Rudiak v Australian Unity Home Care Services Pty Ltd
[2021] NSWPIC 88
•21 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Rudiak v Australian Unity Home Care Services Pty Ltd [2021] NSWPIC 88 |
| APPLICANT: | Nelly Rudiak |
| RESPONDENT: | Australian Unity Home Care Services Pty Ltd |
| MEMBER: | Mr John Isaksen |
| DATE OF DECISION: | 21 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly payments of compensation, medical expenses and permanent impairment due to psychological injury; respondent relies upon section 11A defence that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to transfer, promotion, demotion, performance appraisal and provision of employment benefits; reference to Hamad v Q Catering P/L; Held – section 11A defence not established by medical evidence relied upon by respondent and not being able to establish actions with respect to transfer and promotion were reasonable; award of weekly payments of compensation for periods of no current work capacity and partial incapacity for work, medical expenses and referral to Medical Assessor for assessment of permanent impairment. |
| DETERMINATIONS MADE: | 1. The applicant sustained a psychological injury in the course of her employment with the respondent with a deemed date of injury of 5 October 2019. 2. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987. 3. The applicant had no current work capacity from 5 October 2019 to 13 September 2020 as a result of her injury. 4. The applicant has had partial incapacity for work since 14 September 2020 as a result of her injury. |
| ORDERS MADE: | 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $747.47 per week from 17 March 2020 to 13 September 2020 pursuant to section 37 (1) of the 1987 Act, with the respondent having credit for any payments made during this period; (b) $325.67 per week from 14 September 2020 to date and continuing pursuant to section 37 (3)(b) of the 1987 Act. 2. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for her psychological injury pursuant to section 60 of the 1987 Act. 3. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 5 October 2019 (deemed) Body Part: Psychological injury Method of Assessment: Whole Person Impairment 4. The following documents are to be forwarded to the Medical Assessor: (a) The Application to Resolve a Dispute (ARD) and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents filed by the applicant on 8 March 2021; (d) A copy of this Certificate of Determination and Statement of Reasons. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Nelly Rudiak, claims that she sustained a psychological injury in the course of her employment with the respondent, Australian Unity Home Care Services Pty Ltd.
The applicant claims that between 2011 and 4 October 2019 she was the subject of unfair treatment by the respondent, including being moved to different temporary positions when she had displayed the ability to maintain a permanent position in an administrative capacity within the respondent’s business, which caused to sustain a psychological injury.
The applicant received weekly payments of compensation and the payment for medical treatment until a dispute notice was issued by icare on 1 April 2020 wherein liability was disputed on the grounds that the psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer, demotion, promotion, performance appraisal and provision of employment benefits, and that the applicant was fit for her pre-injury employment.
The decision to dispute workers compensation liability was maintained in a further dispute notice dated 1 July 2020.
The applicant claims weekly payments of compensation from 23 April 2020; the payment of further medical treatment for psychological counselling, consultations with a psychiatrist, and medication; and a lump sum payment for 15% permanent impairment for her psychological injury.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Whether psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer, demotion, promotion, performance appraisal and/or provision of employment benefits (section 11A of the Workers Compensation Act 1987 (the 1987 Act));
(b) The extent of the applicant’s incapacity for work as a result of her injury (sections 32A, 33, 36, 37 and Schedule 3 of the 1987 Act);
(c) The assessment of permanent impairment as a result of the applicant’s injury (section 66 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 29 March 2021. 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.
Mr Baran appeared for the applicant, instructed by Mr Kovics. Ms Goodman appeared for the respondent, instructed by Ms Belinda Brown.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $934.34.
The hearing was conducted by telephone in accordance with the protocols set out by the Commission due to the coronavirus pandemic.
The hearing could not be completed with the time allocated for the conference and hearing, and directions were made for the applicant to file and serve the balance of her submissions in writing by 1 April 2021, and the respondent to file and serve any written submissions in reply by 12 April 2021.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 8 March 2021.
Oral Evidence
There was no application to adduce oral evidence or to cross examine any witnesses who have made statements, and which have been admitted into evidence.
The applicant’s evidence
The applicant has provided statements dated 24 October 2019 and 14 December 2020.
The applicant states that she commenced employment with Home Care Services as a care worker in 2011. She states that Home Care Services was privatised in 2017 but that the transition period went for two years. She states that employees such as herself who were conducting higher duties were promised a higher rate of pay. The applicant contends that this promise was made verbally to her by the CEO.
The applicant states that she worked in an administrative role in 2012 but then returned to her substantive care work role from 2012 to 2015. She states that she was paid a lower rate of pay for care work compared to administrative work.
The applicant states that in 2015 she sustained a work injury to her right forearm and was off for a short period of time. She states that she returned to work to an acting Administration Officer role in May 2015. She states that her duties included service coordinator duties, case management and general administration duties, which provided her with a higher rate of pay.
The applicant states that there was confusion as to her correct rate of pay because of regular inconsistencies.
The applicant states that from 2015 she continued to work in acting administrative roles for the respondent at branches within the Sydney area. She states that she never received any formal or informal warnings and her work performance was never adversely questioned.
The applicant states that in February 2017 she was working as a Service Coordinator at the St George branch and applied for a permanent position in that role for the Sutherland branch. She states that she received no feedback from her interview for this position. She states that the permanent role was not filled at the Sutherland branch and that she was transferred to work in that role on an acting basis for six months from March 2017.
Ms Rudiak states that she met her KPIs for the job at Sutherland but was transferred back to the St George branch after six months and later found out that another paid care worker was assigned the role at Sutherland. She states that this made her feel mistreated by her employer.
The applicant states that she took annual leave between January and April 2018 but had asked her manager at the St George branch, Lisa Tarrant, to inform her if any permanent vacancies arose while she was on leave. She states that she understood that a permanent employee was resigning from a service coordinator position at that branch. She states that when she returned from leave she found a personal friend of Lisa Tarrant has secured this position. Ms Rudiak states that she felt the process was unfair and unreasonable towards her.
The applicant states that in August 2018 she was transferred to the Hornsby branch and applied for a permanent role at that location. She states that she attended the interview for the position but was unsuccessful, even though she was praised as a good interviewee. Ms Rudiak states that she felt cheated and humiliated by her employer, and that she was experiencing high levels of stress and anxiety during this time.
The applicant states that in late September 2018 she sustained an injury to her right shoulder while on her way to work, and was off work due to this injury until 7 December 2018.
The applicant states from December 2018 to early March 2019 she was transferred to the Maroubra branch. She states that during this time she received an email from the Regional Manager, Ramona Kleipas, stating that if the applicant did a good job then she would secure a full time position at that branch.
The applicant states that in March 2019 she was transferred back to the Hornsby branch. She states that she applied for a permanent role in August 2019 but was subsequently told that she was unsuccessful. She states that she had kept her side of the bargain by exceeding her job role but she was not being recognised by the respondent. She states that her stress and anxiety were worsening because she had applied for so many permanent roles but was being told that she was not suitable.
The applicant states that when she returned to work in July 2019 after taking some annual leave, she was informed by her manager, Melissa Manuelpillia, that she had been overpaid. She states that she had no problem paying the money back but an amount of $1,760 was deducted from her pay for the fortnight ending 19 July 2019 without her consent. She states that the behaviour of Ms Manuelpillia was sarcastic and intimidating towards her, and she was treated like a criminal because she was being told that she should have informed the respondent of this error while she was on leave.
The applicant states that on 18 September 2019 she was given the option of returning to care work from the Gosford branch or take a two week transfer to the Dee Why branch. She states that she decided to return to care work but was then told that the placement would not start until 30 September 2019. She states that she would have to take leave without pay until then but was then able to secure work at the Hornsby branch until 30 September 2019.
The applicant states that on 4 October 2019 she was informed by the Regional Manager, Heather Gerard, that the Gosford position was still not ready and that she had to return to the Hornsby branch or one week of annual leave would be taken from her. She states that she had reached “the final straw” and she could not take any more. The applicant states:
“All of the false hope of permanent employment, the mental abuse and bullying, together with payroll issues had taken a toll on me causing me to seek medical attention.”
The applicant states that she attended Dr Henin on 5 October 2019 and was provided with a Certificate of Capacity from Dr Henin and a referral to a psychologist.
The applicant states in her statement dated 14 December 2020 that she feels constantly depressed and sad. She states that she has lost motivation and confidence in herself. She states that she cannot concentrate for long periods of time and that she has stopped reading because words seem like a blur. Ms Rudiak states that she does not feel she can return to work with the respondent because she is scared of the way the respondent would treat her.
The respondent’s lay evidence
Ramona Kleipas has provided a statement dated 31 October 2019. She states that she has held the position of General Manager – South East, Home & Disability Services with the respondent since 2013.
Ms Kleipas states that the applicant was provided with administrative duties as part of her return to work plan following an injury the applicant sustained to her right forearm in February 2015. She states that the applicant did not wish to return to care work and was looking for office based roles and the applicant was successful in finding short term temporary roles in various branches.
Ms Kleipas states that the applicant was to return to her substantive role as a care worker in August 2017. She states that the applicant applied for a permanent position as a Service Coordinator but that there were a number of candidates for that position and the applicant was unsuccessful. Ms Kleipas states that an experienced Service Coordinator from the Canterbury branch was successful.
Ms Kleipas states that the applicant was provided with constructive feedback by Michelle King who was part of the interview panel. The feedback included the applicant not answering actual questions and going off on tangents. She states that Michelle King then provided mentorship to the applicant but that the applicant’s approach and style came over as aggressive and intimidating.
Ms Kleipas states that the applicant was then given a temporary role as a Service Coordinator at Sutherland, which would help her gain more experience following the outcome of the applicant’s previous application for such a position. Ms Kleipas states that the applicant’s manager, Mary Turcsanyi, considered that the applicant did not demonstrate the required capabilities for the role and the applicant’s overall performance was average.
Ms Kleipas states that the applicant was also unsuccessful in her application for a permanent role at the Bankstown branch because the applicant did not perform well at the interview and the branch manager had concerns about the applicant’s work performance while she was acting in that role.
Ms Kleipas states that any suggestion of the respondent being in any way unfair or unreasonable or depriving the applicant of a permanent job role at the Sutherland branch is totally false and that the applicant was given every opportunity to meet the job criteria that she applied for. She states that despite the many opportunities provided to the applicant, the applicant did not develop the required capability to successfully obtain an ongoing position.
Ashleigh Scott has provided a statement dated 31 October 2019. She states that she currently holds the position of Service Centre Manager at the Gosford branch.
Ms Scott states that in August 2018 the applicant filled an acting role as an Allocations Coordinator at the Hornsby branch. She states that during the time the applicant was working at the Hornsby branch, a permanent position for an Allocations Coordinator became vacant. She states that the applicant applied for the position but there were better applicants who were ranked higher than the applicant. She states that the applicant was provided with feedback on how she could improve her interviewing techniques. Ms Scott states that she was very supportive towards the applicant and did not observe any visible signs of stress and anxiety in post-interview discussions with the applicant.
Ms Scott states that in September 2018 the applicant sustained a slip and fall injury to her right shoulder and she had little to do with the applicant until later in 2019. She states that in September 2019 the regional manager, Heather Gerard, told her that she should give consideration to the applicant if any positions became available at the Gosford branch.
Ms Scott states that the applicant was to work at the Gosford branch while she prepared to return to care work and that this was scheduled for 30 September 2019. She states that she was then advised that the Gosford transfer was to be placed on hold because the claimant was required for urgent work elsewhere. She states that there were discussions in early October 2019 to transfer the applicant to the Gosford branch but that she had no further involvement with the applicant.
Melissa Manuelpillai has provided a statement dated 31 October 2019. She states that she has been the Branch Manager at Hornsby since 2009.
Ms Manuelpillai states that in early 2019 the applicant started in a six month temporary role as an Allocations Coordinator at the Hornsby branch. She states that when the applicant commenced her work at the Hornsby branch, she expressed to
Ms Manuelpillai her disappointment in not being able to secure permanent roles.
Ms Manuelpillai states that she told the applicant “we would start on a clean slate” and that Ms Manuelpillai would monitor the applicant’s performance and provide regular feedback.
Ms Manuelpillai states that in August 2019 a permanent position for an Allocations Coordinator became available in the Hornsby office. She states that both the applicant and another employee of the respondent were unsuccessful because they did not meet the full job criteria. She states that she provided constructive feedback to the applicant and that the applicant accepted this and thanked her. Ms Manuelpillai states that because no applicants were suitable for the role, it was to be re-advertised and after obtaining approval from HR, she did advise the applicant that she was welcome to apply for that position again.
Ms Manuelpillai states that while the applicant was on leave overseas between May and July 2019, it was discovered that the applicant was being paid her regular fortnightly wages rather than her leave entitlements, which were not enough for the entire period that she was away from work. Ms Manuelpillai states that she spoke to the applicant about this when the applicant returned from her leave and that the applicant accepted that an overpayment had taken place, although an actual figure had yet to be established. Ms Manuelpillai states that the payroll department deducted a fortnight’s wage from the applicant’s bank account without notifying the applicant but that it was deposited back into the applicant’s account “after sometime” and a repayment plan was entered into with the applicant.
Ms Manuelpillai states that at no stage did she speak to the applicant in a sarcastic or intimidating manner regarding this matter or accuse the applicant of fraudulent activity.
Ms Manuelpillai states that she returned from her own annual leave in mid October 2019 to be advised that the applicant had lodged a claim for psychological injury at work.
Heather Gerard has provided a statement dated 31 October 2019. She states that she currently holds the position of General Manager-Metro Hunter region.
Ms Gerrard states that she has had very little involvement in this matter. However, she states that applicant has applied for a number of permanent job roles and that constructive feedback has been provided to the applicant at the conclusion of interviews. She states that the applicant has been given all the support and feedback to assist her in submitting job applications, but the applicant does not seem to take that on board.
Ms Gerard states that towards the end of a six month secondment as Allocations Coordinator at the Hornsby office, the applicant was advised that she would return to her substantive position as a care worker. She states that this transfer was put on hold pending a medical clearance from the applicant’s general practitioner that the applicant could meet the inherent requirements of a care worker position. She states that in the interim an opportunity had become available for a position at the Dee Why office, although the applicant could work from the Hornsby office.
Ms Gerard states that the applicant wanted a week off and that she told the applicant it would have to be taken as annual leave, although this was disputed by the applicant. Ms Gerard states that after the one week of annual leave, the applicant returned to work at the Hornsby office for one week, but that Ms Gerard cannot comment on what took place upon the applicant’s return to work after her one week of annual leave.
There are various emails in both the ARD and Reply which relate to the applicant’s employment with the respondent.
There is an email from Ms Kleipas to the applicant on 29 January 2019 advising the applicant that she is being offered a six month temporary contract for the Allocations Coordinator role at Northern Sydney. Ms Kleipas writes that this “will allow you a good period of time to work at the branch and demonstrate your skills and capability for the role.”
The applicant replies to Ms Kleipas the next day: “This is very good news, thank you very much for doing this for me.”
There is an email from Wendy Morahan to Ms Kleipas on 27 February 2019 which states:
“Nelly has just informed me Melissa has asked Nelly if she can go to her branch from 11th March 2019.
Unfortunately that leaves us without an Allocations Coordinator for Cynthia’s area. Nelly has been doing really well in that area as it is quite complex.”
There is an email from Ms Kleipas to the applicant on 5 March 2019 informing the applicant that she would be receiving a recognition payment of $1,000 that is paid to admin staff for the 2017/18 financial year. The applicant responds: “WOW – Thank you very much Ramona.”
There is an email from Ms Kleipas to the applicant on 3 September 2019 informing the applicant that upon the end of her current secondment and that unless the applicant can secure a temporary extension or permanent appointment, she will have to revert to her care worker role in the St George area. Ms Kleipas also advises the applicant of temporary positions in the Southern Sydney Service Centre and at Maroubra.
The applicant responds to that email on 5 September 2019 as follows:
“I am surprise by your plan to have me back at Sutherland since you are aware that I moved to Central Coast.
My moved was motivated by our previous discussion about an opportunity of permanent position in Hornsby if I could prove myself.
I have been working here since March this year and I believe I proved myself to be capable of taking up permanent position in Hornsby.”
Ms Kleipas responds that the applicant’s substantive role region is the south east region and that region has the responsibility to support the applicant if secondment is not extended or the applicant does not have a permanent role.
The medical evidence
On 11 October 2019, Dr Henin provides handwritten answers to questions posed by EML. Dr Henin is asked to list and detail all the factors/incidents which led to the applicant’s injury and answers:
“Unsupportive work environment
Work instability as they keep moving her
Unsolved financial issues according to the patient as she is not paid fairly.”There are notes from Stella Bowring, psychologist, which reveal that she has been treating the applicant since 21 October 2019. However, it is difficult to draw any conclusions from the contents of those notes on the cause of the applicant’s psychological injury, and Ms Bowring has not provided a report.
Dr Hong, consultant psychiatrist, has provided a report dated 14 September 20120 at the request of the applicant’s solicitors.
Dr Hong records that the applicant worked in numerous branches doing ad hoc administration work and that the applicant would go wherever she was directed to by the respondent, including offices that were not close to her home. He records that the applicant became significantly distressed in the three months before she ceased work in October 2019 because she had been promised a full time role at Hornsby when she had started a six month secondment, but her manager had then changed her mind.
Dr Hong records that the applicant believes she was treated unfairly and bullied by the respondent because of the promise of a permanent position that was never delivered and also because he was required to accept a lower pay while working at Hornsby in 2019. Dr Hong also records the episode of overpayment of wages while the applicant was on leave and that the applicant became distressed when she was not paid for a fortnight.
Dr Hong also records that the applicant did not believe the respondent treated her with fairness when she was required to return to care work after her application for a permanent job was not successful, yet another employee who was also unsuccessful for the position was allowed to stay in an administration role.
Dr Hong found on examination that the applicant was slow in reply and lacked spontaneity and needed prompting to recall aspects of her history. He records that the applicant thought she could return to some office work but she was not sure how many hours of work she could perform.
Dr Hong diagnoses a Chronic Adjustment Disorder with anxiety and depression. He opines that the applicant’s employment is the substantial and main contributing factor to her psychological injury. Dr Hong writes:
“Ms Rudiak had been feeling stressed in relation to the way her manager had promised things and subsequently not follow through. She believed she had been treated differently to other people and gave examples of this, and reported that this was on a background of a pre-existing injury she has sustained on the way to work, but her employer refused to allow her to apply for WorkCover. Finally, she stated that her employer has been trying to force her to return to home care work which is beyond her physical capacity.”
Dr Hong opines that the applicant is not fit for her pre-injury duties on a full time basis but that she could perform around 20 hours of office work each week in a small office so that her social anxiety is not triggered.
Dr Vickery has provided reports dated 5 February 2020 and 6 November 2020 at the request of the respondent.
In his first report dated 5 February 2020, Dr Vickery records that the applicant was employed as a Service Allocator with the respondent and was transferred from Maroubra to Hornsby in February 2019 with a reduction of payment of $5 per hour. He also records that the applicant was not successful in her application for an allocator position with the respondent in September 2019.
Dr Vickery records that the applicant then accepted a position in Gosford but then was told the position was not available and she did not want to go to a position at Hornsby that was offered to her. He records that she requested a day off work to “adjust” but this was denied to her.
Dr Vickery opines that the applicant’s employment is the main contributing factor to an Adjustment Disorder, but that the condition had substantially resolved when he saw her in February 2020. He considered that the applicant was able to return to work with the respondent.
Dr Vickery is asked:
“Do you believe that the reasonable actions taken by the employer when applying for permanent advertised roles are the whole or predominant cause of the Claimant’s diagnosable injury? Could you please provide your rationale?”
Dr Vickery answers:
“It is my opinion the reasonable actions taken by the employer when applying for permanent advertised roles are the whole or predominant cause Mrs Rudiak’s diagnosable injury on the basis of the history provided.”
In his second report dated 6 November 2020, Dr Vickery does not provide any more details of the history of the applicant’s psychological injury. It is apparent that this report is prepared principally in response to the claim for 15% permanent impairment made by the applicant.
In this second report, Dr Vickery diagnoses Adjustment Disorder with anxiety with partial remission. He places the applicant in Class 2 for Employability in the PIRS scale and considers that the applicant is fit for up to 20 hours of work per week.
Dr Vickery writes in both of his reports that the applicant was able to relate a coherent and chronological history and that the applicant had no apparent cognitive impairment.
Dr Henin has provided Certificates of Capacity which certify the applicant having no current work capacity from 8 October 2019 to 24 July 2020 due to her psychological injury.
FINDINGS AND REASONS
The section 11A defence
The respondent concedes that the applicant sustained a psychological injury in the course of her employment. The respondent contends, however, that the applicant’s psychological injury has been wholly or predominantly caused by reasonable action taken with respect to transfer, demotion, promotion, performance appraisal and the provision of employment benefits, and that pursuant to section 11A (1) of the 1987 Act, no compensation is payable to the applicant.
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.”
Ms Goodman for the respondent submits that each of the applications made by the applicant for a permanent role with the respondent can be regarded as action taken with respect to transfer in accordance with the decision in Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; 19 NSWCCR 181 (Doyle).
Ms Goodman also submits that the actions taken by the respondent also meet the following categories in section 11A (1) of the 1987 Act:
(a) promotion, because the applicant was seeking a higher rate of pay;
(b) demotion, because at the end of the period of secondment the applicant was to revert to her substantive role as a care worker;
(c) performance appraisal, because the applications made for permanent positions with the respondent would necessarily involve an evaluation of the applicant’s skills; and
(d) provision of employment benefits, because the applicant was receiving a higher rate of pay in the temporary positions which she filled.
Ms Goodman submits that the respondent’s actions were reasonable because the respondent had to determine whether the applicant was suitable for each role she applied for on the merits of her application, provided the applicant with reasons as to why she was not successful, provided positive feedback to the applicant following each application, let the applicant know of forthcoming vacancies, and offered her temporary jobs that would enhance the applicant’s prospects if she made further applications for permanent positions.
Mr Baran for the applicant submits that the section 11A defence has no basis in fact or in law and must be dismissed.
Mr Baran submits that the dispute notices issued on behalf of the respondent fail to identify with any precision the actions which the respondent contend were reasonable and which meet any of the categories referred to in section 11A of the 1987 Act. He submits that the section 11A defence cannot be relied upon by the respondent because that defence has not properly been placed in dispute.
Mr Baran submits that over several years the applicant was required to work in different locations and that it is extraordinary to believe that the applicant would not have suffered significant stress from these constant changes, especially when she sought some permanency and normality to her employment. He submits that such actions by the respondent could not be regarded as reasonable.
Mr Baran also submits that the respondent has failed to establish its defence from the medical evidence it relies upon because Dr Vickery provides a general answer to a loaded question put to him regarding the whole or predominant cause of the applicant’s injury. He submits that no weight can be given to this report as Dr Vickery failed in his report to set out those actions taken by the respondent which were the whole or predominant cause of the applicant’s injury.
In Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad), DP 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.”
In this dispute there is no evidence of the cause of the applicant’s injury being a single instance of major psychological trauma. The applicant states that the “final straw” was being told that the care work role from the Gosford office was still not ready and that she would have to continue to work at the Hornsby office or take annual leave. However, that was against a background of other stressful events identified by the applicant including her applications for a permanent administrative position being rejected on several occasions, having to work at multiple locations in the Sydney metropolitan area without any permanent placement, and the non-payment of a fortnight’s wages by the respondent without the consent of the applicant.
I agree with the submission made by Mr Baran that, against the background of a number of causative factors for the applicant’s injury, the respondent has failed to provide the requisite medical evidence to establish a section 11A defence.
Dr Vickery opines that the reasonable actions taken by the respondent when the applicant was applying for permanent advertised roles are the whole or predominant cause of the applicant’s injury, but he only records a single application made by the applicant, being her last application in September 2019.
Dr Vickery writes that he has reviewed all the relevant documents necessary to provide a comprehensive report, although he does not list those documents. It may be those documents include the witness statements obtained by the Procare investigation report, but that is certainly not apparent from that part of his report headed “HISTORY OF PRESENTING COMPLAINTS.”
There is no record made by Dr Vickery of the several applications for permanent positions made by the applicant prior to September 2019. There is no record made by Dr Vickery of pertinent events which occurred during the applicant’s employment with the respondent before February 2019, which include not only previous applications for permanent positions but also being moved to various branches throughout the Sydney metropolitan area, usually every three to six months. There is no consideration given by Dr Vickery as to the effect the constant transfer to different branches had upon the applicant.
There is also no explanation from Dr Vickery of what he understands the action with respect to the “permanent advertised roles” extended to. Dr Vickery does not detail whether his reference to “permanent advertised roles” is merely a reference to the actual applications made by the applicant or whether it extended to feedback from those applications and allowing the applicant to remain in suitable administrative roles after her successful applications. The latter actions were pressed by the respondent in submissions as being reasonable, but there is no acknowledgement, let alone consideration, by Dr Vickery in his reports of those actions by the respondent, or the effect those actions may have had upon the applicant.
McColl JA (Mason P and Beazley JA agreeing) said in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift) at [84]: “It has been long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it.” I am not satisfied that Dr Vickery has properly explained his opinion when he has not set out the events which are pertinent to this dispute, opines that the application for permanent advertised roles was the whole or predominant cause of the applicant’s injury when only one such application is referred to by Dr Vickery in his report, and merely provides an affirmative answer to a question put to him without any further explanation.
The respondent bears the onus of proving the section 11A defence and for the reasons I have given, I am not satisfied that the respondent has provided sufficient and appropriate medical evidence to maintain such a defence.
I accept that actions taken by the respondent in placing the applicant in administrative roles, and actions by the respondent while in the applicant was working in those roles, especially in relation to applications made by the applicant for permanent roles, come within the category of ‘transfer’ in section 11A. That is consistent with the approach taken by the Court of Appeal in Doyle and Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie). AJA Sackville said in Heggie at [59]:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”
President Phillips reviewed both Doyle and Heggie in Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 (Gazi) and said that the ‘broad approach’ in Heggie is relevant to all categories referred to in section 11A. His Honour said at [175]:
“The Court of Appeal in Heggie was dealing with the category of “discipline” in s 11A of the 1987 Act and was of the view that a broad approach should be taken to “action with respect to discipline”. While the decision in Heggie is factually distinct from Doyle and the present case, it remains relevant to the proper approach to be taken to determining s 11A(1) of the 1987 Act. There is no warrant to depart from the approach taken in Heggie with respect to the category of “transfer” or the other categories in s 11A. As was said by the majority in Doyle, it is a “question of fact and degree” as to whether the relevant category was the whole or predominant cause of a worker’s psychological injury within the meaning of s 11A(1).”
I would also accept that actions taken by the respondent amount to ‘promotion’ in that the payment of a higher wage to the applicant while undertaking administrative roles amounted to promotion. Furthermore, the applications made by the applicant for permanent roles can also be regarded as action with respect to promotion.
The category of ‘demotion’ should be restricted to those actions which occur in September and October 2019 when the respondent commenced to take steps to return the applicant to her substantive carer role. There is no medical evidence which supports the events in September and October 2019 alone as being the whole or predominant cause of the applicant’s injury.
I do not accept that actions taken by the respondent amount to ‘performance appraisal’ based upon the accepted definition and application of that category provided by Geraghty CCJ in Irwin v Director General of School Education, NSWCC no.14068/97 (18 June 1998, unreported) (Irwin), which requires a discrete process with a recognised procedure in place to establish an employee’s performance.
The respondent has made no attempt in the section 78 notices or submissions to describe what actions taken by them can be regarded as ‘provision of employment benefits’, other than to contend that the payment of a higher wage amounts to the provision of an employment benefit. However, no submissions were made which identified how action taken in respect of that benefit was the whole or predominant cause of the applicant’s injury.
Although actions taken by the respondent can be regarded as actions with respect to transfer or promotion, I do not accept from a review of the evidence that the respondent can establish that those actions were reasonable.
The respondent contends that its actions were reasonable in that the applicant was informed of forthcoming vacancies, was provided with reasons as to why her applications were not successful, was provided with positive feedback following each application respondent, and offered temporary jobs that would enhance the applicant’s prospects at any further interviews. The respondent claims that the applicant performed poorly at her interviews and ultimately there was a better candidate or, in respect of the August 2019 application for the Hornsby office, the applicant did not meet the full job criteria.
Yet there is other evidence which challenges what Ms Goodman submits were the “perfectly reasonable” actions of the respondent. There is the email from Wendy Morahan to Ms Kleipas on 27 February 2019 wherein it can be inferred that the applicant was working as an Allocations Coordinator and Ms Morahan writes: “Nelly has been doing really well in that area as it is quite complex.” This is a piece of contemporaneous evidence which confirms the applicant’s competency in that role, yet six months later Ms Manuelpillai states that the applicant did not meet the full job criteria for that position.
There is no direct evidence that the applicant did not perform the administrative roles she was assigned in a proficient and competent manner. Ms Kleipas provides hearsay evidence from Mary Turcsanyi that the applicant’s performance was average and from Michelle King that the applicant’s style was aggressive and intimidating, but there are no statements from these two employees and no other records relied upon by the respondent to support these observations.
Ms Kleipas also states that the applicant did not perform well at the interview when she applied for a permanent role at the Bankstown branch, and that the branch manager had concerns about the applicant’s work performance while she was acting in that role. Yet again there is no evidence from the branch manager in regard to this or any other records which might support the claims made by Ms Kleipas.
In contrast, neither Ms Scott nor Ms Manuelpillai make any complaints about the applicant’s work performance. I find that I cannot rely upon the evidence provided by Ms Kleipas in regard to alleged poor work performance by the applicant without direct evidence to support such allegations and when there is other evidence which supports a conclusion that the applicant did competently perform the administrative jobs assigned to her.
In Irwin, Geraghty CCJ said:
“The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of an employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
The applicant worked in administrative roles for five years from 2015 to 2019 with no evidence of poor performance. There is evidence from one manager that the applicant was doing very well in a complex area and no complaints from two other managers regarding the applicant’s ability. Although the email from Ms Kleipas to the applicant on 29 January 2019 stating that the transfer to Hornsby would allow the applicant to demonstrate her skills and capability could not be regarded as a promise of a full time position as assumed by the applicant, it did provide a positive incentive for the applicant in her attempts to obtain a full time position with the respondent.
It is therefore understandable that after undertaking administrative roles on a temporary basis for five years, the applicant considered that she was not being properly appreciated by the respondent and this was causing her stress.
I accept that the objective of the respondent is to find the best candidate for permanent positions for its organisation. However, this must be weighed against the rights of the applicant who had worked in temporary administrative positions for five years and had been transferred, usually every three to six months, to different branches in the Sydney metropolitan area and without any clear indication from the respondent as to whether she would be able obtain a permanent position, notwithstanding there being no issues regarding her work performance. In my view, the respondent has not been able to establish that its actions in respect of transfer or promotion were reasonable.
I am not satisfied that the respondent has provided sufficient and appropriate medical evidence to maintain a defence pursuant to section 11A. I am not satisfied that the respondent has been able to establish that its actions with respect to transfer and promotion were reasonable. The respondent has failed to ground a defence pursuant to section 11A of the 1987 Act.
The claim for weekly payments of compensation
When Dr Hong examined the applicant in September 2020, he considered that the applicant was slow to reply and lacked spontaneity, but still opined that she could perform around 20 hours of office work each week in a small office.
When Dr Vickery examined the applicant in November 2020, he did not identify any cognitive impairment and considered that the applicant could work up to 20 hours per week.
Mr Baran concedes that from the time of Dr Hong’s report in September 2020, the applicant has a residual ability to earn in the order of 20 hours per week.
I conclude from the opinions of Dr Hong and Dr Vickery that since 14 September 2020 when the applicant was examined by Dr Hong, the applicant would be able to undertake menial clerical work such as photocopying, collating, filing, the maintenance of basic records and reception duties, which are duties for a level 1 employee under the Clerks – Private Sector Award 2020, for 20 hours per week. There is no medical evidence since those opinions provided by Drs Hong and Vickery which indicates that the applicant has been able to increase her potential hours of work.
That still leaves the period from when weekly benefits of compensation ceased to be paid to the applicant until 14 September 2020. Dr Henin certifies the applicant as having no current work capacity for some of those months. Dr Vickery opines in February 2020 that the applicant is fit for her pre-injury work but that is difficult to reconcile with his opinion nine months later that she is fit for 20 hours of work per week.
Given the discrepancy in the opinions of Dr Vickery and the benefit that Dr Henin had in regularly reviewing the applicant for much of the period under consideration, I prefer the opinion of Dr Henin expressed in those Certificates of Capacity which certify the applicant as having no current work capacity.
The ARD claims weekly payments from 23 April 2020, but the List of Payments in both the ARD and Reply state that weekly payments were made until 17 March 2020. I propose to award weekly payments from 17 March 2020, with the respondent having credit for any payments after that 17 March 2020.
Eighty per cent of PIAWE amounts to $747.47.
The hourly rate for a for a level 1 employee under the Clerks – Private Sector Award 2020 has been $21.09 per hour since 14 September 2020. I therefore find that the applicant has been able to earn $421.80 per week since 14 September 2020. The difference between 80% of PIAWE and what the applicant is able to earn in suitable employment is $325.67 per week.
There will be an award of weekly payments of compensation to the applicant as folIows:
(a) $747.47 per week from 17 March 2020 to 13 September 2020 pursuant to section 37 (1) of the 1987 Act, with the respondent having credit for any payments after that date;
(b) $325.67 per week from 14 September 2020 to date and continuing pursuant to section 37 (3)(b) of the 1987 Act.
The claim for medical expenses
The ARD made no claim for the payment of past medical expenses, but sought the payment for future treatment for consultations with a psychologist and psychiatrist and prescribed medication. That claim has not been pressed in submissions, but the applicant does seek a general order for the payment of reasonably necessary medical expenses for the treatment of her psychological injury.
I consider from a review of the evidence and the findings which I have made that there should be a general order for the payment of reasonably necessary medical expenses for the treatment of the applicant’s psychological injury.
John Isaksen
MEMBER
21 April 2021
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