Sarmiento v Service Corporation Pty Ltd
[2009] NSWWCCPD 31
•20 March 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Sarmiento v Service Corporation Pty Ltd [2009] NSWWCCPD 31 | |||||
| APPELLANT: | Luiz Sarmiento | |||||
| RESPONDENT: | Service Corporation Pty Ltd | |||||
| INSURER: | Cambridge Integrated Services Australia Pty Limited | |||||
| FILE NUMBER: | A1-5449/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 10 November 2008 | |||||
| DATE OF APPEAL DECISION: | 20 March 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 11A Workers Compensation Act 1987 | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers. | |||||
| REPRESENTATION: | Appellant: | Steve Masselos & Co | ||||
| Respondent: | Hicksons | |||||
| ORDERS MADE ON APPEAL: | ||||||
| 1. | The decision of the Arbitrator dated 10 November 2008 is confirmed. | |||||
| 2. | No order as to costs of this appeal. | |||||
BACKGROUND TO THE APPEAL
On 8 December 2008 Luiz Sarmiento (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 November 2008.
The Respondent to the Appeal is Service Corporation Pty Limited (‘the Respondent’).
The Appellant, who is 62 years of age, was employed by the Respondent as a Cleaner between 1 May 2006 and 18 April 2007. The Appellant’s workplace was a large Naval complex in New South Wales where the Respondent had a cleaning contract with the occupier. It appears that the Appellant had worked at those premises since a date in 2005 however it was not until May 2006 that he became an employee of the Respondent.
The Appellant alleged that between mid 2006 and 18 April 2007 he had been subjected to harassment and victimisation at the hands of his Supervisor, Antonia Lazos. The Appellant has in evidence described numerous incidents where, it is said, he was humiliated by his Supervisor in the presence of co-workers. It is further alleged that his duties had been changed resulting in a significant increase in work load which he found difficult to manage. The Appellant alleged that he was unfairly criticised concerning his work performance. It appears that the Respondent gave the Appellant two written warnings concerning work performance the first being on 23 February 2007 and the second on 20 March 2007.
On 18 April 2007 a meeting took place between the Appellant, his Supervisor and a superior named as Richard Lewis at which time the Appellant was given notice of termination of his employment. It appears that the Appellant suffered a physical collapse at the time his services were terminated and he fell to the floor in the presence of his superiors. An ambulance was summoned and the Appellant was transported to the Prince of Wales Hospital, Randwick.
The Appellant has not worked since the date of termination of his employment with the Respondent and alleges ongoing incapacity. A claim for workers compensation benefits was made against the Respondent and its Insurer which claim was rejected.
On 17 July 2008 an Application to Resolve a Dispute (‘ARD’) was registered with the Commission on behalf of the Appellant by his Solicitors. That ARD alleged the occurrence of an injury on 18 April 2007 which was described at Part 4 of the ARD as being:
“Psychiatric disorder as a result of continued harassment within the workplace. See attached Statement of Applicant.”
The Appellant’s claim came before an Arbitrator for conciliation/arbitration on 10 October 2008 and a Certificate of Determination issued on 10 November 2008.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 November 2008 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. Award for the Respondent in respect of the Applicants claims’ [sic] for compensation for the Applicant’s psychological injury.
2. Award for the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
3. Award for the Respondent in respect of the Applicant’s claim for expenses under s 60 of the Workers Compensation Act 1987.
4. No Order as to Costs.
A brief statement of reasons for determination, in accordance with Rule 73 of the Workers Compensation Commission Rules 2003, is attached.”
ISSUE IN DISPUTE
The issue in dispute in the appeal is:
(i)Whether the Arbitrator erred in determining that the Respondent’s actions in dealing with performance appraisal and dismissal of the Appellant were reasonable within the meaning of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) thereby concluding that the Appellant was not entitled to compensation in respect of psychological injury.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed “on the papers”, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Commission file contains a number of copies of the Application lodged by the Appellant seeking leave to bring this appeal. Those documents bear differing dates. One such copy bears date stamp “ 8 December 2008” as being the date the Application was received by the Commission. It is clear from the Commission record that the Application had been forwarded to the Commission’s Registry on 8 December 2008 by way of facsimile transmission. In the circumstances I determine that the appeal was made within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The requirements of Section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence adduced by each party was summarised by the Arbitrator at [10] of her Statement of Reasons (“Reasons”). No oral evidence was given at the hearing before the Arbitrator. There is before the Commission a transcript of the proceedings conducted before the Arbitrator on 10 October 2008 (‘transcript’) which includes those submissions put on behalf of each party by Counsel then appearing.
A Statement of the Appellant dated 3 April 2008, which comprised 27 pages containing 86 enumerated paragraphs, was in evidence before the Arbitrator. It was there stated (at paragraph 1):
“… An [sic] 18 April 2007 I was sacked. The circumstances of me being sacked are as follows ….”
The Appellant proceeded in the Statement to express his feeling that his Supervisor, Ms Antonia Lazos, did not like him. The Appellant’s Statement includes narration of numerous incidents where it was alleged that Ms Lazos shouted at the Appellant, confronted the Appellant concerning lateness in attending work, subjected the Appellant to “special surveillance”, made complaints concerning the quality of work performed by the Appellant and gave multiple directions concerning work, subsequent withdrawal of the directions, leading to confusion in the mind of the Appellant concerning his duties.
The Appellant’s Statement proceeds to describe events which occurred at a meeting which took place in October of 2006 at which time the Appellant was informed by Ms Lazos of a change of duties which involved a relocation from the building which was normally cleaned by him to work in other buildings within the premises. It is further stated that Ms Lazos “blew her temper” when the Appellant stated to her that he could not “physically do that job”. It is stated that Ms Lazos screamed out to the Appellant and directed him to “go sit in the corner”. The Appellant declined to follow that direction asserting that he was “not a little child”. The Appellant states that following that meeting he returned to his home and “could not sleep for a couple of nights and had to take sleeping tablets”.
The Appellant states that he wrote a letter of complaint to the Site Manager, Ms Joy Irwin, following the October meeting. Following that letter of complaint a number of meetings were held including one with Mr Richard Lewis, the Regional Manager. It is asserted by the Appellant that Mr Lewis said to him “… if you make a noise I will sack you on the spot”. The Appellant states that at a subsequent meeting some few days later he indicated to his superiors that he would not take any further action and those present shook hands.
The Appellant proceeds to state that at a later meeting attended by Mr Lewis, Ms Lazos and Harry, the Appellant’s Supervisor, he was informed that as from the first week of January 2007 he was to work in two nominated buildings. That transfer involved a relocation from the original building at which the Appellant asserted that he “worked well in and which I had never received a single complaint about my work”.
The Appellant proceeds to state that his new duties assigned to him from January 2007 were “very hard and I knew I would not be able to cope”. The Appellant sought assistance but was given none. The Appellant asserts that he worked as quickly and as efficiently as he could however “… there was simply too much work and I could not do it”.
The Appellant proceeds to repeat matters summarised earlier in his Statement and asserts that he was being “antagonised” by Ms Lazos. He states that he was directed to do jobs “which were non sensible”. The Appellant further states that complaints which were not well founded were made about his work performance.
Reference is made in the Appellant’s Statement to a number of documents which are said to be attached. I note that those documents were not attached to the Statement and those documents do not appear to be before the Commission.
The Appellant describes in his Statement the difficulties he encountered in following the directions given by Ms Lazos. He proceeds to state that he was called to a meeting with Ms Lazos and Mr Lewis. The date of this meeting is not identified. The Appellant was informed that he was “not doing my job properly”. It was after this meeting that the Appellant was handed the first letter of warning concerning work performance. It is clear from other evidence before the Commission that this meeting probably took place on 15 February 2007.
The Appellant proceeds to describe his duties including what is described in the Statement as “paperwork”. The general thrust of the Appellant’s Statement is that he was receiving conflicting instructions as to the duties required of him, that he was doing his best to discharge his obligations but that, given the increasing amount of work he was required to do, he was unable to cope.
The Appellant proceeds to state that he received a “second warning” on an unspecified date. It is clear from other evidence before the Commission that that letter of warning was probably delivered on 20 March 2007. It was stated by the Appellant that he did not consider that he had done anything wrong and that he was convinced that he had been “set up and that Antonia was up to no good”.
The Appellant’s Statement proceeds to describe his work duties performed after receipt of the second letter of warning. The Appellant asserts that the volume of work expected of him was physically impossible to complete.
The Appellant states that he was summoned to a meeting with Mr Lewis and Ms Lazos on 18 April 2007. The Appellant states that he attended the meeting and questioned Mr Lewis as to whether it was intended that he be sacked. The Appellant states that Mr Lewis confirmed that it was his intention to sack the Appellant. The Appellant states that there was nothing he could do in the circumstances and wished to walk away. As he attempted to walk his right leg gave way and he fell to the ground and collapsed. It is stated by the Appellant that he does not remember anything further. The Appellant states that he is aware that he was taken by ambulance to Prince of Wales Hospital in Randwick.
The Appellant’s Statement proceeds to reiterate and elaborate matters which had been earlier addressed and it is asserted (at paragraph 38) that he:
“… was the victim of a sustained and substantial harassment and victimisation by Antonia ….”
The Appellant’s Statement includes a summary of his medical treatment following termination of his employment and a description of those symptoms which he experienced following cessation of work.
The Appellant’s Statement contains (at paragraph 68) a summary of his perception as to the conditions of his employment and their relationship to the development of his illness:
“The actual stress from my job which made me get ill was the way they pushed me unrelentingly with all this extra work and the way they treated me basically like a little child and then demeaned me and criticised me in front of my colleagues and then when I tried to make a complaint or raise an issue they basically just ignored me. This was all set out previously in this statement. When I shook hands with Richard and Antonia I thought that was a pact of peace not the beginning of my end.”
A number of medical reports were attached to the Appellant’s ARD including a report dated 16 October 2007 from Dr Thomas Oldtree Clark (Psychiatrist), a report dated 11 February 2008 from Dr Samir Benjamin (Psychiatrist) and a report dated 21 February 2008 from Mr Emad Girgis (Psychologist). Detail of that evidence is, where relevant, addressed below.
The Appellant relied upon numerous other documents which were placed before the Commission which are of no direct relevance to the present appeal.
The Respondent relied upon the contents of numerous documents which were attached to the Reply filed on its behalf. Those documents included a Memorandum written by Antonia Lazos which records events which occurred at a meeting held at the Appellant’s workplace on 31 October 2006. That meeting was conducted by Ms Lazos and was attended by the Appellant and a number of fellow cleaners. The purpose of the meeting was recorded in that Memorandum, that being to explain the new schedule for cleaning of the subject premises to the various cleaners. There was to be a “time in [sic] motion” study to be compiled by each of the cleaners with respect to their work and it is recorded that the means of completing that study was explained. It is further recorded that the Appellant stated that he didn’t have time to complete the study because he’d been given extra work. The Memorandum records a discussion between the Appellant and Ms Lazos at which time it was acknowledge that the Appellant “believes he is stuck for time” and it was indicated to the Appellant that he, like the other cleaners, was required to complete the study to determine detail of the new schedule. It is further recorded that the Appellant refused to conduct the time study and stated that “it’s a waste of time” and that he did not see the point of carrying out the study. The Memorandum records that the Appellant “started arguing” whilst Ms Lazos was discussing the “run” of another cleaner named Elaine. A discussion concerning the Appellant’s vacuuming duties is recorded. It is noted in the Memorandum that the Appellant interrupted the meeting on a number of occasions during a period of 40 minutes at which time he was asked to leave the meeting. The Appellant, it is recorded, refused to leave and asserted that “he is not a child”. The Memorandum records that Ms Lazos informed the Appellant that these matters of concern could be discussed after the meeting. The Memorandum records detail of the new cleaning schedule.
Attached to the Respondent’s Reply were a large number of documents being copies of email communications between Ms Lazos and Mr Lewis as well as a number of documents which appear to be Memoranda noting certain occurrences at the workplace. Those documents are dated between 12 December 2006 and 18 April 2007. Those documents relate generally to dealings with the Appellant concerning his work performance and complaints concerning the standard of his work. It is noted in a copy email dated 20 March 2007 that agency cleaners had been engaged to conduct a “deep clean” and “lift up standards”.
There were two letters in evidence before the Arbitrator addressed to the Appellant from the Respondent the first dated 23 February 2007 and the second dated 20 March 2007. The first of those letters is headed “Written Warning” and outlined a summary of a discussion which took place with the Appellant on 15 February 2007. The correspondence notes that there had not been “any significant improvement” in the Appellant’s work since the date of that discussion. Detail of complaints concerning the Appellant’s cleaning standards were noted in that correspondence. The Appellant was advised of the need for a significant improvement in his work standard and the risk of “further disciplinary action that might lead to dismissal” was noted.
The correspondence dated 20 March 2007 is headed “Second Written Warning”. That correspondence notes an alleged failure on the part of the Appellant to improve his work performance. Particulars of the Appellant’s failings were provided in that correspondence and an offer was made to “organise more training to assist” should the Appellant so wish. That correspondence again noted the “risk” of further disciplinary action that may lead to the Appellant’s dismissal.
Attached to the Reply was an “Incident Report” which is unsigned relating to events that occurred at the workplace on 18 April 2007. It is recorded that a meeting took place on that day between Mr Lewis and the Appellant. It is clear from other evidence that Ms Lazos was also present at that meeting. It is recorded that the Appellant was informed that there had been no improvement in his work standards notwithstanding the notice he had received in the two Written Warnings delivered to him earlier. It is recorded that Mr Lewis provided detail of complaints including written complaints and video evidence of the Appellant’s work standard. It is noted that the Appellant became “upset” and stated, “This is not over. It’s unfair and I will be speaking to my Lawyer.” It is recorded that as the Appellant left the meeting it appeared that he “tripped over his feet or collapsed” following which the Appellant was shaking. An ambulance was arranged to transport the Appellant to a hospital for treatment.
The Respondent further relied upon a report of Dr John Albert Roberts (Psychiatrist) dated 8 February 2008. That Practitioner stated that he was:
“unable to establish that a psychological injury has occurred during the period of employment by Mr Sarmiento with Service Corp.”
Appellant’s Submissions
It was argued on behalf of the Appellant at the hearing before the Arbitrator that acceptance of the Appellant’s evidence as contained in his Statement would lead to the inference that the employer was attempting to “make things difficult” for the Appellant at his workplace. It was argued that Ms Lazos had begun “… to make life very difficult for him at work …”. It was put that the Appellant was burdened with a workload with which he could not cope. Counsel, in the course of his address, analysed the evidence in detail following which it was submitted that the complaints made concerning the Appellant’s performance were “unjustified” given that the employer was asking “too much of this worker”. It was submitted that in the circumstances the Respondent’s defence raised pursuant to section 11A of the 1987 Act should fail. It is clear that the issue squarely raised in the course of these submissions is that the employer had failed to establish that its relevant conduct was “reasonable” in terms of that section.
The submissions proceeded to address issues which are not directly relevant to matters raised on this appeal.
The Appellant has, on this appeal, provided Written Submissions which accompany the Application. Attention is given to the detail of the Appellant’s Statement which was in evidence and it was put that:
“No evidence was called to contradict his complaints contained in his Statement and there has been no adverse credit finding.”
The Appellant’s submissions proceed to examine the detail of the Arbitrator’s Reasons expressed in support of her ultimate determination. Attention is drawn to [93] of the Reasons where the Arbitrator addressed the need to determine whether the actions taken on behalf of the Respondent were reasonable.
There follows a statement of the ground upon which the Appellant relies in challenging the Arbitrator’s determination. That ground, which appears at page 4 of Annexure “A” to the Application states:
“Grounds
1.The arbitrator erred in determining on the facts, that the respondent’s actions in dealing with performance appraisal and dismissal of the applicant were reasonable and in thereby finding that the applicant is not entitled to compensation in respect of his psychological injury.”
In support of the stated Ground the Appellant argues that, having regard to his age, history of satisfactory work performance and failure of the Respondent to provide assistance to him in performance of “the new regime of work” the actions by the employer with respect to “transfer” of the Appellant from one building to other work sites were unreasonable.
It is argued that the Respondent’s actions of “performance appraisal” and “dismissal” as found by the Arbitrator had been performed by the Respondent “as a consequence and part of the act of “transfer” and were “actions without a reasonable basis and were unreasonable”.
It is further submitted that the Appellant’s evidence “has not been rebutted by the Respondent” and thus it cannot be said that its actions towards the Appellant had been reasonable as required by section 11A of the 1987 Act.
Reference is made by the Appellant in the course of submissions to the documentary evidence relied upon by the Respondent. That material is addressed in detail in the course of submissions and it is put that it:
“…was unreasonable to not permit him to continue on in his prior work regime which he had performed well up until the time of the new broom regime of management assigned to him with extra burden of work on an ongoing basis rather than on a temporary basis and pressured him more and more until his performance level decreased with attendant errors and incomplete cleaning due to lack of time to do the work assigned to him.”
It is argued, in the alternative to the last summarised submission, that the Respondent could have accommodated the Appellant by providing assistance or reducing the amount of work required of him. It is further argued that an inference may be drawn from the documentary evidence that it was “the ambition of the Respondent to eliminate workers who could not perform as efficiently as others without accommodating their needs”. It is again argued that such actions were unreasonable and formed “… the basis of the unreasonable treatment of the Appellant with regard to transfer, performance appraisal and dismissal”.
Respondent’s Submissions
Submissions put on behalf of the Respondent by Counsel at the hearing before the Arbitrator record (transcript between pages 18 and 26) a summary of the evidence concerning the work performance of the Appellant and the Respondent’s management of circumstances up until the Appellant’s dismissal on 18 April 2007. It is clear, having regard to the manner in which that evidence is analysed in the course of submissions, that it was the Respondent’s argument that its actions concerning the Appellant’s work performance and his ultimate dismissal were reasonable within the meaning of section 11A.
The transcript records further submissions relating to other issues including the question as to the occurrence of injury, extent of incapacity and the question of dependency. Such submissions are not directly relevant to the matters raised on this appeal.
The Respondent has provided Written Submissions in support of its Opposition to this appeal. It is argued that, having regard to the facts, the transfer of the Appellant from his original building was reasonable.
With respect to the Appellant’s argument concerning the assignment of an unduly heavy workload following transfer from that building it is argued that the Respondent’s contemporaneous records including emails, performance reports and letters of warning support an inference that the Appellant consistently failed to follow instructions and was delinquent in the performance of his work duties.
The submissions make reference to the Arbitrator’s findings of fact as revealed in the Reasons and it is argued:
“… that the Arbitrator’s reasons are adequate, that there is no error of law and the findings and determination which the Arbitrator made was open to be made on the evidence presented.”
The reasoning process highlighted in this submission was that adopted by the Arbitrator in concluding that the “Respondent’s actions were reasonable”.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38.A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
It should be noted that, in the course of her Reasons, the Arbitrator made findings that the Appellant suffered from a major depressive disorder which constitutes a psychological injury within the meaning of the 1987 Act (at [66]). The Arbitrator proceeded (at [80] and [81]) to make the following findings:
“80.The weight of the evidence and medical evidence in this case indicates the factors which led to the development of the Applicant’s psychological injury were the events from his employment, being the change of buildings which were cleaned by the Applicant, the Applicant’s perception of harassment as a reason for the changes being made and the termination of the Applicant’s employment on 19 April 2007.
81.I therefore find that the Applicant’s psychological injury arose out of his employment, as it was caused by his employment, and that the employment was a substantial contributing factor to that psychological injury.”
Having made the findings as above stated the Arbitrator then turned to the questions raised by the proper construction and application of section 11A. The Arbitrator correctly made reference to the decision of the Court of Appeal in Department of Education and Training v Geoffrey Sinclair [2005] NSWCA 465 (‘Sinclair’) where it was stated by Spigelman CJ (with whom Hodgson JA and Bryson JA agreed) at [58]:
“… having regard to the context of the legislative scheme and its purpose, it is necessary to understand s11A to mean that the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to … discipline.”
The Arbitrator proceeded to state (at [85]):
“85.The issue then is whether the Applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the Respondent.”
With respect to the question of causation of the Appellant’s psychological injury as found the Arbitrator stated (at [86]):
“86.In this case the only cause of the psychological injury claimed by the Applicant is the employment with the Respondent. The Applicant claims the factors from his employment which led to his psychological injury were the behaviour of Antonia Lazos in changing his work duties and the way the [sic] she spoke to him at meetings about his cleaning duties, his receiving 2 written warnings, and the meeting at which the Applicant’s employment was terminated on 18 April 2007.”
There is, on this appeal, no challenge or point of contention raised with respect to the findings and reasoning expressed by the Arbitrator with respect to the matters above summarised. Having so concluded the Arbitrator proceeded, correctly in my view, to pose the following question:
“87.Were these factors the whole or predominant cause of the Applicant’s psychological injury, and if so were the actions of the Respondent reasonable?”
It may be seen from the form of the sole ground relied upon by the Appellant (as set forth in [46]) the challenge is limited to the discrete question as to whether the Arbitrator erred in her conclusion as to whether the Respondent’s actions were, in the relevant sense, reasonable.
It is to be noted that the Arbitrator (at [93]) observed that the onus is upon the employer to “show the actions were reasonable”. That observation has been accepted as being correct by each of the parties.
The Arbitrator (at [95]) made reference to relevant authority including the decision of Ritchie v Department of Community Services (1998) 16 NSWCCR 727 (‘Ritchie’) when stating that the question of reasonableness is one of fact. It may be seen that this appeal is a challenge to the factual conclusions which have led the Arbitrator to conclude that the Respondent’s actions were reasonable. The Appellant in challenging the Arbitrator’s finding with respect to reasonableness has paid particular attention to those findings of fact surrounding the Appellant’s transfer from the original building to other buildings at the workplace, the work load placed upon the Appellant following that transfer, the conduct of Antonia Lazos and his dismissal. With respect to the question of causation of the Appellant’s psychological injury the Arbitrator made the following findings:
“91.Taking into account all of the evidence and medical evidence, I find that that [sic] the Applicant’s dismissal on 18 April 2007 was an event which was a predominant cause of the Applicant’s psychological injury. A more minor contribution may have been the Applicant’s perception that Antonia was harassing him by changing his work duties.
92.I find that the other factors mentioned including the meetings and the 2 warning letters were lesser and more minor causes of the psychological injury.”
The findings set forth immediately above reflect the common factual matrix which, generally, requires consideration when the provisions of section 11A are relevant and are to be applied. As was observed by Spigelman CJ in Sinclair (at [96]):
“96.… Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the “whole or predominant cause” is the entirety of the conduct with respect to, relevantly, discipline. ”
The Arbitrator, following a consideration of the authorities and relevant principle relating to the question of reasonableness stated, in the course of her Reasons ([96] to [103]):
“96.It is clear from the Applicant’s evidence that he perceived that Antonia Lazos was following him, checking up on his work to the point of harassment. The Applicant clearly felt that Antonia’s actions were victimising him and singling him out for unfair treatment. The Applicant felt that he performed his work duties satisfactorily prior to Antonia becoming his supervisor and he felt that the work duties given to him by Antonia were unreasonable and could not be performed within the time allocated to him. His evidence confirms that his duties as a cleaner were discussed at meetings and it was his perception that he was spoken to in an abusive way at these meetings.
97.The evidence from the Respondent however presents a different picture of the events which took place.
98.The evidence of the e-mail communications between Antonia Lazos, Richard Lewis and Joe Kirwin, indicates that they, on behalf of the Respondent, held genuine concerns about the Applicant’s work performance. The actions as documented in the e-mail exchange indicate that Antonia Lazos was working towards resolving the complaints she was receiving about the cleaning work carried out by the Applicant. The period of concern seems to be late 2006 and certainly by the meeting on 31 October 2006, there were concerns about the performance of the Applicant of his cleaning duties. The actions taken were to move the Applicant to a different building so that they could check the amount of time he spent carrying out his cleaning duties. There is nothing to suggest that these actions were not reasonable actions of the Respondent in attempting to discover whether the Applicant was carrying out his duties to the standard required.
99.The evidence indicates the Respondents were not satisfied with the Applicant’s performance after checking on his performance and therefore the Respondent issued warning letters in February and March 2007. This was a reasonable further step to dealing with the complaints of poor performance made about the Applicant’s cleaning work.
100.By the date of the meeting on 18 April 2007, the Respondent had been dealing with the Applicant’s performance issues for approximately 5 months. It seems the Respondent was not satisfied that the Applicant’s performance had improved to a sufficient standard and therefore following the two warning letters the Respondent decided to terminate the Applicant’s employment.
101.I accept the Respondent’s version of events which presents a picture of an employer attempting to deal with work performance and of being unable to satisfactorily resolve the matter then issuing written warnings to the Applicant and then dismissing the Applicant from his employment.
102.These actions were reasonable in the light of the period of time and the Respondent has been dealing with the Applicant’s performance, the actions they had taken to assist him, including meeting with him and bringing in external cleaners, and the written warning letters. The actions dealt with performance appraisal and dismissal.”
As noted above the Appellant argues that the Respondent had called no evidence to “contradict his complaints contained in his Statement” and that there had been no adverse credit finding with respect to the evidence given by him. It is my view that the Appellant’s evidence, including those aspects which were not directly contradicted, required evaluation by the Arbitrator in the context of the evidence as a whole. It is my view that the Arbitrator has addressed the evidence in its entirety and that her conclusions of fact as set forth above in [102] were open to her on the evidence. I respectfully agree with the Arbitrator’s manner of approach to the evaluation of the evidence, her conclusions of fact and, in particular, her conclusion that the Respondent’s actions with respect to performance appraisal and dismissal were reasonable.
The Appellant’s argument that the Respondent’s failure to provide assistance to him or alternatively to reduce his workload demonstrated unreasonableness on the part of the Respondent is, in my view, without merit. This conclusion is inevitable given my express agreement with the Arbitrator’s conclusion concerning the reasonableness of the conduct of the Respondent overall.
It may be seen that I conclude that there has been no error demonstrated with respect to the Arbitrator’s process of reasoning nor as to her conclusions. The submissions put on behalf of the Appellant should be rejected.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 10 November 2008 is confirmed.
COSTS
No order as to costs of the appeal.
Kevin O’Grady
Acting Deputy President
20 March 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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