Reynolds v Third Sector Australia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Reynolds v Third Sector Australia Limited [2023] NSWPIC 462
APPLICANT:	Christina Louise Reynolds
RESPONDENT:	Third Sector Australia Limited
MEMBER:	Jill Toohey
DATE OF DECISION:	11 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; claim for weekly payments and medical expenses; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal; Held – finding that the applicant’s injury was predominantly caused by action with respect to performance appraisal; finding that action was reasonable; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained psychological injury arising out of or in the course of her employment with the respondent with deemed date 10 February 2023. 2. The applicant’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.

STATEMENT OF REASONS

BACKGROUND

Christina Reynolds, the applicant, commenced full-time employment with the respondent, Third Sector Australia Limited, on 14 March 2016. She worked in the Ballina office. Over time, she was employed in various roles, all involving working with clients who had been subject to domestic violence. In May 2022, she was promoted to the role of Service Manager and was responsible for managing three refuges and domestic violence outreach programs in northern New South Wales.
Ms Reynolds claims compensation for a psychological injury as a result of excessive workload and lack of support from her employer throughout 2022. In particular, she claims lack of support in January 2023 when a woman who was known to the service was murdered by her partner close to the office.
Ms Reynolds claims weekly payments from 10 February 2023 to date and continuing, and medical expenses. The medical expenses claimed in the Application to Resolve a Dispute (ARD) have increased since it was lodged and parties agree that, if Ms Reynolds’ claim succeeds, she is entitled to a general order for reasonably necessary medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(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.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Parties attended a conciliation and arbitration hearing by MS Teams on 18 August 2023.
Ms Reynolds was represented by Mr Mischa Hammond of counsel, instructed by Ms Pania Watt. The respondent was represented by Mr Phillip Perry of counsel, instructed by
Ms Jaclyn Dooley. Parties were unable to reach agreement and the matter proceeded to a hearing.
At the hearing, Mr Hammond objected to an Application to Admit Late Documents (AALD) lodged by the respondent on 17 August 2023 attaching copies of the respondent’s Managing Underperformance Procedure dated 1 December 2020 and Grievance Policy dated
1 November 2019. Mr Hammond submitted there was no reason the respondent could not have lodged the documents sooner, given their dates. He submitted that their admission would prejudice Ms Reynolds because there had not been sufficient time to consider them and respond.
Mr Perry submitted that late admission of the documents did not prejudice Ms Reynolds. He submitted they were not personal to her and she had received copies during her induction. Mr Perry referred to the observation by Sackville J in Northern NSW Local Health Network v Heggie[1] that compliance with a policy directive is not determinative of the objective reasonableness of an employer’s actions. Mr Perry submitted it was not clear how
[1] Northern NSW Local Health Network v Heggie [2013] NSWCA 225 (Heggie) at [162].
Ms Reynolds could be prejudiced by the admission of the documents, and they were lodged late due to administrative reasons.
I ruled against the admission of the respondent’s late documents. The respondent had provided no real explanation for the delay in lodging them. While their contents could not have caught Ms Reynolds entirely by surprise, my view was that she nevertheless needed some time to consider them in the context of her present claim and she would be prejudiced to some degree by their admission. Considering Justice Sackville’s comments in Heggie, I was not persuaded that they would necessarily assist in determining Ms Reynolds’ claim and it is relevant that Justice Sackville observed that, while compliance with a policy directive is not determinative of reasonableness “it is a highly material consideration”.
Mr Perry stated that he would hear the submissions for Ms Reynolds and would seek leave, if needed, to rely on action with respect to discipline as well as performance appraisal. My view was that the relevant action relied on by the respondent appeared to relate to performance appraisal because it involved a meeting regarding performance and, ultimately, a Performance Improvement Plan. No argument was raised on behalf of Ms Reynolds about the relevant s 11A ground and Mr Perry did not seek leave.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    AALD lodged by the applicant on
11 August 2023, and
(d)    Wages schedule lodged by the respondent on 17 August 2023.

Oral evidence

Neither party made an application in relation to oral evidence.

Ms Reynolds’ evidence

Ms Reynolds provided written statements of evidence dated 15 March 2023 and
[2] ARD pages 1, 18.
17 May 2023.[2]

Statement dated 15 March 2023

Ms Reynolds describes her qualifications and employment history before commencing employment with the respondent in 2016. She describes the various roles she worked in up until 2019 when she took up the role of Senior Case Worker. She describes her duties assisting clients of the service.
Around July 2022, the service underwent a restructure and Ms Reynolds was promoted to the position of Service Manager, responsible for managing three refuges in Ballina, Tweed and Lismore and a domestic violence outreach program in Tweed, Ballina and Casino. She describes her duties including managing and supporting 12 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.
Ms Reynolds’ supervisor in February 2023 was Maree Mellor. Ms Reynolds states she had not had one supervision meeting with Ms Mellor about her role, expectations or workload, and she had no formal performance appraisals in her role as Service Manager.
Ms Reynolds says she told Ms Mellor in a telephone conversation in early December 2022 that her workload was excessive, she was unsure what her role was, and she was exhausted and at her “full capacity”. She said she had not been able to provide supervision to Case Managers because she was focusing on “the professional development conversation” that was due at the end of December. Ms Mellor said that, once Senior Case Managers had been recruited, Ms Reynolds would “move on to manage the overarching structure of the programs and move from the doing role”. Ms Mellor said she had not completed the “professional development conversations” either because of her own high workload.
Ms Reynolds states that a “professional development conversation” is had with every staff member and looks at their goals, obstacles, achievements, manager feedback, improvements to be completed, and so on. She says this was “not the first time I raised this” by which I understand her to mean her workload. She says she asked to be taken off the “on-call roster” because she was tired and not coping; she was trying to maintain a “work life balance” but Ms Mellor said there was no one else available and she would have to keep doing it. Ms Reynolds says “at this point” she began to experience symptoms of her injury. She was exhausted and withdrawing from things she would usually do.
Under “Allegation 1: excessive workload”, Ms Reynolds states that she was told by the Executive Director, Simone Smith, when she applied for the position of Service Manager, that she would have two Senior Case Officers directly reporting to her, one to oversee the refuges and the other to oversee the domestic violence outreach service. At the date of her statement in March 2023, only one of the positions had been filled. When it was filled in October 2022 by an internal candidate, there was no one to fill that officer’s former role, meaning she was not actually available to assist Ms Reynolds. Then, in late December 2022 or early January 2023, she told Ms Reynolds she was pregnant and Ms Reynolds was “mindful not to overload her with work” and cause her unnecessary stress.
Ms Reynolds describes her duties in detail and says she was working the role of three people which left her “exhausted, undervalued and overwhelmed”.
Under “Allegation 2: lack of support”, Ms Reynolds says she met with the senior social worker on 16 December 2022 about her “unsustainable workload”. She told the social worker she had raised this with Ms Mellor. The social worker suggested she talk with Ms Mellor again because she needed to be supported in her role. Ms Reynolds spoke with Ms Mellor the following week by telephone and asked her to arrange a meeting to discuss her concerns. Ms Mellor said she would try, but other offices were her priority because they were low on staff. Ms Reynolds says this left her feeling “unheard and frustrated”.
On 4 January 2023, a woman was murdered in an alley near the Ballina office. She was not a direct client of the service but, about four days earlier, Ms Reynolds had received a call from the flood recovery service about a referral from the Department of Communities and Justice seeking support for the woman. The woman declined support from the service at that time.
Ms Reynolds states that, on 4 January 2023, she was at a meeting in Lismore when she was informed by a worker that police had been at the Ballina office regarding the murder. A police officer at the Lismore meeting informed her of the woman’s identity. Fiona Miller from the Casino office was present. Ms Reynolds was “in shock and upset”, she left the meeting and tried to call Ms Mellor and Ms Smith but neither answered her call.
When Ms Mellor returned her call, she asked Ms Reynolds if the woman was a client and what interactions staff had had with her. Ms Reynolds told her about the interactions several days earlier. Ms Mellor said she would speak to Ms Smith for guidance. She rang
Ms Reynolds back and told her to return to the Ballina office. She asked her not to tell staff at the office that the murder was domestic violence related. Ms Reynolds said she would rather tell them herself than have them find out through social media or the police. Ms Mellor asked her to put Ms Miller on the phone and they spoke but Ms Reynolds does not know what
Ms Mellor said to her.
On the drive back to the Ballina office, the Case Manager rang Ms Reynolds and said police had been at the office requesting video footage from the cameras. They said they would “return with the woman’s identity and if she had been getting engaged with the service”.
Ms Reynolds told Ms Miller in the car that she would inform staff that the murder was domestic violence related because she did not want them finding out from the police.
Ms Miller “said she agreed and would have [my] back.”
As they approached the office, Ms Reynolds says she could see the crime scene which really upset her. She now tries to avoid that area as much as possible.
When they arrived at the office and everyone was together, Ms Reynolds “calmly informed the staff” that the woman’s murder was domestic violence related but that she was not a direct client of the service. She did this because she wanted the staff to hear it from her “and together as a team” and not from the police or social media. She did not reveal the woman’s identity or any details of the murder which has not yet been made public. She remained calm and was not “heightened” at any time.
On the same day, Ms Smith and Maryanne Goth, Manager of People Culture Change, arrived at the Ballina office. Ms Smith asked Ms Reynolds about the murdered woman’s interactions with the office. Ms Reynolds told her she had informed staff that the murder was domestic violence related to which Ms Smith replied “that explains the mood of the team when [I] walked in.” Ms Smith left the room to talk with the rest of the team. When she returned, she asked Ms Reynolds if she had received her directive about not informing staff of the murder and if she understood it. Ms Reynolds said she had, but she thought staff had a right to know the information. Ms Smith said she had “acted emotionally, not with the facts” of the incident. She told Ms Reynolds to “lift the team’s morale and advise them of the good outcomes” they get and that, unfortunately, something like this can happen. Ms Smith then left the office.
Ms Reynolds says she felt “sick to [her] stomach” and she was “trying to process the incident at the same time.” Neither she nor her team was offered support by their employer other than the Employee Assistance Program. She felt “sad, under-supported and undervalued”.
Ms Reynolds was on annual leave in January 2023. She decided during this time to speak to Ms Mellor about her unsustainable workload because she was feeling overwhelmed and finding it difficult to switch off. While she was on leave, Ms Mellor arranged a meeting with her to discuss the Ballina office and client support. The meeting took place in the office on
1 February 2023. They discussed how to manage the workload including interviews for the Case Manager positions. Ms Reynolds says she knew what they agreed at the meeting was unsustainable but she agreed to it “as it was a directive”.
On 6 February 2023, Ms Mellor rang Ms Reynolds telling her to attend a meeting “regarding some allegations”. Ms Mellor said she would read the allegations to her and then send “the letter” to her. Ms Reynolds tried to voice her concerns about some of the allegations but
Ms Mellor said she would have an opportunity to say that at the meeting. She was told she could bring a support person but she was not sure who that could be.
Ms Reynolds says she had 24 hours to prepare her responses. She had interviews that afternoon and a full day leading up to the meeting. She stayed up until approximately 1.30am trying to write responses to the allegations.
The meeting on 7 February 2023 was at the Tweed Heads Office. Ms Mellor, Ms Smith and Lucy Elder, Acting People and Culture Business Partner were present. Ms Mellor told
Ms Reynolds the issues were “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 Mellor read out each point to her. Ms Reynolds states she was given an opportunity to give her responses. She found the meeting intimidating and she felt unheard. She was not given the opportunity to express how difficult she was finding the excessive workload and no one asked about her mental health.
Ms Reynolds says Ms Mellor informed her by telephone on the afternoon 10 February 2023 that she was being put on a Performance Improvement Plan. She stopped work later that afternoon. She felt “deflated, letdown and undervalued.” She had asked Ms Miller on
1 February 2023 to arrange a meeting to discuss her workload, but she never did. On
13 February 2023, she got out of bed intending to go to work but she could not go. Her regular doctor was not available so she saw Dr Vicki Lui who gave her a certificate. She has not returned to work since.

Statement dated 17 May 2023

In a statement to an investigator on 9 March 2023,[3] Ms Reynolds stated it was “blatantly obvious” that the respondent has “sought at every turn to ensure that they are distanced from the murder”. She says the woman’s life was “taken by domestic violence, which is fairly and squarely” what the organisation deals with every day. A crime scene was set up several doors from the office and police were in the office several times that day questioning the staff, which was traumatic. They were made to feel they were not entitled to be upset or traumatised.
[3] Statement signed on 17 May 2023, ARD page 18.
Ms Reynolds stated that she worked from July 2022 to around November 2022 on her own in a role that was supposed to be supported by two Case Managers. By 10 February 2023, only one of the roles had been filled and the stress of carrying those positions for months on her own with limited support was ongoing.
In relation to the directive not to tell staff about the murder, Ms Reynolds stated:
“I thought that the directive not to talk to my staff was wrong. I thought that my team would rather hear this sort [sic] of news from me. My fears about them finding out on social media were not unfounded, as the information went onto social media that very same afternoon. My team would have found out that exact information then anyway, and not through an official channel.”
Ms Reynolds stated she did what she thought was “best for the health of my team”, she did not disclose any information that was not released to the public, and Ms Miller “backed” her in telling the staff. She stated:
“Given the exact nature of the work that we do, and the vicarious trauma that we go through, I formed the opinion that it was better they hear it from me, and I owned that, and I continue to own that. I continue to be of the view that it was the best thing for my team. Despite how I am being described … I wasn’t emotional or unhinged or creating a panic situation.”
Ms Reynolds stated that she gave “the bare amount of information” about the woman’s murder that she thought was necessary and “in absence of any other management being on site at the time.” All she told staff was that the murder was domestic violence related and the woman was not a direct client of the service.
Ms Reynolds describes some difficult personal circumstances before her injury which are not relevant for present purposes.
In relation to the dispute notice issued on 17 April 2023, Ms Reynolds corrects some details and she disputes parts of statements taken by other staff. She refers to the report of psychiatrist, Dr Sachie Fernando, and says there was no time to discuss the performance management aspect of the insurer’s decision, and Dr Fernando’s understanding of that process was based solely on the information provided to her by the insurer.

Ms Mellor’s statement

Ms Mellor provided a statement to the investigator on 9 March 2023.[4] She states she had been the Area Manager since July 2022.
[4] Statement signed on 10 March 2023, Reply page 61.
With respect to Ms Reynolds’ allegations of excessive workload, Ms Mellor states that the workload described in her statement “is her core duties”. She says “as in all jobs, some days are busy and some days are slow”. In her opinion, Ms Reynolds “did not have an unreasonable workload”.

With respect to Ms Reynolds’ allegation of lack of support, Ms Mellor states she does not recall her request in December 2022 for a meeting; they were due to arrange a time for the annual “Performance Development Conversation” but she was “waiting on PCC to complete process around concerns raised by multiple parties so that I could structure meetings and feedback appropriately”.
Ms Mellor states that, on 4 January 2023, she spoke to Ms Reynolds and told her not to inform any employees about any details of the murder. She spoke with Ms Smith who told her Ms Reynolds had given details of the murdered woman to staff. Ms Smith spoke with
Ms Reynolds about the directive and asked whether she had received and understood it and why she did not follow it.
On 6 February 2023, Ms Mellor phoned Ms Reynolds and told her that they needed to meet at the Tweed Heads office the next day.
Ms Mellor states that “HR” had received a number of complaints from the public, staff and other service providers about Ms Reynolds. There were allegations of bullying by her, and external agencies and community members had complained about “not actioning referrals and poor management”.
On 7 February 2023, Ms Mellor, Ms Smith and Ms Adler met with Ms Reynolds. She was offered a support person which she declined. Each allegation was put to her. Ms Reynolds seemed “surprised in the meeting” but “was not overly upset”. She did not mention her mental health or her workload. There was some discussion about the need to recruit more staff in her team.
Ms Mellor states that, on 10 February 2023 , Ms Reynolds was put on a Performance Improvement Plan as a result of the complaints. She informed Ms Reynolds of this by telephone and emailed her a letter explaining why that decision had been made.

Ms Smith’s statement

In a statement to the investigator on 10 March 2023, Ms Smith states that she became the Executive Manager of Community and Client Services on 1 July 2022.[5]
[5] Reply page 81.
With respect to the allegation of excessive workload, Ms Smith says she told Ms Reynolds when she interviewed her for the position of Service Manager that the positions of two Senior Case Managers had to be advertised and filled. One position was filled around
20 June 2022. Ms Smith states that she disagrees Ms Reynolds’ workload was excessive. She states “all point’s [sic] that she mentions in her statement are her core duties”.
With respect to Ms Reynolds’ allegation of lack of support, Ms Smith refers to events on
4 January 2023. She says Ms Mellor telephoned her to say she had received a phone call from Ms Reynolds about a woman who had been murdered in an alley near the Ballina office. Ms Mellor said Ms Reynolds had told her the woman was a client of the service.
Ms Smith said she asked Ms Mellor to “gather more details” to “establish the nature of our service support” to the woman. Ms Mellor was concerned that Ms Reynolds wanted to go to the office to inform staff of the woman’s details. Ms Mellor said she did not want Ms Reynolds to go to the office “as she was highly emotional”.
Ms Smith states that she had “numerous phone calls” with Ms Mellor that morning during which she decided she needed to go to the Ballina office. She spoke with Maryanne Groth, Director of People Culture and Change, about support for the staff at the office and they decided to travel there. They arrived around 12.15pm. Ms Reynolds “was in a heightened and emotional state” and Ms Smith could see that “all staff were upset”.
Ms Smith states that she took Ms Reynolds and Fiona Miller into a private room.
Ms Reynolds was “highly emotional” and Ms Smith did not think she was “in a state to conduct a debriefing”. She arranged for Ms Groth to “conduct a debrief and provide support” to the other staff in the office.
Ms Smith states that Ms Reynolds “remained heightened and emotional during the initial stage of the meeting” so she stayed with her and got her to talk about how she was feeling, and why. Ms Reynolds said she was “upset and also angry about the murder” and she was “struggling to process” it. Ms Smith maintains she supported Ms Reynolds. She denies she was at any time “cold and unsupportive” as Ms Reynolds claims. She advised Ms Reynolds “how to lead her team through the incident” including reminding them “of their outstanding work and the good outcomes they get for so many women” and that they could not have changed what happened because the woman was not a client of the service.
Ms Smith refers to the meeting on 7 February 2023 about concerns about Ms Reynolds’ “performance stemming from internal and external complaints” as well as “general performance matters including her disobeying a directive not to discuss the details of the murder” until she (Ms Smith) arrived at the office to provide support.
According to Ms Smith, Ms Reynolds “participated constructively” in the meeting and she “agreed that she disobeyed” the directive. Her workload “came up organically several times in the meeting”. Ms Reynolds denied issues such as being “unresponsive to referrals”. She “did not describe herself as overworked, stressed or overwhelmed”. She was “complimentary about the support” Ms Smith had given her on 4 January 2023 and “how much she learned from [her] debriefing with her at that time”. Ms Reynolds was “composed at the meeting” and Ms Smith had no concerns for her well-being at that time.
Ms Smith states that, after considering Ms Reynolds’ responses and “the volume of complaints both internal and external” as well as disobeying the directive, she and Ms Mellor and Ms Adler determined that the appropriate outcome was a warning and to put
Ms Reynolds on a Performance Improvement Plan. Ms Mellor informed her about this on
10 February 2023.

Ms Adler’s statement

Ms Adler provided a statement to the investigator on 10 March 2023.[6] She states that she has been the People and Culture Advisor since March 2022. She first met Ms Reynolds on
[6] Reply page 75.
7 February 2023 and had email exchanges with her before meeting her.
Ms Adler states that she cannot comment on Ms Reynolds’ workload day to day. However, one of the issues raised at the meeting on 7 February 2023 was mismanagement of the refuges. Ms Adler describes briefly those concerns. She states “not once during her responses did she mention any issues or concerns with her own workload”.
With respect to the allegation of lack of support, in particular Ms Reynolds’ claim that
Ms Smith did not support her on 4 January 2023, Ms Reynolds said in the meeting she had felt supported. According to Ms Adler, Ms Reynolds said Fiona Miller was very supportive but Ms Smith gave her the support she needed. Ms Reynolds denied an allegation about being unwelcoming to a new staff member. They discussed a complaint from a staff member about the way Ms Reynolds had conducted a meeting and she “admitted that she had some personal issues and was not in a good headspace around that time.” They discussed “mismanagement of the refuges” and Ms Reynolds said she did the best she could. At no time did she say anything about her workload.
Ms Cooper states that Ms Reynolds said “in hindsight, she should not have informed employees … of the details of the murder victim and she should have followed the directive of senior management”.

Ms Cooper’s statement

Ms Cooper provided a statement to the investigator on 9 March 2023.[7] She states that, in March 2021, she became General Manager for People and Culture. She describes
[7] Reply page 67.
Ms Reynolds’ induction process.
With respect to the allegation of excessive workload, Ms Cooper states that the workload described in Ms Reynolds’ statement “is her core duties” and she does not believe she had an excessive workload. She was aware that Ms Reynolds met with Ms Mellor on
[8] It appears this meeting actually took place on 1 February 2023.
2 February 2023[8] to discuss temporary reallocation of team duties until some team members returned from leave.
With respect to the allegation of lack of support, Ms Cooper refers to the directive to
Ms Reynolds on 4 January 2023 which was given “due to the need to determine the insured’s involvement” with the murdered woman. She states that Ms Reynolds was informed of this reason and she disobeyed the directive. Ms Cooper describes what happened after Ms Smith arrived at the office that day. Although it is not clear, it appears this part of her statement is based on information provided to Ms Cooper rather than her own observations.
Ms Cooper states that, soon after this incident, “in close succession” there was one internal complaint about Ms Reynolds and one external complaint and her “lack of management in general”.
Ms Cooper refers to the meeting on 7 February 2023 and the decision to put Ms Reynolds on a Performance Improvement Plan. As the notes do not record her presence at the meeting, Ms Cooper’s account appears to be third hand.

File note

A file note by Ms Smith dated 4 January 2023[9] records the events that day including her discussion with Ms Reynolds when she arrived at the Ballina office. Ms Smith records what Ms Reynolds told her about the murdered woman’s contact with the service. She notes that Ms Reynolds became upset during their discussion and left the meeting. It appears she returned because Ms Reynolds then records her advice to Ms Reynolds that she needed “to engage to stop leading emotionally”. Ms Reynolds “acknowledged this and said she was trying but this incident just overwhelmed her”.
[9] Reply page 114.

Letter dated 6 February 2023

Ms Mellor’s letter dated 6 February 2023 was sent to Ms Reynolds by email.[10] It refers to their discussion earlier that day about her “work conduct and performance”. It runs to four pages and describes in detail the matters to be discussed at the meeting under headings Being unwelcoming to the SWCYP program in the Momentum Refuges; Not following clear directive; Leading your team with emotions; and Miss Management [sic] of Refuges.
[10] Reply page 123.
The letter asked Ms Reynolds to attend a formal meeting the following day with Ms Mellor, Ms Smith and Ms Adler. It advised that if concerns could be satisfactorily resolved there may not be need for further action but, if not, the outcome “may be disciplinary action” which could include a warning or termination. It encouraged Ms Reynolds to bring a support person.

Notes of the meeting on 7 February 2023

According to the notes of the meeting,[11] Ms Adler opened the meeting and referred to the letter sent to Ms Reynolds the previous day about concerns about her work conduct and performance. The notes run to 8 pages. They set out in detail the matters put to Ms Reynolds and her responses.
[11] Reply page 129.
The notes record that Ms Mellor referred to Ms Reynolds being “unwelcoming” on
17 January 2023 to a new employee who said Ms Reynolds was “unfriendly” and she felt uncomfortable to the point that she left work for the rest of the day. Ms Reynolds disputed the allegation. She also disputed an allegation about her communication with another worker and said she felt bad if the worker had the impression she was being unfriendly.
The notes record Ms Smith’s directive on 4 January 2023,[12] conveyed through Ms Mellor, that Ms Reynolds was not to share information about the woman’s murder with staff because the service needed to confirm further information about interactions with the woman and “firm up a plan” about how to deliver the information to staff. It was put to Ms Reynolds that, due to her “emotional reaction and voiced disagreement to this directive”, Ms Smith had decided to go to the office where Ms Reynolds confirmed that she had told staff about the murder.
[12] The notes record this as 3 January 2022 but this is clearly incorrect.
Ms Reynolds confirmed she had received and understood the directive but she felt staff had a right to know but she felt staff had a right to know.
According to the notes, Ms Reynolds said if she had the opportunity, she would have done things differently. She found the process Ms Smith took her through that day “very helpful” and “beneficial”, and it helped put things in perspective and “take the emotion out”.
Ms Reynolds said she “did feel supported through the process” and she was able to “check in later with the team and draw on the positive work they do as a team”. She said the process Ms Smith took her through was “very grounding”. If she could turn back, she would not have left Lismore, she would have waited for more information or until someone called her back. She said she had had "a lot of time to self reflect”. She said Fiona Miller had been very supportive but Ms Smith gave her the support she needed. With reflection, she “would have stayed put and waited”.
The notes record that Ms Reynolds did not agree with some other matters put to her such as management of refuges and interaction with internal and external people. She gave detailed responses to matters put to her. At the conclusion of the meeting, she said she could “always improve” and she was “open to feedback”. She also said she would like to have her supervision meeting with Ms Mellor.

First warning letter

On 9 February 2023, Ms Mellor sent a ”First warning letter” by email to Ms Reynolds.[13] It summarised her responses at the meeting. It gave reasons for finding that she had not always acted in the way expected of leaders and that her performance was “currently falling short of expectations” for her role.
[13] Reply page 139.
The letter stated that, unless certain standards were achieved immediately, “disciplinary action may be continued” and could include termination. It stated that Ms Reynolds would commence a Performance Improvement Plan for eight weeks from 20 February 2023 which would involve weekly meetings and a four-week program on Emotional Intelligence. It referred to timeframes for dealing with client referrals and “escalation processes” and that
Ms Reynolds was to treat all colleagues respectfully and work within the organisation’s values.

MEDICAL EVIDENCE

Dr Skimmings’ records

Dr Skimmings’ records from 13 April 2020 to 22 March 2023 are in evidence.[14]
[14] ARD page 110.
On 8 June 2022, Dr Skimmings recorded presenting problems as including “fatigue” and “situational stress”.[15] She noted “needs a check up – constantly tired, before Covid, worse now” and “no energy for anything, goes to work, comes home”. She recorded:
“full time work hours … DV case worker, hard work. Debriefs with manager. Subconsciously may be carrying some of that home.”
[15] ARD page 116.
Dr Skimmings recorded “24 hour BP monitor” and she noted (without comment) “BP: 139/97”. It is common ground that this is a reference to blood pressure.
On 5 July 2022, Dr Skimmings noted presenting problem as hypertension. She noted treatment plan “24 hour ABPM attached”.
On 6 July 2022, Dr Skimmings recorded “BP check up” and she referred Ms Reynolds to psychologist, Lauren Baker. In her letter to Ms Baker, Dr Skimmings referred to some matters relating to Ms Reynolds family. She said Ms Reynolds work was “very stressful and everything has piled up to make her feel quite flat and fatigued”. Dr Skimmings said they had discussed recently the trauma Ms Reynolds experienced over her mother’s illness and death and she wrote that she had encouraged Ms Reynolds to see Ms Baker about that. Under “Current Problems”, she noted “anxiety with depression, irritable bowel syndrome and hypertension – onset 06/07/2022”.
Notes dated 21 September 2022 refer to a review of a care plan. Notes on 26 October 2022, which appear to have been taken by a registered nurse, record “Hypertension – wants to discuss” and “BP: 160/80”.
On 26 October 2022, Dr Skimmings recorded:
“New care plan – note weight and ongoing issues with BP (although Christina says better on home monitor)
stress is better, sleeping better
discussed importance of dietician advice re health
exercise 30 mins a day, including 2 sessions of moderate intensity and 2 strength sessions”[16]
[16] ARD page 115.
On 26 October 2022, Dr Skimmings referred Ms Reynolds to Dr Peter Vorster at Enhance Chiropractic Centre Ballina “on her Care Plan and TCA”. She noted current problems as anxiety with depression, irritable bowel syndrome, and hypertension with onset 6 July 2022.[17]
[17] ARD page 151.
The notes show that Ms Reynolds next attended on 13 February 2023 when she saw
Dr Vicki Liu who recorded the presenting problem as “Preparation of workers compensation certificate”. Dr Liu noted:
“manager of DV space
lack of staff
increasing workload
feels very stressed
7 yrs but only in new role as manager since July 2022
no support
She has to manage the case managers
returned from leave last week
told had to pick up a caseload on top of workload of senior case manager and manager of other case managers from Tweed/Lismore/Ballina/Casino
Over and above her contracted role[18]
Teary”
[18] ARD page 115.
Dr Liu noted “BP: 179/109”.
On 22 February 2023, Dr Skimmings recorded:
“feels doesn’t have anything left, feels should have realised wht [sic] was happening but was dealing with the crisis at work in autopilot
Had a DV death of a community member in January – had a referral to her, had spoken to intake person and then was murdered early the next week
Christina had to go through a ‘debrief’ within the organisation by the executive and HR but felt that the purpose was to negate their responsibility.
not with an emphasis on the staff well-being. Told they can contact the EAP but staff have little faith in this.
Christina was told by the executive of the service that she leads with her emotion, then was reprimanded for not following an instruction not to tell her team that it was DV related.
Has been put on performance management for not doing her job properly – told she doesn’t provide enough support to her team
This happened the Friday before her initial presentation to us as found was unable to return to work due to anxiety and six weeks after the incident and reprimand.”
On 1 March 2023, Dr Skimmings noted that the insurer had denied Ms Reynolds’ claim on the basis that it was due to performance review. Records of subsequent consultations note Ms Reynolds’ continuing distress about the denial of her claim.
In a handwritten report to the insurer on 2 February 2023, Dr Skimmings stated she had diagnosed acute stress disorder. She stated that Ms Reynolds:
“presented with “physical and psychological symptoms of anxiety sleeplessness poor concentration tearfulness days after receiving a poor performance report on her handling of her staff following the death of a DV client.”[19]
[19] ARD page 88.
Asked whether Ms Reynolds was suffering a psychological injury due to her employment,
Dr Skimmings wrote:
“Yes. Psychological 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.”
Asked to describe the initial symptoms reported by Ms Reynolds, and when, Dr Skimmings wrote:
“Anxiety, teariness, inability to cope feeling overwhelmed, sleeplessness, rumination regarding work situation, fatigue, poor motivation and focus [illegible]”
Asked if she considered work to be the main contributing factor to Ms Reynolds’ current presentation, Dr Skimmings wrote:
“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. Christina 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. Now at risk for PTSD.”[20]
[20] ARD page 88.

In a handwritten response to the insurer on 15 March 2023 about the “the timeline of events that have caused the acute stress reaction”, Dr Skimmings wrote:
“In her role at work, Christina worked as case manager to DV client. A client contact was murdered in Ballina near her office in January, police attended the workplace to investigate. Executive management spoke to and gave instruction to Christina which related to a performance review. Christina was told she had not supported her staff causing symptoms consistent with an acute stress disorder.”[21]
[21] ARD page 91.

Ms Dempsey’s report

On 8 May 2023, psychologist, Amy Dempsey, reported to Ms Reynolds’ solicitors.[22] She said Ms Reynolds presented with symptoms of adjustment disorder, anxiety and depression.
[22] ARD page 93.
Ms Reynolds reported “long-term stress in a highly stressful job as manager” of a team of staff assisting women in domestic violence situations. She described the “complexities of assisting people who are perhaps also facing challenges of powerlessness, poverty, homelessness, drug and alcohol, housing crisis, floods, covid, family violence, trauma, and cultural challenges”. Ms Dempsey referred to “the vicarious trauma, that can sometimes be related to this work”.
Ms Dempsey said the “multiple stressors, workplace incidences, and limited support at her workplace” reported by Ms Reynolds were likely to have contributed to her psychological symptoms.

Dr Fernando’s report

Dr Sachie Fernando, psychiatrist, saw Ms Reynolds for assessment on 28 March 2023 and reported to the insurer on 11 April 2023.[23] She noted that she had received copies of “letter and email conversations from staff members” in Ms Reynolds’ team, the factual investigation report, minutes of the meeting on 7 February 2023 and the warning letter.
[23] Reply page 149.
Dr Fernando took a history from Ms Reynolds that, when she started work for the respondent, the work environment was positive. When the service was restructured around April 2022, staff were not consulted, she lost a lot of team members, and she was the only senior manager left in the team. She was asked to manage 12 case managers without two senior managers who should have been employed to support her. Ms Reynolds said she was “on call” every week and some weekends as well. She described calls to the “on call” service as traumatic and she was expected to provide a solution quickly. She said she felt “unheard” when she spoke to Ms Mellor in December 2022 about how she was not coping.
Dr Fernando took a history of events on 4 January 2023.
Dr Fernando noted the symptoms reported by Ms Reynolds. She noted that Ms Reynolds was “predominantly preoccupied with the injustice at her workplace and the way she was treated by her management”. She reviewed the documentation including that a number of complaints had been received, and she noted the meeting on 7 February 2023 after which Ms Reynolds was placed on a performance improvement program.
Dr Fernando reported that Ms Reynolds presented with some depressive symptoms in the context of “recent workplace related stresses”. She said there were:
“some reported psychological distress from around December 2022 but clinically significant symptoms that were causing functional impairment seems [sic] to have started from February 2023.”
As to causative factors, Dr Fernando recorded that Ms Reynolds described work-related stresses including the restructure, the traumatic nature of being “on call”, lack of support by Ms Mellor, excessive workload in the months leading up to February 2023 and the murder of the woman on 4 January 2023. Dr Fernando said:
“Having reviewed the documentation and considering the timeline of her psychological symptoms, in my opinion the meeting on 7^th of February 2023 and the subsequent placement on the performance improvement plan was the predominant factor contributing to her current psychological condition. Other stresses described by Ms Reynolds were likely vulnerability factors.”
Dr Fernando said there was “no clear evidence” to support Ms Reynolds’ reports of excessive workload or of psychological distress before the meeting on 7 February 2023 “as her functioning seems optimum prior to this despite these stresses described”.
Dr Fernando diagnosed Ms Reynolds with an adjustment disorder with depressive features in accordance with DSM-5. She noted that “clinically significant symptoms” had started since February 2023. She confirmed her opinion that the respondent’s actions in relation to the Performance Improvement Plan that commenced on 10 February 2023 appeared to be the predominant contributing factor to her current psychological condition.
Dr Fernando considered that Ms Reynolds had partial capacity for work. She recommended starting at 20 hours a week, increasing gradually by two hours each week every two to three weeks until pre-injury hours were reached.

Dr Allan’s report

Dr Martin Allan, psychiatrist, saw Ms Reynolds on 17 May 2023 and reported to her solicitors on that date. He noted that he had been provided with Ms Reynolds’ statements, clinical records and reports of Dr Skimmings and Ms Chiu, and the report of Dr Fernando.[24]
[24] ARD page 64.
Dr Allan noted the history in Ms Reynolds’ statements. He noted that Dr Skimmings had referred her to Lauren Baker under a mental health care plan, noting that “her work is very stressful and everything has piled up”. He noted Dr Skimmings’ report on 22 February 2023 of a diagnosis of acute stress disorder and possible post traumatic stress disorder.
Dr Allan noted that Dr Fernando took an extensive history of Ms Reynolds’ employment including the restructure in 2022, the resulting loss of team members, the stress of being “on call”, her excessive workload, and the murder of the woman on 4 January 2023. He noted
Dr Fernando’s opinion that the meeting on 7 February 2023 and the subsequent Performance Improvement Plan was “the predominant factor” in her current psychological condition. He noted Dr Fernando’s comment that other stresses were “likely vulnerability factors” and that her functioning prior to that seemed “optimum” despite the stresses she described. He noted these comments appeared to contradict Ms Reynolds “stated account of increasing problematic workload” for which she had been seeking help around the end of 2022.
Dr Allan took a history from Ms Reynolds consistent with her statements about her workload and events following the restructure in April 2022. He described “the stressors” as “related to burgeoning workload, lack of supervision, lack of education, lack of support, lack of adequate management when she has raised concerns about her workload”, the challenges of being on call, the need to work long hours and “the challenges raised when eventually be concerns” were raised about her performance at work. He stated:
“I am of the opinion especially noting that references to stress and the increased blood pressure evident from the GP notes in mid 2022 that there were issues present from that time forward. She had worsening difficulties from that time forward but was maintaining capacity to work. She was finding work much more challenging. She was doubting herself to an increasing degree but it is evident that she did maintain some capacity in the context of working harder during that period in the context of those difficulties and her receiving no report. She was highly vulnerable to developing mental health difficulties due to the circumstances she was encountering.”
Dr Allan said “in the context of her significant stress” there was then the murder and
Ms Reynolds divulged information to her team “that was relatively insignificant” and would have been widely available through gossip or social media the same day. He said that it could be perceived that telling the team that the murdered woman was not somebody “case managed by them” may have been something of a relief but it was “a performance management point raised against her”.
Dr Allan diagnosed Ms Reynolds with adjustment disorder with depressed and anxious mood which had developed “prior to any performance related discussion”. It 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”. In his opinion, “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”.
As to the whole or predominant cause of Ms Reynolds’ injury, Dr Allan stated:
“The whole cause of her condition at this time relates to the circumstances outlined in the workplace. … I regard the circumstances at work during 2022 as being the reasons for which her mental health began to deteriorate, and her hypertension developed. Her health has been worsening, his psychiatric symptoms have been gradually increasing with ruminative distress, anxiety, worry, restlessness, social avoidance and irritability or being present in the history and this culminated in the stress of the performance management discussion after which she went off work. The whole cause of our [sic] condition is the build up of stresses from mid 2022 forward.”
Dr Allan concluded that Ms Reynolds was unfit for work at the time but she was showing some signs of improvement and she would regain some capacity in time although she would never be able to return to work with the respondent.

SUBMISSIONS

The respondent’s submissions

Mr Perry submits there is no dispute that Ms Reynolds sustained a psychological injury in the course of her employment. With slight variations, Dr Allan and Dr Fernando diagnosed her with an adjustment disorder. They differ as to whether employment was the whole or predominant cause of her injury.
Mr Perry submits that I would be more than satisfied that Dr Fernando obtained a full account from Ms Reynolds, largely consistent with her written statements. Dr Fernando noted that she had a pre-existing condition which was reported to have been stable before the injury.
Dr Fernando’s conclusion that her current symptoms were not an exacerbation of that condition demonstrates that she was “even handed” in her approach.
Mr Perry submits that Dr Fernando seems to concede that Ms Reynolds experienced some stress at work prior to the meeting and Performance Improvement Plan in February 2023. However, based on the documents and the timeline of Ms Reynolds’ symptoms, Dr Fernando concluded that the meeting on 7 February 2023 and Performance Improvement Plan were the predominant factor causing her psychological condition. Dr Fernando considered the other stresses Ms Reynolds described were “likely vulnerability factors”.
Mr Perry submits that Dr Fernando considered the relative weight of causative factors and was clear that events in February 2023 were the predominant cause. Mr Perry submits that her opinion is supported by Dr Skimmings’ records.
Mr Perry submits that Dr Skimmings noted on 8 June 2022 that Ms Reynolds’ work as a DV caseworker was “hard work” and that she “Debriefs with manager”. She noted Ms Reynolds “may be subconsciously carrying some of that home”. Mr Perry submits that nothing in the record suggests that work was causing Ms Reynolds’ stress, and there is nothing in the records between then and February 2023 to that effect. When she saw Dr Skimmings on
26 October 2022, Ms Reynolds said her stress was “better”, indicating, in Mr Perry’s submission, that any stress was of no psychological effect at that time.
Mr Perry submits that Dr Allan refers to Dr Skimming’s note on 8 June 2022 of Ms Reynolds’ stress and elevated blood pressure but, in October 2022, Dr Skimmings recorded that the stress was “better”. Mr Perry submits that there could be many reasons for elevated blood pressure; there is nothing in the notes to say it was due to stress, in particular stress at work. Mr Perry submits that I cannot place weight on Dr Allan’s opinion that Ms Reynolds’ elevated blood pressure was related to work stress without evidence from a qualified doctor to that effect. Mr Perry submits that Dr Allan’s opinion does not displace Dr Fernando’s clear view.
As to whether the respondent’s actions were reasonable, Mr Perry relies on the principles in Heggie and he refers to the comments of Geraghty J in Irwin v Director-General of School Education[25], cited in Shore v Tumarumba Shire Council.[26]
[25] Irwin v Director-General of School Education, unreported, 18 June 1998 (Irwin).
[26] Shore v Tumarumba Shire Council [2013] NSWWCCPD 1.
Mr Perry submits that the respondent had a difficult situation to deal with when the woman was murdered nearby. The respondent gave a reasonable directive to Ms Reynolds. She acknowledges that she disregarded it and she gives her reasons. Mr Perry submits the reasonableness of the directive cannot be challenged and it was this that led to the Performance Improvement Plan.
Mr Perry submits that Ms Reynolds was clearly on notice of the matters to be discussed at at the meeting on 7 February 2023 and she was advised she could have a support person present. Considering the need to balance the rights of an employer and employee, I would find the respondent’s actions were reasonable.
With respect to Ms Reynolds’ capacity for employment, Mr Perry submits that the respondent does not say she could work more than 20 hours a week but that she had at least some capacity for employment as at 28 March 2023 as evidenced by Dr Skimmings’ certificate.

The applicant’s submissions

Mr Hammond submits that the starting point when considering the cause of Ms Reynolds’ injury is understanding that the work she was doing was by its nature very stressful.
Mr Hammond submits that a careful reading of Dr Skimming’s record on 8 June 2022 shows that Ms Reynolds was “constantly tired” even before COVID-19. Dr Skimmings took a history that her work was “hard” and she “subconsciously may be carrying some of that home”.
Dr Skimmings note on 26 October 2022 that Ms Reynolds’ stress was “better” is not to say she had no stress. Mr Hammond submits that the records must also be read in light of
Dr Skimming’s referral to Ms Baker on 6 July 2022 in which she said Ms Reynolds’ work was “very stressful and everything has piled up”. Mr Hammond refers also to Dr Skimmings’ referral to Dr Vorster on 26 October 2022 noting among current problems “anxiety with depression”. Mr Hammond submits this is contrary to the respondent’s submission that
Ms Reynolds’s stress symptoms had resolved by October 2022.
As to causation, Mr Hammond submits that Ms Reynolds’ claim of ongoing stress related to her work is well-supported by Dr Skimmings. Mr Hammond refers to Ms Reynolds’ evidence of excessive workload and that she had to perform the role of two others. She raised the issues with her workload with Ms Mellor who did not deal with them. She then had to deal with the distressing murder of the woman near the office.
Mr Hammond submits that Ms Reynolds does not say the meeting on 7 February 2023 played no role in causing her injury but it was not the whole or predominant cause. She relies on Dr Skimmings’ records and reports, Ms Dempsey’s report, and Dr Allan’s report.
Mr Hammond submits that Dr Allan had the benefit of Ms Reynolds statements and
Dr Skimmings’ records. He submits that Dr Fernando was not given Dr Allan’s report or
Dr Skimmings’ records. She appears to have read the respondent’s statement evidence in a vacuum and did not give sufficient attention to Ms Reynolds’ account of her excessive workload. Mr Hammond submits that, given the full picture, Dr Fernando may have come to a different view.
Mr Hammond submits that the respondent’s action was not reasonable. Ms Reynolds was given a detailed list of complaints one day before the meeting. When read carefully, some of them are so trivial they should not have been raised at all, such as walking past an office and failing to acknowledge a staff member. The main allegation concerns events surrounding the murder of the woman on 4 January 2023. Mr Hammond submits that Ms Reynolds was the manager of the office, she was the best person to tell her staff what had happened, and she was distressed herself. Even if it was not appropriate, it was reasonable for her to tell her staff, and she was already highly stressed by her work generally.
Mr Hammond submits that Ms Mellor’s and Ms Cooper’s statements that Ms Reynolds’ workload was not excessive are in virtually identical terms, and the fact that neither thought her workload excessive is not to the point Further, the fact that her duties were core duties is not the same as saying they were not excessive.
Mr Hammond submits that Ms Smith’s file note of their conversation on 4 January 2023 shows that Ms Reynolds was upset before the meeting on 7 February 2023.

Submissions in reply

In reply, Mr Perry submits that Ms Reynolds has not said she did not have time to prepare for the meeting on 7 February 2023. She prepared her responses, even if she had to stay up late, and she gave them at the meeting. She does not say she felt ambushed. Mr Perry submits that, if some of the matters raised at the meeting were trivial, nothing additional was raised at the meeting and Ms Reynolds cannot say she was ambushed.
Mr Perry submits that Ms Reynolds did not consult her doctor until after the meeting on
7 February 2023.

CONSIDERATION

There is no dispute that Ms Reynolds sustained a psychological injury arising out of or in the course of her employment with the respondent with deemed date 10 February 2023. With minor variations, Dr Allan and Dr Fernando both diagnosed her with an adjustment disorder.
Section 11A(1) of the 1987 Act provides:
“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 respondent bears the onus of establishing, on the balance of probabilities, that
[27] Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair).
Ms Reynolds’ injury was the result of action within the meaning of s 11A(1), that it was the whole or predominant cause of her injury, and that such action was reasonable.[27]

Action with respect to performance appraisal

The letter dated 6 February 2023 asking Ms Reynolds to attend a meeting the following day referred to a discussion about concerns “relating to [her] work conduct and performance”. It stated that, if the concerns could not be satisfactorily resolved, the outcome “may be disciplinary action”.
The “First warning letter” issued on 9 February 2023 noted that Ms Reynolds’ performance was “falling short of expectations” for her role and that, unless certain standards were achieved immediately, “disciplinary action may be continued” and could include termination.
The dispute notice issued on 17 April 2023 relied on reasonable action taken or proposed to be taken with respect to performance appraisal.[28] The notice issued on 15 June 2023 maintained the dispute with respect to performance appraisal.[29]
[28] ARD page 45.
[29] ARD page 57.
Mr Perry was prepared if necessary to seek leave to rely on discipline as well as on performance appraisal but no argument has been raised on Ms Reynolds’ behalf about the respondent’s reliance on performance appraisal as the relevant s 11A action.

Wholly or predominantly caused

“Wholly” and “predominantly” are separate concepts and a finding of one or the other needs to be considered.[30]
[30] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
In Ponnan v George Weston Foods[31], Acting Deputy President Handley said “predominantly caused” means “mainly or principally caused”. This formulation was applied by Deputy President Roche in Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.[32] The test of causation to be applied is that described in Kooragang Cement Ltd v Bates[33] and is “a question of fact to be determined on the evidence in each case” at [79].
[31] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan).
[32] Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd [2008] NSWWCCPD 96.
[33] Kooragang Cement Ltd v Bates (1994) 35 NSWLR 452.

In Hamad v Q Catering Limited[34], Deputy President Snell said at [45]:
“The causal test in s 11A (1) is “different, and more difficult”, in that the test does not involve proof of “personal injury arising out of or in the course of employment” (the s 4(a) test), or that employment was a “substantial contributing factor” to the injury (the s 9A test), but rather whether the injury was “wholly or predominantly caused” by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.”
[34] Hamad v Q Catering Limited [2017] NSWCCPD 6 (Hamad).
Deputy President Snell said at [88]:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. 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 Arbitrator’s common knowledge and experience.”
Ms Reynolds maintains that her excessive workload from around June 2022 and lack of support from her employer were the cause of her psychological injury. I do not understand her to say that the respondent’s action early 2023 played no part, but she maintains they were not the whole or even the predominant cause of her injury.
The respondent does not dispute that Ms Reynolds’ work was stressful but says that her injury was wholly or predominantly caused by the action taken in February 2023 with respect to performance appraisal.
I have no doubt that Ms Reynolds’ job was stressful by its very nature. Dr Skimmings referred to it as “hard work”, and Ms Dempsey recounted Ms Reynolds’ report of the complexities of assisting people who are facing challenges including poverty and homelessness, and she referred to “the vicarious trauma” that can be related to that work.
As I understand the respondent’s submissions, there is no dispute that the service was understaffed over several months. There is no dispute that the service had been unable to fill one of the positions under Ms Reynolds, or that the position that was filled by an internal candidate left another unfilled. Ms Mellor, Ms Smith and Ms Cooper disagree that
Ms Reynolds’ workload was excessive and say the duties she described were her “core duties” but that is no answer to whether or not her workload was excessive. I note that
Ms Mellor has not disputed Ms Reynold’s statement that she said she had not been able to attend to their performance discussion because of her own workload. Whether or not
Ms Reynolds’ workload was “excessive”, I accept that it was stressful.
It is difficult to determine whether Ms Reynolds’ managers failed to support her as she claims. Ms Mellor cannot recall a discussion in early December in which Ms Reynolds asked to meet to discuss her workload but, as I understand her evidence, she does not dispute
Ms Reynolds’ claim. Ms Mellor, Ms Smith, Ms Cooper disagree that they failed to support her around 4 January 2023, and the notes of the meeting, which Ms Reynolds has not disputed, indicate that she told them she felt supported, at least in relation to that incident.
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.
Dr Allan took a history from Ms Reynolds that was broadly similar to the history taken by other doctors. He noted Dr Skimmings’ referral to Ms Baker stating that Ms Reynolds’ work was “very stressful and everything has piled up”. He noted that Dr Fernando took a history of the restructure in 2022, the resulting loss of team members, the stress of being “on call”, her excessive workload, and the murder of the woman on 4 January 2023. He noted those comments appeared to contradict Ms Reynolds’ “stated account of increasing problematic workload” for which she had been seeking help towards the end of the previous year. It is not clear to me how the history taken by Dr Fernando contradicted Ms Reynolds’ account or differed substantively from his own.
Dr Allan concluded from Dr Skimmings’ “references to stress and the increased blood pressure” in mid 2022 “that there were issues present from that time forward”.
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 is from mid 2022 forward”.
Mr Perry submits that Dr Skimmings referred to Ms Reynolds’ work as “hard work” and she noted she “debriefs” with her manager. She noted Ms Reynolds “may be subconsciously carrying some of that home”. Mr Perry submits that nothing in the record suggests that work was causing Ms Reynolds’ stress, and there is nothing in the records between then and February 2023 to that effect. Mr Perry submits that Dr Skimmings noted on 26 October 2022 that Ms Reynolds said her stress was “better”, indicating that any stress was of no psychological effect at that time.
I agree with Mr Hammond that 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. I agree that Dr Skimmings’ referral to Dr Vorster on 26 October 2022 which noted among current problems “anxiety with depression” tells against Ms Reynolds’ symptoms having resolved by that time.
However, I agree with Mr Perry’s submission that that there could be many reasons for elevated blood pressure and nothing in Dr Skimmings’ notes to say it was due to stress, in particular stress related to Ms Reynolds’ work. Mr Perry submits that I cannot place weight on Dr Allan’s opinion that it was related to work stress without evidence from a qualified doctor to that effect. Regardless, there is simply not enough evidence in Dr Skimmings’ notes from which Dr Allan could rationally draw that conclusion. The brief note that Ms Reynolds’ work was hard, that she “debriefs with her manager” and that she “may subconsciously be taking it home with her” is not enough especially when read in light of Dr Skimmings’ later responses to the insurer. The same goes for Ms Reynolds’ symptoms of anxiety and depression noted by Dr Skimmings.
Dr Allan also noted that Dr Skimmings had referred Ms Reynolds to Ms Baker under a mental health care plan, noting that “her work is very stressful and everything has piled up”. However, that comment has to be read in the context of the whole referral in which
Dr Skimmings referred to matters relating to Ms Reynolds’ family and said they had recently discussed the trauma Ms Reynolds experienced over her mother’s illness and death, and that she had had encouraged Ms Reynolds to see Ms Baker about that. Dr Allan appears to have focussed on one comment only, being that Ms Reynolds’ work was “very stressful”.
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 the “whole cause” of her condition “was the build up of stresses from mid 2022 forward”.
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.
Dr Skimmings reported in clear terms to the insurer on 22 February 2023 and
15 March 2023. She stated she had diagnosed acute stress disorder. She stated that
Ms Reynolds presented with “physical and psychological symptoms of anxiety sleeplessness poor concentration tearfulness days after receiving a poor performance report on her handling of her staff following the death of a DV client”. (emphasis added)
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 to be 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. Christina 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”.
Dr Skimmings described the “the timeline of events that have caused the acute stress reaction” referred to the woman’s murder, that police attended the office, that Ms Reynolds was given an instruction “which related to a performance review”, and Ms Reynolds was told she had not supported her staff “causing symptoms consistent with an acute stress disorder”.
Dr Fernando considered there were “some reported psychological distress from around December 2022” but “clinically significant symptoms that were causing functional impairment” seemed to have started from February 2023. That is supported by
Dr Skimmings’ records.
As to causative factors, Dr Fernando noted the same history taken by Dr Allan of work-related stresses including the restructure, the traumatic nature of being “on call”, lack of support by Ms Mellor, excessive workload in the months leading up to February 2023 and the murder of the woman on 4 January 2023. I do not agree that she relied only on the respondent’s account of events.
Dr Fernando reviewed the documentation and considered the “timeline of [Ms Reynolds’] psychological symptoms and concluded that the meeting on 7 February 2023 and then being placed on a Performance Improvement Plan” was the predominant factor contributing to her current psychological condition. She said other stresses described by Ms Reynolds “were likely vulnerability factors”.
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.

Reasonableness

In Heggie, AJA Sackville said with respect to discipline, but with equal application to performance appraisal:
“The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.”
In Sinclair, Spigelman CJ observed that the entire process must be looked at to see if it was reasonable action within s 11A, including looking at the circumstances surrounding the action, both before and after the action.
In Irwin, Geraghty CCJ said:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
The murder of the woman on 4 January 2023 so close to the Ballina office and closely related to their work, must have been traumatic for Ms Reynolds and the staff at the office. It is understandable that she felt she was closer to the staff than Ms Smith and Ms Mellor, and that she wanted them to hear about the murder from her. Others in her position may well have felt the same, and may have done the same. However, it is the reasonableness of the respondent’s action that is in issue.
Ms Reynolds does not dispute that she was given a clear directive by Ms Smith through
Ms Miller. She agrees that she understood the directive and the reasons for it but she decided not to comply with it. She decided her staff had a right to know the information and to hear it from her.
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.
Other managers might have handled the situation differently but that is not the point.
Ms Smith and Ms Mellor were concerned to establish any involvement the service had had with the woman who was murdered and they were concerned that Ms Reynolds was too “emotional” to tell the staff. Ms Reynolds denies that but, more probably than not, she was very distressed. She says so herself.
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.
Having considered Ms Reynolds’ response to matters put to her at the meeting, her managers determined to put her on a Performance Improvement Plan. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer (Heggie). Particularly in the context of Ms Reynolds’ considered decision to go against the directive, I find that the respondent’s action was reasonable action.

CONCLUSION

I have a lot of sympathy for Ms Reynolds. She was doing important work which is by its very nature stressful and sometimes traumatic, and the service was understaffed. However, for these reasons I find that the respondent has discharged the onus to establish, on the balance of probabilities, that her injury was wholly or predominantly caused by action with respect to performance appraisal and that action was reasonable.
As Ms Reynolds’ claim fails for the reasons given, it is not necessary to determine her entitlement to weekly payments or medical expenses.

[2023] NSWPIC 462

11 September 2023