Retail Ready Operations Australia Pty Ltd v Booth - [2025] NSWPICPD 10

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Retail Ready Operations Australia Pty Ltd v Booth [2025] NSWPICPD 10
APPELLANT:	Retail Ready Operations Australia Pty Ltd
RESPONDENT:	Rosella Dawn Booth
INSURER:	Coles Group Limited
FILE NUMBER:	A1-W7589/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	11 February 2025
ORDERS MADE ON APPEAL:	1. If necessary, leave to appeal the Member’s order remitting the respondent’s claim for whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 to the President for referral to a Medical Assessor is granted. 2. The Member’s amended Certificate of Determination dated 4 March 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Perception of events – Attorney General’s Department v K [2010] NSWWCCPD 76 applied – requirement for medical evidence in determining the main contributing factor to the injury – Hamad v Q Catering Limited [2017] NSWWCCPD 6 applied – burden of proof Nguyen v Cosmopolitan Homes [2008] NSWCA 246 discussed – whether reasoning illogical – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 discussed – arbitration is not a dress rehearsal Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68; Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4 cited
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Hall & Wilcox Lawyers
Respondent:
Mr P Stockley, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Booth v Retail Ready Operations Australia Pty Ltd [2024] NSWPIC 103
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	4 March 2024

INTRODUCTION AND BACKGROUND

Ms Rosella Dawn Booth (the respondent) was employed by Retail Ready Operations Australia Pty Ltd (the appellant) as a process worker. The respondent alleged that from 2017, she was subjected to bullying, harassment, discrimination, false accusations, racial discrimination, lack of support, isolation and constant criticism, which caused her to suffer a psychological injury in the form of an acute paranoid psychosis. The claim for compensation was denied by the appellant on the basis that the respondent did not suffer a work-related injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) because the events in the workplace that were said to be causative were not “real events.” In the alternative, the appellant asserted that if the respondent did suffer an injury, then it was not compensable because the injury predominantly resulted from reasonable action taken by the appellant with respect to discipline and/or the respondent’s dismissal from employment pursuant to s 11A(1) of the 1987 Act. The appellant also challenged the respondent’s entitlement to weekly compensation.
The dispute proceeded to arbitration before a Member of the Personal Injury Commission (the Commission). The Member issued a Certificate of Determination dated 4 March 2024 (which he subsequently amended), in which he determined that the respondent suffered a psychological injury in the course of her employment in the form of a disease injury pursuant to s 4(b)(i) of the 1987 Act with a deemed date of injury of 17 November 2021. He further determined that the appellant had failed to establish the defence raised pursuant to s 11A(1) of the 1987 Act and found that the respondent had no work capacity from 17 November 2021.
The appellant appeals the decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties submit that the appeal can proceed on the basis of the written submissions and the available documents.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. Both parties assert that the decision is not interlocutory.
Section 352(3A) of the 1998 Act provides that there is no appeal from an interlocutory decision unless the Commission is of the opinion that determining the appeal is “necessary or desirable for the proper and effective determination of the dispute”. A “decision” is defined in subs 352(8) of the 1998 Act to include “an award, interim award, order, determination, ruling and direction”. The meaning of “interlocutory” in subs 352(3A) is undefined. It is thus necessary to determine whether the Member’s determinations, including the referral of the claim for a lump sum for assessment by a Medical Assessor, are interlocutory in nature.
In Licul v Corney,[1] Gibbs J (as his Honour then was) said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutoryis to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[2]
[1] [1976] HCA 6 (Licul).
[2] Licul, [11].
The observations of Gibbs J as to what constitutes an interlocutory order need to be considered in the context of the legislative and procedural framework of the Commission. In this case, the Member made determinations as to the respondent’s entitlements to weekly compensation and treatment expenses as well as referring the respondent’s lump sum claim for assessment by a Medical Assessor. In my view, it is clear that the Member’s orders that the appellant pay the respondent weekly compensation and meet her treatment expenses finally determined her rights in respect of those claims and were thus final orders. The appellant’s liability to pay those entitlements is challenged in the appeal and those determinations are therefore not interlocutory in nature. The respondent’s lump sum entitlement pursuant to s 66 of the 1987 Act is yet to be determined and in those circumstances, the decision referring that claim to the Medical Assessor may be interlocutory in nature.[3]
[3] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, per McColl JA, [12].
Given that this appeal in any event involves a consideration of whether the Member erred in finally determining that the appellant was liable for the respondent’s alleged injury and if the appeal is successful it will negate the necessity for a referral to the Medical Assessor, I am of the view that leave to appeal the decision to refer the lump sum claim for assessment of the respondent’s whole person impairment, if necessary, should be granted.

THE EVIDENCE

The appellant’s Application to Admit Late Documents

In the proceedings before the Member, the appellant relied upon the opinion of A/Prof Michael Robertson, psychiatrist, who provided reports at the request of the appellant dated 22 March 2023, 23 August 2023 and 21 November 2023. In the appellant’s letter dated 13 November 2023 requesting the third report, the appellant asked A/Prof Robertson to make assumptions that various complaints asserted by the respondent did not occur and to provide his opinion on causation accordingly.
The appellant’s letter was not in evidence on the Commission’s portal and A/Prof Robertson did not detail those complaints in his report, other than to identify them by the alphabetical system adopted by the appellant. The Member recorded those complaints, although he used a different alphabetical system so that it is not apparent which complaints A/Prof Robertson took into account.
As a consequence, I issued a Direction to the appellant to lodge and serve the letter of instruction, and the appellant complied by lodging the document, as well as other related attachments, under cover of an Application to Lodge Additional Documents (ALAD).
The document was clearly before the Member and is referred to by the Member in his reasons. I am of the view that the document should be admitted into evidence because it is relevant to an understanding of the opinions expressed by A/Prof Robertson. The remaining documents attached to the ALAD are either already in evidence or not relevant to the issues on appeal and are not admitted.

The statement evidence relied upon by the appellant

Ms Urmila Mishra

Ms Mishra provided a hand-written statement dated 10 November 2021 in relation to an incident on that day involving the respondent. She said that she saw the respondent fighting with another team member, Ms Nabo Ngin. She stated that Ms Ngin asked the respondent, who was working on Line 24, to empty the container of rejected chicken drumsticks which was overflowing but the respondent did not comply and hit Ms Ngin on the hand. She added that the respondent was also required to transfer a large number of drumsticks into the crate, which she did not do, and they all fell to the floor. Ms Mishra stated that she called another supervisor to see what was happening and the supervisor spoke with both Ms Ngin and the respondent, after which the respondent started to chase after Ms Ngin.[4]
[4] Reply to Application to Resolve a Dispute (reply), p 39.
Ms Mishra provided a further statement dated 24 March 2022, in which she confirmed her evidence recorded in her earlier hand-written statement.[5] She provided a third statement dated 11 July 2023.[6] In that statement, Ms Mishra stated that on the factory floor everybody spoke English. She referred to the respondent’s assertion that the respondent “absolutely” did not hit Ms Ngin. Ms Mishra said that she was a witness to that event and saw the respondent hit Ms Ngin.
[5] Reply pp 82–83.
[6] Reply, pp 84–89.

Ms Nabo Ngin

Ms Ngin made a hand-written statement dated 10 November 2021. She stated that on that day she was filling the gap on the conveyer and the respondent was yelling at her to stop. Ms Ngin said that she asked the respondent to fill the gap on the conveyor because otherwise the meat would fall to the floor, but the respondent kept saying “no” in an aggressive manner, pulled Ms Ngin’s hand away, and hit her on the hand. Ms Ngin said that she walked away but the respondent chased her and appeared angry. Ms Ngin said that all of the team members on Line 24 witnessed the event.[7]
[7] Reply, p 40.
Ms Ngin made a further statement dated 22 March 2022 but signed on 31 July 2023.[8] She confirmed her version of the events occurring on 10 November 2021, recorded in her hand-written statement. She provided a third statement dated 28 July 2023, in which she agreed that the respondent was sent home on 10 November 2021 and said that the reason the respondent was sent home was because she had hit Ms Ngin. She said that otherwise, she had no knowledge of the events complained of by the respondent.[9]
[8] Reply, pp 74–75.
[9] Reply, pp 76–81.

Ms Jo-Ann Long, the appellant’s people and culture representative

Ms Long provided a statement dated 24 March 2022. She confirmed that the respondent had commenced work with the appellant on 17 May 2016 and her employment was terminated on 16 November 2021. She advised that another co-worker, Ms Sherinne [or Shareen] Narain, had raised with her some concerns about the respondent’s conduct, in that the respondent was displaying paranoid behaviour and was constantly refusing to perform her duties as directed, which was affecting the other team members.
Ms Long recalled that there was an incident involving the respondent that occurred in about October or November 2021, when she and the production manager heard a commotion and they went to investigate. She said that they came upon the respondent, who was screaming and yelling aggressively at Mr Javed [or Javid] Hadae, saying words to the effect of “Everyone’s spying on me. Everyone’s got it in for me”. She said that Mr Hadae was attempting to calm the respondent down.[10]
[10] Reply, pp 53–55.
Ms Long made a further statement dated 6 July 2023.[11] She confirmed the details of her previous statement and added that:
(a)    she did not believe that the respondent was asked to slow down her packing work;
(b)    she did not agree with the respondent’s allegation that Ms Grace Dunn was intimidating and described her temperament as “shy and quiet”;
(c)    the respondent did not take leave in October 2021 but did take leave on various days in December 2020 and from 2 to 4 January 2021;
(d)    over the 2020/2021 period, there was a strict policy that the team working on the factory floor were to speak English;
(e)    in the event that an employee refuses to sign a document, it is not signed on their behalf, and it is noted on the document that the person “refused to sign”;
(f)    the respondent refused to sign documents on a number of occasions and, to Ms Long’s knowledge there was no document that the respondent was forced to sign, and
(g)    she was not aware of any facts relevant to the respondent’s remaining complaints.
[11] Reply, pp 56–61.

Ms Cherryl Fredrickson

Ms Fredrickson’s statement was dated 22 March 2022.[12] She advised that the respondent worked under various team leaders who reported to her. She described the respondent as someone who only wanted to do what she wanted to do. She said that the respondent would not listen when people were talking to her and if a person tried to make a point she would speak aggressively and walk away, sometimes querying why she was being targeted. Ms Fredrickson said that the respondent did not like being rotated in the jobs she was performing and always wanted to take her break at the same time, which could not always be accommodated. She added that the team leaders did not want her working on their team.
[12] Reply, pp 62–64.
Ms Fredrickson said that she did not witness the incident involving Ms Ngin on 10 November 2021 but recalled that on one occasion, the respondent was in the locker room playing music very loudly and singing to it. Ms Fredrickson stated that she knew the song so joined in to the singing, which caused the respondent to become hysterical and cry, querying why people were thinking bad things about her. Ms Fredrickson said that she apologised and explained that she was only singing the song because she knew it. Ms Fredrickson indicated that she was very frightened of the respondent’s behaviour at that time.

Ms Grace Dunn

Ms Dunn provided statements dated 22 March 2022[13] and 27 July 2023.[14] She advised that she was employed by the appellant as a team leader and from time to time supervised the respondent. She stated that the respondent was not a good worker, would ignore greetings such as “good morning” or “how are you” and would not listen to instructions, including when she was told to take her break. She said that when the respondent would ignore the instructions, the team leaders would call the supervisor, who in turn would call the manager to deal with the respondent.
[13] Reply, pp 65–67.
[14] Reply, pp 68–73.
Ms Dunn recalled an incident when she asked the respondent for the night results number to put on her list, which she asked of everyone in the line, and the respondent swore at her, so she called the supervisor. She said that the respondent still refused to answer, resulting in the respondent being called to a meeting with the human resources representative.
In her second statement, Ms Dunn refuted that the respondent was instructed to slow down her work and that other team members “ganged” up on her. She said that the respondent would only do the work she wanted to do and would not listen to others, so that many of the workers avoided her. Ms Dunn indicated that she did not have knowledge of the respondent’s further allegations, other than that she had heard about the incident between the respondent and Ms Ngin.

Mr Suthpal (Sam) Singh

Mr Singh provided a statement dated 4 April 2022.[15] He reported that the respondent was not liked by the other team members and that the team members did not want to work with her because she refused to perform. He said that, when speaking to the respondent he would try to speak nicely, but she still would not listen. He said that he was not present when the incident between the respondent and Ms Ngin occurred. He advised that at the time there was another supervisor called “Sam” who was Samoan and had left the appellant’s employ. Mr Singh said that he was not the “Sam” referred to by the respondent as the person who requested the respondent to sign a statement.
[15] Reply, pp 90–91.
Mr Singh asserted that when dealing with the respondent, he would always act in a fair and reasonable manner and treated her with respect. He said that the respondent had never raised any complaint, either formally or informally, that she felt bullied, threatened, harassed or intimidated or that he abused her.
Mr Singh provided a further statement dated 11 July 2023.[16] He advised that the locker rooms for the men and women were separate, and while in the locker rooms as well as in the canteen, the team members were allowed to converse amongst themselves in their own language, but English was spoken on the factory floor.
[16] Reply, pp 98–103.
Mr Singh stated that the respondent never reported to him that her lunch had been stolen. He commented that he was not present when the altercation occurred between the respondent and Ms Ngin, however, he was aware that there were witnesses who stated that the respondent did hit Ms Ngin.

The appellant’s factual records

A bundle of documents comprising records related to the respondent were relied upon by the appellant. Those consisted of:
(a)    a supervisor/manager report dated 18 May 2018 compiled by Mr Geoff Rochester. It was recorded that a discussion took place in respect of an incident when the shift manager asked the respondent a reasonable request to perform a task and the respondent’s alleged behaviour of shouting and screaming at the shift manager that the shift manager should give the work involving the drumsticks to someone else. Mr Rochester recorded that the respondent’s behaviour was unacceptable and also noted that the respondent did not sign the report;[17]
(b)    a discussion record of an informal meeting dated 1 July 2019 arranged to discuss concerns about the respondent’s behaviour in failing to perform a task requested by her manager. It was alleged that the respondent was twice instructed to move to a different position on the floor and then refused to move to the task of working on the grader. The respondent was reminded of her employment obligation to perform duties and tasks as requested and was advised that her conduct was unsatisfactory, and her behaviour continued to be unacceptable. A first disciplinary warning was issued, and the respondent was advised of the requirement for her to follow reasonable directions issued by her supervisors and to perform the inherent requirements of her role. The respondent declined to sign the document;[18]
(c)    the details of a “follow up” meeting held on 5 July 2019. It was recorded that the respondent orally confirmed that on the previous Thursday she had worked on the drumstick grader machine, she was asked to move to Line 24, then was instructed to move to Line 22 and then to return to the drumstick grader. It was noted that the respondent’s response to being moved to Line 24 was that the line was cold, and she had a severe cold. It was further noted that when the respondent returned to the grader, she was supposed to be performing the sorting. The respondent’s explanation was that she was sorting but not to her best ability because she was not well;[19]
(d)    a supervisor/manager report dated 24 June 2020 completed by Mr Navid Gheimati complaining that the respondent would not listen to the team leaders or supervisors and refused to wear long gloves other than a particular type;[20]
(e)    a record of conversation dated 10 July 2020 in respect of a meeting between Mr Hadae and the respondent, recording that the respondent was making ongoing accusations against Mr Rochester and other line leaders, and she thought that people were spying on her. The respondent complained that a male team member was always staring at her, and “Sam” and the team member were glancing at each other in relation to her. When asked for dates and times or other evidence in relation to the spying allegation, the respondent indicated that she simply knew it was occurring. She indicated that she had an issue with Sam and felt as though other team members were giving her intimidating looks and watching her and the team members were talking in their own language. She advised that she could not recall an incident in the locker room when she was singing and Ms Fredrickson commented on the song;[21]
(f)    a further record of conversation on 3 November 2021 relating to the respondent’s unacceptable underperformance and her refusal to speak to and listen to her line managers. The respondent asserted that she was doing her job, and she was being bullied and targeted;[22]
(g)    a record of conversation dated 8 November 2021 in relation to the respondent’s performance and refusal to follow instructions, in which the respondent alleged that there was a union strike in place, which she was advised about by email from the union. It was recorded that the respondent was told that there was no such union strike occurring, and the respondent refused to accept that that was the case. The appellant arranged for its wellness business partner to meet with the respondent in order to investigate the respondent’s psychological well-being;[23]
(h)    an incident report dated 10 November 2021 when Ms Mishra witnessed the respondent fighting with Ms Ngin, who had asked the respondent to empty the overfull crate of rejected drumsticks. She said that the respondent did not do as she was asked and hit Ms Ngin on the hand, after which the respondent began to chase Ms Ngin;[24]
(i)    a record of a meeting held with the respondent on 10 November 2021 to hear the respondent’s version of events and in order to discuss with the respondent her assertion that Ms Sascha Hann had asked her if she was having an affair with one of the managers. A statement from Ms Hann dated 9 November 2021 was incorporated in the record of meeting in which Ms Hann described an incident between her and the respondent involving a verbal confrontation, and[25]
(j)    a record of conversation dated 11 November 2021 regarding the respondent’s ongoing performance issues, her behavioural issues towards Ms Ngin, the false allegations made, and her ongoing refusal to follow reasonable management instructions. It was recorded that the respondent repeatedly denied having made the allegation that there was a union strike and denied speaking to another worker about an extramarital affair between a team member and a person in management. It was further recorded that the respondent began to shout and, when advised of the consequences of such conduct the respondent repeatedly advised that the appellant could do as it liked, following which the meeting was adjourned.[26]
[17] Reply, p 22.
[18] Reply, pp 23–27.
[19] Reply, pp 28–30.
[20] Reply, p 31.
[21] Reply, pp 32–33.
[22] Reply, p 35.
[23] Reply, p 36.
[24] Reply, p 39.
[25] Reply, p 42.
[26] Reply, pp 44–46.

A bundle of leave request forms and related documents were in evidence.[27] Relevantly, on 13 November 2020, the respondent applied for one day’s leave on the following day, which was approved,[28] and on 22 September 2020, the respondent applied for and was granted leave for the period 23 December 2020 to 4 January 2021.[29]
[27] Reply, pp 104–122.
[28] Reply, p 118.
[29] Reply, p 119.

The respondent’s statements

The respondent provided a statement dated 11 April 2022.[30] She advised that she commenced work with the appellant as a process worker on 17 May 2016, her line manager was “Sam,” and the production manager was Mr Hadae. She advised that she began to experience difficulties at work in about 2017, when she was instructed to slow down the pace of her work. She said that this made her feel targeted by her fellow workers, who were slower than she was, and they appeared to be jealous and “ganging up” on her. The respondent nominated one fellow worker, Ms Dunn, who she said would request she provide “night numbers” which Ms Dunn reported to the managers. The respondent indicated that she felt intimidated by Ms Dunn. She said that Mr Hadae told her that if she did not reach the night numbers, she would lose her job. The respondent mentioned that:
[30] Application to Resolve a Dispute (ARD), pp 14–18.
(a)    on one occasion she was waiting to be picked up after her shift when one of the workers drove past her and stuck his middle finger up at her, which she reported to her supervisor, “Sisi” a few days later. She said that she was told that the gesture was intended for somebody else but at the time it occurred, she did not see anyone else around her;
(b)    at times, other workers would leave their boots in front of her locker and on one occasion, she tripped over them;
(c)    her fruit and lunch were stolen from her bag on several occasions, as well as her yoghurt which she had put in the fridge. She said that she mentioned this to Mr Hadae and he offered to buy her some lunch;
(d)    the other workers spoke different languages which she could not understand, she asked them to speak in English, but they continued to speak in their own languages, which made her feel uncomfortable and excluded;
(e)    her request for leave in December 2020 was denied;
(f)    she did not receive a response in respect of an application for leave in October 2021, when her daughter was due to give birth;
(g)    in October 2021, Sam requested that she sign a statement and indicated that if she did not sign it, he would sign it on her behalf. She said that she told him he could not sign it on her behalf, she did not read the statement, and she did not know what happened to that statement;
(h)    on 10 November 2021, she was sent home by Mr Hadae because complaints had been made about her, and she was told to stay home for a week while he investigated the complaints;
(i)    she attended a meeting with Mr Hadae and Ms Nerain from human resources on 16 November 2021, in which she was advised that her employment was terminated because of complaints made by team leaders and because of her performance, and
(j)    at that meeting, she was informed that there had been a complaint that she had hit a team leader (Ms Ngin) and a co-worker, “Miller” had witnessed the event, which was said to have occurred on a day when Ms Fredrickson was supervising her.
The respondent denied having hit or bumped Ms Ngin or that she did anything that could have appeared to be hitting a person and said that when she challenged Ms Ngin about the complaint, Ms Ngin would not look her in the eye. The respondent asserted that she was not a violent person and believed that the complaint had been invented in order to get rid of her. The respondent recalled that on one occasion, she witnessed another worker attempting to hit a supervisor, she intervened and subsequently she attended court as a witness to the event.
The respondent referred to her previous managers, Mr Rochester and Mr Aaron Jones, who she said spoke highly of her work as well as Raylene Cooper, a cleaner employed by the appellant. She further advised that she had not had any issues in her previous employment, which she had left because she had not been offered sufficient work.
The respondent denied having performed any work since 21 November 2021 and denied having ever made a prior workers compensation claim, or having any personal issues of any kind, and denied any past physical or psychological medical conditions.
The respondent provided a supplementary statement dated 10 October 2023, in which she responded to the statements made by various employees of the appellant.[31]
[31] ARD, pp 19–23.
The respondent said that:
(a)    Ms Dunn had never greeted her by saying either “good morning” or “how are you”; and none of her colleagues greeted her at work;
(b)    she had never sworn at Ms Dunn;
(c)    nobody would sit next to her in the lunch room;
(d)    she denied Ms Mishra’s assertion that she was argumentative and difficult about taking work breaks before 2 pm;
(e)    she denied the assertion that she had hit Ms Ngin on her hand and said that she had been assisting Ms Ngin to pick up drumsticks from the floor when Ms Mishra accused her of hitting Ms Ngin’s hand;
(f)    she denied Ms Mishra’s assertion that she chased Ms Ngin around the presentation line, which she said was too small to make that possible;
(g)    the footage of that alleged incident was never shown to her;
(h)    she never requested to go on her breaks at the same time, and because the team members did not inform her that they had returned from their breaks, she had to take her breaks at random times;
(i)    on one occasion, Ms Dunn asked her to perform a task and she advised Ms Dunn that she had not had her second break but Ms Dunn told her that it was 2 pm and it was too late to take her break;
(j)    the accusation that on 10 November 2021, she yelled at Ms Ngin and hit her hand was false, and
(k)    she denied that she had been behaving aggressively and was screaming and yelling at Mr Hadae when her coat went missing and said that she was forced to wear another employee’s coat which was smelly and unhygienic.
The respondent added that it was Ms Ngin’s responsibility to stop the meat from falling to the floor, and yet she was given the blame for the incident. She disputed that she had a bad attitude, but at times she did raise concerns about the treatment she received, which treatment was not directed at other employees and made her feel targeted and isolated.
The respondent further denied that she had raised concerns that another employee was in an inappropriate relationship with a senior manager and said that, in fact, the allegation was made by another employee about her. She also denied that she did not listen to Sam’s instructions and asserted that she had always followed those instructions. She added that Sam would speak to her in a short and abrupt manner, unlike the way he spoke to other employees. She reiterated that Sam did not respond to her request in August 2021 for leave in October 2021, when her daughter was due to give birth.
The respondent proceeded to list her ongoing symptoms and disabilities arising from the alleged injury.
The respondent made a further statement dated 24 January 2024 following receipt of documents relied upon by the appellant in its reply.[32] She said that she had not previously been shown those documents. She referred to the supervisor/manager’s report dated 18 May 2018, in which it was alleged that she shouted and screamed at a shift manager. She asserted that the allegation was false and misleading, and that was why she did not sign the document. She described herself as a “softly spoken” person who did not object to instructions provided by her managers. She recounted that she recalled that, on the day in question she had reached “maximum capacity” and requested her shift manager to allocate the task of handling the drumsticks to somebody else.
[32] Respondent’s Application to Admit Late Documents (AALD) dated 1 February 2024, pp 1–4.
The respondent referred to the hand-written records dated 1 July 2019 and 5 July 2019 in which it was alleged that she failed to follow the same direction twice and refused to perform the tasks on the grader. She agreed that she had been moved to either Line 22 or Line 24 and said that she did move to the line but was then returned to the grader, where she began to sort the drumsticks. She indicated that she was not feeling well that day, a team leader remarked on her red face, and she was allowed to go home. The respondent denied that she refused to perform the duty she was directed to do. She said that she advised at the meeting that she was unwell and complained that others were not targeted or intimidated if they underperformed.
In relation to the report dated 24 June 2020, the respondent refuted that she failed to heed her team leaders and refused to wear long sleeved gloves and said that she wore the gloves that were supplied to her.
The respondent indicated that, in the conversation with her manager on 10 July 2020, she queried why Sam and another team member looked at her in an intimidating way that made her feel as though they were spying on her. The respondent said that there were several occasions when she could tell that other team members were talking about her in their own languages, she did not intend to accuse her manager personally of doing so, and she was feeling vulnerable and concerned. The respondent disputed that this was a sign of paranoia or that it was a figment of her imagination. She commented that when Ms Fredrickson remarked on a song she was singing in the locker room, she felt Ms Fredrickson was mocking her because of the behaviour of the team members towards her.
The respondent stated that she did not understand whether the manager’s report dated 29 July 2021 was alleging that she told Mr Gheimati that she would take her breaks when she wanted to or whether she accused Gheimati of taking his breaks when he wanted. The respondent referred to her earlier statement as to what occurred in relation to her taking her breaks.
In respect of the record of conversation dated 3 November 2021 and 11 November 2021, the respondent noted that it referred to her having issues with her performance, but she had not been provided with any details of those issues. The respondent denied that she shouted at Mr Hadae but said that she was emotional when advising Mr Hadae that she was being bullied and harassed, the allegations made against her were false and she was doing her best in the job.
The respondent described the record of conversation dated 8 November 2021 as confusing. The respondent stated that by this time, she was feeling vulnerable, intimidated and was constantly being targeted. The respondent stated that the production staff had become slack in their performance, which she described as going so slow that it was as though they were on strike. The respondent asserted that she did not mean that there was a strike in the literal sense and claimed that she had been misunderstood.
The respondent referred to the hand-written statements of Ms Mishra dated 10 November 2021, and Ms Ngin dated 31 July 2023. She reiterated that she had never hit Ms Ngin, and the accusations made in those statements were false.
In relation to the record of conversation dated 10 November 2021 and the statement reproduced in that document made by Ms Hann, the respondent asserted that:
(a)    the document records that Ms Ngin reported that the respondent became very angry and chased Ms Ngin, yet Ms Ngin did not refer to this incident in her statement;
(b)    that statement was untrue, and she simply stepped down from a pallet to query whether she had hit Ms Ngin;
(c)    she agreed that Ms Hann queried whether she was having an affair, which she said was a subject raised by Ms Hann;
(d)    she agreed that another team member (Meredith) hit her with a shovel, and
(e)    she did not recall a conversation with Ms Hann about pulling the non-conforming drumsticks off the line and asserted that the only conversation she recalled was about pulling feathers from the chicken.
The respondent referred to the statement of Ms Long dated 17 July 2023 and indicated she was possibly mistaken as to the failure of the appellant to grant her leave request in December 2020, which was in fact approved. She said, however, that it may have occurred on a different occasion but recalled that she once applied for leave for a special occasion which was declined.
The respondent said that the appellant became stricter in its requirements for the workers to communicate in English, but the issue persisted, which made the working environment uncomfortable and intimidating. The respondent denied that she was sent home because she complained that she was spied on, but rather she was sent home because it was alleged that she physically assaulted Ms Ngin.
The respondent referred to the record of her behaviour dated 16 November 2021 which related to the CCTV footage and which was said to support the allegations made against her that she ran after Ms Ngin, which she denied. She reiterated that she had never been shown the footage.

The medical evidence

Dr Ajay K Wadhera, general practitioner

Dr Wadhera’s clinical notes commencing on 13 February 2003 were in evidence.[33] Relevantly, Dr Wadhera noted on 21 March 2018 that the respondent had been working in a factory for 2 years, there were “work place issues” and “jealousy.” The respondent was provided with counselling and offered a referral to a psychologist.[34] On 12 October 2018, the respondent was again offered a referral to a psychologist in the context of poor sleep and being a single parent.[35] On 26 April 2019, Dr Wadhera issued a medical certificate on the basis of the respondent’s complaint of stress at work.[36] On 28 December 2021, the respondent attended Dr Wadhera by way of Telehealth consultation.[37] Dr Wadhera recorded that the respondent had been upset from work, she was not eating, had locked herself in her room and did not want to see anyone. Dr Wadhera advised that the respondent should attend the practice and described the reason for the visit as a “situational crisis.” It appears that he also advised a member of the respondent’s family that the Community Mental Health team should be contacted.
[33] ARD, pp 45–171.
[34] ARD, p 59.
[35] ARD, p 60.
[36] ARD, p 61.
[37] ARD, pp 70–71.
On 1 March 2022, Dr Wadhera referred the respondent to Dr John Baker, psychiatrist.[38] He provided a history that the respondent:
(a)    had been bullied at work for 3 years;
(b)    was terminated from her employment on 16 November 2021;
(c)    was experiencing workplace stress, and
(d)    became delusional and suffered from paranoia, requiring hospitalisation from 28 December 2021 to 10 January 2022 and from 18 January 2022 to 10 February 2022.
[38] ARD, p 150.

Nepean Hospital

The respondent was admitted to the Nepean Hospital as an involuntary patient with symptoms of paranoia and anxious mood on 28 December 2021 and discharged on 10 January 2022. The Mental Health Discharge Summary recorded:
“60 year old female with no past psychiatric history. She was brought to ED under S19 after her family expressed concerns about a deterioration in her mental state.
Family report an 8 month history of paranoid behaviour which appears to be escalating. Patient is also reported to have recently lost her job after she assaulted a work colleague. She is not currently treated with any psychotropic medication and she has no known medical causes. She does not appear to have any insight into her current mental health concerns.
Corroborative from family
Stated pt has had no Hx mental illness and no family hx psychotic illness or pervasive mood disorders
State no recent onsets of any illness and no signs of medical issues
Described a 8/12 decline in psychosocial functioning and mental health
State she has become increasingly paranoid about other people and their intentions towards her
State that she believed the house was being bugged and she is being followed
Continued to work at [the appellant’s] packing facility
State she complained 4-5/12 ago to her management that she was being bullied
Management investigated but found no causes.
2/12 ago she was dismissed from her job for assaulting a colleague
Since that time her behavioiur has become more bizarre
Has been leaving notes for sons indicating locations and sizes of listening devices and cameras being placed through house
Notes indicate she believes these change position and there are 2-4 in every room
Also believes she is being followed by neighbours and random strangers
This has increased in frequency since dismissal from work
Has also become increasingly withdrawn, secretive and watchful
On Saturday she went to the shops and sent her son an SMS
He showed me same ‘Come and get me I’m going to call police house next door is still watching’
States she has no interaction with neighbours and no reason for paranoid beliefs
Sons say they made her an appt with GP for today due to her refusal to leave the bed and concerns for MH
When she refused to attend and became non verbal they called CDA.”[39]
[39] ARD, pp 173–174.
The respondent was re-admitted to the facility on 18 January 2022 with a worsening mental state and a differential diagnosis of schizophrenia.[40] She was discharged on 10 February 2022 into the care of the St Mary’s Community Health team as an outpatient.[41]
[40] ARD, pp 184–186.
[41] ARD, pp 190–240.

Dr Richa Rastogi, consultant psychiatrist

The respondent’s legal representatives arranged for her to be assessed by Dr Rastogi. Dr Rastogi provided a report on 27 August 2022.[42] She took a history of the respondent being bullied by her supervisor and her team members, including being isolated, excluded, given excessive workloads, deprived of lunch breaks and made to feel unwelcome. Dr Rastogi noted that the respondent complained of being intimidated by team members, including in an incident when she was pushed by a team leader and was picked on and victimised by her line manager. Dr Rastogi recorded that the respondent lodged numerous grievances with the production manager, but despite action taken by the production manager, the intimidation increased, and her work environment became hostile and unsafe.
[42] ARD, pp 24–32.
Dr Rastogi reported that the respondent became extremely stressed with the persistent harassment, such as when she began to have issues with clocking off from work, and when the team members would leave their boots in from of her locker so that she was unable to access it. Dr Rastogi referred to further complaints by the respondent that:
(a)    she was suddenly called to a meeting with the assistant manager without having been provided with an agenda, and was faced with accusations about her work performance based upon written complaints from all the floor members about her conduct, which completely shocked and distressed her;
(b)    she was reported by a team member for changing her knife without permission;
(c)    her work colleagues threw chicken onto the conveyer belt and the supervisor blamed her for that act, and
(d)    she was accused of hitting a team member, which was not true and was the last straw, causing her to break down crying and to feel alienated, ostracised and isolated.
Dr Rastogi recorded the respondent’s version of what occurred in the meeting on 16 November 2021. The respondent said that she was asked to speed up her work and was told that there were numerous complaints raised about her work. She said she was intimidated into providing a statement, which she refused to sign, and she was immediately terminated.
Dr Rastogi reported that the respondent’s psychological condition (described by the respondent as a “nervous breakdown”), deteriorated rapidly. The symptoms included bizarre behaviour such as burning papers on the stove and walking naked at night, experiencing auditory hallucinations, delusional beliefs about work issues, the perception that she was being watched and the belief that she was receiving derogatory texts on her mobile telephone.

Dr Rastogi noted that the respondent was admitted to Nepean Hospital on two occasions in December 2021 and February 2022, was diagnosed with schizophrenia and was discharged under a Community Treatment Order. Dr Rastogi quoted from the Mental Health Discharge Summary and summarised the respondent’s treatment following discharge. She observed that the respondent made a gradual recovery. Dr Rastogi recorded the respondent’s symptomology and daily function at the time of assessment. It is not necessary to summarise that evidence for the purpose of the issues on appeal.
Dr Rastogi noted that the respondent and her family had no past history of psychological issues and no history of recreational drug or alcohol abuse. She reviewed the events complained of by the respondent and concluded that the respondent sustained a psychological injury as a result of work-related events, diagnosed as a brief psychotic disorder which was in recovery, and a social anxiety disorder. She was of the view that the respondent suffered a primary psychological injury directly as a result of the cumulative effect of the work incidents, that the respondent’s employment was a substantial contributing factor to the injury, which she described as a disease process, and that her employment was the main contributing factor to the development or aggravation of the condition.
She proceeded to assess the respondent’s capacity for work, her need for treatment, and the effect of the injury on the respondent’s daily activities. In a supplementary report, Dr Rastogi provided an assessment of the respondent’s whole person impairment pursuant to s 66 of the 1987 Act, arriving at a final 22% whole person impairment.[43]
[43] ARD, pp 33–35.
Dr Rastogi provided a further supplementary report dated 29 January 2024 at the request of the respondent’s legal representatives, following receipt of further documentation, including the various statements and documents relied upon by the appellant in these proceedings.[44] She referred to A/Prof Robertson’s reports and opinion and the factual material relied upon by the appellant. She noted that the respondent was subjected to “chronic bullying, hostility, alienation, intimidation, exclusion and false allegations”[45] between 2016 and 2022. She advised that such behaviour would lead to fear, self-doubt, loss of confidence and impairment of judgment and severe anxiety in any person with normal fortitude. Dr Rastogi considered that the respondent was naïve and unable to put boundaries in place, which would make her more vulnerable and alienated and ostracised. She observed that:
“Her anxiety and fears continued to magnify in the work environment resulting in over analysing and fixation on work issues that culminated into psychotic symptoms mainly paranoid ideation and delusional beliefs that became entrenched over time.”[46]
[44] Respondent’s AALD dated 1 February 2024, pp 9–12.
[45] Dr Rastogi’s report dated 29 January 2024, p 3, AALD dated 1 February 2024, p 11.
[46] Dr Rastogi’s report dated 29 January 2024, p 3, AALD dated 1 February 2024, p 11.
Dr Rastogi considered that the development of features of post-traumatic stress disorder or psychotic symptoms was not uncommon where there has been chronic exposure to trauma and abuse over a period of six years. She opined that she thus disagreed with A/Prof Robertson’s opinion on causation and concluded that the psychotic episode was causally related to the respondent’s employment. She concluded that, having reviewed the material provided to her, she maintained her view already expressed that the respondent suffered an injury in the form of a psychological disease in the course of her employment to which the employment was the main contributing factor.

Associate Professor Michael Robertson, consultant psychiatrist

A/Prof Robertson examined the respondent and provided a report on liability dated 22 March 2023 at the request of the appellant.[47] He took a history from the respondent of her experiencing bullying behaviour in the workplace. He noted that she complained of being excluded by her supervisor and team members which made her feel isolated, she was subjected to unreasonable workloads, she was refused the opportunity to take meal breaks and was the subject of verbal and occasionally physical intimidation. He further noted that the respondent reported that she had made contemporaneous complaints, but any action taken by the appellant was ineffectual, which resulted in an escalation of the behaviour and rendered her workplace increasingly difficult. A/Prof Robertson recorded that at a mediation meeting, the respondent’s supervisor unjustifiably accused her of poor performance and attempted to have the respondent sign a performance management agreement, which led to the respondent believing that the appellant was attempting to get rid of her. He noted that the respondent complained of being falsely accused of assaulting a team member, she felt as though she was being coerced into signing a statement implicating her in the assault, and she was subsequently made to cease work.
[47] Reply, pp 133–148.
A/Prof Robertson quoted from the history recorded by Dr Rastogi and Dr Rastogi’s view that the events at work culminated in a psychotic episode and a diagnosis of schizophrenia. He quoted an extract from the Mental Health Discharge Summary dealing with the respondent’s presentation and noted that the respondent was diagnosed with schizophrenia and was discharged from Nepean Hospital under a Community Treatment Order.
A/Prof Robertson reviewed the respondent’s current symptoms and the effects on the respondent’s day to day care and functioning. He performed a mental state examination and observed that the respondent “appeared to demonstrate good insight into her previous psychotic symptoms” and there “was no gross impairment of cognitive function.”[48]
[48] Dr Robertson’s report dated 22 March 2023, p 7, reply, p 139.
A/Prof Robertson agreed with Dr Rastogi’s view that the respondent suffered a brief psychotic episode, however, observed that the differential diagnosis of late onset schizophrenia was of importance. He added that the respondent’s clinical presentation at the time of his assessment was dominated by the respondent’s anxiety symptoms, which he considered was the respondent’s psychological injury, attributable to the nature and conditions of the respondent’s employment.
A/Prof Robertson observed that the respondent had no significant pre-existing conditions that would make her vulnerable to the development of the psychiatric disorder. He said that a case of late onset psychosis would necessarily require the exclusion of a medical cause, which exercise appeared to have taken place when she was an inpatient at Nepean Hospital. He said that the onset of a brief period of psychosis appeared to have its origin in the context of severe psychosocial stress, which resolved, but the respondent continued to experience a persisting anxiety and dysphoric state which met the DSM 5 criteria for a generalised anxiety disorder.
A/Prof Robertson pointed to scientific literature in support of the causal association between bullying in the workplace and numerous psychopathological states, including brief psychotic episodes. He opined that, on the assumption that the respondent’s allegations of bullying were valid and reliable, her employment was the substantial and main contributing factor to the respondent’s brief psychotic episode and her continuing generalised anxiety disorder. He concluded that he agreed with Dr Rastogi’s diagnosis and her opinion that the nature and conditions of the respondent’s employment were causative.
A/Prof Robertson proceeded to assess the respondent’s whole person impairment pursuant to s 66 of the 1987 Act as 19%.
A/Prof Robertson provided a supplementary report dated 23 August 2023 at the request of the appellant.[49] He was provided with further documentation, including the respondent’s personnel file, the statements made by Ms Ngin and Ms Mishra, and a factual investigation commissioned by the appellant dated 4 April 2022. He observed that the documents appeared to show that the respondent was experiencing psychiatric difficulties for a long period of time, with evidence that her performance was declining from 2018, and she was exhibiting bizarre behaviour from 2020. He formed the view that the information disclosed that the respondent had experienced a more prolonged prodromal period culminating in a psychotic episode, which would explain the deterioration in the respondent’s work performance. He said that the presence of an evolving paranoid psychosis raised the question of the reliability of the respondent’s account of what occurred in the workplace, however, he noted that some aspects of the respondent’s complaints had a basis in reality. He opined that:
“the subjective experience of this through the prism of her evolving psychosis would have made these experiences more prejudicial from her perspective. The question of which version of events is to be preferred is ultimately a legal rather than medical one, however on the balance of probability [the respondent’s] account of bullying appears less reliable in light of the information indicating a more prolonged period of prodromal psychotic disturbance.”[50]
And:
“Apropos of my previous response, I cannot adjudicate on which version of events is preferable. That said, an evolving episode of paranoid psychosis would lead to [the respondent] not coping with her workplace challenges. This would have likely established a cyclical process of perceived workplace difficulties, further exacerbating her deteriorating mental state. The additional information lends credibility to the hypothesis that [the respondent’s] grievances with her employer where delusional rather than grounded in fact. A reasonable ‘middle ground’ would be to acknowledge there may have been routine workplace stressors, that would have been of little significance to an individual of ‘normal fortitude’, which presented a significant psychological affront to [the respondent].”[51]
And:
“The challenge in this matter remains parsing what can be considered credible ‘workplace stress’ independent of the effects of [the respondent’s] declining mental health and its effects on her capacity to cope with otherwise minor ‘hassles’ or challenges in the workplace. As noted, the information seems to indicate a longer period of psychiatric disturbance, favouring the hypothesis that [the respondent’s] evolving psychotic disturbance [was] the basis of her experience of workplace stress.”[52]
[49] Reply, pp 126–132.
[50] A/Prof Robertson’s report dated 23 August 2023, p 4, reply, p 129.
[51] A/Prof Robertson’s report dated 23 August 2023, p 5, reply, p 130.
[52] A/Prof Robertson’s report dated 23 August 2023, p 6, reply, p 131.
A/Prof Robertson provided a further supplementary report dated 21 November 2023 at the request of the appellant.[53] In its letter of instruction dated 13 November 2023, the appellant provided him with a list of the following stressors relied upon by the respondent:
[53] AALD dated 5 February 2024, pp 1–5.
“(a)    Issue A – [the respondent] alleges she was given instructions to slow down in the packing work and felt ganged up on.
(b)     Issue B – [the respondent] alleges she was intimidated by [Ms Dunn] if she did not reach the night number she would be ‘out of here’.
(c)     Issue C – [the respondent] alleges that one of the workers stuck his middle finger up as he drove in the car.
(d)     Issue D – [the respondent] alleges her leave was denied in October 2021
(e)     Issue E – [the respondent] alleges her leave was denied in Christmas 2020
(f)      Issue F – [the respondent] alleges that she felt singled out with other team members speaking in another language
(g)     Issue G – [the respondent] alleges that she was threatened by ‘Sam’ to sign a statement, and if she did not, he would sign it on her behalf.
(h)     Issue H – [the respondent] alleges team members would leave their boots in front of her locker and on one occasion she tripped over the boots.
(i)      Issue I – [the respondent] alleges lunch was stolen from her bag
(j)      Issue J – [the respondent] alleges she was sent home early on 10 November 2021
(k)     Issue K – [the respondent] alleges her employment was terminated and she was forced to write a statement which she did not agree to do.
(l)      Issue L – [the respondent] alleges she did not hit another team member”.
A/Prof Robertson was asked to provide his opinion as to whether the respondent’s employment would have been the main contributing factor to the contraction or aggravation of the disease on the assumption that the events A, B, C, D, E, F, G, J, K and L did not occur and that only English was spoken on the factory floor. He opined that, in those circumstances, the employment would have made a minimal contribution to the evolution of the disease. He added that:
“Any theoretical attribution of cause to the nature and conditions of her employment and the origin of [the respondent’s] severe and persistent mental illness was predicated on the assumption that there were interpersonal stressors in the workplace. The background assumption you have asked me to make indicates that employment would have had no causal significance in the onset of her illness.”[54]
[54] AALD dated 5 February 2024, p 3.

THE LEGISLATION

“Injury” is relevantly defined in s 4 of the 1987 Act as follows:
“4      Definition of ‘injury’ (cf former s 6 (1))
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     …”.
Section 11A(1) of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

THE MEMBER’S REASONS

The Member provided a brief summary of the respondent’s allegations and her claim for compensation. He summarised the issues raised by the appellant that required determination.
The Member summarised the statement evidence of the respondent, itemising the majority of the respondent’s complaints in point form as:
“(a)    receiving instructions to slow down in the packing work. [The respondent] feels that this was because the other workers ganged up on her;
(b)     another worker, [Ms Dunn], was quite intimidating and on one occasion asked [the respondent] for the ‘night numbers’ and then [Mr Hadae] approached [the respondent] and said that if she did not reach the night number she ‘would be out of here’;
(c)     another worker sticking his middle finger up at [the respondent] as he drove past in a car;
(d)     other workers leaving their boots outside [the respondent’s] locker which caused her on one occasion to trip over some boots;
(e)     her lunch being stolen on a few occasions;
(f)      the other workers speaking in their first languages which made [the respondent] feel uncomfortable and excluded;
(g)     applications for leave being denied in December 2020 and October 2021, and
(h)     being asked to sign a statement by one of the supervisors, [Mr Singh], in October 2021, and being told by [Mr Singh] that if she did not sign that statement then he would sign it on her behalf.”[55]
[55] Booth v Retail Ready Operations Australia Pty Ltd [2024] NSWPIC 103 (reasons), [15].
He further summarised the statement evidence of the various lay witnesses employed by the appellant. He reviewed the records of discussion and manager’s reports relied upon by the appellant.
The Member recorded the histories taken and the respondent’s reported symptoms contained in the medical evidence, as well as the opinions expressed by Dr Rastogi and A/Prof Robertson in respect of whether the respondent had suffered a compensable injury pursuant to s 4 of the 1987 Act.
The Member referred to the clinical notes of St Mary’s Community Health Clinic and noted that there was no comprehensive report in evidence from the psychiatrist who treated the respondent during that time. He observed that the cause of the respondent’s deterioration in her psychological condition was therefore predominantly dependent upon the evidence of Dr Rastogi and A/Prof Robertson. He noted that both parties submitted that A/Prof Robertson’s evidence should be preferred, with the respondent submitting that A/Prof Robertson’s approach was more analytical and the appellant submitting that he fairly approached the issue of causation. The Member expressed agreement with the parties’ submissions. He observed that A/Prof Robertson was initially of the view that there could be a causal connection between bullying in the workplace and numerous psychopathological conditions so that if the respondent’s accounts of what occurred were real, then her employment was the substantial and main contributing factor to the brief psychotic episode and her generalised anxiety disorder. The Member indicated that, after reviewing further documentation, in his second report A/Prof Robertson formed the view that the respondent may have been experiencing psychiatric issues for a long time but still might have suffered a significant psychological event as a result of routine workplace stressors which would be insignificant to a person of normal fortitude. The Member referred to the opinion expressed by A/Prof Robertson in his third report that if it was assumed that the incidents relied upon by the respondent did not occur, then employment would have made only a minimal contribution to the evolving psychotic condition.
The Member accepted that Dr Rastogi took a simplistic approach to the issue of causation by accepting the respondent’s version of what occurred without taking into account the fact that the respondent’s version might have been affected by her psychological condition, such as the respondent’s complaint that her employment was terminated without warning because she was accused of poor performance. The Member remarked that Dr Rastogi also recorded that the respondent’s psychological condition resulted from racial discrimination, yet Dr Rastogi had not taken that history and nor did she take a history of the respondent’s complaint that the team members were speaking in their own languages.
The Member accepted that A/Prof Robertson supported a finding that the respondent’s employment caused the injury if there were certain events relied upon by the respondent that did occur, and the respondent perceived those events as hostile. The Member quoted a passage from Attorney General’s Department v K,[56] in which Roche DP explained that approach and observed that the worker’s reaction will always be subjective, so that it was not necessary to establish that the response was rational.
[56] [2010] NSWWCCPD 76 (Attorney General’s Department v K), [54].
The Member remarked that the respondent could have given more details as to when and for how long her team members shunned her, and the complaints could have been more properly investigated had the respondent provided the names of the offenders and if the respondent had given details of when her lunch was stolen and when the boots were left in front of her locker. The Member also noted the absence of consultations with the respondent’s general practitioner in respect of problems at work before the respondent’s employment was terminated. He said, however, that there was evidence that supported some of the respondent’s complaints, such as:
(a) the clinical entry in Dr Wadhera’s notes on 21 March 2018 where “workplace issues jealousy” was noted and Dr Wadhera offered a referral to a psychologist, and
(b) a further entry on 26 April 2019 noting “some stress at work”.

The Member noted the entry made on 12 October 2018 of “no stress at work” and inferred that that entry was likely to be just one of multiple questions, and the entry did not defeat the evidence of stress on the other two occasions.
The Member accepted that he should exercise care in considering the Discharge Summary from Nepean Hospital because details were largely taken from the respondent’s family, but in any event at the initial consultation at St Mary’s Community Mental Health on 18 January 2020 workplace bullying was recorded. The Member also pointed out that the record of conversation with the manager dated 10 July 2020 showed that the respondent complained of employees spying on her, that she has no friends and that team members would talk in their own languages. The Member referred to the ‘Records of Conversation – Manager’ dated 3 November 2021 and 8 November 2021, in which the respondent’s underperformance and refusal to follow instructions was discussed but also noted that the respondent complained that people were bullying her and picking on her, and the ‘Record of Conversation – Manager’ on 10 November 2021, when the respondent complained of being hit with a shovel by “Meredith” and told she was useless by “Mona.”
The Member referred to the clinical notes and the various documentary records produced by the appellant and observed that those documents confirm that the respondent was isolated and disliked. The Member added that he was satisfied that in the incident on 10 November 2021, the respondent did initiate the altercation, and the altercation did feature in the termination of her employment, however, the respondent was not given the opportunity to view the footage, which supported her complaint that the appellant’s officers were not treating her fairly.
The Member said that the evidence established that the respondent was not liked by her team members and the appellant found it difficult to find somewhere for her to work because of that. The Member again cited Attorney General’s Department v K and observed that ultimately, he was required to determine whether the respondent perceived real events in the workplace to be hostile or offensive. He indicated that the evidence, particularly the evidence in the notes recorded by Dr Wadhera in 2018 and 2019, the documentary records recorded by the appellant and the respondent’s own evidence, was sufficient to satisfy him that the respondent met the test set out in Attorney General’s Department v K and that the respondent’s employment was the main contributing factor to the injury.
The Member referred to the appellant’s argument that he could not be satisfied that the events relied on were real events because the respondent was delusional because of her psychotic condition. The Member considered that the argument was not supported by A/Prof Robertson’s opinion, which he preferred. He pointed out that A/Prof Robertson accepted that the respondent’s employment was the main contributing factor to her psychological condition if her complaints of bullying behaviour were valid. The Member said that, for the reasons already expressed by him, he accepted that there were incidents in the workplace in which the respondent was subjected to unreasonable conduct by other employees. He referred to A/Prof Robertson’s acceptance that there could be a “middle ground” in that the respondent suffered a “significant psychological affront” from routine workplace stressors which would have had little effect on a person with “normal fortitude.” The Member considered that that opinion was a logical and reasonable assessment of the cause of the respondent’s condition in the context of the evidence before him.
The Member observed that neither A/Prof Robertson nor Dr Rastogi indicated that the respondent suffered from a pre-existing psychological condition so that the respondent’s injury was a disease injury within the meaning of s 4(b)(i) of the 1987 Act, which was contracted in the course of her employment and her employment was the main contributing factor to the injury. He concluded that the deemed date of injury should be 17 November 2021, which was the date upon which the respondent could not work because of her psychological injury.
The Member turned to the appellant’s defence raised pursuant to s 11A(1) of the 1987 Act that the predominant cause of the respondent’s injury was reasonable action taken by it in respect of discipline and/or dismissal. He noted that the appellant asserted that the respondent’s injury occurred at the time of the meeting on 3 November 2021, which was a disciplinary meeting, and the meeting on 16 November 2021, which was the date upon which the respondent was dismissed, and that the appellant asserted that the records showed that its actions were reasonable. The Member referred to Hamad v Q Catering Limited,[57] in which Snell DP said that in dealing with the issue of causation under s 11A(1), whether medical evidence is needed will depend upon the facts and circumstances of the case but medical evidence is required where there are a number of potential causative factors. The Member observed that, while the respondent’s inability to work and need for extensive psychological treatment occurred soon after the meetings on 3 November 2021 and 16 November 2021, it was evident from the two entries in Dr Wadhera’s notes and the complaint recorded in the appellant’s records in July 2020 that the respondent was developing psychological symptoms some time prior to those two meetings. He added that A/Prof Robertson was of the opinion that the respondent’s condition developed over time, that the respondent’s performance declined from 2018, and she began to exhibit disturbing behaviour from 2020. The Member concluded that he could not reach the conclusion that the meetings on 3 November and 16 November were the whole or predominant cause of the respondent’s injury. The Member observed that, in accordance with Hamad, the appellant was required to adduce medical evidence in support of its defence under s 11A(1), A/Prof Robertson did not provide the necessary evidence and there was no other medical opinion that dealt with that issue.
[57] [2017] NSWWCCPD 6 (Hamad).
The Member concluded that the appellant had failed to establish a defence pursuant to s 11A(1) of the 1987 Act in respect of the respondent’s claim. He proceeded to determine the respondent’s entitlement to weekly compensation and treatment expenses, and referred the respondent’s lump sum claim pursuant to s 66 of the 1987 Act to a Medical Assessor for assessment of her whole person impairment.
The amended Certificate of Determination dated 4 March 2024 records:
“The Commission determines:
1. The [respondent] sustained a psychological injury in the course of her employment with the [appellant] by way of a disease injury pursuant to s 4(b)(i) of the Workers Compensation Act 1987 with a deemed date of injury of 17 November 2021.
2. The [appellant] has failed to establish a defence pursuant to s 11A(1) of the Workers Compensation Act 1987.
3.     The [respondent] has had no current work capacity since 17 November 2021.
The Commission orders:
1. The [appellant] is to pay the [respondent] $927.80 per week from 17 November 2021 to 15 February 2022 pursuant to s 36(1) of the Workers Compensation Act 1987.
2. The [appellant] is to pay the [respondent] weekly payments of compensation pursuant to s 37(1) of the Workers Compensation Act 1987 as follows:
(a)$781.30 per week from 16 February 2022 to 31 March 2022;
(b)$795.70 per week from 1 April 2022 to 30 September 2022;
(c)$822.50 per week from 1 October 2022 to 31 March 2023;
(d)$856.50 per week from 1 April 2023 to 30 September 2023, and
(e)$876.80 per week from 1 October 2023 to date and continuing.
4. The [appellant] is to pay the [respondent’s] reasonably necessary medical treatment for her psychological injury pursuant to s 60 of the Workers Compensation Act 1987.
5.     The matter is remitted to the President for referral to a Medical Assessor as follows:
Date of injury:  17 November 2021
Body Part:  psychological injury
Method of Assessment:  whole person impairment
6.     The documents to be forwarded to the Medical Assessor are as follows:
(a)Application to Resolve a Dispute with attachments;
(b)Reply with attachments;
(c)Application to Admit Late Documents filed by the [respondent] on 1 February 2024, and
(d)Application to Admit Late Documents filed by the [appellant] on 5 February 2024.
A brief statement is attached setting out the Commission’s reasons for the determination.”

GROUNDS OF APPEAL

The appellant brings the following grounds of appeal:
(a)    Ground One: The Member erred in fact by finding that the respondent was bullied (etc) in the course of her employment and was therefore injured in the course of her employment;
(b)    Ground Two: The Member committed an error of law by the misapplication of Attorney General’s Department v K;
(c)    Ground Three: The Member committed an error of law by “misdirection on need to find actual persuasion”;
(d)    Ground Four: The Member erred in fact by finding that discipline and/or performance appraisal were not the predominant cause of the respondent’s injuries, and
(e)    Ground Five: The Member erred in law in that his treatment of the evidence was illogical.

SUBMISSIONS

As to Ground One

The appellant’s submissions

The appellant submits that the question of whether the respondent assaulted her co-worker was the most important factual issue and submits that the respondent’s absolute denial that she did so was a self-serving statement that made her version less probable. The appellant points to the Member’s finding that the assault by the respondent on her co-worker did occur and describes the Member’s acceptance of the relatively minor allegations that preceded that event as “remarkable.” The appellant asserts that the respondent’s version of events was contrary to the evidence provided by many other, non-psychotic witnesses. The appellant contends that the Member ought to have found that the respondent’s evidence was totally devoid of credit.
The appellant says that the Member pointed out the deficiencies in the respondent’s case but then determined that there was evidence that supported the respondent’s allegations. The appellant submits that there was a great deal of evidence that favoured the appellant, such as:
(a)    the evidence of Ms Ngin, who considered that the respondent was a difficult and nasty person who would yell at her;
(b)    the evidence of Ms Mishra, who also described the respondent as difficult, asserted that everyone spoke English and said that she witnessed the assault;
(c)    Ms Dunn’s evidence that there was no instruction to work more slowly, that nobody “ganged up” on the respondent and that the respondent engaged in her own bullying conduct by swearing at her;
(d)    the evidence of Mr Singh and Ms Long, confirming that only English was spoken on the floor;
(e)    Ms Long’s evidence that she observed the respondent yelling and screaming, and complaining that everybody was spying on the respondent, and
(f)    Ms Fredrickson’s evidence, who worked with the respondent almost every day, and described the respondent as aggressive.
The appellant asserts that the respondent was not the victim of bullying. The appellant refers to the manager’s report dated 29 July 2021, which confirmed that the respondent was able to take breaks when she wanted, and that the respondent refused to improve her performance.
The appellant refers to the history recorded by Dr Rastogi that there were numerous incidences of the respondent being bullied and submits that that factual basis should be rejected because it was not founded in the evidence. Further, Dr Rastogi took an inconsistent history of the reason for the appellant’s termination of the respondent’s employment. The appellant submits that medical opinions reliant upon unproven facts will never be accepted in the Commission, even if the opinion is consistent with a broader medical consensus, citing Palasty v Lendlease Building Pty Limited[58] as authority for that proposition.
[58] [2021] NSWPICPD 19.
The appellant asserts that A/Prof Robertson also took an inaccurate history and expressed agreement with Dr Rastogi in respect of the diagnosis and finding as to causation. The appellant contends that both doctors were in error in accepting that bullying took place when the bullying was not established. The appellant asserts that, as A/Prof Robertson conceded, it was not up to the medical expert to determine the veracity of the factual background and that was a matter for the Commission to determine.

The respondent’s submissions

The respondent submits that the appellant has failed to identify the finding of fact that is called into question in this ground and says that an appeal from a decision of a Member is limited by s 352(5) of the 1998 Act to a determination of whether the Member’s decision is affected by error of fact, law or discretion. The respondent submits that the Presidential Member, as well as the respondent, should be taken to the alleged error of fact and contends that neither the pleaded ground of appeal nor the submissions in support of the ground achieve that requirement. The respondent submits that the appellant refers to two “putative” findings, the first that the respondent had been bullied and the second that the respondent was injured as a consequence of bullying. The respondent submits that neither of those findings are evident from the Member’s reasons and for that reason alone, this ground of appeal should be dismissed.
The respondent asserts that the only part of the Member’s reasons referred to by the appellant was paragraph [114] of the Member’s reasons, which was part of the Member’s review of the evidence and did not constitute any finding. The respondent submits that the paragraph was only quoted by the appellant in part and when read in context, it discloses that the Member had concluded reviewing the evidence against the respondent and was moving to a review of the evidence that did support the respondent. That is, there was evidence that the Member reviewed that supported the respondent’s claim that she perceived certain events in the workplace to be hostile.
The respondent asserts that the appellant incorrectly elevates the Member’s observation to a finding, but not a finding of fact that is identifiable.
The respondent maintains that on appeal, the Presidential Member is not permitted to conduct a review, and the identification of error is not established by simply identifying an alternate available finding, even if that available finding was preferrable. The respondent cites relevant authorities to say that it is necessary to show that the decision was wrong.

The appellant’s submissions in reply

The appellant contends that the respondent’s pleadings were deficient which “informs the appeal grounds generally.”[59] The appellant says that Ground One of the appeal relates to a factual error in respect of the respondent’s allegation of bullying and because it was not clearly pleaded, a factual error is more likely to arise. The appellant asserts that the ground was clearly pleaded as an error on the part of the Member in finding that the respondent was bullied, and the submissions made in respect of the ground give reasons as to why that was in error.
[59] Appellant’s submissions in reply, [3].
The appellant agrees that it is required to establish an error of fact, and that both the Presidential Member and the respondent should be taken to the particular reasoning which it says is factually erroneous, but submits that:
(a) firstly, the Member’s reasons must be read as a whole, and
(b) secondly, the appellant identified the relevant paragraphs in the Member’s reasoning where it says the error occurred.
The appellant contends that it did not only refer to paragraph [114] of the Member’s reasons but made reference to other paragraphs in the Member’s reasoning. The appellant submits that the Member is not required to preface a finding with the words “I find that …” in respect of a decision and says that the Member’s observations about the evidence would tend to constitute a finding of fact for the purpose of s 352 of the 1998 Act, otherwise it would have no purpose. The appellant adds that simply citing the test applicable to a factual error does not displace the appellant’s clearly articulated submissions.

As to Ground Two

The appellant’s submissions

The appellant submits that, in this case, a misconception of real events in the workplace cannot satisfy s 4 of the 1987 Act because the respondent’s condition was pre-existing (in that it was not caused by work) and the nature of her condition meant that there was a disconnect with reality. The appellant refers to the Member’s reliance on Attorney General’s Department v K and submits that the imagination in someone’s mind of occurrences in the workplace does not accord with that authority. The appellant says that the view taken by Roche DP in Attorney General’s Department v K was drawn from State Transit Authority of New South Wales v Fritzi Chemler.[60] The appellant recites the facts in Chemler and submits that, in that case, the signage placed in the workplace was real but the motivation for the signage was misperceived by the worker. The appellant submits that the rationale in Chemler does not mean that a misunderstanding in the mind of the worker is sufficient to satisfy the test in Attorney General’s Department v K or to satisfy the definition in s 4 of the 1987 Act.
[60] [2007] NSWCA 249 (Chemler).

The respondent’s submissions

The respondent submits that the Member provided an assessment of the available facts and correctly acknowledged the appellant’s submission that all of the respondent’s perceptions were delusional, and thus were not founded upon real events. The respondent refers to the Member’s reasons for making a factual finding against that proposition,[61] including that the respondent was isolated and disliked, others did not want to work with her, and it was common ground that there was conflict between the respondent and other workers.
[61] Reasons, [115], [117]–[119], [122], [124]–[125], [129].
The respondent disputes the appellant’s assertion that the respondent was in fact the bully but submits that, even if this was the case, it would be consistent with the conflict in the workplace described by all of the witnesses. The respondent asserts that questions of injury and causation do not depend upon whether the respondent was or was not at fault in the conflict. She says that the real question was whether there were real events in the workplace which she perceived to be unfair behaviour and conduct. The respondent says that the Member accepted that to be the case and he applied a “correct and principled application” of Attorney General’s Department v K, and thus no error is disclosed.

The appellant’s submissions in reply

The appellant submits that the respondent’s submission that the Member correctly acknowledged the appellant’s submission that all of the respondent’s perceptions were delusional, and thus were not founded upon real events, appears to be a sufficient concession for Ground Two of the appeal to succeed. The appellant asserts that, in those circumstances, there can be no finding of injury within the meaning of s 4 of the 1987 Act. The appellant submits that if the cause of the injury was solely a matter internal to the respondent’s mind, and not a misconstruction of true events which actually occurred, although that might be sufficient to establish that the injury occurred in the course of or arising out of her employment, it would not satisfy s 4 of the 1987 Act.

As to Ground Three

The appellant’s submissions

The appellant asserts that the Member erred in law for the same reasons as the errors of fact identified in Ground One and Ground Two.

The appellant submits that the Member was required to apply the correct standard of proof. The appellant says that, while the standard is on the balance of probabilities, the Member was required to have an actual sense of persuasion in accordance with Nguyen v Cosmopolitan Homes,[62] Ausgrid v Parasaliti[63] and St George Leagues Club Ltd v Wretowska.[64] The appellant asserts that the Member could not have applied the correct standard of proof to the degree of an actual persuasion that the allegations made by the respondent were truthful when such allegations were contrary to the preponderance of other evidence.
[62] [2008] NSWCA 246 (Nguyen).
[63] [2020] NSWWCCPD 51.
[64] [2013] NSWWCCPD 64.

The respondent’s submissions

The respondent repeats its submissions already made that the appellant fails to identify the part of the Member’s reasoning where it is said he fell into error. The respondent submits that the appellant’s allegation of error is predicated by the Member having made a finding that he accepted the truth of the allegations made by the respondent but does not point to where the Member made that finding or where a deficiency is shown in the Member’s reasons. The respondent contends that the Member did not wholeheartedly accept that the respondent’s allegations were true and submits that Attorney General’s Department v K establishes that it is sufficient that the respondent experienced a perception (or misperception) which was based on real events.

The appellant’s submissions in reply

The appellant says that this ground raises a different legal consequence than Grounds One and Two, relying on the same matters spelt out in those grounds and says that the relevant paragraphs of the Member’s decision were identified under Ground One.

As to Ground Four

The appellant’s submissions

The appellant submits that, if Ground One succeeds, and in the absence of a finding that bullying occurred, then it follows that the only or the predominant work-related causative event was the event on 11 November 2021 (presumably a reference to 16 November 2021). The appellant says that, in the alternative, if the bullying allegations were upheld, on the basis of the medical evidence they were only minimally causative. The appellant adds that if the bullying was entirely a misapprehension and thus did not constitute real events, then the injury could not fall within the meaning of s 4 because it did not arise in the course of employment.
The appellant indicates that it is not a coincidence that the respondent claims weekly payments from 16 November 2021, which was the date of the disciplinary meeting. The appellant asserts that, if the respondent’s psychological condition occurred at all in the course of her employment, and whatever her mental state was at the time, the respondent’s injury was mainly or predominantly caused on that day. The appellant says that, prior to that day, the respondent’s psychological condition was not sufficient to impact her capacity to work and the clinical notes of Dr Wadhera would suggest at best that the respondent was experiencing intermittent and insignificant stress at work. The appellant refers to the Member’s observation that there was an absence of reference to psychological issues for a considerable length of time prior to 16 November 2021, which the appellant refers to as the “s 11A event”.[65] The appellant asserts that the absence of any complaint to Dr Wadhera for that length of time, followed by the respondent’s decompensation on 16 November 2021 causing her to have no capacity for work, indicates that the level of stress experienced by the respondent prior to 16 November 2021 was minimal. The appellant submits that the Member thus erred in failing to determine that the whole or predominant cause of the respondent’s condition fell within the parameters of the appellant’s s 11A defence.
[65] Appellant’s submissions, [8.25].
The appellant refers to the opinion of Dr Rastogi that the termination of the respondent’s employment culminated in the respondent’s psychotic episode and submits that this connotes that the termination of employment was a potent causative element in the respondent’s decompensation. The appellant contends that, in accordance with Hamad, this medical evidence alone was sufficient to satisfy the appellant’s onus in respect of medical causation, if the incorrect history recorded by Dr Rastogi is omitted.

The respondent’s submissions

The respondent submits that in the arbitration, both parties submitted that the opinions of A/Prof Robertson should be preferred because they were comprehensive and provided a properly reasoned analysis of the evidence. The respondent referred to A/Prof Robertson’s conclusions that the respondent:
(a)    had previously experienced psychotic symptoms in her employment;
(b)    at presentation on 14 March 2023 had symptoms limited to a significant and persistent anxiety disorder, and
(c)    experienced a decline in her performance from 2018 and displayed bizarre behaviour since 2020.
The respondent asserts that none of the evidence upon which A/Prof Robertson based his opinion suggested that the respondent’s injury resulted from a single incident, such as the termination of her employment. The respondent adds that A/Prof Robertson considered that the respondent’s grievances may have had a basis in reality and subjectively the respondent’s psychosis would have made those experiences more adverse from her perspective. The respondent refers to A/Prof Robertson’s opinion that while others might consider those workplace stressors of little significance, they may have presented as a significant stressor to the respondent. The respondent points out that his opinions were based on an assumption that there were interpersonal workplace stressors.
The respondent submits that it was undeniable that there were such stressors in the workplace, which was a finding made by the Member.
The respondent refers to A/Prof Robertson’s acknowledgment of the complexity and uncertainty in determining causation and submits that A/Prof Robertson did not ever suggest that the respondent’s injury was wholly or predominantly caused by action or proposed action by the employer in respect of discipline and performance appraisal. The respondent asserts that A/Prof Robertson was never asked to consider that question.
The respondent points to the appellant’s reliance on Dr Rastogi’s opinion, which the appellant acknowledged was not sufficiently analytical in respect of the question of causation. The respondent submits that Dr Rastogi did not deal with the question and her approach could not meet the requirements set out by Snell DP in Hamad.

The appellant’s submissions in reply

The appellant contends that Hamad does not “pose a ‘challenge’,” [66] but simply explains the nature of the employer’s onus in an issue involving s 11A. The appellant submits that it was sufficient for the Member to conclude that the cause of the respondent’s injury arose as a consequence of the respondent’s delusional thoughts in order to dispose of the question of injury before moving to deal with s 11A. The appellant submits that the Member was required to consider the issue of “reasonable action”, but was only required to make contingent findings in respect of s 11A because the respondent should have failed in establishing that she suffered injury arising out of or in the course of her employment.

As to Ground Five

[66] Appellant’s submissions in reply, [11].

The appellant’s submissions

The appellant submits that the factual errors identified in Grounds One, Two and Four indicate that the Member’s process of reasoning was illogical. The appellant asserts that, for the reasons already expressed, it can be concluded that the Member’s reasoning process was illogical or irrational, consistent with the observations made by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS.[67]
[67] [2010] HCA 16 (SZMDS), [130]–[131], [135].

The respondent’s submissions

The respondent makes no submissions directly related to this ground.

The submissions in relation to the transcript

The appellant’s submissions

The appellant made supplementary submissions on receipt of the transcript of the arbitral proceedings. The appellant submits that it made the assumption that the question of whether its action (being discipline of the respondent following an altercation at work) was reasonable was not in issue because it did not appear arguable that to discipline somebody in those circumstances was unreasonable.
The appellant refers to a submission recorded in the transcript made by the respondent at arbitration in respect of what should be considered reasonable. The appellant, in these transcript submissions sets out its arguments as to why that would not be the case.
The appellant further refers to submissions made at arbitration by the respondent in respect of the failure of the appellant to provide the respondent with the CCTV footage and why that was not reasonable. The appellant again makes submissions as to why the failure to show the CCTV footage to the respondent could not be considered unreasonable.

The respondent’s submissions

The respondent submits that the appellant’s submissions in respect of the transcript relate entirely to the question of whether or not the appellant’s conduct was reasonable, which bears no relevance to any of the stated grounds of appeal or the submissions. The respondent points out that the Member did not make any finding in respect of whether the appellant’s conduct was reasonable and provided reasons as to why he did not do so at [137]–[141]. The respondent contends that those reasons are not challenged on appeal and submits that the submissions should be ignored.

The appellant’s submissions in reply

The appellant submits that, having the benefit of the transcript and a direction from the Commission to permit further submissions, it was entitled to raise other matters. The appellant refers to the Member’s determination that the appellant failed to establish a defence pursuant to s 11A(1) and submits that such a defence clearly requires proof by the employer that it acted reasonably. The appellant asserts that, because the Member ought to have disposed of the matter by a determination in its favour that the respondent had not suffered an injury pursuant to s 4 of the 1987 Act, a finding as to the whether its actions were reasonable would only constitute contingent findings. The appellant maintains that its submissions on the transcript ought to be taken into account and, contrary to the respondent’s submission, the submissions do touch upon the issues raised, at least in respect of Ground Five of the appeal, which relates to the “legally acceptable standard of logic in tribunal decision making.”[68] The appellant asserts that the Member should have made findings on a contingent basis that the appellant’s action or actions were reasonable.
[68] Appellant’s submissions on the transcript (in reply), [16].

THE RELIEF SOUGHT

The appellant seeks to have the appeal allowed and the matter to be remitted to a different non-presidential member for re-determination or, in the alternative, if the Presidential Member determines that factual error is established, then it asks that the Presidential Member enter an award in favour of the appellant.
The respondent makes no submissions as to the relief sought.

CONSIDERATION

Ground One: The Member erred in fact by finding that the respondent was bullied (etc) in the course of her employment and was therefore injured in the course of her employment

The appellant submits that Dr Rastogi’s opinion should not have been accepted because the factual basis upon which she relied was not made out. The Member did not accept the opinion of Dr Rastogi and neither party expressed reliance upon her evidence in the proceedings before the Member. It is difficult to see how the appellant’s submissions about that evidence are at all relevant in the appeal.
The appellant also asserts that A/Prof Robertson took an inaccurate history and that he was in error by accepting that bullying took place in the respondent’s employment. Again, it is difficult to see how this complaint relates to the pleaded ground of appeal, in any event, A/Prof Robertson did not accept that bullying occurred in the workplace. While he took a history of the respondent’s complaints from her perspective, he did not conclude that those events complained of constituted bullying. In fact, he described the stressors as routine stressors which a person of psychological fortitude would consider to be unremarkable.
A/Prof Robertson observed that he agreed with the diagnosis arrived at by Dr Rastogi (about which there is no dispute) and agreed that the nature and conditions of employment was causative, on the assumption that the respondent’s allegations were reliable. Upon receipt of further documentation, A/Prof Robertson formed the view that the respondent’s condition had been evolving over a long period of time, with her performance declining in 2018 and showing signs of bizarre behaviour in 2020. In those circumstances, A/Prof Robertson questioned the reliability of the respondent’s account of what occurred but considered that some of the respondent’s complaints were based upon real events.
Ultimately, after a review of the available evidence, A/Prof Robertson took the view that there were credible workplace stressors that occurred over a period of time, which in a psychologically balanced individual would appear as routine, and because of the respondent’s psychiatric disorder, the respondent was unable to cope with those stressors.
The appellant asserts that it was not a matter for a medical expert to make the factual determination as to the veracity of the respondent’s complaints. In considering his opinion on causation, it was incumbent on A/Prof Robertson to identify what, if anything caused the respondent’s injury and whether the employment was the main contributing factor to the injury. It was therefore necessary for him to formulate the basis upon which the employment was causative, which he did. The Member’s factual determination about the work events was consistent with A/Prof Robertson’s view.
The appellant submits that the respondent’s version of events was different to the versions put forward by the appellant’s witnesses. The appellant submits that there was a preponderance of evidence that favoured its case. The appellant points to the evidence that only English was spoken on the factory floor. The appellant’s supervisor/manager conversation record dated 10 July 2020 indicates that the respondent complained at that time that she felt excluded because others were speaking in their own language. Ms Long’s evidence was that the rule that English was spoken on the factory floor was in place in 2020 and 2021, and Mr Singh’s evidence was that the team members were free to converse in their own language in the locker rooms and the lunchroom. All of that evidence tends to indicate that from 2018 the respondent might have felt excluded at those times. The balance of the examples provided by the appellant in fact disclose that there were significant interpersonal difficulties involving the respondent that resulted in the respondent’s inappropriate reactive behaviour.
The Member reviewed the documentary records and accepted that those documents disclosed that the respondent was not liked, was difficult to get along with, was isolated, and the appellant found it difficult to place her at work. He identified the evidence that supported the respondent’s complaints and said that ultimately, he was required to determine whether the respondent perceived real events in the workplace to be hostile, applying Attorney General’s Department v K. Having made the factual determination that there were workplace events which the respondent believed were hostile, he accepted the opinion of A/Prof Robertson which was premised on that same factual scenario. It was open to the Member to conclude accordingly.
There was no error in the Member’s approach, and this ground of appeal fails.

Ground Two: The Member erred in law by the misapplication of Attorney General’s Department v K

The appellant submits that the respondent imagined the events in the workplace, so that the test in Attorney General’s Department v K does not apply. The respondent says that the Member, after reviewing the facts, acknowledged the appellant’s submission but made a factual finding against that proposition.
The Member’s reasons for rejecting the proposition were that there was certain evidence that supported the respondent’s allegations, namely that:
(a)    on 21 March 2018, the respondent reported to Dr Wadhera that she was experiencing workplace stress, noting “jealousy”, which was consistent with the respondent feeling targeted and disliked;
(b)    bullying in the workplace was mentioned on 18 January 2022 in the clinical notes of the St Mary’s Community Mental Health Clinic;
(c)    in the appellant’s document dated 10 July 2020, the respondent complained that she had no friends, and her team members were talking in their own language;
(d)    the appellant’s documents dated 3 November 2021, 8 November 2021 and 10 November 2021 recorded that the respondent complained that people were bullying her, and she was being picked on, and
(e)    the respondent was not shown the CCTV footage of the incident with Ms Ngin, which added to the respondent’s perception of being treated unfairly.
As discussed under Ground One, the Member was satisfied that there were valid events in the workplace involving a discord between the respondent and her co-workers and thus he could accept A/Prof Robertson’s opinion that the respondent’s employment was the main contributing factor to her psychological condition, described as a “psychological affront” to workplace stressors. It is difficult to see how the appellant could overcome the evidence from its own witnesses who all described interpersonal difficulties with the respondent. As the Member pointed out, in accordance with Attorney General’s Department v K, whether the respondent’s response was “rational, reasonable and proportional” is not relevant.
There is no reason to conclude that the Member erred in the application of Attorney General’s Department v K. The Member correctly applied that authority. This ground of appeal is dismissed.

Ground Three: The Member committed an error of law by “misdirection on need to find actual persuasion”

The appellant asserts that the Member was required to reach an actual sense of persuasion that the allegations made by the respondent were truthful, and such a conclusion could not be reached in this case because of the preponderance of contrary evidence. The appellant relies upon the submissions in respect of the first and second grounds of appeal. Both of those grounds failed.
The appellant asserts that the Member could not have applied the correct standard of proof. In Nguyen, McDougall J (with McColl JA and Bell JA agreeing) considered the requirement for a tribunal of fact to reach an actual persuasion of the existence of the fact. His Honour observed that:
“A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied.”
The Member reviewed the available evidence and provided sound reasons for accepting the respondent’s evidence over the evidence relied upon by the appellant. The submissions made in respect of the first two grounds of appeal were not compelling in respect of identifying error on the part of the Member. The appellant does not explain why the Member failed to apply the correct standard of proof, other than to say that there was a preponderance of evidence to the contrary of that accepted by the Member, an assertion that I rejected in both Grounds One and Two. The Member did not err by failing to apply the correct standard of proof.

The respondent submits that the appellant does not point to where in the Member’s reasons he expressed the view that the respondent’s allegations were truthful and submits that the Member did not wholeheartedly accept the respondent’s evidence. I accept those submissions.
It is plainly apparent from a scrutiny of the Member’s reasons that he did not form the view that the respondent’s allegations were truthful. That of itself is sufficient to dismiss this ground of appeal.
For all of the above reasons, this ground of appeal is dismissed.

Ground Four: The Member erred in fact by finding that discipline and/or performance appraisal were not the predominant cause of the respondent’s injuries

The appellant submits that, if Ground One of the appeal succeeds, then it follows that the only predominant work-related cause was the event on 11 November 2021 or in the alternative, if Ground One fails, then on the basis of the medical evidence the other events were only minimally causative. It appears that the appellant is referring to the event on 16 November 2021, the date of the disciplinary meeting when the respondent’s employment was terminated. The appellant asserts that the respondent’s injury was mainly or predominantly caused on that day because prior to that date, the respondent’s injury did not impact her capacity and there was an absence of complaint to Dr Wadhera over a long period of time, so that if there were stressors, they were minimal.
The appellant relies on the opinion of Dr Rastogi that the termination of the respondent’s employment culminated in the respondent’s psychotic episode.
Ground One of the appeal has not succeeded. Accordingly, the appellant’s argument remains that the other events were only minimally causative so that the main contributing factor to the respondent’s injury was the dismissal on 16 November 2021. The appellant says that that assertion is supported by the medical evidence. It is difficult to identify where in the medical evidence there is support for that assertion. The appellant refers to the absence of complaint to Dr Wadhera between 26 April 2019 and December 2021 of workplace stressors. It is clear from the available evidence that during that period, there were events in the workplace that the respondent perceived to be stressful. Dr Wadhera did not provide a report or any opinion on causation. The opinion of A/Prof Robertson was that the numerous workplace stressors were the main contributing factor to the respondent’s psychological condition. Dr Rastogi was of the view that the respondent’s:
“anxiety and fears continued to magnify in the work environment resulting in over analysing and fixation on work issues that culminated into psychotic symptoms mainly paranoid ideation and delusional beliefs that became entrenched over time.”[69]
[69] Dr Rastogi’s report dated 29 January 2024, p 3, AALD dated 1 February 2024, p 11.
I consider that the word “culminated” embraces an occurrence after a period of time, rather than a one-off event. I might add that no reliance was placed on the evidence of Dr Rastogi in the proceedings before the Member. In the light of that evidence and noting Snell DP’s observations in Hamad that where there are competing factors that could be considered causal, medical evidence is required, I do not accept the appellant’s assertion that the medical evidence supported a finding that the dismissal on 16 November 2021 was the main contributing factor to the respondent’s injury.
It follows that Ground Four of the appeal fails.

Ground Five: The Member erred in law in that his treatment of the evidence was illogical

The appellant submits that the Member’s process of reasoning was illogical because of the asserted factual errors identified in Grounds One, Two and Four. The appellant recites the observations of Crennan and Bell in JJ in SZMDS as to what constitutes an illogical path of reasoning which their Honours considered must mean that the decision arrived at by the Tribunal in relation to the required state of satisfaction is one at which no rational or logical decision maker could arrive on the same evidence.
There were no factual errors identified in the preceding grounds of appeal or in the appellant’s submissions relevant to those grounds. As this ground depends upon the foundation of factual errors committed by the Member, which are not made out, and in the absence of an error of law, it follows that there is nothing illogical or irrational in the Member’s reasoning or in his conclusions. This ground of appeal is dismissed.

Issues raised by the appellant in respect of matters arising from the transcript

The appellant, after perusing the transcript, lodged submissions in respect of the reasonableness of its actions, in response to:
(a) submissions on that point made by the respondent at arbitration, and
(b) submissions made at arbitration by the respondent that it was unreasonable not to show the CCTV footage to the respondent as she requested.
The appellant did not seek leave to raise a new ground of appeal following receipt of the transcript and its opportunity to respond to the respondent’s submissions as to whether the appellant’s actions were reasonable ought to have been made to the non-presidential Member in the proceedings below if the appellant considered such submissions were necessary. Section 352(5) of the 1998 Act provides that an appeal to a Presidential Member is limited to the identification of error of fact, law or discretion and is not a review or re-hearing. The profession has been reminded on numerous occasions that an arbitration is not a “dress rehearsal”, and the parties are bound by their forensic choices at trial.[70]
[70] Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68, [68]; Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4, [92].
In any event, the Member determined that s 11A(1) of the 1987 Act did not apply and his conclusion was open to him. The appellant refers to the Member’s finding that the appellant “has failed to establish a defence pursuant to s 11A(1)” and says that that defence clearly requires proof of the appellant’s reasonableness. The appellant’s failure to establish its defence turned upon the Member’s finding of fact that the causative actions did not fall within the parameters of “discipline” or “dismissal”. He was therefore not required to determine whether the appellant’s actions were reasonable, even on a contingency basis, as suggested by the appellant.

CONCLUSION

None of the appellant’s appeal grounds and submissions have established error on the part of the Member, which is required in order to disturb the Member’s Certificate of Determination. The Member’s Certificate of Determination is confirmed.

DECISION

The Member’s amended Certificate of Determination dated 4 March 2024 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

11 February 2025