Reynolds v Third Sector Australia Limited - [2024] NSWPICPD 54

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Reynolds v Third Sector Australia Limited [2024] NSWPICPD 54
APPELLANT:	Christina Louise Reynolds
RESPONDENT:	Third Sector Australia Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4440/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	29 August 2024
ORDERS MADE ON APPEAL:	1. Orders 2, 3 and 4 of the Certificate of Determination are revoked. 2. The matter is remitted to the Commission for the appointment of a further date for hearing by a different member.
CATCHWORDS:	WORKERS COMPENSATION – section 11A(1) of the Workers Compensation Act 1987 – whether employer’s actions with respect to discipline or performance appraisal were reasonable
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Hammond, counsel
Bourke Legal
Respondent:
Mr P Perry, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Reynolds v Third Sector Australia Limited [2023] NSWPIC 462
MEMBER:	Ms J Toohey
DATE OF MEMBER’S DECISION:	11 September 2023

INTRODUCTION

This is an appeal by Christina Louise Reynolds with respect to a Certificate of Determination issued by the Personal Injury Commission on 11 September 2023.
The Commission determined:
“1.     The [appellant] sustained psychological injury arising out of or in the course of her employment with the respondent with deemed date 10 February 2023.
2.      The [appellant’s] injury was wholly or predominantly caused by action taken by the respondent with respect to performance appraisal.
3.      The respondent’s actions with respect to performance appraisal were reasonable.
4.      Award for the respondent.”
The Member found that the predominant cause of Ms Reynolds’ psychological injury was a meeting on 7February 2023 and being placed on a performance improvement plan (PIP).[1] She also found that the respondent’s action was “reasonable action”.[2]
[1] Reynolds v Third Sector Australia Limited [2023] NSWPIC 462 (reasons), [169].
[2] Reasons, [180].
The Member ruled against the respondent’s application to admit late documents.[3] There is no appeal against that determination.
[3] Reasons, [8].
Neither party applied to adduce oral evidence.
The appeal challenges the award for the respondent with respect to determinations (2) and (3). There is no cross-appeal with respect to the finding in favour of the appellant at determination (1).
The Grounds of Appeal are:
(a)    Ground 1 – Error of fact and law – finding the appellant’s psychological injury was wholly or predominantly caused by action taken by the respondent with respect to performance appraisal.
(b)    Ground 2 – Error of fact and law – Finding the respondent’s actions with respect to performance appraisal were reasonable.
(c)    Ground 3 – Error of fact and discretion in failing to accept the appellant’s evidence.
(d)    Ground 4 – Error of fact and discretion in the acceptance of, and weight placed on, the statement of Maree Mellor dated 10 March 2023.
(e)    Ground 5 – Error of fact and discretion in failing to accept the appellant’s medical evidence.
(f)    Ground 6 – Error of law, fact and discretion in failing to give due weight to the respondent’s lack of evidence.
For the reasons that follow, the appeal succeeds and the matter is remitted to a different non-presidential member for redetermination.

BACKGROUND FACTS AND THE MEMBER’S REASONS FOR DETERMINATION

The Member published a written Statement of Reasons (the reasons) on 11 September 2023. The essential facts are not in dispute and are taken from the reasons.
The appellant was employed by the respondent on 14 March 2016. She worked at the respondent’s Ballina office. In May 2022 she was promoted to the role of Service Manager responsible for managing three refuges and outreach programs dealing with domestic violence in northern New South Wales.
The claim for compensation was as a result of psychological injury allegedly caused by excessive workload and lack of support from her employer throughout 2022 and 2023. A specific lack of support was alleged to have occurred in January 2023 when a woman who was known to the service was murdered by her partner close to the office.
The Member noted the parties agreed that the issues for determination were:
“(a)    whether Ms Reynolds’ psychological injury was wholly or predominantly caused by action taken by the respondent with respect to performance appraisal;
(b)     if so, whether that action was reasonable, and
(c)     whether Ms Reynolds is entitled to weekly payments and medical expenses.”
The Member said that it was not disputed that Ms Reynolds sustained a psychological injury arising out of and in the course of her employment with the respondent with a deemed date of 10 February 2023. The psychiatrists qualified by each party, namely Dr Allan (for the appellant) and Dr Fernando (for the respondent), agreed on a diagnosis of adjustment disorder.[4]
[4] Reasons, [134].
The appellant’s evidence was given by written statements dated 15 March 2023 and 17May 2023. The Member quoted from this evidence at length. Relevantly, the Member appears to have accepted the appellant’s statement evidence which was in any event substantially undisputed.
In July 2022 there was a restructure of the respondent’s service and the appellant was promoted to the position of Service Manager. She became responsible for the management of three refuges: Ballina, Tweed Heads and Lismore, and a domestic violence outreach program in Tweed Heads, Ballina and Casino. Her duties included managing and supporting twelve case managers, attending interagency meetings, allocating workloads, providing day to day support to the refuge and outreach teams and a range of other management related duties.[5]
[5] Reasons, [15].
The appellant stated that before the meeting in February 2023 she had not had any supervisory meeting with her supervisor (Maree Mellor) dealing with her role, its expectations, or the workload. She said there had been no performance appraisals in her role as Service Manager. The appellant said that she told Ms Mellor in a telephone conversation in early December 2022 that her workload was excessive, that she was unsure what her role was, that she was at her full capacity and exhausted.[6]
[6] Reasons, [16]–[17].
The appellant complained that she had been told by the Executive Director, Simone Smith, when she applied for the position of Service Manager that she would be provided with two senior case officers directly reporting to her, one who oversees the refuges and the other who oversees the domestic violence outreach service. As at March 2023 only one of those positions had been filled. It was filled in October 2022 by an internal candidate and there was no-one appointed to fill that officer’s previous role. The effect was that she was not available to assist the appellant. Further, this employee became pregnant in December 2022 or early January 2023 and as a consequence, the appellant was careful not to overload her with work or cause her unnecessary stress.[7]
[7] Reasons, [19].
On 4 January 2023 a woman was murdered in an alleyway near the Ballina office. She was not a direct client of the service. She had been referred to the service but declined support from the service.
On the occasion of the murder, the appellant was given a direction that she should not tell her staff at the office that the murder was domestic violence related. The appellant disputed and disobeyed this direction on the grounds that she thought the staff had a right to have the information.[8]
[8] Reasons, [28].
The appellant had asked Ms Miller [sic, Mellor] on 1 February 2023 to arrange a meeting to discuss her workload, but she never did.
On 6 February 2023, Ms Mellor rang the appellant and told her she was required the next day to attend a meeting “regarding some allegations”. The allegations were read to the appellant and confirmed in a letter of the same date. The appellant was informed that she could bring a support person.
On 6 February the appellant worked all day. She was engaged with interviews during the afternoon which meant that she did not commence to prepare her response to the employer’s letter until the evening. She stayed up late into the evening to prepare her responses to the allegations in the letter.[9]
[9] Reasons, [32].
The meeting occurred on 7 February 2023 at the Tweed Heads office. For the respondent Ms Mellor, Ms Smith and Lucy Elder [sic Adler], Acting People and Culture Business Partner, attended.
Ms Mellor told the appellant, “the issues were ‘[being] unwelcoming to the SWCYP program to the Momentum Refuges [sic]’; not following a clear directive regarding the murdered woman; leading her team ‘with emotions’ and mismanagement of refuges.”
Ms Reynolds said that while she was given an opportunity to respond she found the meeting intimidating and felt unheard. She was not given the opportunity to express how difficult she was finding the excessive workload and no-one asked her about her mental health.[10]
[10] Reasons, [33].
On 9 February 2023, Ms Mellor sent Ms Reynolds a “First Warning Letter”, which contained a summary of Ms Reynolds’ responses from the 7 February meeting. On the afternoon of 10 February 2023, Ms Mellor informed the appellant by telephone that she was to be put on a performance improvement plan. The appellant stopped work that afternoon at which time she felt “deflated, let down and undervalued”.
On 13 February 2023, the appellant intended to go to work but could not. Her regular doctor was not available and so she saw Dr Vicki Liu who gave her a certificate. She has not returned to work since.[11]
[11] Reasons, [34].
In the statement dated 17 May 2023, the appellant said that she thought the directive not to talk to the staff was wrong and that the team would have found out through social media. She thought that disclosing the information to the team was for the best health of the team. She denied that she was emotional, unhinged or creating a panic situation.
The Member summarised the evidence of the other witnesses. She referred to a file note of 4January 2023 recording the events of that day, the letter of 6 February 2023 and the notes of the meeting of 7 February 2023.
The evidence from general practitioner Dr Skimmings’ records, the report of treating psychologist Ms Dempsey, and the reports of Drs Fernando and Allan are paraphrased. The Member summarised the parties’ submissions.
The dispositive findings are set out under the heading of “Consideration”.
There was no dispute that Ms Reynolds had sustained a psychological injury arising out of or in the course of employment with the respondent with a deemed date of 10 February 2023. The diagnosis was that of adjustment disorder.[12]
[12] Reasons, [134].
The Member quoted s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) and observed that the onus of proof rested with the respondent: Department of Education and Training v Sinclair.[13]
[13] [2005] NSWCA 465.
There was some ambiguity as to whether or not the events were said to be “reasonable action taken or proposed to be taken with respect to performance appraisal” or “discipline”, but in the event this was of no consequence.[14]
[14] Reasons, [139]–[140].
The Member cited previous authority with respect to “wholly or predominantly caused”. The Member noted in particular the following legal propositions:
(a) the issue is whether the injury was wholly or predominantly caused by the relevant action,[15] and
(b) “The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the [Member’s] common knowledge and experience”.[16]
[15] Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad).
[16] Hamad, [88].
The Member said the appellant maintained that her excessive workload from around June 2022 and lack of support from her employer were the cause of her psychological injury; and although she did not say that the respondent’s actions in early 2023 played no part, “she maintains they were not the whole or even the predominant cause of her injury”.[17]
[17] Reasons, [145].
The Member accepted that:
(a)    the appellant’s job was stressful by its very nature;
(b)    the service was understaffed over several months, and
(c)    whether the workload was excessive or not, it was stressful.[18]
[18] Reasons, [147]–[148].
The Member concluded:
“However, even if Ms Reynolds’ workload was excessive, and even if her managers failed to support her, I am not persuaded one or both were the whole or predominant cause of her injury.”[19]
[19] Reasons, [150].
The Member rejected the opinion of Dr Allan which supported the appellant, preferring the opinion of Dr Fernando.
The Member said:
“Dr Allan diagnosed Ms Reynolds with adjustment disorder with depressed and anxious mood which had developed ‘prior to any performance related discussion’ which he said was a ‘final straw’ which led to her going off work and having no capacity. He said it was clear that her ‘mental health difficulties had their onset significantly prior to the performance management plan’. He said ‘the hypertension noted in mid 2022 is a clear point where her health was beginning to be impacted by the stressful circumstances she was encountering at work’. He concluded that the ‘whole cause’ of her condition was ‘the build up of stress … from mid 2022 forward’.”[20]
[20] Reasons, [153].
The Member noted Dr Allan’s conclusion:
“Dr Allan concluded that the ‘whole cause’ of Ms Reynolds’ condition ‘relates to the circumstances outlined in the workplace’ which ‘culminated in the stress of the performance management discussion after which she went off work’. He concluded that the ‘whole cause’ of her condition ‘was the build up of stresses from mid 2022 forward’.”[21]
[21] Reasons, [158].
Dr Skimmings’ note dated 26 October 2022 recorded that the appellant said the stress was “better”, however the Member said, “it does not follow from Ms Reynolds’ report that her stress was ‘better’ that it was no longer present; it could mean only that it had lessened.” Dr Skimmings referred the appellant to Dr Vorster on 26 October 2022. The referral letter noted among current problems ‘anxiety with depression’ and this tells against Ms Reynolds’ symptoms having resolved by that time.[22]
[22] Reasons, [155]
The Member held that she could not accept Dr Allan’s opinion that the hypertension was related to work stress absent “evidence from a qualified doctor to that effect”. She added:
“… there is simply not enough evidence in Dr Skimmings’ notes from which Dr Allan could rationally draw that conclusion.”[23]
[23] Reasons, [156].
The Member said that she thought Dr Allan had “focussed” unduly on Ms Reynolds’ work being “very stressful”.
In rejecting Dr Allan’s opinion, the Member said:
“Dr Allan saw Ms Reynolds in May 2023, nearly two years after he says the build up of work-related stresses started. Dr Skimmings was in a better position to assess and diagnose Ms Reynolds’ condition. Nothing in Dr Skimmings’ contemporaneous notes up until February 2023 supports Dr Allan’s diagnosis of adjustment disorder at that time. Moreover, Dr Allan did not undertake an evaluative analysis of the relative causative effect of events leading up to January/February 2023 and the events on which the respondent relies.”[24]
[24] Reasons, [159].
Of Dr Skimmings’ evidence the Member said:
“Asked whether Ms Reynolds was suffering a psychological injury due to her employment, Dr Skimmings said she was and the injury ‘occurred from absence of support following death of DV client, instructed not to communicate situation to staff; reprimand and criticism of her emotional state regarding the situation and then a performance review stating that she failed to support her staff’.
As to whether work [was] the main contributing factor to Ms Reynolds’ current presentation, Dr Skimmings said: ‘Yes – incidents following death of DV client and how that was handled by executive and HR’.
As to whether the actions ‘in relation to performance appraisal that occurred on 10/02/2023’ were the whole or predominant cause of Ms Reynolds’ injury, Dr Skimmings stated ‘Predominant cause’ and ‘Other events … death of DV client in January. [Ms Reynolds] did not receive adequate mental health support or debrief’. Asked if she would have experienced similar symptoms around this time irrespective of her employment, Dr Skimmings wrote: ‘No. This is an acute stress reaction to an incident at work’.[25]
[25] Reasons, [161]–[163].
In preferring Dr Fernando’s opinion that the predominant factor contributing to the current psychological condition was the meeting of 7 February 2023 and then being placed on a performance improvement plan, the Member said:
“In my view, Dr Fernando carried out the evaluative analysis of factors contributing to Ms Reynolds’ injury which is required in determining the whole or predominant cause of her injury. She explained her reasons, in particular with reference to the ‘timeline’ of her symptoms. She did not disregard Ms Reynolds’ account of stresses at work and their effect on her, or the impact of the murder of the woman on 4 January 2023. She weighed up those other factors and concluded that the predominant cause of the injury was the meeting on 7 February 2023 and the subsequent performance improvement plan. Her opinion is supported by Dr Skimmings’ records and her reports. For these reasons, I prefer Dr Fernando’s evidence to that of Dr Allan.
I find that the predominant cause of Ms Reynolds’ psychological injury was the meeting on 7 February 2023 and being placed on a Performance Improvement Plan.”[26]
[26] Reasons, [168]–[169].
The Member thereafter addressed whether the employer’s action was “reasonable”.
After referring to relevant authority, she said the murder of the woman on 4 January 2023 so close to the Ballina office and closely related to the work “must have been traumatic for Ms Reynolds and the staff at the office. … However, it is the reasonableness of the respondent’s action that is in issue.”[27]
[27] Reasons, [173].
The Member said:
“Ms Reynolds acknowledges that Ms Smith gave her a clear directive not to advise the staff that the woman’s murder was domestic violence related. She acknowledges that she understood the directive. She determined that she should go against it. In those circumstances, it was reasonable for her employer to call her to account, which they did by convening the meeting on 7 February 2023.”[28]
[28] Reasons, [175].
The Member said:
“Ms Reynolds was given notice of the meeting on 7 February 2023 including details of the allegations to be discussed. The extensive notes of the meeting indicate that matters put to her were consistent with the letter sent the previous day, and she responded to each. While some matters might be regarded as trivial, it was reasonable to raise them with her because they went to concerns about the performance of her duties.
Mr Hammond submits that it was unreasonable to give Ms Reynolds only 24 hours’ notice of the meeting. I agree that one days’ notice was very short. Ms Reynolds says she had to stay up late the night before in order to prepare her responses but she does not say she had insufficient time to prepare, and the notes of the meeting indicate she was able to give detailed responses. Ms Reynolds has not disputed the record of the meeting.
Ms Reynolds was advised she could have a support person present at the meeting but she says she did not know who she could take. As I understand her evidence, she means she did not know who she could ask to come with her, rather than who she would be allowed to take but, either way, she has not suggested that she was prejudiced in any way by not having a support person present.”[29]
[29] Reasons, [177]–[179].

After observing that the test of reasonableness is objective and requires the rights of the employees to be weighed against the objective of the employer, the Member said:
“Particularly in the context of Ms Reynolds’ considered decision to go against the directive, I find the respondent’s action was reasonable action.”[30]
[30] Reasons, [180].

THRESHOLD MATTERS

There is no dispute that the appeal was brought within 28 days of the making of the decision.
There is no dispute that the monetary threshold in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) of $5,000 is satisfied.

NATURE OF THE APPEAL

The jurisdiction provided by s 352(5) of the 1998 Act is one limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion and to the correction of such error. The appeal is not a review or a new hearing.
For an appeal under s 352(5) to succeed the appellant is required to show the decision is affected by error. Where the alleged error is one of fact it must be shown that the Member was wrong as to the finding of fact or as to any inference drawn from the finding of primary fact. It is not enough to show that the Presidential member would have drawn a different inference or made a different finding.[31]
[31] Raulston v Toll Pty Limited [2011] NSWWCCPD 25; 10 DDCR 156 citing relevant authorities at [19]–[21].

ON THE PAPERS

The parties agree that the appeal can be determined on the basis of the written material without the need for an oral hearing.
Section 52(3) of the Personal Injury Commission Act2020 together with Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am so satisfied in this matter and propose to determine the matter “on the papers” without holding any conference or formal hearing.

GROUND 1 – ERROR OF FACT AND LAW – FINDING THE APPELLANT’S PSYCHOLOGICAL INJURY WAS WHOLLY OR PREDOMINANTLY CAUSED BY ACTION TAKEN BY THE RESPONDENT WITH RESPECT TO PERFORMANCE APPRAISAL

GROUND 5 – ERROR OF FACT AND DISCRETION IN FAILING TO ACCEPT THE APPELLANT’S MEDICAL EVIDENCE

Appellant’s submissions – Ground 1

The appellant submits that the Member’s acceptance of Dr Fernando’s opinion, that the whole/predominant cause of the injury was the meeting of 7 February 2023, is “not capable of being sustained”.
The appellant says that the Member does not make any findings as to whether the murder of the domestic violence victim on 4 January 2023 was related to the appellant’s work with the respondent.
It is submitted that this incident had a causative impact and gave rise to or contributed to the appellant’s psychological injury. It was therefore necessary for the Member to determine whether or not the causative impact of the event arose out of or in the course of employment.
The appellant complains that the Member’s reasoning process on this issue was not adequately discernible from paragraphs [168] to [169].
It was accepted that the appellant was overworked and perceived herself to be overworked and that she made contemporaneous complaints to doctors regarding such issues well prior to the meeting of 7 February 2023. In this circumstance, the only conclusion available to accept was that “the work leading up to the murder and the murder, were both causative elements in the appellant’s contraction of psychological injuries such that the meeting and being placed on a performance improvement plan could not be considered the whole or predominant cause of her injury.”[32]
[32] Appellant’s submissions, [26].
The appellant sets out a number of pieces of evidence which she submits the Member did not properly address by giving them due weight as follows:
(a)    the appellant’s statement evidence generally;
(b)    the general practitioner’s report of 6 July 2022;
(c)    the appellant’s request to Ms Mellor in October 2022 to be removed from the on-call roster due to tiredness and difficulty coping, which is when the appellant states she began to experience symptoms of her psychological injury;
(d)    the appellant’s telephone discussion with Ms Mellor in December 2022 when the appellant raised issues including being unsure of what her role was, being exhausted and at full capacity and being unable to provide support and supervision for case managers;
(e)    the appellant’s meeting with a senior social worker, Ms Thurgar-Waters, on 16 December 2022 when the appellant raised issues including the unsustainable workload and was advised to raise these issues again with Ms Mellor;
(f)    the appellant raised workload issues with Ms Mellor on or about 19 or 20 December 2022 and requested a meeting with Ms Mellor which Ms Mellor did not arrange;
(g)    an email from Ms Adler to Ms Mellor, Ms Smith and Ms Groth dated 12 January 2023 provides contemporaneous evidence that the appellant was displaying overt signs of psychological distress at the workplace well prior to the disciplinary meeting, crying at her desk during the Christmas New Year period 2022;
(h)    the letter from the respondent to the appellant dated 6 February 2023 provides contemporaneous evidence that the appellant was displaying overt signs of psychological distress at the workplace well prior to the disciplinary meeting, “tearing up” during a meeting with Ms Cooper (General Manager, People and Culture) and Ms Mellor on 20 January 2023;
(i)    the appellant requesting Ms Mellor again to arrange a meeting to discuss the workload on 1 February 2023 which Ms Mellor did not arrange;
(j)    the report of the treating psychologist Amy Dempsey, and
(k)    the expert evidence of Dr Martin Allan.

Respondent’s submissions – Ground 1

The respondent submits that the Member’s finding was that certain specified actions taken by the respondent were the predominant cause of the appellant’s injury. She did not find that they were the whole cause nor did she make a finding in the alternative: wholly or predominantly.
The actions of the respondent which Member Toohey found to be the predominant cause were:
(a) the meeting of 7 February 2023 at the respondent’s Tweed Heads office, and
(b) the respondent’s placing of the appellant on a performance improvement plan.[33]
[33] Reasons, [169].
The appellant’s submission that it is difficult to see how Dr Fernando’s evidence can be accepted amounts to a submission that the Member should have rejected the evidence. This does not demonstrate that the Member has made an error of fact, law or discretion. Dr Fernando in a report of 11 April 2023 provided an opinion as to the predominant cause.[34] She clearly demonstrated that she had observed the requirement of Deputy President Snell in Hamad at [88] by considering a plurality of potential causes and had reached a conclusion regarding the respective roles of those causes in bringing about the condition.
[34] Reply, p 158.
The Member demonstrated between [145]–[169] a careful weighing of the matters said to have had a causal role in bringing about the injury. At [154] the Member noted a submission made on behalf of the respondent that the appellant’s GP, Dr Skimmings, on 26 October 2022 had noted stress from work had become better. She also noted and accepted Dr Skimmings was in a preferred position when compared to Dr Allan with regard, for example, as to whether there were symptoms amounting to an adjustment disorder in place prior to the events of February 2023.
The respondent submits that quite apart from Dr Fernando’s opinion there was clear evidence before the Member that the meeting of 7 February 2023 and the subsequent placing of the appellant on a performance approval plan had a profound effect on her psychological condition. It was open to Member Toohey to reach the conclusion that the action was the predominant cause. In accepting evidence that was available to her, the Member did not fall into error.

Appellant’s submissions – Ground 5

At paragraph [156] of the reasons, the Member states “there is simply not enough evidence in Dr Skimmings’ notes from which Dr Allan could rationally draw that conclusion.” The Member failed to appreciate that Dr Allan drew his conclusion not just from the records of Dr Skimmings but also his examination of the appellant and her written statements, both of which were provided in his brief.
The appellant notes that Dr Allan examined the appellant 11 months after the onset of symptoms, 3 months after the appellant ceased work due to the subject injury and just over 3 months after Dr Skimmings reported to the insurer that the appellant was suffering from an acute stress disorder. It was not “nearly two years” as the Member states at paragraph [159].
The appellant submits that Dr Allan is a psychiatrist conducting forensic examination within a reasonable period of time. “There is no justification for preferring the opinion of a GP over that of Dr Allan.”[35]
[35] Appellant’s submissions, [49].
Although the respondent does not rely on events leading up to January/February 2023, the appellant does. Dr Allan’s entire report is evaluating the causative effects of events from mid-2022 up to 10 February 2023 and his resulting opinion is that a combination of such events caused the appellant’s injury. It is submitted the Member has therefore fallen into error in respect of her assessment of Dr Allan’s report.
The appellant submits the Member also erred in failing to consider the opinion of the appellant’s treating psychologist, Ms Amy Dempsey, with regard to the whole and predominant cause of the appellant’s injury. In March 2023 the appellant was referred to Ms Dempsey. Ms Dempsey reported on 8 May 2023, as the Member notes at paragraphs [96]–[97]. At paragraph [147] the Member refers to Ms Dempsey’s report. The Member does not however refer to Ms Dempsey’s opinion at all when setting out the Member’s reasoning regarding the whole or predominant cause of the appellant’s injury.
The appellant submits that the Member erred in preferring the opinion of Dr Skimmings regarding the whole or predominant cause of the appellant’s psychological injury and disregarding the opinion of her treating psychologist, Ms Dempsey.

Respondent’s submissions – Ground 5

The respondent submits that nowhere in the course of her reasoning did Member Toohey state that she rejected any of the evidence of the appellant’s treating doctors. Her analysis of the medical evidence is detailed and careful. It is to be found in her reasons at [78]–[97]. It has already been pointed out that the Member expressly accepted the appellant had suffered stress at work prior to February 2022 [sic] and that she consulted medical advisers with respect to that stress. The Member preferred the opinion evidence of Dr Fernando and her reasons for that preference are well disclosed.

Consideration – Grounds 1 and 5

It is convenient to consider these two grounds together as the substantial consideration relates to the Member’s treatment of the medical evidence.
The Member was not required to make a finding as to whether the events surrounding the murder of the domestic violence victim on 4 January 2023 were related to the appellant’s work. However, she was required to consider and evaluate the actions of the appellant and the respondent’s staff in response thereto in the context of her assessment of the whole or predominant cause of the appellant’s injury.
She addresses this at paragraphs [173]–[176]. I detect no error in the Member’s treatment of this issue.
The Member erred in her conclusion that Dr Allan’s report was “nearly two years after he says the build-up of work-related stresses started”.[36]
[36] Reasons, [159].
In her letter dated 6 July 2022, Dr Skimmings identifies the appellant’s current problems as:
“Anxiety with depression
Irritable bowel syndrome
Hypertension – onset 06/07/2022”.[37]
[37] Referral letter to Ms Baker, psychologist, dated 6 July 2022, ARD, p 84.
The Member’s rejection of Dr Allan’s opinion at paragraph [156] is unsound for the following reasons.
Firstly, although there may be “many reasons” for elevated blood pressure, the reason given by Dr Allan is work related stress.
Secondly, Dr Allan was qualified to give that opinion; quite apart from the fact that no objection was taken to his medical qualifications, psychiatrists regularly assess physical responses to psychological and psychiatric conditions.
Thirdly, Dr Allan did not rely solely on the general practitioner’s notes. I accept the appellant’s submission[38] that Dr Allan drew his conclusion not just from the records of Dr Skimmings but also his examination of the appellant and her written statements.
[38] Appellant’s submissions, [46].
It is not entirely clear from the statement of reasons (see paragraph [156]) whether the Member regarded Dr Skimmings’ answers to the respondent’s questionnaire as supporting a conclusion adverse to the appellant’s case. If she did, the Member did not read Dr Skimmings’ responses correctly.
In paragraph [163] the Member quotes Dr Skimmings’ answer to the insurer’s enquiry[39] whether the performance appraisal on 10 February 2023 was the “whole or predominant cause” of Ms Reynolds’ injury to which the Dr Skimmings responded: “Predominant cause” and “Other events … death of DV client in January. [Ms Reynolds] did not receive adequate mental health support or debrief.”
[39] ARD, p 89.
The Member seems to have interpreted this as indicating that Dr Skimmings regarded the events of 10 February 2023 as the predominant cause of Ms Reynolds’ injury. However Dr Skimmings was at that point responding to the binary question were the events of 10 February 2023 the “whole or predominant cause” of Ms Reynolds’ injury.
Read in context, Dr Skimmings’ opinion was that all of the events, including the death of the DV client in January and the failure to debrief, caused the injury.
Dr Skimmings’ response, “predominant cause”, is qualified by what follows.
This is made clear by her in response to the question: “Do you consider work to be the main contributing factor to [Ms Reynolds’] current presentation?” Dr Skimmings’ response is “Yes – incidents following death of DV client and how that was handled by executive + HR. No debrief regarding [Ms Reynolds’] mental health”.
It is not a fair reading of Dr Skimmings’ material to regard her as asserting the predominant cause were the events of February 2023. Properly understood, Dr Skimmings’ evidence is that all of the events described by the appellant, not merely those that occurred on 10 February 2023, were the cause of her psychological injury.
That conclusion accords with the opinion provided by Dr Liu in her certificate. The certification given by Dr Liu is a diagnosis of stress overload with caseload and multiple work roles. And a qualification:
“How is the injury/disease related to work?
Contracted as a Manager role since July 2022, but has been given extra managerial roles as well as a new caseload which is overwhelming her capacity to do her primary manager role properly.”[40]
[40] ARD, p 95.
Furthermore I accept the appellant’s submission that the Member erred in accepting Dr Fernando’s opinion.
Dr Fernando’s opinion is premised on her assumption that the appellant was functioning optimally psychologically “prior to the meeting on the 7th of February … despite these stresses”. She says:
“Other stresses described by Ms Reynolds were likely vulnerability factors. There is no clear evidence to support Ms Reynolds’ reports of excessive workload (from the documents available to me) and psychological distress from this meeting on the 7th of February as her functioning seems optimum prior to this despite these stresses described.”[41]
[41] Reply, p 56.
Dr Fernando identified under the heading “Causative factors” thirteen matters reported by the appellant. The doctor isolates the meeting of 7 February 2023 and the performance improvement plan as the “predominant factor” contributing to her current psychological condition but the exclusion of the other factors depends on there being no psychological distress prior to the meeting of 7February. That conclusion is falsified.
I accept the appellant’s submission[42] that the Member did not properly address and give due weight to the matters adumbrated at paragraph [64] above. Before the meeting on 7 February 2023 her psychological state was affected by at least the following:
(a)     there had been the emotional response to the death/murder on 4 January 2023;
(b)     she had disregarded and acted contrary to the directive not to speak to the staff;
(c)    according to Ms Adler’s email of 12 January 2023, Ms Reynolds had been observed crying at her desk during the Christmas/New Year period, and
(d)    Ms Smith said that when she arrived at the Ballina office on 4 January the appellant was in a heightened emotional state. “[Ms Reynolds] was highly emotional, and I did not believe she was in a state to conduct a debriefing.”[43]
[42] AS [27]
[43] Reply, p 85.
Dr Fernando says she expressly premises her report on:
“… the history provided by [Ms] Reynolds, the appropriate clinical examination and the documentation provided.”[44]
[44] Reply, p 150.
The appellant is correct when she says that Dr Fernando did not have access to the report of Dr Allan, Dr Skimmings’ clinical records or Ms Dempsey’s report.
In the absence of the additional material, the Member’s conclusion that “Dr Fernando carried out the evaluative analysis of factors contributing to Ms Reynolds’ injury which is required in determining the whole or predominant cause of her injury”[45] was unsound because the doctor did not access all of the material relevant to the “evaluative analysis”.
[45] Reasons, [168].
The Member’s conclusion that the predominant cause of her psychological injury was the meeting of 7 February 2023 and being placed on a performance improvement plan thereafter was in error and should be set aside.
For the reasons referred to above, the Member erred in her assessment of the evidence of Drs Fernando, Allan and Skimmings.
Ground 1 and 5 of the appeal are upheld.

GROUND 2 – ERROR OF FACT AND LAW – FINDING THE RESPONDENT’S ACTIONS WITH RESPECT TO PERFORMANCE APPRAISAL WERE REASONABLE

Appellant’s submissions – Ground 2

The appellant submits that Member Toohey’s disposition of the reasonableness issue commences at paragraph [170] of the reasons. She submits that the Member made no finding as to whether it was reasonable that the respondent provided 24 hours’ notice of a performance appraisal meeting. The Member refers to the appellant not stating that she did not have sufficient time to prepare, only that she mentions that she had to stay up late to prepare and she had meetings on the afternoon she was advised of the meeting and a full day of work the following day prior to the meeting.
The appellant submits:
“With respect that the Appellant did not complain of not having sufficient time to prepare does not mean giving 24 hours’ notice was reasonable action by the Respondent. The Appellant was given no choice but to prepare in that timeframe, and her evidence is that she did what she could in the timeframe given, noting the gravity of the allegations levelled at her and the seriousness of the meeting.
There is a failure to engage with the arguments raised in submissions and a failure to properly expose the Member’s reasoning process.”[46]
[46] Appellant’s submissions, [35]–[36].

Respondent’s submissions – Ground 2

The respondent submits that the appellant appears to be inviting the Presidential Member to make his or her own determination as to whether relevant conduct was reasonable or not. It is submitted that this is impermissible. The respondent then refers to Whiteley Muir & Zwanenberg Ltd v Kerr[47] and the passage by Barwick CJ which directs that the requirement is that the trial judge be shown to be wrong, not merely that the appellate judge would have drawn a different inference from proven facts.
[47] (1966) ALJR 505, 506.

The respondent submits that the Member demonstrated that she was aware of the correct approach by citing appropriate appellate authority.
The respondent submits:
“At [33], the appellant asserts that Member Toohey failed to make a finding as to whether it was reasonable that the respondent provided 24 hours’ notice of a performance appraisal meeting. The appellant’s assertion is incorrect. At [78], the Member addressed a submission made by the appellant’s counsel concerning that very matter. She has provided her reasons for her conclusion that the time allowed was reasonable in the circumstances.
In the same paragraph, the Member observed that the minutes of the meeting of 7 February 2023 were not challenged by the appellant. Clearly, the Member’s determination that the respondent’s actions were reasonable was influenced in part by the fact that the record of the meeting revealed that the appellant was provided with the opportunity of giving detailed responses to questions she was asked, and that she did so.”[48]
[48] Respondent’s submissions, [20]–[21].
The respondent submits that the appellant’s submission asserts two alleged shortcomings by Member Toohey. One is that she failed to engage with arguments raised in submissions. The second is that she failed to expose properly her reasoning process.
It is submitted that neither of these assertions are borne out. The only argument that is cited in the appellant’s submissions is appellant’s counsel’s proposition that the notice given for the meeting was insufficient. But the Member did engage with this argument as is clear from the submissions above and the Member’s reasoning at [178]–[179]. The question of the proper exposing of a trial judge’s reasoning process was considered by the New South Wales Court of Appeal in Soulemezis v Dudley (Holdings) Pty Limited.[49] With regard to the question of reasonableness, the requirements set out by McHugh JA in Soulemezis at [279] are more than adequately met by Member Toohey between [170] and [180].
[49] (1987) 10 NSWLR 247 (Soulemezis).

Consideration – Ground 2

The respondent is correct that the reasons provided by the Member are adequate. Furthermore, I do not see in the Notice of Appeal any challenge to the adequacy of the reasons.
The Member found the appellant did not herself say “she had insufficient time to prepare, and the notes of the meeting indicate she was able to give detailed responses. Ms Reynolds has not disputed the records of the meeting.”[50]
[50] Reason, [178].
However the test of reasonableness is objective and, whilst the appellant’s subjective response to the meeting is one factor, the Member was required to assess objectively whether the action of the respondent with respect to the meeting was objectively reasonable.
The objective factors on the degree of time made available to the appellant to prepare for the meeting were as follows:
(a)    The appellant was notified on 6 February 2023 of the intention to call the meeting the next day. She was told about the meeting by telephone. The allegations were read out to her. She had no option but to attend on the appointed day at the appointed time.
(b)    The letter of 6 February 2023 is four pages long, contains a number of allegations, including allegations said to have been levelled at the appellant by anonymous persons.
(c)    The appellant is correct when she says in support of Ground 6 that there was no supporting evidence from the persons alleged to have made the complaints.
(d)    The appellant had worked a full day, including afternoon meetings, during 6 February 2023. She prepared her responses late into the evening.
(e)    The meeting took place on 7 February at 1.30 pm and resulted in eight pages of notes. Plainly the discussions were extensive and detailed.
(f)    Although the appellant was offered a “support person” and declined that offer, as a practical matter it is difficult to see how realistically she could have had any useful assistance from any support person who she may have had available to her on such short notice.
The appellant said that she found the meeting intimidating. She felt that the persons in attendance did not believe what she was saying and she felt unheard, her hands were shaking, she became teary but held back as she was being accused of being emotional.
With respect to the Member, who said that Ms Reynolds did not dispute the record of the meeting, it is by no means clear when the minutes of the meeting were given to her or whether she was invited to make any corrections. There appears to be nothing in the concluding remarks in the minutes that would have invited the appellant to make corrections to the minutes of the meeting if she wanted to.
Furthermore, the fact that the minute taker produced an accurate record of the meeting does not answer the question whether the action of calling the meeting on such short notice was reasonable. Or that the time given to the appellant to prepare for the meeting was reasonable.
Nor does it seem to me that the letter of first warning dated 9 February 2023 was necessarily a reasonable outcome from the meeting.
Putting to one side the non-compliance with the express direction concerning the events of 4 January 2023, the remaining issues would seem to be matters of personality rather than a failure of service delivery. The performance improvement plan was specifically directed to getting the appellant “back on track in your role as a Service Manager.” The letter of 9February 2023 did not specify how that was to be achieved because it said:
“You will receive a separate letter confirming the PIP and its related information next week. We will also schedule an initial PIP meeting to discuss the objectives detailed, obtain any feedback from yourself and explain how the PIP process will work. We will then continue to meet on a weekly basis.”[51]
[51] Reply, p 141.
The Performance Improvement Plan directed the appellant to complete a four-week emotional intelligence program aimed to improve training, collaboration and build better relationships. But the appellant did not concede in the meeting or otherwise that these matters required improvement and no evidence was provided then or now to support the adverse conclusions.
Viewed objectively, to provide the appellant with one day’s notice of the meeting of 7 February 2023 was not reasonable.
The measures proposed as a result of the meeting likewise were not reasonable.
The Member erred in concluding to the contrary.
Ground 2 of the appeal is established.

GROUND 3 – ERROR OF FACT AND DISCRETION IN FAILING TO ACCEPT THE APPELLANT’S EVIDENCE

Appellant’s submissions – Ground 3

The appellant submits that the appellant’s statement evidence was largely not disputed by the respondent’s witnesses. In particular the appellant’s evidence that she was overworked was not adequately addressed by either the respondent’s statement evidence or the respondent’s expert.
The appellant submits that it was incumbent upon the Member to provide reasons and findings as to whether the appellant either was being unduly overloaded with work or perceived that to be the case. The Member did not do so and has fallen into error.

Respondent’s submissions – Ground 3

The respondent submits that it was not incumbent on Member Toohey to provide reasons and findings as to whether the appellant was being unduly overloaded with work or perceived that to be the case.
The respondent submits it was incumbent on the Member, following Hamad, to determine whether the respondent had established the relevant actions with respect to performance appraisal constituted the predominant cause of the appellant’s injury.
The Member did not, as is asserted, fail to accept the appellant’s evidence. The Member declined to make a finding that the workload was excessive but she also declined to reject it.
Finally, at [150] of the reasons the Member clearly considered whether the conclusion regarding predominant cause would vary if the workload was to be regarded as excessive. Her conclusion, and it was clearly a considered conclusion, was that such stress as did arise from the heavy workload was not such as to displace the employer’s actions with respect to performance appraisal from being found to be the predominant cause. No error is demonstrated.

Consideration – Ground 3

The respondent is correct, it was not incumbent on the Member to determine whether the appellant was unduly overloaded with work or perceived that to be the case.
The appellant did not mount a case that the performance appraisal was unjustified or that the performance improvement program was not required. The appellant’s case was that that process of itself was not the whole or predominant cause of the psychological injury and, in the alternative, that the process was not reasonable action on the part of the employer. That case did not depend on whether the appellant was overloaded with work in fact or merely perceived to be so.
Ground 3 of the appeal is not made out and is rejected.

GROUND 4 – ERROR OF FACT AND DISCRETION IN THE ACCEPTANCE OF, AND WEIGHT PLACED ON, THE STATEMENT OF MAREE MELLOR DATED 10 MARCH 2023

Appellant’s submissions – Ground 4

The appellant submits that Ms Mellor gives evidence that the appellant bullied people and was performance appraised due to that. However the appellant points out that there is no reference to any allegation of bullying in the meeting minutes or the performance appraisal documentation found at page 124 of the Reply. The appellant also specifically refutes that any allegation of bullying was made to her, in her statement at page 28 of the ARD.

Respondent’s submissions – Ground 4

The Member set out Ms Mellor’s evidence in her reasons from [42]–[43]. The Member did not make a finding that the appellant had bullied people. The appellant’s submissions are correct in observing that the performance appraisal documentation does not make reference to allegations of bullying.
Ms Mellor’s letter to the appellant following the meeting in which the appellant was informed that she would be placed on a performance improvement plan, is to be found in the Reply.[52] While the letter does set out the aspects of the appellant’s performance which were considered to be unsatisfactory, those aspects do not include an assertion of bullying.
[52] Reply, pp 139–142.
It is difficult to discern the error said to have been made by Member Toohey in this ground.

Consideration – Ground 4

The respondent is correct. There is no evidence that whatever reliance the Member placed on Ms Mellor’s evidence, that reliance was misplaced.
There was no assertion that the appellant was guilty of bullying.
Ground 4 of the appeal is not made out and is rejected.

GROUND 6 – ERROR OF LAW, FACT AND DISCRETION IN FAILING TO GIVE DUE WEIGHT TO THE RESPONDENT’S LACK OF EVIDENCE

Appellant’s submissions – Ground 6

The appellant submits that the respondent did not put into evidence the actual external complaints referred to in page 3 of the letter to the appellant. Nor did the respondent supply the appellant with a copy of the external complaints.
There is no evidence as to what the performance complaints were, for example, were these complaints in writing. If so, they were not in evidence. If the complaints were oral, there is no statement evidence from the complainants.
The appellant was given no prior warning or notice that the respondent felt she was not performing well prior to the letter of 6 February 2023.
The appellant submits one would expect there to be evidence and for the evidence to be addressed by the respondent’s witnesses. For example, should any steps have been taken to place the appellant on notice as to the performance issues to give her an opportunity to improve her performance prior to a meeting being held. The Member should have also considered the performance complaints through the prism of the appellant’s uncontested statement evidence that there were significant staffing issues whereby she was for large periods performing the role of three workers.
At paragraph [178] of the reasons the Member agrees that the notice period was very short but does not then assess and analyse why that short period of notice did not colour the employer’s actions as being unreasonable.
The appellant submits:
“Where at paragraph [180] the Member states ‘particularly in the context of Ms Reynolds’ considered decision to go against the directive’, it is submitted that the Respondent could have had a meeting simply about the Appellant’s response to the directive rather than raising a series of previously undisclosed alleged performance issues at the same time.”[53]
[53] Appellant’s submissions, [66].
The appellant submits:
“It is submitted that in the circumstances and as explained by the Appellant that her decision to ignore the directive was coloured by either her own emotional and psychological reaction to hearing the news or alternatively it was reasonable to ignore the direction in circumstances where the staff were clearly aware, having been advised of the same by the police, of there having been a murder in the laneway next to the office and keeping them in the dark had the potential to cause further distress.”[54]
[54] Appellant’s submissions, [70].

Respondent’s submissions – Ground 6

The respondent submits there was a volume of evidence before the Member setting out the concerns of the appellant’s superiors with respect to her performance. The Member observed correctly that the nature of the concerns were identified in the notice provided to the appellant for her to consider prior to the meeting.
The appellant was given an opportunity to address the concerns. The reason for the Member to use the word “particularly” in [80] (sic, [180]) of the reasons, in the phrase “[p]articularly in the context of Ms Reynolds’ considered decision to go against the directive”, was that it was abundantly clear that the appellant’s deliberate decision to disobey a direction that she had been given and which she understood was prominent amongst the reasons for the respondent conducting the meeting and imposing the plan.
The Member had a basis in the evidence for drawing a conclusion of fact that the respondent had taken reasonable steps to appraise the worker’s performance both in the meeting and by way of the plan. The conclusion that the respondent’s actions were reasonable clearly followed a consideration by the Member of the matters identified in Irwin v Director-General of School Education.[55] This was the correct approach.
[55] Unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997.

Consideration – Ground 6

For the reasons given with respect to Ground 2 of the appeal, in my view, the respondent’s action was not reasonable.
This ground of appeal is upheld.

CONCLUSION

The appeal succeeds.

DECISION

The Commission determines:
(a) Orders 2, 3 and 4 of the Certificate of Determination are revoked.
(b) The matter is remitted to the Commission for the appointment of a further date for hearing by a different member.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

29 August 2024