, incident after incident was put to her about things that she had supposedly been doing during the course of her many years of employment, many of which, involved simple misunderstandings or misconstruction of events or comments. Things of a very personal nature were raised and she felt belittled. Some things involved personal private conversations she had had with Mr Tan. She trusted Mr Tan as a pastor and also as her manager at work. One example was the swab she had performed at work that was raised during the meetings in a very belittling and condescending fashion. It was twisted so as to accuse her of providing unwanted information to people.
Ms Quiambao stated that she was not certain what precipitated the meetings that occurred in March 2020. However, they did come shortly after she had had a private conversation with Mr Tan where she confided to him that she was not interested in him romantically but only as a friend. The conversation took place after she had heard comments about their relationship. She did not have any knowledge of the supposed rumours regarding their relationship. They were not rumours that were started by her. She believed that they were possibly started by other staff members who were jealous of the good relationship that she and Mr Tan had previously shared at work.
Ms Quiambao stated that, prior to the meetings in March 2020, there had not been any issues raised about her performance at work or any other matters. Any issues with her work performance and/or conduct at work should have been raised with her on some level prior to the meetings that were hastily arranged in March 2020 and in a more delicate way, given some of the personal matters that were discussed.
Ms Quiambao confirmed that, the meetings in March 2020 and the issues discussed, had a huge impact on her and her mental state. She was no longer the person she was before. She felt depressed and constantly anxious. She had trouble sleeping. Her mind always flashed back to the workplace and the meetings that were arranged. She had a lot of difficulty concentrating on tasks. She became emotional easily.

Ms Karen Quiambao’s evidence dated 26 July 2022

In evidence there is a further statement by Ms Quiambao dated 26 July 2022.[41] I will now refer to the relevant parts of that statement.
[41] ARD at pages 15-18.
Ms Quiambao stated that she felt her psychological condition had deteriorated since 31 March 2020. The numerous unfair meetings held and the allegations against her of spreading rumours had an adverse effect on her mental state. The relationship with her children and husband had been adversely affected. She continued to have flashbacks of how disrespectfully she was dealt with during the meetings in March 2020, which were held without any notice and without an opportunity for her to obtain a support person. She was worried about her future working career and her reputation that had been tarnished by her employer’s allegations, as they knew that Mr Tan was single at the time and that she was married.

Ms Quiambao stated that, in the meetings, she had tried to mention that Mr Tan had misinterpreted her friendship as something else and that, when she spoke to him and refused his advances, he and other colleagues had become nasty towards her and alleged that she had been spreading rumours and had bullied other people in the workplace, who were now afraid to work with her. Management did not believe her when she told them that Mr Tan’s attitude had changed towards her and that he started to give her a hard time, micromanage her and see fault in everything she did.
Ms Quiambao stated that she felt embarrassed by the rumours and the manner in which other staff members had questioned her and her integrity. It was very heartbreaking to hear the false accusations made against her. She denied begging management not to involve the human resources department. She felt harassed by the way management had spoken about her and the way in which she was questioned about the false allegations made against her.
Ms Quiambao provided an update on her current symptoms and restrictions.
Ms Quiambao stated that she continued to suffer from a major depressive disorder and continued to experience flashbacks. She continued to experience difficulty sleeping and experienced constant fear. She was worried that everyone was laughing at her. She wanted to continue undergoing psychological/psychiatric consultations and taking antidepressants to assist her in managing her symptoms. She found that the treatment she had been receiving was helpful in addressing her symptoms.

Ms Karen Quiambao’s evidence dated 27 January 2023

In evidence there is a further statement by Ms Quiambao dated 27 January 2023.[42] I will now refer to the relevant parts of that statement.
[42] ARD at pages 19-20.
Ms Quiambao denied that her psychological injury was the result of reasonable action taken by her employer and that it only occurred after the meetings in March 2020. She stated that her psychological symptoms began well before those meetings ever took place. As soon as she heard the rumours about there being a relationship between herself and Mr Tan, she felt anxious. She had no option but to approach Mr Tan and apologise if there was any “misinterpretation”,[43] and advise him that she only saw him as a friend.
[43] ARD at page 19 at [4].
Ms Quiambao stated that she was not sure whether Mr Tan was offended by her approach but since their conversation, his attitude towards her completely changed. She described Mr Tan’s treatment of her thereafter as follows:
“Sam began to treat me as though I was a ghost. I must admit that I did try and put distance between us so that these rumours could dissipate, however Sam took it to the next level. Sam pretended as though I did not exist. On numerous occasions I would approach Sam about work related issues and he would completely ignore me. I found this very rude and unprofessional. Even when I would approach him I would preface my conversation with what I am approaching him with is work related and I needed his assistance. It was like talking to a brick wall. There was never a response from him and again he completely ignored my existence. This made me feel very anxious. I do not like confrontation and I especially do not enjoy confrontation with a person who I considered to be a good friend.”[44]
[44] ARD had pages 19-20 at [6].
Ms Quiambao stated that, because of the treatment she received from Mr Tan, her anxiety began to increase day by day. She was very stressed and what made it worse, the rumours about them did not seem to go away. Even when Mr Tan was ignoring her, people were still talking behind her back.
Ms Quiambao stated that she did not deny that the meetings in March 2020 had an impact on her mental health. However, the fact was that her mental health was already deteriorating before those meetings as a result of the rumours that had been circulating and Mr Tan’s demeanour towards her. The meetings only exacerbated her condition and tipped her over the edge.

Mr Dennis Anderson’s evidence dated 31 March 2023

In evidence, there is a statement by Mr Dennis Anderson dated 31 March 2023.[45] I will now refer to the relevant parts of that statement.
[45] Ms Quiambao’s AALD dated 3 April 2023 at pages 1-2.
Mr Anderson stated that he is the husband of Ms Quiambao.
Mr Anderson stated that, at the beginning of 2020, he noticed that Ms Quiambao was very different when she came home from work. She was very short fused and aggressive. Prior to suffering her psychological injuries, she was completely normal. She was a calm and happy person. She was very good to their family and was the glue that held them all together. They relied on her for absolutely everything.
Mr Anderson stated that he picked up Ms Quiambao from work and from the moment she stepped into the car, he knew something was wrong. She told him all about the rumours that were being spread about herself and her team leader, Mr Tan. She was distraught by the rumours and they made her very angry and upset. He felt helpless and all he could do was be there for her.
Mr Anderson observed that Ms Quiambao’s psychological state deteriorated noticeably. She used to be a very happy, cool, calm and collected person. After the rumours began to spread, her attitude changed. She was always upset and angry and she became very socially withdrawn. She often took her anger out on him.
Mr Anderson stated that, after her meetings in March 2020 with her team leaders, she came home a mess. She was crying and questioning how she could be treated that way. Although the meetings in March 2020 upset her significantly, he had noticed a change in a psychological state well before those meetings. He felt that she was already suffering psychologically prior to those meetings.

The treating medical evidence

In evidence, there are the clinical records of NAS Advanced Medical Centre.[46] Ms Quiambao had been consulting general practitioners in that medical practice. Ms Quiambao’s NAS Advanced Medical Centre clinical records commenced with an entry on 13 August 2004 and ended with an entry on 9 September 2020.
[46] ARD at pages 90-358.
On 31 March 2020, Ms Quiambao consulted Dr Nurul Islam, general practitioner, of the NAS Advanced Medical Centre. Dr Islam noted a complaint of stress in the workplace and allegations against Ms Quiambao that she was having an affair with a co-worker. Ms Quiambao reported anxiety, panic attacks and an inability to sleep. Ms Quiambao reported feeling that the workplace environment was getting worse. Other people were asking Ms Quiambao irrelevant questions regarding sexually-transmitted disease and other things. Dr Islam noted that she looked stressed and recommended relaxation, rest and review in two weeks.[47]
[47] ARD at page 95.
On 7 April 2020, Ms Quiambao consulted Dr Islam complaining of continuing stress, an inability to sleep and an inability to concentrate. Dr Islam prescribed her one 20mg Aropax tablet to be taken nightly.[48]
[48] ARD at page 95.
On 13 April 2020, Ms Quiambao consulted Dr Islam complaining of stress, anxiety, depression, sleeping difficulties and worthlessness. She felt that she could not cope anymore and could not go back to work. Dr Islam provided her with advice and counselling.[49] Dr Islam issued Ms Quiambao with a certificate of capacity certifying her as having no current work capacity.[50] The diagnosis provided on the certificate was work-related anxiety, stress and depression. The relationship to work was described in terms of workplace stress, being bullied, false allegations on character and harassment.
[49] ARD at page 95.
[50] Reply at pages 112-114.
On 29 June 2020, Dr Islam referred Ms Quiambao to Mr Roshanak Vahdani, psychologist[51] and she consulted him on 7 July 2020.[52]
[51] ARD at pages 88-89.
[52] ARD at page 85.
On 21 July 2020, Mr Vahdani reported back to Dr Islam.[53] Mr Vahdani took the following history from Ms Quiambao:
“Karen is presenting with symptoms of anxiety and depression in context of issues in her workplace. She alleges that she has been bullied at work because she refused the advances of a work colleague and since she rejected him late last year as she is already married, this colleague and her manager have been nasty towards her. She reported that her manager (who is not the alleged person who had feelings for her) has met with her in March this year, saying that she has spread rumors [sic] at work about this other person and that she has bullied 8 other people in the workplace who are now afraid to work with her. She insists that these allegations are totally untrue and she feels she is being victimized at work. It was for this reason that she has gone off work on sick leave.”[54]
[53] ARD at pages 82-83.
[54] ARD at page 82.
Mr Vahdani reported to Dr Islam that Ms Quiambao complained of feeling sad, worried, anxious and angry with the way she had been treated. He observed that she was tearful on interview. He opined that it appeared that her manager’s reprimand and performance review had affected her greatly and that she was very distressed about what people in the workplace were thinking and saying about her. Mr Vahdani recommended that she take some time off work to develop resilience in coping with workplace issues. He suggested that mediation may be an option to clarify the issues in the workplace once she is fit to return to work and the investigation does not reveal the alleged bullying.
On 19 December 2021, Dr Islam referred Ms Quiambao to Dr Riaz Ismail, psychiatrist.[55]
[55] ARD at pages 364-365.
On 24 January 2022, Ms Quiambao consulted Dr Ismail who reported back to Dr Islam on 25 January 2022.[56] Dr Ismail noted that Ms Quiambao reported the onset of mental health issues in 2020 and complained of anxiety and depression. She attributed stress related to her work. She complained that rumours were being spread that she was having an affair with her supervisor. She claimed that she was close to the supervisor and that the supervisor accused her of spreading the rumour that she had an affair with him. He told her that seven people complained about her behaviour. She claimed that he thought she liked him. He started to behave differently. She claimed that the manager accused her of destroying the reputation of the supervisor. She claimed that others had spread the rumour that she had contracted gonorrhoea by sleeping with the supervisor. She thought everybody was talking behind her back.
[56] ARD at pages 368-370.
Dr Ismail reported Ms Quiambao’s current symptoms as low mood, insomnia, crying spells, social isolation, ideas of worthlessness and passive thoughts of death. Dr Ismail’s impression was that Ms Quiambao was suffering from a delusional disorder with a comorbid major depressive disorder. Dr Ismail recommended supportive psychotherapy; increasing the dose of Aropax to 40mg; adding Risperidone 0.5mg nightly; continue with Temazepam 10mg nightly; continue cognitive behavioural therapy with the psychologist; and review in four weeks.
On 29 March 2022, Ms Quiambao consulted Dr Ismail who reported back to Dr Islam.[57] Dr Ismail reported that Ms Quiambao complained of feeling low even after the change in her medications. She reported that her sleep had slightly improved. She complained of ruminating about how badly people were treating her. She complained of loss of appetite and loss of weight. She became tearful whilst talking about her ideas of persecution in the workplace. Dr Ismail opined that she still lacked insight.
[57] ARD at page 366-367.
Dr Ismail diagnosed a delusional disorder with a comorbid major depressive disorder and provided a differential diagnosis of major depression with psychotic features. Dr Ismail recommended supportive psychotherapy; continue Aropax 40mg nightly; continue Risperidone 0.5mg nightly; continue Temazepam 10mg nightly; continue cognitive behavioural therapy with the psychologist; and review in eight weeks.
There were no further reports by Dr Ismail in evidence.

The forensic medical evidence

Dr Ben Teoh: 30 July 2020

On 27 July 2020, Ms Quiambao consulted Dr Ben Teoh, consultant psychiatrist and physician in addiction medicine, at the request of GIO. In evidence, there is a report by Dr Teoh dated 30 July 2020.[58] I will now refer to the relevant parts of that report.
[58] Reply at pages 115-120.
Dr Teoh took a history that Ms Quiambao reported she became emotionally distressed when she heard a rumour about her affair with the supervisor. She alleged that she had felt betrayed at work. She said that she had asked her supervisor about a perianal swab regarding a personal infection. She was accused of inappropriate behaviour at work. She said that some of the staff did not like her and were scared of her. She was told that staff were leaving because of her, but she was not given any names. The allegations had ruined her reputation. She reported that she had a meeting on 30 March 2020 and was given two days paid leave to think about it over the weekend and then have a further meeting. She did not want to lose her job and she was worried about further allegations. The manager spoke to her about personal things. She did not go back to work and the meeting did not take place. She felt unsupported by management. She reported feeling depressed and anxious. She lost her confidence and was worried about going back to work.
Dr Teoh reported that he had reviewed Mr Jones’ report and Ms Quiambao’s statement dated 5 May 2020.
On mental state examination, Dr Teoh observed that Ms Quiambao’s speech was coherent; she was not thought disordered; she was cooperative and spontaneous during the interview; cognitive functions were intact; there was no evidence of short or long-term memory impairment. Ms Quiambao reported feeling anxious; was worried about her employment; felt a loss of confidence; suffered from insomnia; and suffered acute anxiety attacks. There was no history of psychotic symptoms or suicidal ideation.
Dr Teoh opined that Ms Quiambao presented with significant symptoms consistent with the DSM-5 diagnostic criteria of an acute stress reaction and that her employment was the main contributing factor to her psychiatric condition.
In response to GIO’s question as to whether Ms Quiambao’s psychological condition was wholly or predominantly caused by the employer’s actions taken in respect of discipline, Dr Teoh responded that Ms Quiambao’s psychiatric condition was predominantly caused by her employment.

Dr Ben Teoh: 10 September 2020

In evidence, there is a supplementary report by Dr Teoh dated 10 September 2020 prepared at the request of GIO’s lawyers.[59] I will now refer to the relevant parts of that supplementary report.
[59] Reply at pages 121-122.
Dr Teoh acknowledged that he had been provided with the Procare Factual Investigation report dated 25 May 2020 and the statements attached thereto. Dr Teoh stated that the latter mentioned statements indicated that there were interpersonal issues at work with other staff.
Clarification was sought by GIO’s lawyers from Dr Teoh in respect of the opinion in his report dated 30 July 2020 that Ms Quiambao’s psychiatric condition was predominantly caused by her employment. In specific, Dr Teoh was asked to clarify whether the employer’s actions with respect to the disciplinary meetings (or discipline generally) were the whole or predominant cause of Ms Quiambao’s psychological injury. Dr Teoh responded as follows:
“It is my opinion that Ms Quiambao's psychiatric condition of Acute Stress Reaction is predominately caused by the ‘disciplinary meeting’ which was held on 27 March, 30 March and 1 April 2020.
Ms Quiambao had reacted to the meetings negatively and developed significant anxiety symptoms. Prior to the meeting, Ms Quiambao had made allegations but did not present with significant symptoms meeting the criteria for an Acute Stress Reaction. She had work-related stress in relation to staffing issues and interpersonal problems.”[60]
[60] Reply at page 122.

Dr Michael Hong: 9 October 2020

On 9 October 2020, Ms Quiambao consulted Dr Michael Hong, consultant psychiatrist, at the request of her lawyers. In evidence, there is a report by Dr Hong dated 9 October 2020.[61] I will now refer to the relevant parts of that report.
[61] ARD at pages 49-59.
Dr Hong provided a list of the documents provided to him by Ms Quiambao’s lawyers and it included Ms Quiambao’s statement dated 5 May 2020.[62]
[62] ARD at page 50.
Dr Hong took the following detailed history from Ms Quiambao and it warrants reproduction in full below:
“Ms Quiambao has a very unusual workplace history. Unfortunately, she was a disjointed historian, frequently jumping back and forth to different incidents occurring at different times and therefore it was very difficult to follow her, and I had to rely on her statement to gain a cogent narrative. She was also tearful through my assessment, and unfortunately when she was crying it became harder to understand what she was saying.
Ms Quiambao started the assessment by saying that her employer claimed she was spreading rumours which affected her supervisor ST’s reputation and her alleged behaviour happened about three years ago. She then said ‘How about my reputation. He is single, but I’m married’.
Ms Quiambao recalled she went overseas in February 2020 to see her parents and when she came back to Australia, she returned to work. A friend asked her to go for a coffee and she was told that her supervisor ST had misinterpreted that Ms Quiambao liked him. Ms Quiambao contacted ST and said to him that he had misinterpreted her intent and said to him ‘I love you as a friend but not as a romantic partner’.
Ms Quiambao said about a month after this conversation, ST changed in his attitude towards her. Where previously he was quite friendly and they related well at work, she said he started giving her a hard time, and started spreading rumours about her. She then discovered that various workers were being called into meetings and she was the last one to be called into the meeting. There was an investigation, and that her co-worker started asking ‘What is going on?’
Sometime after this ST then said to her, ‘You are not my friend’. It became very difficult to follow what Ms Quiambao was describing.
I asked Ms Quiambao when she started feeling stressed as a result of her employment, and she said that it happened when she returned to work in February 2020 and her anxiety steadily increased over time. She said initially she thought it was not a problem; it was just a misinterpretation, but then ST was giving her a hard time and ignoring her, and when she talked to him he would not look at her in the face. Ms Quiambao felt increasing [sic] distressed by ST's behaviour. She was further taken aback when he said to her, ‘You are not my friend’.
Ms Quiambao felt embarrassed by the things that her colleagues were saying about her, about her behaviour and they claimed that she was having an affair with ST. She explained that ST goes to the same church as she does, her husband had met him at church and her family had all become affected by this rumour. She strongly denied that she was having an affair or even showed any interest. She strongly denied that she had smacked ST on the bottom or made comments like, ‘You look sexy’. Ms Quiambao said other people lied when they said this. She denied having spread rumours.
Ms Quiambao said she does not know why other people could make claims that she went out for wine with ST or that she had somehow influenced the managers. She said it was very heartbreaking to hear those false accusations against her. Ms Quiambao was shocked when a co-worker claimed that she had told people she contracted gono (gonorrhoea) from having sex with ST. Ms Quiambao was upset when the manager then asked her, ‘What kind of person are you?’ in relation to this rumour.
Contrary to what the manager had written about her, Ms Quiambao said she had never admitted that she was spreading rumours.
Ms Quiambao said that after a while she discovered that many co-workers were talking about her behind her back, and about the alleged affair. She told me that she felt harassed by the way they talked about her and by the way the manager kept asking her different questions about the issue, and said that she ‘never said such yucky things’.
Ms Quiambao has no concept why her manager and some of her workers would behave this way towards her, and said that this all happened after she had told ST that she was not romantically interested in him. She said they would repeat an allegation that somehow she was going to leave her husband to be with ST and that she was a bad person and manipulated her manager and co-workers. As an explanation, Ms Quiambao said that ‘If I had this power I wouldn’t need to do work ... when I’m at work but I work very hard’. She said she does not know who has been spreading rumours about her having an affair with the manager.
Ms Quiambao said this has been a very bad year for her and she feels that her reputation and career have been ruined. She said she is embarrassed and ashamed and feels like her family are also impacted, and that because they are immigrants they do not have much support in Australia and this is particularly difficult for them.”[63]
[63] ARD at pages 51-52.

The question of whether the action is reasonable is one of fact involving an objective test and is not a matter of law.[101]
[101] Commissioner of Police v Minahan (2003) 1 DDCR 57; [2003] NSWCA 239.
In Sinclair, Spigelman CJ observed that one must look at the entire process to see if it was reasonable action within s 11A of the 1987 Act and that includes looking at the circumstances surrounding the action, both before and after the action.[102]
[102] Burton v Bi-Lo Pty Ltd [1998] NSWCC 13; Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454 at [458].
In Director General, Department of Education and Training v Pembroke[103] Handley AP stated:
“In determining whether conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer (Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWCCPD 66 at [82]). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation.”[104]
[103] Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182.
[104] Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182 at [26].
An employer cannot rely on s 11A(1) of the 1987 Act because it held a genuine belief that its action was reasonable if, in all the circumstances, the Commission determines the action not to be reasonable.[105]
[105] Jeffery v Linitipal Pty Ltd [2008] NSWCA 138 (Jeffery).
It is not for the Commission to consider whether the employer’s actions could have included other options or taken a different course. It is for the Commission to consider whether the action taken by the employer was “reasonable action” taking into consideration all relevant factors.[106]
[106] Hartley v Dux Manufacturing [2008] NSWWCCPD 55.
In Greater Southern Area Health Service v Walsh[107] it was argued by the respondent that its actions were mandated by law and were thus “reasonable”. O’Grady DP held “that legislation and guidelines may require and/or authorise certain action does not, alone, render action as being reasonable”.[108] A threshold question of whether such action is required must be answered based on proper exercise of judgement and assessment of facts.
[107] Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98 (Walsh).
[108] Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98 at [102].
The reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken.[109]
[109] Northern NSW Local Health Network v Heggie [2013] NSWCA 225.
In Greater Southern Area Health Service v Walsh, an employer’s failure to follow its own procedures in relation to a matter of discipline led to a finding that the employer’s actions were not proven to be reasonable.
The procedural and protocol documents of the employer will be relevant evidence to consider. However, reasonableness will not be established simply because the employer complied with their own protocols if those protocols were not reasonable: Rail Corporation NSW v Aravanopules.[110]
[110] Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 at [81].
In Van Vliet, Phillips P stated:
“The concept of reasonableness in s 11A(1) does not, with respect, require a counsel of perfection. It requires, consistent with the authorities (Heggie, Irwin), that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not. …”[111]
[111] Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 40 at [179].
In Van Vliet, Phillips P found that the employer had conducted an investigation, established the facts and made a decision. All relevant witnesses had been spoken to and that the decision to dismiss was reasonable.

Consideration and findings

Ms Karen Quiambao’s evidence

Whilst I have no reason to doubt Ms Quiambao’s credibility, I have some concerns about the reliability of some of her evidence. In this regard, I have taken into consideration her psychological symptoms and the effects thereof. There were some inconsistencies in her evidence over a period of about three years.
In her evidentiary statement dated 5 May 2020, Ms Quiambao denied the allegation that she had been spreading rumours that Mr Tan was her boyfriend. He was just a friend. On 25 March 2020, she stated that she had apologised to Mr Jones about what had been going on, without explaining what she meant. She agreed that she had posted a photograph of Mr Tan on Facebook but denied the allegation that she did so to demonstrate that she was in a relationship with Mr Tan.
Ms Quiambao denied the allegation that she was spreading gossip and rumours in the workplace. She denied the allegation that she had been manipulating staff and had been acting like a boss. She conceded that, on one occasion, she had joked with staff that she was like Mr Tan’s personal assistant.
Ms Quiambao denied the allegation that she had told staff that she had contracted a sexually transmitted disease from Mr Tan. She then provided the explanation in respect of the swab culture she took at work and the reason for it and how Mr Tan had been involved in the conversations in that regard, including the reference to Brazilians by laser.
Ms Quiambao stated that she begged Mr Tan not to take the matter to the human resources department. She stated that she apologised to Mr Tan.
Ms Quiambao denied the allegation that she had told staff that she was travelling overseas in January 2020 and taking Mr Tan with her to introduce him to her parents. She explained that the reason for her trip was to see her mother, who had been very upset by her sister’s recent separation from her partner.
Ms Quiambao denied the allegation that a staff member had moved to another section of the business because of her. She alleged that it was because of Mr Tan’s refusal to allow her to take a Saturday off work when the staff member requested it.
Ms Quiambao denied the allegation that the staff member crying in the car park was due to her approach but rather, because the latter needed advice about leaving her fiancé.
Later in her evidentiary statement dated 5 May 2020, Ms Quiambao stated that it was not her intention to create rumours.
In her evidentiary statement dated 6 October 2020, after having read the statements provided by Mr Tan, Mr Jones, Ms Momtaz and Ms Innes, Ms Quiambao conceded that she and her co-workers had frequently engaged in banter and conversation that was, occasionally, sexualised in nature. All staff engaged in it. There was never any indication given to her that it was frowned on. She sought to explain that, in many instances, the allegations and incidents put to her by Mr Jones and Mr Tan involved simple misunderstandings or a misconstruction of events or comments. She did not elaborate other than to say that she believed the rumours about her being in a relationship with Mr Tan were possibly started by other staff members who were jealous of the good relationship she had with him.
In her evidentiary statement dated 27 January 2023, Ms Quiambao stated that she felt that she had no option but to approach Mr Tan and apologise as soon as she heard the rumours about them being in a relationship. On 10 February 2020, she approached him and apologised for any misunderstanding and advised him that she only saw him as a friend. She was of the belief that it was from that point that Mr Tan’s attitude towards her changed completely.
In her evidentiary statement dated 5 May 2020, Ms Quiambao made no reference to the deterioration of her mental health following her approach to Mr Tan when she returned to work on 10 February 2020. On 21 July 2020, Ms Quiambao told Mr Vahdani that she was bullied at work because she refused the advances of Mr Tan in late 2019. Since then, Mr Tan and Mr Jones had been nasty towards her. On 9 October 2020, Ms Quiambao told Dr Hong that Mr Tan changed his attitude towards her about one month after her conversation with him on 10 February 2020. However, in her evidentiary statement dated 27 January 2023, she stated that her mental health had already been deteriorating prior to the meetings in March 2020 because of the rumours that had been circulating and because of Mr Tan’s demeanour towards her. She stated that Mr Tan’s demeanour towards her changed completely after her approach to him on 10 February 2020.
Ms Quiambao’s evidence is probably best described in the words of McLelland CJ in Equity in Watson v Foxman,[112] when His Honour said:
“ … Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which the plausible details are then, again often subconsciously, constructed. All of this is a matter of human experience.”[113]
[112] Watson v Foxman (1995) 49 NSWLR 315.
[113] Watson v Foxman (1995) 49 NSWLR 315 at 319.

Mr Samuel Tan’s evidence and Mr Richard Jones’ evidence

I have exercised some caution in respect of Mr Tan’s evidence and Mr Jones’ evidence because they were the subject of some of the gossip and rumours that allegedly emanated from Ms Quiambao, which must necessarily have involved an element of self-interest on their part. However, that is not to say that I have reason to doubt their credibility.

Ms Marwa Momtaz’s evidence and Ms Jessica Innes’ evidence

Ms Momtaz and Ms Innes provided unsigned and unadopted statements.
I have given little weight to their evidence for the reasons stated in [133]-[135] and [147]-[148] above.

The defence under s 11A of the 1987 Act

Ms Quiambao claimed compensation on the basis that she received a primary psychological injury in the course of her employment with Douglass as a result of bullying and harassment and unfounded allegations. She relied on a deemed date of injury of 31 March 2020, being the date of incapacity following a series of preceding stressors.
Douglass did not dispute that Ms Quiambao had suffered a work-related primary psychological injury. However, it disputed that she had suffered a compensable injury by relying on the defence available to it under s 11A of the 1987 Act.
GIO’s dispute notice under s 78 of the 1998 Act dated 28 September 2020 responded to Ms Quiambao’s claim for weekly benefits compensation and treatment and related expenses. GIO relied on a defence under s 11A of the 1987 Act, namely, that Ms Quiambao’s psychological injury was wholly or predominantly caused by the reasonable actions of Douglass in connection with discipline and/or performance appraisal. GIO wholly denied the allegations of bullying and harassment and alleged that Ms Quiambao was reprimanded for the spreading of multiple rumours regarding her colleagues. The dispute notice referred to a disciplinary meeting held on 27 March 2020, noting the participants as Mr Tan, Mr Jones and Ms Quiambao, wherein various allegations and complaints were raised against her and for which she expressed contrition. The dispute notice also referred to a second disciplinary meeting with the same participants on 27 March 2020.
GIO’s dispute notice under s 78 of the 1998 Act dated 13 January 2023 responded to Ms Quiambao’s claim for permanent impairment compensation under s 66 of the 1987 Act. Again, GIO relied on a defence under s 11A of the 1987 Act but omitted its reliance on performance appraisal.

Discipline and/or performance appraisal

I am not satisfied on the evidence that the actions of Douglass were with respect to performance appraisal. I find that the actions relied on were certainly not like a limited, discrete process, with a recognised procedure through which the parties moved in order to establish Ms Quiambao’s efficiency and performance: Irwin. Further, performance appraisal was not relied on in GIO’s dispute notice dated 13 January 2023 and it was not pursued in Douglass’ written submissions.
Douglass’ code of conduct included policies in respect of bullying and harassment and the processes by which complaints were to be dealt with.[114]
[114] Reply at pages 100-111.
Douglass’ bullying and harassment policy defined harassment as any behaviour, intentional or unintentional, which offends, humiliates or intimidates a person and creates a hostile working environment.[115]
[115] Reply at page 101.
Douglass’ bullying and harassment policy defined bullying to include abusive, insulting or offensive language or comments; unjustified criticism or complaints; and spreading misinformation or malicious rumours.[116]
[116] Reply at page 101.
Douglass’ bullying and harassment policy stated that reasonable management practices included providing informal and formal feedback about behaviour and to conduct it in a reasonable way and to institute disciplinary measures in accordance with employees’ employment agreements, business policies and procedures.[117]
[117] Reply at page 101.
Douglass’ bullying and harassment policy relevantly stated:
“All alleged bullying and harassment will be subject to investigation. This will commence with a preliminary investigation by the Manager, Supervisor or HR Representative to determine whether a full investigation is needed or whether the matter can be otherwise resolved to the satisfaction of the complainant and other parties to the complaint. Should the matter proceed to full investigation, this may, at the discretion of the HR Manager, be handled internally or be referred to an external investigator. All parties to the matter will have an opportunity to be heard.”[118]
[118] Reply at page 102.
The allegations made against Ms Quiambao and put to her by Mr Jones and Mr Tan in the meetings dated 27 March 2020 and 30 March 2020, may be best summarised as follows:
(a)    spreading rumours amongst staff members that she was in a relationship with Mr Tan;
(b)    spreading a rumour amongst staff members that she had been given a sexually transmitted disease from Mr Tan;
(c)    spreading rumours amongst staff members that she and Mr Tan had been on holidays together;
(d)    spreading rumours amongst staff members that she regularly socialised with Mr Jones and Mr Tan;
(e)    spreading rumours amongst staff members that she had a direct line to Mr Jones and Mr Tan (in terms of influence or connections with management);
(f)    spreading a rumour amongst staff members that she had received a bonus payment of about $8,000 from Mr Jones;
(g)    telling staff members that she was Mr Tan’s personal assistant;
(h)    manipulating and/or bullying staff members;
(i)    spreading rumours about other staff members, and
(j)    inappropriate behaviour including inappropriate touching of staff members and inappropriate discussions with staff members about undergoing a vaginoplasty and Brazilian waxes.
None of these allegations were put to Ms Quiambao in writing at any stage prior to the meetings on 27 March 2020 and 30 March 2020. Some of the allegations were raised in the meeting on 27 March 2020 and the rest were raised in the meeting on 30 March 2020.
I accept Mr Tan’s evidence that, in February 2020, he spoke to Ms Meteoro, who had been friends with Ms Quiambao, and reported to her that Ms Quiambao was demonstrating some weird behaviour at work. I accept that he asked Ms Meteoro to speak to Ms Quiambao to remind her that her behaviour was inappropriate. This was consistent with Ms Quiambao’s evidence that she was spoken to by a friend on her return from holidays in 2020, although the content of the conversation was different. There was no statement in evidence from Ms Meteoro. Following that conversation, I accept that Ms Quiambao and Mr Tan had a conversation on or shortly after she returned to work from her holidays on 10 February 2020. Ms Quiambao’s version of the conversation was that she clarified that their relationship was one of friends. Mr Tan’s version of the conversation was that Ms Quiambao apologised for her behaviour.
Whichever version of the conversation one accepts, it is clear that, from about that point in time, Mr Tan felt uncomfortable about being alone in the laboratory with Ms Quiambao and that Ms Quiambao believed Mr Tan was ignoring her, disrespecting her and had turned on her. Mr Jones’ evidence was that, at about that time, he and Mr Tan noticed a divide in the microbiology and infectious diseases laboratory on the night shift.
Contrary to Mr Tanner’s submission, Mr Tan’s evidence was that he was involved in an investigation relating to Ms Quiambao.[119] There were a number of complaints about Ms Quiambao and he concluded that he needed to investigate further. The initial complaints from staff members prompted him to speak to other staff as he needed to advise them that he was not in a relationship with Ms Quiambao. It seems that Mr Jones was not involved in those initial conversations with staff members.
[119] ARD at page 26 at [21]-[22].
Ms Quiambao’s evidence was that, on 23 March 2020, she observed Mr Tan talking to some staff members and inviting them in for a meeting. She was the last one to be called in to speak with Mr Tan, who confronted her saying that she had been spreading rumours that he was her boyfriend. Ms Quiambao’s evidence was that she denied the allegation. Mr Tan’s evidence did not disclose a meeting between himself and Ms Quiambao on 23 March 2020. In fact, his evidence lacked precision when it came to identifying dates. Mr Tan did refer to meetings with staff members and Mr Jones during the week commencing 23 March 2020.
Mr Jones’ evidence was that, on 27 March 2020, he had attempted to arrange to speak with Mr Henry, the human resources manager but that he was unavailable because he was dealing with other urgent matters. Nevertheless, Mr Jones decided that he needed to speak with Ms Quiambao and he met with her and Mr Tan.
Ms Quiambao’s evidence was that she answered Mr Jones’ questions during the meeting on 27 March 2020 but that she had no idea of what was going to be raised. She described her brain as being confused. She felt very embarrassed and upset about the matters that had been raised. After the meeting, she begged Mr Tan not to take the matter to the human resources department but she was informed that a complaint had already been lodged with that department.
Mr Jones’ evidence was that the meeting on 27 March 2020 had been quite amicable and that Ms Quiambao did not appear to be distressed. Mr Tan‘s evidence was that Ms Quiambao was not distressed or crying. Yet, Mr Jones stated that Ms Quiambao begged them not to get the human resources department involved and Mr Tan stated that Ms Quiambao did not want them to take the matter to the human resources department.
Mr Jones’ evidence was that, at the conclusion of the meeting on 27 March 2020, he informed Ms Quiambao that they would meet again on 30 March 2020 after he had spoken to the human resources department. He advised her that she could bring someone with her to the meeting on 30 March 2020. Ms Quiambao denied that she was offered the opportunity to bring a support person with her. Mr Tan’s evidence, contrary to that of Mr Jones, was that they did not offer a support person at the 30 March 2020 meeting because it was just to clarify some further issues.
Mr Jones stated that, in the meeting on 30 March 2020, Ms Quiambao’s demeanour was quite different. She was adamant that the other staff members were making things up. He raised further allegations made by staff members with Ms Quiambao. Mr Tan’s evidence was that at the meeting of 30 March 2020, he and Mr Jones needed to ask Ms Quiambao about some other allegations made by staff members. He also noted that Ms Quiambao’s behaviour at the 30 March 2020 meeting was very different, in that, she maintained that she had not spread the rumours and denied any knowledge of them. Ms Quiambao’s evidence confirmed that further allegations made against her were put to her by Mr Jones and Mr Tan in the meeting on 30 March 2020.

Mr Jones’ evidence was that, at the conclusion of the meeting on 30 March 2020, he advised Ms Quiambao to take two days of paid leave in order to give them time to consult the human resources department and that they would have another meeting with her and a human resources representative on 1 April 2020 to discuss the matter further. Mr Tan’s evidence corroborated Mr Jones’ evidence in this regard.
Ms Quiambao’s evidence was that, at the conclusion of the meeting on 30 March 2020, Mr Jones told her to take two days off work whilst he conducted further investigations into the allegations and scheduled another meeting for 1 April 2020. She informed Mr Jones that, prior to the next meeting, she required a proper letter from the human resources department and wanted to be accompanied by a support person. After the meeting, she experienced a panic attack. She was taken to a medical centre by her husband. She did not attend the proposed meeting on 1 April 2020.
Ms Quiambao did not return to work following the meeting on 30 March 2020.
Mr Jones believed that the next stage would have been a disciplinary meeting where Ms Quiambao would be asked by the human resources department to respond to the complaints made against her. Mr Tan’s evidence was that he was unaware of the steps the human resources department might take next.
The meetings on 27 March 2020 and 30 March 2020 were not disciplinary hearings. The process that had been commenced never reached that stage. I reject the submission that the meetings were no more than an informal opportunity to discuss gossip and rumours that were circulating in the workplace. However, I am satisfied and find that Mr Jones and Mr Tan had embarked on a disciplinary enquiry/investigation in respect of the series of allegations made against Ms Quiambao. Action with respect to discipline includes the course of an investigation: Heggie.
In reaching such conclusion, I have considered the actions undertaken. I have not taken into consideration the possible result of the actions undertaken: Webb.
I am satisfied that it was incumbent on Douglass to investigate the allegations. Its policies referred to above stated that the process will commence with a preliminary investigation by a manager (Mr Jones), a supervisor (Mr Tan) or a human resources representative to determine whether a full investigation is needed or whether the matter can be otherwise resolved to the satisfaction of the complainant and other parties to the complaint.
Accordingly, I am satisfied that the actions of Douglass were with respect to discipline.

Whole or predominant cause

In her most recent evidentiary statement, Ms Quiambao stated that her mental health had already been deteriorating prior to the meetings in March 2020 because of the rumours that had been circulating and because of Mr Tan’s demeanour towards her.
Mr Anderson’s evidence corroborated Ms Quiambao’s most recent evidentiary statement in respect of her demeanour at the beginning of 2020, after she was made aware of the rumours that were being spread about herself and Mr Tan. He described her as being short fused and aggressive. He observed that her psychological state had deteriorated noticeably. Mr Anderson observed that, following the meetings in March 2020, Ms Quiambao arrived home a mess. He stated that, although the meetings had upset her significantly, he had noticed a change in her psychological state well before those meetings.
The clinical records, reports and certificates in evidence from Ms Quiambao’s treatment providers disclosed that she first complained to Dr Islam about stress in the workplace and allegations that she was having an affair with a co-worker on 31 March 2020. In the certificates of capacity issued by Dr Islam, he described the relationship to work in terms of workplace stress, being bullied, false allegations on character and harassment. There was no evidence to indicate that Ms Quiambao had presented to a general practitioner, psychologist or psychiatrist prior to 31 March 2020.
Mr Vahdani reported to Dr Islam that the reprimand and performance review by Ms Quiambao’s manager had affected her greatly and that she was very distressed about what people in the workplace were thinking and saying about her.
Dr Ismail noted that Ms Quiambao reported the onset of mental health issues in 2020. She attributed stress related to work and referred to the rumours that she was having an affair with Mr Tan; complaints by staff members about her behaviour; Mr Tan’s change in behaviour towards her; being accused by Mr Jones of destroying Mr Tan’s reputation; rumours spread by others that she had contracted gonorrhoea by sleeping with Mr Tan; and the belief that everybody at work was talking behind her back.
Dr Teoh opined that Ms Quiambao’s psychiatric condition was predominantly caused by what he referred to as the disciplinary meetings. He explained that Ms Quiambao had reacted to the meetings negatively and developed significant anxiety symptoms. Prior to the meetings, she complained of symptoms but did not present with significant symptoms meeting the criteria for an acute stress reaction.
Dr Hong disagreed with Dr Teoh and opined that Ms Quiambao’s psychological injuries were predominantly caused by various interactions with her supervisor, the allegation of an affair and the supervisor’s change in behaviour towards her. She was not predominantly distressed by the meetings. The meetings were one of numerous work-related stressors and they exacerbated her psychological condition but were not the predominant cause.
I accept that the events in late January/early February 2020 leading up to the meeting with Mr Jones and Mr Tan on 27 March 2020, on the balance of probabilities, adversely affected Ms Quiambao’s mental health to some extent, in that, she felt that her anxiety commenced to increase and she became very stressed. Mr Anderson’s evidence provided some corroboration. However, she was able to continue working and there was no evidence that she presented to a medical practitioner or psychologist during that period. Ms Quiambao explained that she continued to work even though she was feeling anxious and alone. She wanted to prove management wrong and acted like nothing had happened. On the outside she looked happy but on the inside she felt so weak.
Neither Dr Teoh nor Dr Hong provided detailed explanations for their conclusions in respect of the predominant cause of Ms Quiambao’s accepted primary psychological injury. They did not provide an evaluation of the competing contributions of the subject meetings and the other work-related issues that preceded the meetings in any sort of depth.
However, Dr Teoh’s conclusion that Ms Quiambao’s psychiatric condition was predominantly caused by the subject meetings was supported by Ms Quiambao’s treating psychologist, Mr Vahdani, who reported that the reprimand and performance review by Ms Quiambao’s manager had affected her greatly. I prefer the opinion of Dr Teoh over that of Dr Hong on the issue of predominant cause.
Dr Teoh engaged with the issue at hand, albeit very concisely. As DP King SC observed in NSW Police Force v Hahn,[120] often, experts also use their experience and medical intuition, and when they arrive at an opinion, it cannot always be elaborated and explained at length. This common sense approach leads me to the conclusion that Dr Teoh’s opinion is a satisfactory one and, in my view, was expressed as more than an assertion without proof.
[120] NSW Police Force v Hahn [2017] NSWWCCPD 51 at [60].
Accordingly, I am satisfied and find that Ms Quiambao’s accepted primary psychological injury was predominantly caused by action taken or proposed to be taken by or on behalf of Douglass with respect to discipline.

Reasonable action

Having considered the entire process, including the circumstances surrounding Douglass’ action, and the rights of both Ms Quiambao and Douglass, I find that the action with respect to discipline was unreasonable for the reasons set out below.
Both Mr Tan and Mr Jones were the subject of some of the alleged rumours circulating in the workplace. Mr Tan more so than Mr Jones. Further, Mr Tan had alleged that he was the subject of inappropriate behaviour by Ms Quiambao. It was, for those reasons, most inappropriate and unreasonable to have those two gentlemen conduct the subject meetings with Ms Quiambao. Both had a personal interest in discrediting those rumours that related to them. Mr Tan had personal involvement in certain inappropriate behaviour allegations against Ms Quiambao.
The meeting on 27 March 2020 was held without prior notice of the reason for it and without the presence of a representative or support person for Ms Quiambao. She did not have the opportunity to prepare herself for the meeting in which a number of allegations were put to her. Those allegations were sensitive, extremely embarrassing and caused her distress.
Whilst Ms Quiambao was given notice of the meeting on 30 March 2020 at the conclusion of the 27 March 2020 meeting, she was not advised of the particulars of any further allegations. Ms Quiambao denied that she was offered the opportunity to bring a support person with her. Mr Tan’s evidence, contrary to that of Mr Jones, was that they did not offer a support person at the 30 March 2020 meeting because it was just to clarify some further issues. In the 30 March 2020 meeting, Ms Quiambao was confronted with further allegations without notice and was unable to properly prepare herself for the meeting. Again, the allegations were extremely embarrassing and caused her distress.
Whilst reasonableness does not require Douglass’ actions in respect of discipline to be flawless, I find that its actions, through Mr Jones and Mr Tan, did not take into consideration Ms Quiambao’s rights and were not conducted fairly or reasonably for the reasons stated above.
Accordingly, I find that Douglass has failed to establish that Ms Quiambao’s accepted primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline and that the defence under s 11A(1) of the 1987 Act is not made out for the reasons stated above.

CONCLUSION

Douglass has failed to make out its defence under s 11A of the 1987 Act.
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2023] NSWPIC 411

15 August 2023