Roads and Traffic Authority of New South Wales v Gentle

[2009] NSWWCCPD 111

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Roads and Traffic Authority of New South Wales v Gentle [2009] NSWWCCPD 111
APPELLANT:		Roads and Traffic Authority of New South Wales
RESPONDENT:		Robert Gentle
INSURER:		Allianz Australia Insurance Ltd
FILE NUMBER:		A1-2030/09
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:		26 May 2009
DATE OF APPEAL DECISION:		7 September 2009
SUBJECT MATTER OF DECISION:		Psychological injury; evidence; causation; relevance of obsessional personality; whether employment a substantial contributing factor to injury; section 11A of the Workers Compensation Act 1987; refusal of application for adjournment; procedural fairness; application to rely on oral evidence on review
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Thompson Cooper Lawyers
Respondent:	MRM Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 26 May 2009 is confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

1. The respondent worker, Mr Gentle, started work for the appellant, the Roads and Traffic Authority of New South Wales (‘RTA’), as a casual labourer in 1994.  In February 1996 he was promoted to the full-time position of road worker grade 3.

1. He alleges that he received a psychological injury as a result of “continuing bullying, harassment and belittling by management” in the course of his employment with the RTA.  The period of employment relied upon was clarified at the arbitration where counsel made it clear that he relied on the nature and conditions of Mr Gentle’s employment up to and including the date of cessation of employment (T8.6 and T13.12).

1. Mr Gentle’s claim form is not in evidence, nor is there any evidence as to when he first claimed compensation.  However, a section 74 notice from RTA’s insurer, Allianz Australia Insurance Ltd (‘Allianz’), dated 6 July 2007, confirms that a claim was made at some time prior to that date.  Allianz served a further section 74 notice on 21 July 2008 in which it denied liability on the grounds that:

(a) Mr Gentle had not suffered an injury arising out of or in the course of his employment within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’);

(b)     Mr Gentle’s employment was not a substantial contributing factor to the injury, and

(c) any alleged injury was not due to any unreasonable actions by the RTA within the meaning of section 11A of the 1987 Act.

1. By particulars provided by Mr Gentle’s solicitors, MRM Lawyers, on 26 June 2008 it is alleged that the nature of the harassment and bullying was through exclusion from work activities, constant vilification, exclusion from training, and being placed in seclusion from the workplace and from other employees.

1. In an Application to Resolve a Dispute (‘the Application’) registered with the Commission on 17 March 2009, Mr Gentle claimed weekly compensation from 7 July 2007 to date and continuing.

1. By a Reply filed on behalf of the RTA on 7 April 2009, the issues identified in the section 74 notice of 21 July 2008 were repeated and leave was sought to dispute “section 60” and “incapacity”.

1. The matter was listed for conciliation and arbitration at Newcastle at 11:00am on 5 May 2009.  Mr Lowe of counsel appeared for Mr Gentle and, ultimately, Mr Saul of counsel represented the RTA by telephone.  Mr Saul had apparently only been notified of the arbitration at 11:10am on the morning of the hearing.  He sought leave to cross-examine Mr Gentle and to call oral evidence from two lay witnesses on behalf of the RTA, Mr Gentle’s team leader, Kelvin Battle, and his works manager, Greg Wilkinson.  As neither witness was available, Mr Saul sought an adjournment.  The Arbitrator refused the adjournment application and the application to cross-examine does not appear to have been pursued.  After a short adjournment to accommodate Mr Saul, the matter proceeded on 5 May 2009 with counsel making lengthy submissions. 

1. In a reserved decision delivered on 26 May 2009, the Arbitrator found in favour of Mr Gentle on all issues.  The Commission issued a Certificate of the Determination on 26 May 2009 in the following terms:

“1.     Respondent to pay $865.70 per week from 4 February 2008 to 4 August 2008 pursuant to s 36 and thereafter at the rate for a single worker with no dependants pursuant to s 37 to date and continuing.

2.       Respondent to pay s 60 expenses.

3.       Respondent to pay the applicant’s costs as agreed or assessed.  I certify that the matter is complex and that the parties are entitled to a 20% uplift.”

1. By an appeal filed on 23 June 2009, the RTA seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

ON THE PAPERS

1. Section 354(6) of the 1998 Act provides:

“(6)   If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. The RTA submits that the matter should not be determined on the papers and that an oral hearing should be held because the evidence is in conflict and a hearing de novo is required.  For the reasons more fully explained at [170] to [173] I am not persuaded that an oral hearing, or a hearing de novo, is necessary in this matter.  The RTA made lengthy oral submissions at the arbitration and has made detailed written submissions on appeal.

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Mr Gentle that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

FRESH EVIDENCE

1. ‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides:

“(6)   Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

1. The RTA seeks to tender, as “new evidence” on appeal, oral evidence from Mr Battle, Mr Wilkinson and Mr Reynolds.  Reference is made to the statements signed by Mr Battle on 11 February 2009, Mr Wilkinson on 2 February 2009 and Mr Reynolds on 10 March 2009, as a copy of the “new evidence and as providing a brief outline of the new evidence”.  Reliance is placed on the submissions to the Arbitrator as to why the new evidence should be admitted on appeal.

1. The submissions to the Arbitrator in support of an application for an adjournment were (at T1.40):

“…it seems to me that given the disparity in the evidence, particularly the allegations of the worker in respect of bullying and harassment, which is the foundation stone, I think it is made in respect of injury for psychological compensation, I need to or wish to cross‑examine the worker and call two witnesses, those witnesses being his team leader, a Mr Kelvin Battle, I think, and his works manager, Greg Wilkinson.”

1. After referring to Dr Vickery’s evidence, counsel added (at T2.1):

“It’s obviously a very important matter which goes both to injury and to 9A in the light of other matters, and I would very much need you to see these two witnesses and ultimately make findings as to credit. I’ve been in these sorts of cases, you know, in the past, and I’m quite reluctant to run this sort of case on the papers.”

1. The RTA has not complied with Practice Direction No.6, which provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:

·   a schedule of the fresh or additional evidence;

·   a copy of the fresh or additional evidence;

·   a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and

·   submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.

1. Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.

1. Merely referring to copies of statements already in evidence is not proper compliance with the Practice Direction.  The statements that were before the Arbitrator are not new or additional evidence.  The RTA has made no attempt to provide a copy of the new or additional evidence it seeks to rely upon on review. 

1. The statements tendered before the Arbitrator are detailed and comprehensive, having been prepared by Mr Sawyer, a psychologist experienced in matters of this kind.  The RTA has advanced no proper reason in support of its application to rely on oral evidence from Messrs Battle, Wilkinson and Reynolds on appeal and has advanced no reason why these witnesses were not available to give evidence at the arbitration.  It is not in the interests of justice that an open ended application to call oral evidence on review be granted and, in the absence of any proper submissions in support, and for the additional reasons given at [160] to [173] below, the application to rely on fresh evidence is refused.

EVIDENCE

Mr Gentle’s Case

Lay evidence

1. Mr Gentle’s evidence is set out in two statements, the first taken on 2 July 2008 by Gregory Sawyer, psychologist retained by the RTA, and the second on 8 December 2008.  In his second statement, Mr Gentle confirmed the accuracy of his statement to Mr Sawyer.  Unless otherwise indicated, the following summary of Mr Gentle’s evidence is taken from his second statement. 

1. He obtained his school certificate at Macksville High School in 1969.  He left school in 1971 at the age of 17.  After leaving school he worked as a greenkeeper for different employers between 1971 and 1992.  He started work with the RTA in 1994 as a casual labourer in a group of six workers.  Along with the five other workers in his group, he was promoted to a full-time position as a road worker grade 3 in February 1996.  In the first eight years of his employment he spent about 80% of his time performing traffic control duties with the remaining 20% performing general labouring duties. 

1. Mr Gentle’s allegations fall into the following categories.  First, other work options were given to the other grade 3 road workers.  These options included work as plant operators and involved training, higher rates of pay, more comfortable and safer working conditions, opportunities for promotion, and more opportunities for overtime and callouts. 

1. Second, Mr Gentle’s team leader, Mr Battle, was asked to allow one of the six grade 3 workers to be trained as a relief Bobcat operator.  Mr Battle placed the names of the six workers into a hat and asked another worker to draw one name.  Mr Gentle’s name was drawn from the hat, but because Mr Battle did not like him the opportunity to be trained as a relief bobcat operator was given to Dale Nash, a friend of Mr Battle’s son.

1. Third, on a date not identified in the evidence, Mr Battle allowed a co-worker’s daughter to use his two-way radio to taunt Mr Gentle and another traffic controller (Ron Threadgate).  In Mr Battle’s presence, she used derogatory, insulting and demeaning taunts, which were received by contract truck drivers and other RTA staff, for 35 minutes.  Mr Gentle wrote a letter of complaint, but nothing was done.

1. Fourth, in December 2001 the Hunter Road Services Maintenance North Team, which included Mr Gentle, was asked to conduct traffic control for the bushfires that closed the highway at Buckets Way turnoff.  Mr Gentle and two other workers stood controlling traffic for 15 hours without a break while Mr Battle and the works supervisor, Neil Reynolds, stayed in their utilities, sometimes driving into Karuah for drinks and meals for themselves.  The following day Mr Battle was asked to compile a list of workers to go to Sydney and received commendations and certificates of thanks for the hours worked at the fire.  He left Mr Gentle and the two other workers off the list and “took all the credit for himself, Reynolds, Haynes and the truck driver”.

1. Fifth, in February 2004 a fatality occurred at Keels Road and Mr Gentle was asked to perform traffic control that lasted for six hours.  Other workers secured the end of the queue of the northbound traffic.  After the traffic cleared, they were sent home for dinner and a one-hour break.  When they returned to the site it was dark and they commented that it was difficult to see Mr Gentle, as he was not wearing any “night clothes”.  Mr Gentle asked one of them to relieve him, but they went off saying that they were under instruction from Mr Battle not to relieve him.  Mr Gentle’s written complaint to management was ignored.

1. Sixth, when Mr Gentle was performing relief duties at Bulahdelah in the early months of 2005, Mr Battle gave Saturday overtime to contractors instead of Mr Gentle.

1. Seventh, while he was doing office duties at Bulahdelah, Mr Gentle successfully applied for a position as an RTA Code of Conduct and Ethics presenter.  The day before he was to attend training for the position, Chris Osman, the works manager, rang and withdrew his name claiming that he was needed in the office to do paperwork for Mr Battle and Mr Reynolds. 

1. Eighth, Mr Gentle was voted to the position of union delegate and chairman of the wages staff OH & S committee.  He tried to do everything he could for his fellow workers including helping staff who had literacy problems.  The more he did the more Mr Reynolds and his team leaders would “ridicule and vilify” him.  He was overlooked for training, overtime and callouts.  He constantly complained about mistreatment but his complaints were ignored.

1. Ninth, his repeated reports of corruption and maladministration to management were ignored, or covered up, and he had no choice but to take his concerns to the ICAC in August 2007.

1. Tenth, safety standards dropped dramatically with contractors sitting in vehicles instead of standing at their positions controlling traffic, as per traffic control plans.  RTA staff were ignoring the RTA’s safe work method statements.  Mr Gentle was continually frustrated with the “culture generated by Reynolds and his team leaders” as he had spent many years trying to continually improve “moral [sic] and work site safety”.

1. Eleventh, Mr Gentle attended a course to update his traffic controller ticket (the recertification course) and Mr Battle had him removed, claiming he was “shouting out derogatory comments about team leaders, throwing things around the room and making him feel uncomfortable”. 

1. Twelfth, the manager, Mike Blayney, transferred Mr Gentle to Bulahdelah depot to perform office duties.  As the office did not have a fax, printer or photocopier, Mr Gentle was unable to perform any work.  Mr Battle and Mr Reynolds shared the same office block, but locked Mr Gentle out of their offices and all other offices in the building.  They instructed staff not to give Mr Gentle any of their worksheets, accomplishment sheets or daily records.  Mr Gentle’s complaints to the manager, Mr Osman, and Emilia Cvetkovic from the workplace conduct unit were all ignored.  After weeks of complaining, some paperwork was sent to him in sealed envelopes so that Mr Battle and Mr Reynolds would not find out.  This work only lasted a couple of hours and eventually Mr Osman instructed Mr Gentle to stay at home on full pay until his hip replacement operation.

1. Thirteenth, Mr Battle and Mr Reynolds told management at a public meeting that no one wanted to work with Mr Gentle.

1. Fourteenth, Mr Gentle returned to work at Nabiac on Friday 18 January 2008 and was handed a crowbar and shovel and asked to dig holes.  On Monday, 21 January 2008 he was asked to walk 2.7 kilometres up and down hills to close a lane.  On the completion of his shift he walked back picking up witches hats, after which he was unable to walk for a week and a half.  When he returned to work on 31 January 2008 he was placed with another team.  He shared the work and got on very well.  He reported to Mr Wilkinson, the works manager, on Friday 1 February 2008 that everything was good and he’d had a successful two days.  On Monday 4 February 2008 Mr Wilkinson told Mr Gentle that his return to work wasn’t working and he was transferred to Waratah depot, a two and a half hour drive from his home.  Mr Gentle has not returned to work since.

1. At paragraph 35 of his December 2008 statement, Mr Gentle describes the above events in the following terms:

“35.   The above instances are examples of the systematic harassment and singling out that I have been exposed to over the last five years or so.  This has created enormous psychological difficulties for me and is not an exhaustive list of those problems that have eventuated.”

1. In respect of his medical treatment, Mr Gentle states that he consulted his general practitioner who referred him to a psychologist, Rebecca Ray, at Mayo Mental Health Care and then to Dr Akkerman, psychiatrist.  During the period when no work was available for him in January 2008, he became so depressed and stressed about his condition and life that he attempted suicide.  His son saved him and he was admitted for care on 24 January 2008.

1. Mr Gentle does not feel psychologically strong enough to return to work with the RTA, given the belittling and harassing behaviour that he has been subjected to over the years.

1. The statement taken by Mr Sawyer essentially covers the matters set out in the second statement, but includes the following additional information:

(a)     Mr Gentle believes he has been the subject of bullying and harassment since being made a permanent employee;

(b)     Mr Battle took offence because Mr Gentle was attempting to assist other staff and Mr Battle perceived this as an attempt to dethrone him as the centre of attention and this led to “discrimination, vilification, harassment and misuse of his authority”;

(c)     Mr Gentle was aware of abuse of alcohol and drugs, breach of RTA policy and practice in relation to traffic control.  If complaints were raised, that would lead to a decrease in work opportunities and overtime;

(d)     a fatal accident occurred in October 2003.  Immediately following this accident but before the police arrived, Mr Battle and other staff erected signs and traffic controls.  Mr Gentle subsequently prepared a statement indicating that the traffic controls at the time of the accident were not appropriate or in keeping with policy and procedure;

(e)     whilst doing office work in 2005 Mr Gentle was not offered overtime;

(f)   whilst performing office work, Mr Gentle found that Mr Battle was claiming extra time travelling between Nabiac and Bulahdelah and that he claimed time for maintenance work that was in excess of the time required to complete the work;

(g)     Mr Gentle started reporting breaches of policy, maladministration and corruption in 2005 to 2007 but received no feedback apart from being told that he was causing trouble;

(h)     Mr Gentle believes that his having raised these issues and concerns has led to him “getting into trouble”.  He was not supported in securing his supervisory traffic management/setup ticket nor any other tickets/licences;

(i)   while attending the recertification course Mr Gentle made a comment about staff “reading smut books and sitting in their utes”, which prompted Mr Battle to contact Mr Osman and alleged that Mr Gentle was disrupting the course.  As a result Mr Gentle was evicted from the course and he drove in an erratic and dangerous manner when leaving the area, spraying rocks in the car park as he left;

(j)   Mr Blayney made reference to the safety of other staff and Mr Gentle’s behaviour (presumably at the recertification course), which led to Mr Gentle being moved from Nabiac to Bulahdelah in July/August 2007.  Mr Gentle believes the transfer was an example of him being sent to solitary;

(k)     while working at the Bulahdelah depot, staff avoided Mr Gentle and did not want him to see their worksheets.  Not having a fax, printer or work to do led to an increase in his depression.  He had to report every two hours to Mr Simpson or Mr Osman.  Mr Gentle’s complaints fell on deaf ears.  In September 2007 Mr Gentle contacted the workplace practice unit and expressed concern about his treatment.  Mr Osman subsequently approached him and indicated that the interim situation at the Bulahdelah depot was not working and Mr Gentle was placed on full pay at home prior to proceeding on sick leave for his planned hip operation.  Mr Gentle believes he was removed from Bulahdelah “so the organisation could protect itself”;

(l)   Mr Gentle underwent a hip operation in October 2007 and was declared fit to return to office work on 15 December 2007;

(m)   Mr Gentle was admitted to hospital on 20 October 2007 suffering depression after having been informed that staff no longer wanted to work with him;

(n)     a meeting was held with Mr Blayney, Mr Coates (industrial relations), and Mr Sullivan (union organiser), on 7 December 2007 at which Mr Gentle was questioned in relation to having allegedly made an abusive telephone call to a colleague’s wife.  Mr Gentle denied having made any such call.  His substantive duties were clarified and he was asked to provide a current medical certificate that cleared him to resume those duties.  He was directed to raise any further concerns or allegations in relation to “Code of Conduct” through appropriate channels.  It was put to him that other matters he had raised had been dealt with and resolved.  He was told that staff harboured concerns in relation to his behaviour and it had been relayed to them that he was seeing a psychiatrist and was attending counselling sessions.  He was advised that no administrative duties were available.  He returned to pre-injury duties on 18 January 2008;

(o)     after referring to Mr Wilkinson directing him to work at the Waratah depot, Mr Gentle said “This was the catalyst that has led to me continuing on depression related leave following 4^th February 2008” (paragraph 45);

(p)     in April 2008, Mr Gentle was advised that he was the subject of a complaint and investigation in relation to his conduct in July 2007 and the abusive telephone call he allegedly made to a colleague’s wife in November 2007.  An external investigation was being undertaken in relation to the corruption and maladministration matters.  Mr Gentle has struggled with the fact that the investigation appears to have stalled;

(q)     Mr Gentle has struggled with stress, depression and hurt and his activity levels have declined over the past two years.  He has become more withdrawn, intolerant, irritable and tearful at home.  He has struggled with a lack of recognition, ruminated on things and can’t let go of issues;

(r)   he planned to commit suicide in April 2008, but was discovered by his son and taken by ambulance to hospital;

(s)   Mr Gentle has no history of psychological problems, and

(t)   Mr Gentle is struggling with double standards and does not believe management wants to back him.

Emails

1. In an email dated 29 December 2005 addressed to Mr Reynolds, Mr Gentle referred to having received numerous complaints about constant derogatory and insulting remarks from a contractor’s employee, Mr Erickson.  A number of the RTA’s workers, including Mr Gentle, had been regularly insulted by Mr Erickson about their duties, opinions and the way they worked.

1. On 15 June 2006 Mr Gentle wrote to Mr Reynolds, Mr Osman, Ms Henning, Mr Davies and Mr Wright and sent copies to Mr Blayney, Mr Collins and Mr Lamb, stating that, due to frustration and a lack of confidence in management, he was resigning from the wages staff OH&S committee noting that management refused to enforce OH&S policies with regard to smoking in vehicles, wearing of hats, wearing of long sleeve shirts, safe driving, and wearing of basic PPE.  He added that management had lost credibility because it had failed to enforce its own policies which led to committee members having to put up with constant harassment, criticism and ridicule because nothing ever happened.  They were regarded as toothless tigers and labelled bludgers just trying to get out of work.  Mr Gentle said that he used to love his job but now had trouble getting out of bed and coming to work and he had lost incentive.  He suffered with depression and lack of sleep.

1. In a document headed “PC to Michael Blayney” from Danna McConnell dated 6 July 2007, it is acknowledged that “RG” (presumably Robert Gentle) raised issues about unsafe work practices at a worksite he recently visited and that he was upset that issues he raised were not being addressed.  The document added that “MB does not know if the issues raised are true or not but has advised that as RG raised them they will be investigated.”

1. In a document headed “PC to IW at 10.20am” from Danna McConnell, also dated 6 July 2007, no express reference is made to Mr Gentle, but I assume that the document relates to him.  It states that on 4 June 2007 he was instructed to take worksite induction documents to a site for six contractors.  When he arrived at the site the contractors had already started work without having undergone the induction process and were working in the middle of a dual highway with no flagmen.  Mr Gentle reported it as an unsafe work practice.  He again attended at the site the following day when the contractors were still working without a flagman.  He found the situation to be offensive, insulting and frustrating given all the work he had done to put forward safety at the worksites.  He attended his doctor who certified him unfit for work and told him to have no contact with the workplace.

1. On 23 July 2007, Mr Gentle wrote to Dennis Coates about the contract traffic controllers sitting in their utes and waiting until the work was over.

1. Mr Blayney met with Mr Gentle at the Nabiac depot on 24 July 2007 in the presence of Mr Osman to discuss issues raised in emails from Mr Gentle dated 18 and 24 July 2007 (not in evidence) and issues raised by him in a telephone conversation with Mr Blayney on 17 July 2007 concerning the selection of traffic control plans, traffic controller numbers and duties, engagement of contract traffic control, Mr Erickson, supervision of team leaders and allocation of vehicles to team leaders.  Mr Blayney’s memo dated 26 July 2007 states that Mr Gentle had been provided with a response to these issues at a meeting on 5 July 2007 at Bulahdelah and at a meeting on 24 July 2007 at Nabiac.  The memo added:

“The following direction was given to you at the 24 July 2007 meeting:

•  the raising and/or escalation of  workplace issues shall follow the chain of command process whereby it will be elevated to the next level if not dealt with at the lower level (ie Team Leader, Work Supervisor, Maintenance Engineer, Works Manager, Road Services Manager) – please also note the last paragraph under.

•  The practice of raising issues in the first instance by email or telephone which bypasses the above chain of command process will cease (unless covered/required under RTA policy or procedure).

•  Issues arising from a system non compliance will be dealt with in the first instance by the raising of a NRC/CAR, it will then be dealt with using the quality system processes.

It is also noted that you wanted to make contact with the Work Supervisor regrading [sic] the apologies offered to him to date.”

1. The memo added that care was to be exercised in any written correspondence in both content and tone.  Any abusive and or threatening telephone calls or other verbal dialogue with staff which adopted a threatening tone was not acceptable.  It was also noted that over the last six to eight weeks unacceptable behaviour had occurred whilst Mr Gentle was on “suitable duties”.  If that did not cease Mr Blayney would have no alternative other than to withdraw those duties.

1. By email dated 30 July 2007 Mr Blayney advised Mr Gentle of a meeting to be held on 1 August 2007 with himself and Mr Osman to discuss the circumstances of Mr Gentle’s departure from the Nabiac depot on 6 July, Mr Blayney’s letter of 26 July 2007 and the management of Mr Gentle’s medical condition.

1. On 15 August 2007, Mr Gentle wrote to Mr Osman in the following terms:

“I have been at Bulahdelah depot for a couple of weeks now and still there is no printer, no fax and no work.  Sitting in a cold office by myself with nothing to do only adds to my depression.  Its not rocket science that I have been sent to isolation. 

Please give me some work to do.”

1. On 30 August 2007, Mr Gentle wrote to Mr Simpson in the following terms:

“I can’t sit here all day and do nothing.  It can’t be that hard to get someone to drop sheets into Bulahdelah on their way to and from Heatherbrae, unless they have been instructed to drive past, or they just don’t want to drop their work off to me.  In any case I am not going to tolerate this treatment of me for much longer.  I [am] knocking off now and going home.”

1. Mr Gentle wrote to Emilia Cvetkovic on 11 September 2007 saying that he wanted to report what he considered to be harassment.  He added that he had been in the office for six weeks and that the rest of the staff had been avoiding him.  They did not call in and drop off any accomplishment sheets or any daily work records for him to enter.  Most days he had nothing to do.  He had been constantly sending emails to Mr Osman pleading for some work, but no one called in to give him any.  He concluded:

“In our Policy under Key Terms & Examples, harassment: Deliberately excluding a staff member from workplace activities.”

1. Mr Gentle wrote to Mr Simpson on 17 September 2007 saying that he was sorry that he worked so hard and completed his work in record time, but he loved his job and he sought more work.

1. Mr Gentle wrote to Ms Cvetkovic on 23 January 2008 stating that he was sick and tired of the blatant bullying, harassment and discrimination against him by Neil Reynolds and his team leaders.  He also referred to having been made to walk over four kilometres placing doubled up traffic cones in the centre of dual lanes while the team leader drove about in his ute.  He felt constant pain again.  He also complained that management refused to give him office work because, he believed, Mr Reynolds and his team leaders didn’t want him to see their paperwork because he kept reporting their indiscretions.  Except discrimination, he felt that there was no valid reason why he could not do the office work.

Medical evidence

1. Mr Gentle attended on his treating general practitioner, Dr Cassano, on 24 May 2005.  The reason for that attendance is not explained in the doctor’s notes, but the notes include a reference to a script for lexapro, an anti-depressant. 

1. On 26 October 2006, Dr Cassano referred Mr Gentle to Ms Ray.  In her report of 30 October 2006 to Dr Cassano, Ms Ray recorded the following history:

   “As you are aware, Mr Gentle reports depressive anxious symptoms in the context of work related stress in his position as [a] road worker (Grade 3) with the RTA.  He also states that he is suspicious of others and has become intolerant of people in general since experiencing several events over the last 5 years or so that he has interpreted as evidence that ‘you can’t please everybody’ and ‘people are always out to stab you in the back’.  Mr Gentle is resentful and dissatisfied with work practices at the RTA.  He states that he has problems managing his anger, is often tearful and overreacts to trivial situations both in the workplace and at home.  He reports having close relationships with his wife and children despite describing deep personal sensitivity outside of his family relationships.  Mr Gentle also appears to have a vulnerable personality style which may be contributing to his workplace dissatisfaction and impaired social functioning.”

1. Mr Gentle reported having suicidal ideation.  Ms Ray understood that he had provided his work supervisor with a copy of the “EPC Care Plan” and that the supervisor had adjusted Mr Gentle’s work tasks accordingly in order to reduce any stress on him.  Ms Ray believed that a cognitive behaviour therapy approach to treatment with a specific focus on anger management, engendering hope and reinstating pleasant events would be most appropriate for Mr Gentle.  Managing stress in the workplace would also be addressed.

1. In November 2006, Dr Cassano referred Mr Gentle to Dr White for an opinion in respect of his left groin pain that had been present for six months.  Investigations revealed Mr Gentle to have avascular necrosis in his left hip.  Dr White felt it was likely that Mr Gentle would require a total hip replacement.

1. Ms Ray reported to Dr Cassano on 6 December 2006 that she had completed Mr Gentle’s treatment, having seen him for four sessions. Mr Gentle cancelled a fifth and final session due to his painful left hip and associated difficulties driving.  He apparently told her that he did not believe that he needed to attend another session because he was “much improved”.  She added that a cognitive behaviour therapy approach had been used to treat Mr Gentle’s depressive anxious symptoms resulting from work related stress.  She focused on anger management, arousal reduction strategies (controlled breathing and distraction techniques), relaxation strategies, and thought challenging techniques.  Mr Gentle reported obtaining significant benefits from these techniques, which resulted in a perceived reduction in stress and a more positive outlook regarding returning to work.  Ms Ray discussed with Mr Gentle the risk of ongoing symptoms due to the combination of work pressure and his particular cognitive style which often caused him to ruminate on events and become overly involved rather than stepping back to reduce stress.  Mr Gentle was aware of that but was determined to return to work.  He believed he would be able to cope more effectively with the use of the strategies given to him by Ms Ray.

1. Dr Harrington, surgeon, reported to Dr Cassano on 8 January 2007 about Mr Gentle’s left hip.  He suggested alternative treatment before progressing to a total hip replacement.  Dr Hyde Page, orthopaedic surgeon, reported to Dr Cassano about Mr Gentle’s left hip problem on 23 January 2007.  Dr Hyde Page noted that Mr Gentle was developing a very painful stiff left hip. He put him on the waiting list for a total hip replacement.

1. On 5 June 2007, Dr Fairleigh, general practitioner at the same practice as Dr Cassano, wrote to Dr Hyde Page requesting that Mr Gentle be moved onto the urgent waiting list for his hip replacement as he was having severe daily pain and was unable to work and had run out of sick leave.  Dr Fairleigh wrote again to Dr Hyde Page in the same terms on 2 July 2007.  Dr Hyde Page replied on 19 July 2007 that he had organised for Mr Gentle to have a cortisone injection in order to settle the worst of his symptoms.

1. On 5 June 2007 Mr Gentle attended on Dr Fairleigh, stating that he was suicidal as he was “so stressed”.  He said that he “spat the dummy last week as he was so stressed out” and he tried to run into a truck before Christmas.  Dr Fairleigh advised him that if he was seriously suicidal he would have to schedule him and Mr Gentle admitted that he was “just seriously stressed out” and was in significant pain.  Dr Fairleigh issued a WorkCover medical certificate on diagnosing a major depressive disorder and ticking “yes” to the question of whether the worker’s employment was a substantial contributing factor to the injury.  He declared Mr Gentle to be unfit for work from 5 June until 3 July 2007.  In answer to the question “How the injury occurred”, Dr Fairleigh wrote, “He is suffering from a depressive illness resulting from workplace stressors”.

1. On 3 August 2007, Dr Fairleigh referred Mr Gentle to Dr Akkerman.  The referral letter referred to Mr Gentle having “a number of issues at work” and having a “problem with his mental state as a result of circumstances relating to work”.  He added that Mr Gentle was extremely anxious and that he had recently tried to lodge a leave claim on the basis of post-traumatic stress that had been rejected by the insurer as an “emotional reaction” rather than as a “psychological injury”.  Dr Fairleigh felt that Mr Gentle needed treatment and also “a fair assessment as to whether his problems are work related and if so how is work affecting him.”

1. Dr Akkerman reported to Dr Fairleigh on 12 September 2007 that Mr Gentle had worked for the RTA for 12 years.  Though he always worked on the roads, he was currently doing office duties because of the avascular necrosis in his hip.  Mr Gentle had problems with one or two supervisors and lodged a number of complaints about them, but no action had been taken.  He was now being ostracised by his fellow workers.  Mr Gentle said that he became depressed in 2004.  He was put on lexapro, first 10mg and then 20mg.  He was also referred to a psychologist, Ms Ray.

1. Dr Akkerman recorded Mr Gentle to report having the following symptoms:

“Ÿ  He is shaking

•He has shortness of breath

•  He has initial insomnia

•  His concentration is impaired

•  His short-term memory is impaired

•  His level of energy is less

•  His level of interest in things is lacking

•  He is irritable

•  He is tearful”

1. Dr Akkerman noted that his level of lexapro was reduced to 10mg six months ago and that he was waiting for a hip replacement operation.  He also had a skin rash for which he was receiving specialist treatment.  Dr Akkerman encouraged Mr Gentle to find out why liability had been denied and by whom.  He increased his lexapro to 20mg.

1. Mr Gentle was admitted to Manning Hospital in Taree in October 2007 and underwent a total left hip replacement.  He was discharged on 20 October 2007.

1. On 25 January 2008, the Forster Community Health Service faxed to Dr Fairleigh clinical notes relating to Mr Gentle dated 24 January 2008.  Those notes refer to Mr Gentle having been brought in by ambulance after Lifeline telephoned expressing concern for his safety as he had been considering hanging himself.  The notes added that Mr Gentle had been in conflict with some work colleagues and private contractors for the RTA for a number of years and he had made allegations of corruption and failing work practices against these people.  This resulted in him being bullied and mistreated.  He was particularly distressed as he felt the bullying resulted in physical pain from a recent hip replacement.  The notes added that Mr Gentle had been separated from his wife for two months and that it appeared he had alienated his immediate family with his “total preoccupation with his work situation”.  Mr Gentle recognised that to some degree, but said he “must” pursue “justice” even if it destroys other aspects of his life.  Under “Mental state examination”, Mr Gentle was noted to be distressed and frustrated.  His affect was “coloured by leg pain but some distress associated with the ongoing issues in work”.  He complained of some sleep disturbance due to physical discomfort and ruminating on his work situation.  He denied any ongoing suicidal ideation.

1. Under “Clinical impression formulation” the author stated:

“Robert is a 53 yr old man who is depressed in [the] context of ongoing bullying & corruption in work.  He recently had a (L) hip replacement & returned to work on Friday 18/1 where he was made to do heavy manual work.  This continued on Monday, resulting to in severe pain in his leg.

He feels frustrated/angry/depressed at his inability to expose and affect [sic] change in his workplace.

However it appears Robert has gone beyond the usual efforts to resolve workplace inequality & corruption, & it is now all he thinks about.  This has resulted in the loss of his marriage after 30+ yrs & the alienation of other members of his family.

He is now to some extent separated from his loved ones & [indecipherable] in the work setting as a ‘trouble maker’.

This has resulted in him strongly considering suicide on 2 separate occasions.”

1. Dr Akkerman reported to MRM Lawyers on 3 April 2008 when he repeated the history set out in his report of 12 September 2007.  He last examined Mr Gentle on 4 March 2008 when he took a history of the proposed transfer to Waratah and of the suicide attempt on or about 24 January 2008.

1. Dr Akkerman diagnosed Mr Gentle to have an Adjustment Disorder with Anxious and Depressed Mood.  In his opinion, employment was a contributing factor to the injury and he was unable to find any competing causes.  He considered Mr Gentle to be unwell and to be totally unfit for work.

1. Dr Akkerman reported again on 9 September 2008 after having reviewed Mr Gentle again on 2 September 2008.  He noted that Mr Gentle continued to suffer from major depression though he had improved since his lexapro had been increased to 30mg in June of 2008.  He continued to have the following symptoms:

“Ÿ  His sleep is disturbed

•  He has middle insomnia

•  He does not have initial insomnia

•  His concentration is down

•  His short-term memory is down

•  His long-term memory is normal

•  His level of energy is down

•  His level of interest is down

•  His appetite is normal

•  His libido is down

•  He is not irritable

•  He is still tearful”

1. Mr Gentle had received a letter from ICAC saying that it had been established that members of the RTA had been accepting alcohol as gifts and not reporting that fact.  Mr Gentle wanted to return to work and hoped he would improve enough that he would be able to do so with the RTA in a few months.  Dr Akkerman felt that Mr Gentle remained totally unfit for work.

1. The last document in evidence from Dr Akkerman is a medical certificate dated 19 February 2009 in which he again certified Mr Gentle to be unfit for work.

The RTA’s Case

Lay evidence

1. The RTA has tendered a document headed “Chronology of events”.  This document provides a detailed list of the dates relating to Mr Gentle’s conduct and his interaction with several RTA officers.  So far as is relevant to the present claim, the key entries are summarised below:

10 December 2000          Mr Gentle wrote to Mr Francis stating that he was being unfairly treated, harassed and discriminated against in the workplace and that Mr Battle showed favouritism among the teams.

19 April 2002                  Mr Gentle wrote to Mr Francis stating that labourers, including himself were not recognised for their work during the Christmas bush fires when others were and given a certificate.  Mr Francis wrote back acknowledging his work.

22 September 2002         Mr Gentle wrote to Mr Francis regarding alleged derogatory comments made towards him.

25 May 2005                   Mr Blayney met with Mr Gentle regarding a verbal altercation between Mr Gentle and Mr Battle when Mr Battle went on stress leave.  Mr Gentle admitted he was the main protagonist and that he regretted what had happened.  This was the second occurrence of this type of behaviour.

15 June 2006                   Mr Gentle emailed management stating that he was resigning from the wages staff OH&S committee due to management not enforcing safety issues.  Mr Gentle stated that when he asked staff to work in a safe manner he was called a “girl or woos” [sic];

15 August 2006               Mr Gentle emailed Mr Blayney and Mr Reynolds regarding the continual ridicule and criticism from Mr Battle.

11 September 2006         RTA wrote to Mr Gentle acknowledging his complaints of bullying and harassment.

16 September 2006         Mr Gentle wrote to Mr Osman.

25 September 2006         Mr Reynolds reported that Mr Gentle left a threatening voicemail with swear words and accused him of being discriminatory.

25 October 2006             Ms Pauline Roach, grievance network co-ordinator, met with Mr Blayney and Mr Gentle to discuss his concerns.

7 November 2006           Mr Blayney wrote to Mr Gentle following on from the meeting on 25 October 2006.  It was determined that the most appropriate way to deal with the complaints raised by Mr Gentle was via the Grievance Resolution Policy rather than the RTA’s Harassment, Discrimination and Workplace Bullying Policy.

15 November 2006         A mediation was held between Mr Gentle and Mr Battle and “agreement was reached”.

11 September 2007         Report from HealthQuest stated that Mr Gentle showed no signs of a mental health problem.  He was to undergo a hip replacement operation and was temporarily unfit to carry out his substantive duties, but fit for alternative duties or a return to work plan.

9 September 2007           Approval given for Mr Gentle to have six weeks additional paid leave.

17 October 2007             The RTA wrote to HeathQuest about its report dealing with Mr Gentle’s skin cancers and requested the doctor to amend the report because the RTA had evidence contrary to the doctor’s opinion.

23 January 2008              Mr Gentle emailed the RTA that he was tired of bullying, harassment and discrimination against him by Mr Reynolds and team leaders.

30 January 2008              Mr Gentle emailed Mr McInnes that he was taken by ambulance to hospital after a foiled suicide attempt.

29 April 2008                  The RTA engaged Mr Dave Madden to conduct a fact finding investigation into allegations that Mr Gentle had displayed aggressive, erratic and irrational behaviour and conduct towards his co-workers and supervisory staff and that Mr Gentle had made an abusive telephone call on 28 November 2007 to the wife of John Turnbull, an RTA employee.

9 May 2008The RTA amended Mr Madden’s terms of reference to conduct a fact-finding investigation into the alleged bullying and harassment of Mr Gentle.

20 May 2008                   Mr Gentle attended a fact-finding interview with Mr Madden.

31 July 2008                   The director of operations and engineering services was asked to consider the fact finding investigation report and assess the recommendations provided by workplace practices.

2 September 2008           A letter was delivered to Mr Gentle outlining that there was no evidence that he had been bullied or harassed, on the balance of probabilities he had made an abusive telephone call to Mrs Joy Turnbull, his behaviour and actions failed to comply with the standards expressed in both the RTA’s Code of Conduct and Ethics and Harassment, Discrimination and Workplace Bullying Prevention Policy, and the RTA intended commencing disciplinary proceedings in respect of the abusive telephone call made to Mrs Turnbull.  In a separate letter also dated 2 September 2008 Mr Gentle was asked to advise whether he wished to respond to the allegations by way of attending a disciplinary interview, or in writing.  He was also asked to attend a face-to-face debrief meeting.

8 September 2008           Mr Gentle emailed the RTA stating that he was unable to attend a face-to-face debrief meeting scheduled for 9 September 2008.  In addition, an unsigned and undated letter from Mr Gentle was attached to the email which stated that he was sorry for his past actions and attitude and his failure to comply with the standards expressed in the RTA’s Code of Conduct and Ethics, he denied ringing Mrs Turnbull and abusing her and failing to comply with the standards expressed in the RTA’s Harassment, Discrimination and Workplace Bullying (Prevention) Policy, he required a detailed written report outlining the dates, times and details of the allegations made against him, he had been suffering from major depression for some time but was under treatment from a psychiatrist, and until he was cleared by his treating doctor he would not be able to attend a debrief meeting or a disciplinary interview.

12 September 2008         The RTA wrote to Mr Gentle stating that it does not provide copies of investigation reports and that he was formally required to respond to the substantiated allegation regarding the abusive telephone call within seven days.

19 September 2008         The RTA received a letter from Mr Gentle’s solicitors, MRM Lawyers, dated 17 September 2008.

26 September 2008         The RTA replied to MRM Lawyers stating that it does not provide copies of investigation reports to affected parties and that Mr Gentle was required to respond to the substantiated allegation regarding the abusive telephone call by 10 October 2008.

10 October 2008             MRM Lawyers wrote to the RTA stating that Mr Gentle was adamant that he did not make an abusive telephone call to Mrs Turnbull on 28 November 2007, the relationship between Mr Gentle and the Turnbulls had been long and essentially cordial, he had not spoken to either of the Turnbulls about anything work-related since he had been off work (July 2007 onwards), there had never been any friction between himself and Mr Turnbull, he always had a good relationship with Mrs Turnbull, and any discussion between himself and the Turnbulls since July 2007 had been on a social footing.

20 October 2008             The RTA contacted Mr Turnbull to seek his response and was informed that 12 months prior to the phone call he had a good relationship with Mr Gentle.  In the 12 months leading up to the phone call the relationship deteriorated.  One day Mr Gentle would talk to him and the next day he would not.

Mr Battle’s evidence

1. Mr Battle appears to have provided a statement to Mr Sawyer in December 2008 though it was not signed and dated until 11 February 2009.  Mr Battle has been a team leader with the RTA at Bulahdelah for many years.  He initially found Mr Gentle to be positive and there were no difficulties.  He thought he was “happy go lucky” but was quick tempered and vocal in relation to issues of perceived concern.

1. Mr Battle agrees that Mr Gentle worked predominantly as a traffic controller but states that he “tried to look after him” and provide him with appropriate work and overtime as required.  The provision of overtime was not only governed by equity/rostering, but also by skill mix, timeframe and travelling distance for available staff.  As a general rule, all permanent staff would have been offered overtime before it was offered to contract staff.

1. In respect of Mr Gentle seeking bobcat training, Mr Battle elected to use experienced operators at times of high work demand and/or at crash scenes rather than training other staff who would have been inexperienced and dangerous on that machinery.

1. Mr Gentle has never recently spoken to Mr Battle in relation to other tickets he was keen to secure.

1. Whilst initially critical of contractors, Mr Gentle was now highly supportive of them.  Mr Battle believes that he looked after Mr Gentle and supported him and refuted any suggestion that “he has been harassed”.

1. He alleges that Mr Gentle told him he has experienced longstanding family related problems with his children and wife.

1. It was his impression, for reasons that remain unclear, that there was a pronounced change in Mr Gentle’s demeanour and behaviour five years ago. 

1. Mr Gentle was recommended for the union and functioned as a union delegate and became involved in occupational health and safety matters.  In Mr Battle’s opinion, Mr Gentle became “too officious and critical”.  Mr Gentle never raised rorting and corruption issues with Mr Battle.

1. There was escalating tension/conflict between Mr Battle and Mr Gentle that culminated in an altercation approximately three years ago.  Mr Gentle was being critical and abusive towards Mr Battle on a daily basis.  At the time Mr Battle was more vulnerable following the death of his mother and he came close to “physically over responding” and he “almost pursued stress related leave”.  This culminated in mediation between Mr Battle and Mr Gentle in November 2005.

1. Other men lost trust in Mr Gentle “given a history of rage and erratic behaviour” and Mr Battle found it increasingly difficult to work with him in these conditions.

1. Mr Gentle was increasingly used in an office/administrative capacity because he had an interest and ability in this area and his tendency to make snide remarks regarding other staff put him off side with those people.

1. Mr Gentle was moved from Bulahdelah to Nabiac where he continued to work in an administrative capacity.  It was Mr Battle’s understanding that Mr Gentle continued to exhibit similar behaviour towards other team members.

1. At a training session in July 2007 Mr Gentle made snide and negative comments designed to put the team and other staff members down in front of the presenter.  Mr Battle contacted the engineer and advised that Mr Gentle was being disruptive.  The trainer asked Mr Gentle to leave.  Mr Gentle became angry and drove off spinning the wheels of his car in the gravel.  Mr Battle has not seen Mr Gentle since.

Mr Reynolds’ evidence

1. Mr Reynolds also gave a statement to Mr Sawyer in December 2008, but his statement does not appear to have been signed and dated until 10 March 2009.  He has been employed as a work supervisor with the RTA in the Hunter and North Region for 20 years.

1. It was his impression that the initial issue that contributed to escalating problems revolved around an incident at Coolongolook involving a contractor “perhaps 18 months ago” when Mr Gentle raised issues in relation to the contractors having not been inducted.

1. Previously Mr Gentle had raised issues as to why he was not called for overtime and why contractors were used instead.  He telephoned Mr Reynolds and “conducted himself in an abusive and threatening manner”.  Contrary to Mr Gentle’s assertions, Mr Reynolds always offered overtime to RTA staff first and only offered it to contractors if he was unable to fill shifts.

1. It was Mr Reynolds’ impression that prior to 2005 there had been no significant difficulties.

1. Mr Gentle had access to information from running sheets completed by staff and was using that information to cast aspersions and appeared to be sending issues and concerns to Occupational Health and Safety, WorkCover and senior management.  Mr Gentle had approached Mr Reynolds about allegations of corruption.  Mr Reynolds spoke with certain staff and addressed matters.

1. Mr Reynolds was aware that Mr Gentle experienced pain and frustration related to a hip problem that had been escalating, possibly post 2005 and that his behaviour had become increasingly erratic and unpredictable.

1. He was aware that there had been a mediation between Mr Gentle and Mr Battle in 1999/2000 and they had worked through issues.  Whilst Mr Battle adhered to the agreement that was reached, it was Mr Reynolds’ impression that Mr Gentle continued to breach the agreement and “behave in a threatening manner”.  Mr Gentle had spoken to Mr Reynolds on a number of occasions “in relation to the pain he was experiencing and had contemplated hanging himself”.

1. It was Mr Reynolds’ impression that Mr Gentle was raising occupational health and safety issues but these were concerns “based on his perception and he was waging a campaign and using the systems to support the same and wanted to get myself and other staff into trouble and he said the same”.

1. Mr Reynolds has increasingly been asked by management to answer allegations generated by Mr Gentle.  He struggled with this and felt unsupported by management.  He was increasingly struggling to cope with Mr Gentle and handed responsibility for managing him to “Mr Osmond” [sic, Osman].  Mr Gentle was moved from Bulahdelah to Nabiac.

1. Mr Gentle was moved back to Bulahdelah and was responsible for filing and data processing.  Staff were reluctant to send work records to him, given how he had complained in the past.

1. During a traffic controller recertification course in July 2007, Mr Gentle interjected and made a number of inappropriate comments.  Mr Reynolds was informed of those comments and advised the engineer. The trainer then asked Mr Gentle to leave.  After this, Mr Gentle was placed on paid leave and extended sick leave until he returned to work in January 2008 after he was cleared for full road duties.  There was significant concern harboured by a number of staff in relation to Mr Gentle resuming duties.  On Mr Gentle’s first day back he made accusations against his team leader and breached agreements that had been entered.

1. Mr Gentle was supported in commencing work with a different crew at Nabiac managed by Mr Wilkinson.  However, there were complaints and statutory declarations received in relation to Mr Gentle’s behaviour and he was spoken to in relation to these matters and was advised of a plan to relocate him to the Waratah depot.  This was the catalyst that led to Mr Gentle walking out and pursuing stress related leave.

1. The working relationship between Mr Gentle and other staff had been irreplaceably damaged.

Mr Blayney’s evidence

1. Mr Blayney provided a statement to Mr Sawyer on 2 July 2008, which he signed on 7 July 2008.

1. He has worked with the RTA as a road services manager in the Hunter region for four years.

1. Mr Blayney met Mr Gentle in October 2006 when Mr Gentle raised a number of issues in relation to his workplace including dissatisfaction surrounding a lack of support and opportunity to secure training/competencies and tickets for other plant including bobcats, allocation of work practices, his appointment as a presenter of ethics and conduct not being supported at a local level, and limited opportunities for higher duties.

1. Mr Blayney was advised that during 2005 and 2006 Mr Gentle had been given the opportunity to function as a works assistant.

1. In November 2006, Mr Gentle had been deemed medically unfit to perform his full substantive duties as a road worker and Mr Reynolds supported him continuing to work in an administrative capacity.  As Mr Gentle’s physical incapacity was not work related, Mr Reynolds was not obliged to provide alternative duties.

1. In respect of Mr Gentle being a presenter of ethics and conduct, this was contingent on him being released from his duties and those duties being backfilled at the local level.  At the time Mr Gentle was functioning in a higher duties capacity and could not be released.

1. Mr Blayney felt that the matters dealt with at the October 2006 meeting had been satisfactorily responded to and finalised.  A mediation session was arranged with Mr Gentle and Mr Battle for 15 November 2006.

1. Whilst working in an administrative capacity, Mr Gentle took a number of induction forms to a worksite in May 2007.  He was critical of the traffic management layout and complained to Mr Reynolds.  Three days later Mr Gentle challenged the site supervisor and later left an abusive message on Mr Reynolds’ mobile telephone.  On or about 3 July 2007 Mr Gentle telephoned the Darby Street office and was abusive to an RTA staff member.

1. Mr Blayney met Mr Gentle on 5 and 24 July 2007 and a letter was forwarded to him.

1. It is Mr Blayney’s understanding that Mr Gentle behaved in a disruptive and unsettling manner at a training session in July 2007 and the trainer directed Mr Gentle to leave.  Following this, Mr Gentle spoke in an abusive manner and drove unsafely when leaving the workplace.  Mr Blayney met Mr Gentle on 1 August 2007 to discuss this incident.  When Mr Gentle’s version of events was challenged he “lost his temper and stormed out of the meeting”.  In Mr Blayney’s mind this outburst “crystalised escalating concerns in relation to his mental stability and the risk he posed to others”.  Mr Blayney put to Mr Gentle at the meeting that he would need to either proceed on the sick leave or accept relocation to the Bulahdelah depot “in isolation from others where he could undertake interim administrative duties prior to him undergoing a planned hip operation in October 2007”.  Mr Blayney added (at paragraph 18):

CONCLUSION

1. Having conducted a review on the merits (per Spigelman CJ in Chemler at [28]), I have concluded that the Arbitrator’s decision is correct and, for the reasons in this decision, I agree with his conclusions.

DECISION

1. The Arbitrator’s determination of 26 May 2009 is confirmed.

COSTS

1. The appellant employer is to pay the respondent worker’s costs of the appeal.

Bill Roche
Deputy President

7 September 2009

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE