Scullino v San Miguel Yamamura Australasia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Scullino v San Miguel Yamamura Australasia Pty Ltd [2022] NSWPIC 196
APPLICANT:	Maria Scullino
RESPONDENT:	San Miguel Yamamura Australasia Pty Ltd
MEMBER:	Christopher Wood
DATE OF DECISION:	3 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Accepted by parties that applicant had a psychological injury arising out of her employment which was a substantial contributing factor; respondent alleged such injury was wholly or predominantly caused by a reasonable action taken by it for the purposes of Section 11A of the Workers Compensation Act 1987 (1987 Act); in this case discipline; claim for total incapacity also disputed by Respondent; claim for permanent impairment compensation pursuant to section 66 of the 1987 Act in respect of 15% whole person impairment as a result of psychological injury; competing statements of lay witnesses; lack of contemporaneous medical evidence from treating doctor prior to notional date of injury; consideration of Poonan v George Weston Foods Pty Ltd and ISS Property Services Pty Ltd v Milovanovic; Held- Despite absence of treating doctor’s notes there was sufficient evidence from treating psychologist and lay witnesses including in the respondent’s evidence to conclude the disciplinary process which may have otherwise been reasonable was not a predominant cause of the psychological injury (the respondent not having seriously contended it was the whole cause); evidence including from respondent’s own doctor overwhelmingly supported finding of continuing total incapacity; award for the Applicant; matter remitted to the President for referral to Medical Assessor for assessment of whether applicant has attained maximum medical improvement and if so permanent impairment as a result of psychological injury.
DETERMINATIONS MADE:	1. That there is an award for the applicant of weekly benefits as follows: (a) compensation from 4 March 2021 to 11 March 2021 at the rate of $1,429.67, pursuant to section 36 of the Workers Compensation Act 1987; (b) compensation from 11 March 2021 to 1 April 2021 at the rate of $1,203.85, pursuant to section 37 of the Workers Compensation Act 1987; (c) compensation from 1 April 2021 to 1 October 2021 at the rate of $1,238.52, pursuant to section 37 of the Workers Compensation Act 1987, and (d) compensation from 1 October 2021 to date at the rate of $1,253, pursuant to section 37 of the Workers Compensation Act 1987 and therefore as adjusted. 2. A deemed date of injury recorded as 7 December 2020. Thereafter the respondent is to be given credit for payments made to date and otherwise has agreed compensation paid to the applicant at the above rates and periods. 3. That there is an award for the applicant for medical, hospital and related expenses, pursuant to section 60 of the Workers Compensation Act 1987. 4. The applicant’s claim for benefits under section 66 of the Workers Compensation Act 1987 is remitted to the President for referral to a Medical Assessor for determination of whether the applicant has reached maximum medical improvement and if so, the applicant’s permanent impairment as a result of psychological injuries arising from her employment with the respondent. 5. The documents to be referred to the Medical Assessor to assist with the assessment are to include: (a) this Certificate of Determination and Statement of Reasons; (b) the Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) Application to Admit Late Documents filed by the respondent on 16 March 2022 and the applicant on 23 March 2022, which were admitted into evidence.

STATEMENT OF REASONS

BACKGROUND

The applicant, Maria Scullino (Ms Scullino) commenced employment with Cospak Pty Limited (Cospak) as an Accounts Payable Supervisor in September 2017.
Cospak’s operations were incorporated into those of San Miguel Yamamura Australasia Pty Limited (the respondent) shortly thereafter and Ms Scullino was moved into a larger team which serviced other companies within the respondent’s group.
During the integration process Ms Scullino had a new direct supervisor, a Mr Hamon Shehata (Mr Shehata). Mr Shehata, amongst other things, had apparently been employed to develop “a paperless accounting system” involving changes to Ms Scullino’s team.
Ms Scullino says that her workload increased and deposes as to conflict in the workplace, in particular with Mr Shehata. She felt micromanaged[1].
[1] Paragraph 177 of the Statement.
Ms Scullino had it seems an up and down relationship with Mr Shehata. The Human Resources division (HR) of the respondent became involved from time to time. In March 2020, Ms Scullino’s appraisal process was deferred on the intervention of a senior member of the respondent’s staff and in October 2020 further interactions during a period of further change of operations and responsibilities, led to further conflict in November 2020 culminating in the disciplinary process central to the respondent’s position.
Following the disciplinary process, Ms Scullino ceased working with the respondent and claims workers compensation benefits from 4 March 2021, being a date of approximately one week short of her first 13 weeks’ period of incapacity.
In addition to her claim for weekly compensation benefits from 4 March 2021,
Ms Scullino also seeks payment of medical expenses pursuant to section 60 of the WorkersCompensation Act 1987 (the 1987 Act) and makes a claim for 15% whole person impairment as a result of psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether psychological injury sustained by Ms Scullino was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline pursuant to section 11A of the 1987 Act, and
(b) whether Ms Scullino is totally or partially incapacitated for work as a consequence of her psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a telephone conference on 23 February 2022 before
Member Isaksen, who was satisfied that they had been unable to reach a resolution of their dispute and, being unable to determine the matter, set it down for conciliation arbitration before another Member.
I have made further enquiry of the parties and was similarly satisfied that they were unable to reach an agreed resolution of the dispute despite commendable efforts to narrow the issues between them.
Mr Morgan instructed by Mr Ferraro appeared for the applicant with Mr Adhikary instructed by Ms Magan appeared for the respondent.
The hearing was conducted by telephone in accordance with the protocols set out by the Personal Injury Commission (the Commission) due to the ongoing Coronavirus pandemic. No orders had been made in relation to the giving of oral evidence.
Evidence served late, pursuant to directions of the Commission, was admitted into evidence on behalf of both parties with no objection.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and were considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attachments;
(b)    Reply and attachments, and
(c)    Applications to Admit Late Documents filed by each party pursuant to orders of the previous Member.

Oral evidence

As noted above there was no application to lead oral evidence or cross examine
Ms Scullino or any other of the several lay witnesses for each party who have provided statements.

FINDINGS AND REASONS

Applicant’s evidence

Statement of Ms Scullino

Ms Scullino has provided a lengthy statement regarding her experiences while employed by the respondent.
She commenced employment with Cospak as an Accounts Payable Supervisor in September 2017. She holds tertiary qualifications relevant to her position.
Shortly thereafter in 2018, her contract for employment was transferred to the respondent which also acquired another company known as, Portavin Intergrated Wines.
Ms Scullino says that during the course of the next three years to December 2020, her workload expanded considerably with her team having to manage accounts for nine different companies and it would appear that the business systems of those companies were not fully integrated.
Within three months of Ms Scullino initially commencing her employment, she records that there was some staff turnover with experienced staff leaving the business and a new staff member, Amanda Chaffey, coming to work along side her to assist with the workload[2].
[2] Paragraphs 14 and 15 of Ms Scullino’s statement.
Ms Scullino notes a significant increase in the hours she worked, often working overtime without payment. She feels that she was often exposed to difficult conversations as a result of managements’ decisions in relation to the funding or cashflow requirements of the business; payments were often delayed. Those with whom she dealt were often irate and she and Ms Chaffey were left to handle all her department’s issues while being short staffed or staffed by temporary employees. She also became involved in filling vacancies created by the resignation of staff and experienced negative interaction in this area as well[3].
[3] Paragraphs 29-32 of Ms Scullino’s statement.
She details that she felt company staff were often very rude and disrespectful and the workplace was a toxic environment. Contrary to her wishes, staff would contact her on her personal mobile telephone number in relation to problems with their employment at any given time[4].
[4] Paragraph 33 of Ms Scullino’s statement.
In 2018, Mr Amon Shehata became Ms Scullino’s direct supervisor. Ms Scullino sets out at length how things from her perspective changed.
Many of the companies with which Ms Scullino had to deal with within the respondent’s group of companies were not located in New South Wales.
There was staff turnover in the other locations too and Ms Scullino feels that she was constantly being harassed by internal stakeholders as well as externally. She dealt with incompatible IT systems which compounded the pressures upon her and her team. She says that during the first two years of her employment some 14 staff came and left her department[5].
[5] Paragraph 47 of Ms Scullino’s statement.
She felt she was overworked and unable to devote sufficient time to her family. By the time she got home she was exhausted, drained and feeling stressed out from her day.
In June 2018, she sought a meeting with Mr Nathan Cameron, the Chief Financial Officer (CFO), of the company.
She sought extra pay having given him a list of her duties and detailed the extra workload she had been undertaking. She continued to work getting no feedback in relation to the meeting until December 2018 when she understood that her request for a pay rise had been declined but she would be getting a bonus in March 2019.
Ms Scullino notes that her other concerns were not addressed by Mr Cameron and there appears to have been a further point of difficultly for Ms Scullino when she learned that the fact of her bonus was known to another staff member who worked by Mr Shehata. Ms Scullino understood, from this other staff member, Jody Lee, that Mr Shehata would often share HR confidential information with others.
Ms Scullino’s relationship with Mr Shehata was problematic from her perspective.
She feels from the get go she was given the most responsibility for the accounts payable for some eight companies by Mr Shehata. She says she was also constantly being interrupted by him with requests for information. The accounts for which she was responsible and matters of concern to Ms Scullino are detailed at paragraph 63 of her statement.
During the course of staff meetings she raised issues concerning her workload with
Mr Shehata who apparently shortly thereafter sought a meeting with her to address her concerns.
Despite this it would appear that nothing changed[6]. Following what she regarded as
[6] See generally paragraphs 60-70 of Ms Scullino’s statement.
Mr Shehata’s lack of attention to the matters of concern to her, Ms Scullino raised the matter with the HR division of the respondent, in particular a Ms Jacinda.
A meeting was convened with Mr Shehata at which Ms Scullino says she felt unsupported and there was a lack of acknowledgement of the issues she had raised including as to bullying and dealing with irate staff and customers. What she regarded as a petty incident involving an interaction concerning her turn to clean the coffee machine was raised. Apparently it had impacted the Managing Director, Mr Cabrera’s, ability to have a coffee. There was an explanation for this which I will not unnecessarily address[7].
[7] Paragraph 76-81 of Ms Scullino’s statement.
During the meeting Mr Shehata read from a notebook, reciting other complaints against the applicant and her performance. Mr Shehata failed to acknowledge Ms Scullino’s long hours and efforts. In meeting with HR she realised (felt), from her perspective, it was not a genuine attempt to discuss resourcing and adequate staffing but rather what she felt was a performance management meeting. She felt betrayed, bullied and anxious about potentially losing her job. She decided not to say anything further.
On her return to her desk, she had a conversation with a Ms Vivian Messina who indicated that the other team members were happy about the change of work allocations and each had only one company to deal with (as opposed to the several being dealt with by Ms Scullino).
Again it appears that things did not improve from Ms Scullino’s perspective and she continued to feel anxious and overworked. Things appear to have escalated in April 2019 when Mr Shehata asked Ms Scullino’s team if they knew anyone who might be interested in joining the accounts payable section. Ms Scullino raised the possibility of a Mrs Irene Borillas, a former employee, re-joining the company. Ms Scullino apparently took a personal interest in this but again it seems that things did not go according to plan and she later learned that as a result of an interview with Mr Shehata, Ms Borillas did not get the position.
Ms Scullino said she was very anxious around this time and in fact sought the assistance of a naturopath who recommended Sedacalm. She also determined at this point to approach HR and spoke to Mr Jason Morris the Human Resources Manager enquiring about her suggestion of Ms Borillas as a recruit for the team. She says Mr Morris was defensive and rude.
Ms Scullino returned to work in February 2020 after some annual leave.
Apparently while she was away, Mr Shehata had discussed with other members of her team, changes that he intended to make in 2020 as part of his yearly planning. Changes were made to the accounts allocated to team members but Ms Scullino was not consulted about this and she felt undermined[8]. Ms Scullino felt that Mr Shehata was “onboarding” the team members with his plan[9].
[8] Paragraph 107 of Ms Scullino’s statement.
[9] Paragraph 109 of Ms Scullino’s statement.
Her suggestions in relation to making things better were not taken into account.
There are references in Ms Scullino’s statement of other staff members being dismissed by Mr Shehata in relation to suggestions that they had made too.
Ms Scullino felt that Mr Shehata’s decisions would not work because he was not familiar with the strengths and abilities of individual team members.
Again, without going into detail it would appear from the statement that from Ms Scullino’s perspective, things were getting worse. There was dissatisfaction within the team and again from Ms Scullino’s perspective Mr Shehata held her responsible but ignored her suggestions. Ms Scullino says Mr Shehata called her into his office several times a day; it became exhausting. He wanted to know what the team were whispering about him. She refers to being called into Mr Shehata’s office and HR representatives, in particular one Ms Rebecca[10], was present.
[10] Paragraph 115 of Ms Scullino’s statement.
There appears to have been a clash of styles or perceptions of each person’s style between Ms Scullino and Mr Shehata. Communication styles were undoubtedly different and certainly Ms Scullino felt that Mr Shehata’s style did not assist[11].
[11] Paragraphs 115-120 and thereafter of Ms Scullino’s statement.
Things also appeared to be difficult between Ms Messina and Mr Shehata with
Ms Messina apparently challenging Mr Shehata as detailed in the applicant’s statement while Ms Scullino says she continued to manage her high workload and staff.
The situation with Ms Messina deteriorated to the point where there was a HR meeting with her at which Ms Scullino was forced to detail complaints against Ms Messina. She felt that Ms Messina had not been given sufficient time to prepare for the meeting. It obviously went badly and Ms Scullino felt bullied and harassed about having to participate in the way she did[12]. This caused Ms Scullino to re-visit her feelings of being bullied in her own meetings with Mr Shehata and the HR division.
[12] Paragraphs 129-132 of Ms Scullino’s statement.
A litany of unhappy dealings with Mr Shehata (sometimes with HR involvement) is then set out in Ms Scullino’s statement.
Ms Scullino was finding the whole experience quite destressing and challenging. It was from her perspective an unhappy workplace and she was under great stress moving between performance management of staff and the workload.
The first half of 2020 seems to have been a particularly troubled time with numerous meetings on HR issues including those concerning Ms Scullino. She observed constant interaction between Mr Shehata and Rebecca of the HR department. She was summoned to a meeting with Mr Shehata and HR on 11 March 2020 after a fortnight period of no communication. This coincided with her annual appraisal process.
This caused Ms Scullino great stress and only through the intervention of Mr Nathan Cameron the respondent’s CFO through his personal assistant was the meeting stopped.
I note that around this time, Ms Scullino received a call from Leanne Di’Bartolo.
[13] See paragraph 155 of Ms Scullino’s statement.
Ms Di’Bartolo was a manager who asked Ms Scullino to see her in her office as she was concerned for her welfare. A meeting took place as well as one with a Work Health and Safety Manager identified as (also having the name) Leanne. A confidential conversation is said to have taken place between the other Leanne and Ms Scullino said she was concerned about the repercussions[13].
Also about that time it appeared there was another unfortunate interaction between
Ms Scullino and Mr Shehata concerning her arriving back late from lunch. The facts of that matter are contested but involved a conversation between the two of them concerning work hours. Her professionalism also appears to have been questioned and a suggestion was made it was a regular occurrence. Following the intervention from Mr Cameron, a mediation took place.
Ms Scullino says that Mr Cameron acknowledged that she had a “lot on her plate” which extended beyond normal working hours. Mr Cameron apparently acknowledged that Ms Scullino was a go to person because of her knowledge of the company. At the conclusion of the mediation a coffee meeting took place between Ms Scullino and
Mr Shehata that appears to have ended amicably enough with it being an opportunity for Ms Scullino to outline her problems which she said she did.
The Covid pandemic then became a factor in the employment relationship, on the version of Ms Scullino’s events, her workload only continued to increase. She refers to Mr Shehata speaking rudely and arrogantly to her in front of other staff, she felt targeted and would become physically unwell.
In August to October 2020, following complaints that Ms Scullino was finding the workload overwhelming, a decision was taken to remove responsibility for the nine company accounts which Ms Scullino had hitherto had responsibility[14]. The reasons for this change of approach were not known to Ms Scullino and she was upset.
[14] Paragraph 171 of Ms Scullino’s statement.

There was also conflict between her and Mr Shehata again over team members and communication of the new system to the New Zealand branch of Cospak.
In particular, Mr Shehata was very unhappy about an email drafted by Helen Hines, another team member. Questions of communication style were to the fore and a discussion took place between Mr Shehata and Ms Scullino. The applicant says that she conceded that the email which Mr Shehata felt made him look bad could have been more subtle and suggested to Ms Messina that they all needed to draft emails “a bit softer”.
A further period of non-communication and difficult encounters occurred between Ms Scullino and Mr Shehata between August and October 2020. Ms Scullino says at this stage her mental state was at breaking point. She feels she wasn’t functioning normally at home. The encounters may be summarised from Ms Scullino’s perspective as Mr Shehata micro managing, he could be rude and she felt uncomfortable. She felt her position with the Respondent may be under threat when Mr Shehata raised the issue of a more senior role for a team member, Kylie[15]. She says that her mental state was at breaking point.
[15] Paragraph 173-196 of Ms Scullino’s statement.

Meetings relevant to section 11A issue

Ms Scullino says that in November 2020 she was about to leave for home when
Mr Shehata approached her, taking her into a meeting room. There was a discussion or questions in relation to Ms Scullino’s team and she says she was quizzed about her role as a supervisor.
A week later on 9 November 2020, Ms Scullino says that she was again called into a meeting with Mr Shehata who read from a piece of paper with words to the effect ‘that he and HR were going to conduct a meeting regarding Ms Scullino’s performance’. She comments that Mr Shehata did not seem himself. On her statement it would appear the meeting which she was to attend was to take place on Wednesday, 11 November 2020 although there seems to be some doubt about this and perhaps possibly a consensus it took place on 10 November 2020. In any event, a meeting occurred. Prior to the meeting, Ms Scullino asked her fellow employee Kylie if she would be her support person, suspecting that her employment was going to be terminated.
A meeting took place and Ms Scullino says she was forced to deal with issues dating back to 2018 with Mr Shehata reading from a script.
Certain other matters were put to Ms Scullino by Amelia from the HR Department.
[16] Details of the meeting appear in paragraphs 200-209 of Ms Scullino’s statement.
Ms Scullino says she tried to give her version of events. She was shocked and requested supporting documents going to suggestions there had been complaints made against her by other staff members[16].
Ms Scullino took the next day off and returned the following day, a Thursday, for a catch up meeting. She was handed a written warning in relation to her behaviour. She came back to work feeling hopeless and outcast, details which seem to be from her perspective hypocrisy in the way in which she was treated compared to other staff members.
I note the details of Ms Scullino’s last day in the office being 7 December 2020. These matters seem unrelated to the section 11A defence in terms of being outside the disciplinary process upon which the respondent relies. The final parts of Ms Scullino’s statement details the broader impacts of her workplace experiences with the respondent.

Statement of Hollyann Fleming

Ms Fleming gives a statement in support of Ms Scullino’s allegations. She was employed from March 2019 until 21 April 2021. She was made redundant because of the Covid pandemic.
She outlines what she describes as the toxic workplace culture and unfair treatment of people by the respondent.
She said she sat near Ms Scullino during her employment and had a direct line of sight and sound to the HR office. It would appear she also observed Mr Shehata at close quarters and refers to him creating “a mountain out of a molehill” with particular issues.
She also outlines her view of the HR department not actioning matters and otherwise operating in what would seem to have been a less than optimum fashion. Turning to her impressions of Ms Scullino, she describes her as being an assertive and capable leader with a passion for her job who over time became less assertive and while strong in front of her team, was often shaking after encounters with Mr Shehata. She became concerned for Ms Scullino’s welfare and that she lacked support and was being burdened with too many projects.
Ms Fleming is highly critical of the workplace culture of the respondent and I note paragraphs 20(a) to (e) of her statement.

Statement of Chantelle Thompson

Ms Thompson also gives a statement in support of Ms Scullino. She was working with the respondent when Ms Scullino started with the company.
Consistent with Ms Fleming, she describes Ms Scullino in positive terms. She notes with Mr Shehata’s arrival at the company a change in Ms Scullino who looked distressed following meetings with him.
She also observed Ms Scullino’s extra hours required to stay back in her role.
She observed deterioration in Ms Scullino to one who was anxious and in obvious distress. Sometimes she would physically shake.

Statement of Ms Leanne Di’Bartolo

Ms Di’Bartolo’s statement is relied upon by Ms Scullino. Her statement appears in the evidence in Reply to the ARD. Her statement was taken during the course of the respondent’s insurer, Employers Mutual Indemnity Limited’s (EML), investigation into Ms Scullino’s claim. Importantly, at that time she was still employed by the company and described herself as a quality manager reporting directly to the General Manager. She first came into contact with Ms Scullino following the merging of the Cospak business into the head office.
Ms Di’Bartolo was aware of the fact of Ms Scullino’s workers compensation claim. She also says she is aware of the basis for it, which she described as bullying by “Amon” (Mr Shehata). Ms Di’Bartolo says that she has very little interaction with Mr Shehata nor did she see any instances of bullying. She has relied upon what Ms Scullino told her.
Consistent with the two other lay witnesses relied upon by Ms Scullino, Ms Di’Bartolo describes her as being a very bubbly person who changed over time to the point where she recalls her saying “I can’t take it anymore”. She also recalls something had occurred in a meeting between Mr Shehata, Ms Scullino and HR. It apparently occurred some eight to nine months perhaps before the final meetings between HR, Mr Shehata and Ms Scullino concerning the email communications and her matter generally[17].
[17] See paragraph 32 of Ms Di’Bartolo’s statement to which the applicant’s counsel has drawn attention.
Ms Di’Bartolo also corroborates Ms Scullino’s suggestion that she sought the intervention of Mr Shehata’s manager, Mr Nathan Cameron.
It may well be that the National Work Health Safety Manager became involved in the matter at the time through a report from Ms Di’Bartolo although this is not clear. She observed the change in Ms Scullino’s demeanour from a bubbly person to at one point upset and inconsolable in March 2020 after a meeting with Mr Shehata and HR concerning another employee.

Applicant’s medical evidence

My Family Health Medical Centre

Ms Scullino firstly relies upon the clinical records of “My Family Health Medical Centre”. This was a general practitioner (GP) clinic to which Ms Scullino turned following the events of December 2020.
The some 120 pages of notes outline Ms Scullino’s consistent presenting symptoms from the date of first consultation on 9 December 2020 which might be broadly outlined as shaky and stressed. The first entry confirms the interaction for which Ms Scullino contends to the effect that there were extreme deadlines, low morale in the workplace and interactions with an unnamed individual (presumably Mr Shehata) who “uses his authoritarian behaviour to give her deadlines”. There are references to HR becoming involved. There are also references to interactions “he confuses her with too much twisting of information, all members of her team including herself uncomfortable around him and fear to speak up as he creates a lot of anxieties”. The details of her breaking down are also recorded.
There are consistent references to anxiety and depression and a mental health plan being discussed.
Ms Scullino presented as anxious and scared and apologetic and deteriorated to the point where on 26 March 2021 there was reference to Ms Scullino being dishevelled, minimal eye contact, low mood etc.
The situation continues to this day and certificates of unfitness have been issued by
Dr Mariam Ghufran.

Ms Josephine Byrnes-Luna

Ms Scullino first sought assistance from Ms Byrnes-Luna on 5 March 2019. Her notes forming part of the evidence brief for Ms Scullino are in handwriting and I am grateful to counsel for helping me step through these and understand the more relevant entries for the purposes of the matter.
I do not think it is an issue that there were other things going on in Ms Scullino’s life at that time, including a marriage breakdown five years previously (recorded in the notes) together with a divorce settlement in 2018.
On the opening page of Ms Byrnes-Luna notes, there is reference to a question being asked in response to what I assume was Ms Scullino’s statement that she was not happy, the following words appear:

“Why – accounts areas. Lots of ups and downs there, staff issues, too much pressure, lack of appreciation, untruths and little regard”

I believe I have recorded that entry accurately.

The next entry is in June 2019, or page 167 of the evidence brief. There are obviously ongoing issues with a combination following the divorce. There is no reference to work issues at that time.
The next entry is for 21 August 2019. There is no mention of work-related issues. However, at the next consultation, 27 November 2019, I note the entry “work is shit and hates it”. Further that Ms Scullino was looking for work all the time but there was nothing much around.
On 26 February 2020 there is an entry where clearly Ms Scullino had dealt extensively with work issues having returned from a three weeks’ break[18]. The notes at that time ranged from what might be determined as being reasonably positive to more of the same. I note reference to a talk to a boss where he was positive in relation to upskilling. References were made to “they wanted to get rid of everyone and Maria was shocked” and the boss having unrealistic expectations and dragging up issues of things over a year ago. Further reference to “now needs to look for another job as its become toxic”.
[18] Page 171 of the evidence brief.
The entry on 18 March 2020[19] records that things at work have gone from bad to worse. There is reference to the performance meeting which was cancelled. Had a meeting with her support person but nothing has occurred since. Ms Byrnes-Luna records Ms Scullino was “shaking, more, spend time on the lounge and her life is becoming really hard”.
[19] Page 172 of the evidence brief.
By 29 September of that year there is an entry stating that Ms Scullino was getting on better with her boss. Similarly, there is reference to having had lots of work taken from her and has got more time and gets bored at times and not productive[20].
[20] Page 175 of the evidence brief.
On 25 November after the disciplinary meeting at the centre of this claim, there was a note to the effective of:

“things not good at work – got a warning – fabricated accusations, no apparent substantiations

Feels pushed out and set up”

Dr Rastogi

Dr Rastogi has seen Ms Scullino for medico-legal purposes. Her report of 6 August 2021 is in evidence and is extensive in its history of the claim. The history taken by
Dr Rastogi is consistent with that I have set out in Ms Scullino’s statement. Dr Rastogi notes at page 183 of the evidence brief that “there were constant pressures to perform and unrealistic goalpost and dismissal by her manager. She would train staff and they would leave and she had to step in”.
Dr Rastogi records the arrival of Mr Shehata in 2018.
Dr Rastogi references the increased hours and the fact that Ms Scullino felt targeted, micromanaged and under constant duress.
She records the onset of Covid-19 pandemic and movement of the team and the extra load in relation to international payments, again being micromanaged and having pressure placed upon her. Dr Rastogi also records the sudden change of approach with accounts being removed from Ms Scullino’s care in August 2020. She records symptoms involving “severe sleep disturbances, panic attacks, physical symptoms, anxiety and fear, loss of appetite, amotivation and state of physical discomfort”. He goes on:

“she became housebound and fearful of people, issues of trust, she was socially shut does, extremely liable and volatile in verbal outbursts, relationships strained.”

Reaching a diagnosis, Dr Rastogi says:

“the last straw was being issues (a) warning letter in November 2020. She was subjected to chronic bullying and harassment since 2018 and that pre-dates the warning issued.”

She noted continuing anxiety, loss of confidence with poor self esteem at the time of writing her report on 6 August 2021. Dr Rastogi opines that Ms Scullino’s employment and the chronic ongoing bullying and harassment by her manager since 2018 combined with limited resources and excessive workload and other matters over two year is a substantial contributing factor to her injury and ongoing symptoms.
She offers a positive note that perhaps with ongoing treatment she may have capacity to return to work with some restrictions in the future although this matter is left at large and by the medical evidence generally.
I note here that Ms Scullino’s treating GP prior to the matters arising in November 2020 is not in evidence.

Dr Mariam Ghufran

Various medical certificates provided by Dr Ghufran appear in some of the late served (but not objected to) material for Ms Scullino. These deal with incapacity for work from September 2021 to the present.

Ms Maria Gardere

Ms Gardere has treated Ms Scullino as her psychologist after referral from Dr Ghufran.
Her treatment post-dates the events of November 2020 and she first saw Ms Scullino on 9 December 2020. While there was little reference to Ms Gardere’s report in submissions by either counsel, the history of events she details is impressive and is broadly consistent with that of Ms Scullino, other practitioners and lay witnesses.

Respondent’s evidence

In reply to the evidence of Ms Scullino, the respondent calls evidence in the form of statement from various members of its management team including Mr Shehata.

Lay evidence

The respondent relies upon several statement being various those of Amelia Allen, Amon Shehata, Jason Morris and Leanne Di’Bartolo. I have addressed Ms Di’Bartolo’s statement which is relied on by Ms Scullino.
I note there are two statements of Mr Jason Morris, the first is dated 28 September 2021 with a statement dated 14 March 2022 also being admitted into evidence late without objection.
All of the respondent’s witnesses hold management positions with the respondent. There is no statement from Mr Cameron.

Statement of Mr Amon Shehata

Mr Shehata unfortunately finds himself at the centre of things. He has signed a statement which was prepared following an interview during the investigation by EML. He confirms his role as shared Services Manager reporting directly to the Chief Financial Officer. He met Ms Scullino when he came into his role with the company and records Ms Scullino being a direct report to him in her capacity as Accounts Payable Supervisor.
He says that Ms Scullino’s aptitude towards her role in the Accounts Payable work as good but was critical of her engagement with staff reporting to her. He confronts the allegation that Ms Scullino says that Mr Shehata bullied her over a period of time; he disagrees.
He refutes that there was a suggestion there was high staff turnover but I note no reference to data he might rely upon to rebut the assertion.
He describes his role as consultative and that he would discuss resourcing with
[21] See paragraph 42 of Mr Shehata’s statement.
Ms Scullino. He concedes he discussed her workload with her and says that temporary and full-time staff were hired from time to time. He says that Ms Scullino declined offers of assistance; he believes he had been very accommodating and supportive[21]. He took a consultative approach and issuing being discussed with the team to the performance issues which were meant to be dealt with in March or April 2020.
He also confirms Mr Cameron intervened at that time over concerns about
[22] See paragraph 54 of Mr Shehata’s statement.
Ms Scullino’s mental health. He professes ignorance about Ms Scullino’s mental health at that time[22].
He goes on to say that the decision was taken to “roll over our concerns to Maria’s annual appraisal” and he does not recall any mediations taking place of the type recorded by Ms Scullino. He feels they may be reference to a prior year concerning negative behaviour[23].
[23] See paragraph 56 of Mr Shehata’s statement.
He addresses the further allegations made by Ms Scullino saying they are not consistent with his management style and also addresses the matter concerning
Ms Scullino returning late from lunch one day. He said the discussions were fair and reasonable and took place after their consultation with HR.
Addressing the broader allegations of working long hours at that time, Mr Shehata confirms that he said he did not expect Ms Scullino to work long hours and reminded her only to work the hours she was contracted to do.
He does not recall the discussion in relation to Kylie potentially taking a senior role which may have been that of Ms Scullino and at that time of the year in October 2020, he was catching up with all staff.
Mr Shehata goes on to say that he has had concerns about Ms Scullino’s attitude and reminded her of company values. He feels that it was reasonable for him to ask
Ms Scullino questions about other managers in her team.
Mr Shehata goes into some detail about the meeting in November 2020. From his side of the fence, the meeting was reasonable and fair, and he had consulted with HR about the process that ought be followed by him. He says that other staff were concerned about Ms Scullino’s communication, lack of support and undermining of him. He corroborates Ms Scullino’s relation to the leadup to the meeting and that he and HR had identified the need for her to be supported but consistent with the evidence from Ms Scullino, it was conceded that they never had the opportunity to discuss the plan to work forward from the meeting.
He said in concluding that at all times he took advice from HR in relation to each step that he had to take in speaking to Ms Scullino and that he felt that the respondent had acted reasonably and professionally towards her at all times.

Statement of Ms Amelia Allen

Ms Allen gives a statement as part of EML’s investigation. She is a Human Resources Advisor and was involved in the process in November 2020. Ms Allen says that
Ms Scullino was not over worked because of high staff turnover but again consistent with Mr Shehata’s statement, does not go on to address why she does not agree.
She confirms that the team has grown over time and there was no expectation that staff would work back or overtime. She supports Mr Shehata when he says he does not advocate for staff to work outside of core hours. If additional staff were required, it would be up to Ms Scullino to raise that with Mr Shehata.
More broadly she speaks very positively about Mr Shehata’s approach to his team. Unlike Mr Shehata, she does recall a mediation process in February 2019. That was said to relate to communication issues and confirms the allegations in relation to the March meeting which was “rolled over” but does recall a mediation process involving Ms Scullino and Mr Shehata at or about that time (unlike Mr Shehata). She comments that there were no complaints to her in relation to suggestions that Mr Shehata was actively ignoring Mr Scullino or abrupt toward her in front of others. She says, although not why, she understands that Mr Shehata had given Ms Scullino opportunities to raise issues with him and take recommendations on board. In relation to the late lunch issues, she feels that Mr Shehata was acting appropriately and again repeats that late working was not condoned.

The issues of the junior worker, Kylie being ready for a senior role is addressed in the statement given by Ms Allen but she was not privy to the actual conversation.
Turning to the critical meeting of November 2020, at which she was not present,
Ms Allen expresses the general view that meetings held with Ms Scullino were fair and reasonable. She confirms the 10 November 2020 meeting was a disciplinary matter where a combination of behaviours were being addressed. Good communication was an issue for the role Ms Scullino was performing. Ms Allen goes on to broadly outline the processes and that Ms Scullino was defensive and despite being told that they would work with her, she was being asked to cooperate with a process but has not worked since 8 December 2020.

Statement of Jason Morris

Jason Morris’ first statement is that dated 21 January 2021. He is a Human Resources Manager. In other words Mr Morris holds a senior position in the company. He confirms the reporting arrangements and Mr Morris’ statement then goes on to detail what he regards as Mr Shehata’s style, being a dedicated procedure driven manager. Mr Shehata is said to be one who always seeks advice if he has any concerns about how to proceed with a human resource related matter.
In paragraph 19 of his statement, Mr Morris concedes he was being advised by Amelia Allen in relation to any direction or advice she has giving Mr Shehata concerning his management of Ms Scullino. He says he was aware of the problems being raised by management in relation to Ms Scullino’s working performance. He says he was also aware of complaints from her team about her communication style and that it was an ongoing concern.
He then says at paragraph 24 of his statement that there was no formal complaint made about Ms Scullino but that Mr Shehata was monitoring the situation.
From paragraph 26 of his statement, Mr Morris is broadly in step with Ms Allen and
Mr Shehata variously saying that he does not agree that high staff turnover was a pressure point or that there was any evidence of a high or excessive workload.
He later addresses Ms Scullino’s view that she found a “stressed team” after returning from her leave because Mr Shehata had changed the ledgers on which team members worked; he says that this is consistent with Mr Shehata’s role to initiate changes and he was not aware of team members having issues or concerns.
In relation to the allegation that there was lack of warning in relation to the March 2020 meeting, he disagrees but does note that the CFO stepped in to call off the meeting to placate Ms Scullino.
It is suggested the CFO “thought at the time Maria was not in the right headspace for the meeting to go ahead” and the concerns would be dealt with later in the year.
In relation to Mr Shehata’s work style, Mr Morris does not agree and similarly in relation to the issue of the lunch incident. Mr Morris posits it was not an isolated incident.
Mr Morris does not advance things much further in relation to the junior employee Kylie taking on a more senior role incident and in relation to the 2020 meeting he is satisfied the meeting proceeded in accordance with appropriate and reasonable procedures.
The second statement of Mr Morris is dated 14 March 2022 deals further with
Ms Scullino’s evidence together with the comments made by Holly Fleming and Chantelle Thompson which support Ms Scullino.
Mr Morris suggests that turnover was normal and that the absences could not be addressed immediately. He is not aware of any situation Ms Scullino was asked to work past her designated finishing times but does not address whether or not she did so. He suggested he walked through the accounts payable area outside normal hours and there was no evidence of people working back. He sets out what he would have expected Mr Shehata to do if Ms Scullino was working back. He rebuts as a question of fact that at no stage could Ms Scullino have had nine accounts or associated companies to work with. He is aware that Mr Shehata sought to change operations and in his opinion this was a positive approach taken by Mr Shehata. He rebuts the proposition that Mr Shehata micromanaged Ms Scullino and from his observation they had a normal supervisor / worker relationship. He would have expected there would be several conversations between the two in any working day.
He says of Ms Fleming that she was proximate to Ms Scullino but could not see her from her workstation.
He is critical of Chantelle Thompson’s “own perceptions (which) are influenced by her own experiences in her work or in her personal life”.
Ms Thompson never brought her concerns to the attention of the company and
Ms Thompson was not in Ms Scullino’s team and had no direct knowledge of it. He broadly rebuts Mr Thompson’s statement line by line but most of the observations made by Mr Morris go no further than that.
Mr Morris’ evidence in relation to Ms Thompson’s perceptions are dealt with in a similar way to those of Ms Fleming. He expresses doubts as to how Ms Thompson could draw her conclusions. He expresses an opinion that any change in Ms Scullino’s personality observed by Ms Thompson is not relative to her workers compensation claim. He also for some reason feels the need to address Ms Thompson’s personal issues around the time she left the company. In short, Mr Morris concludes in his final statement he has no recollection of Ms Scullino ever being stressed or upset following any meeting whilst Ms Thompson was still at the company.

Respondent’s medical evidence

Dr Vickery

The respondent relies on the reports of Dr Vickery. Dr Vickery has concluded that based on the history he has taken from not only Ms Scullino but also by reference to the lay evidence relied upon by the respondent (but not that of the applicant), that Ms Scullino suffers from a panic disorder and persistent depressive disorder to which her employment has been a contributing factor.
He says it is his opinion that the psychological injury was wholly or predominately caused by the formal meeting on 10 November 2020 and/or the warning letter issued to Ms Scullino the following day. He concurs with Dr Rastogi that ongoing treatment is required and the condition was no stable at the time of his report.
Interestingly, I note reference in the report of 9 December 2021 to him being asked the following question (no doubt set out in the letter of instruction from Bartier Perry Solicitors):

“Please capture any episodes or psychological distress which occur prior to March 2020.”

This is not otherwise addressed in the report beyond noting Ms Scullino’s opinion on issues that were impacting her. The invitation to address March 2020 in particular is not taken up. I do not understand the respondent’s case to be that the reasonable disciplinary process commenced in March 2020, at which time her appraisal was deferred on the intervention of the CFO (from whom we have not seen a statement).
Beyond that, Dr Vickery opines Ms Scullino is unfit for employment.
His supplementary report dated 19 February 2021 addresses additional material provided on behalf of the respondent. This material includes the clinical notes from
Dr Mariam Ghufran at My Family Health Medical Centre, the first warning letter and development plan, and the respondent’s factual report prepared by Lee Kelly Investigations together with the lay evidence previously provided to him.
Dr Vickery does not appear to be drawing any different conclusion to that set out in his initial report. He re-affirms his diagnosis and the cause of it. He reiterates that the psychological injury from which it is conceded Ms Scullino suffered is wholly or predominately caused by the meeting on 10 November 2020 and while the prognosis positive, the diagnosis continues for a further four months. In other words, it is still (in the absence of other evidence) current.

Section 11A

It is trite to observe that the respondent carries the onus in relation to its defence.
There is broad alignment between medical and allied health practitioners that Ms Scullino suffers from a continuing psychological injury as a consequence of her employment with the respondent.
Section 9A of the 1987 Act is satisfied and is not in issue.
Section 11A 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.”

Senior Management, through Mr Cameron, were certainly aware of a situation where Ms Scullino was under pressure and apparently suffering at least by March 2020 but nothing occurred until eight or nine months later.
Nothing changed and although it may well be that Ms Scullino displayed certain behaviours which were not ideal in the workplace, or perhaps even in breach of some HR policies, these behaviours when taken in context of several years of workplace conflict and stress plainly were a manifestation of the stress she was under. By her own account, Ms Scullino was struggling, was emotional and under stress at home in addition to what was taking place during her working day.
Against this background, did the disciplinary action taken in November 2020, whether reasonable or otherwise, represent a predominant cause of her undisputed psychological condition or was it simply as Dr Rastogi notes, ‘the straw that broke the camel’s back’?
In Poonan v George Weston Foods [2007] NSWWCCPD 92 ADP Handley noted “in my view the ordinary meaning of the words predominantly caused” is in this context that of mainly or principally cause.
In ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27 ADP Candy said:

“what section 11A(1) requires is a comparison between all of the employment related contributions to injury and those contributions as a result of reasonable actions by the employer in the specified areas (Spigelman CJ in Sinclair at [58]).”

Mr Adhikary says that the procedure under consideration related to discipline but rightly does not contend Ms Scullino’s present condition is wholly a function of that process but rather is predominantly a function of the disciplinary process which occurred on 10 and 11 November 2020.
Mr Adhikary draws attention to the history taken by Dr Vickery and the management reports. He draws attention to the fact that the GP treating the applicant was not a treating GP in the period before November 2020 and this points to the real trigger for the applicant’s presentation to the current GP as being the events of November 2020.
True enough it is we do not have the benefit of the treating GP’s report but we do have the history taken by the treating psychologist, Ms Byrnes-Luna. I have recited in some detail from Dr Byrnes-Luna notes. It is abundantly clear that well before November 2020 Ms Scullino was seeking assistance in relation to stressors at work; there is consistency of complaint. True it is that such stressors were not reported on every occasion but they are consistent and the recording of events to the GP afterwards and with several lay witnesses. I do not understand Mr Adhikary to be suggesting that I ought read anything more into the absence of records from the GP who treated Ms Scullino prior to November 2020 being in evidence. It is not uncommon for people seeking counselling and other psychological assistance and support to go direct to a psychologist rather than via a GP. While it might have been helpful to have more detail in relation to treatment prior to the critical period, much in the same way as it might have been more help to have additional lay witness comments particularly Mr Cameron given his pivotal role in the events of March 2020 I am not persuaded that the involvement of a new GP after November 2020 is of material significance.
In short, I see nothing inconsistent or tending to suggest that Ms Scullino was not experiencing the matters she has set out in her statement without GP notes. As I have said, she is corroborated by three lay witnesses including Ms Di’Bartolo who attests to the very things which Ms Scullino has consistently recounted her to the various doctors and allied health practitioners providing opinions.
During the conciliation phase I expressed some concerns in relation to the evidence which might be considered to be of an ‘I said/he/she said’ nature. Counsel for the applicant, Mr Morgan, made reference to this reference in his submissions. What weight can be given to each side of the argument? He suggested that much of the lay evidence on the respondent’s side came from management who seem very pleased with their approach to integrating several companies and the procedures they had put in place. I do not doubt the integration of systems was far from straightforward particularly in 2020 with the onset of the pandemic but much of the respondent’s lay evidence is a recitation of what management witnesses say ought to have happened or generalities. Mr Morris was clearly removed from the action, reliant upon reports to him and I again note we have nothing from Mr Cameron. Given Mr Cameron’s intervention I struggle to accept Mr Shehata’s apparent lack of appreciation of Ms Scullino’s fragile psychological condition.
That said I do not wish to be critical of the respondent’s lay witnesses. No doubt they were doing their very best in integrating the various companies in the respondent’s group, achieving efficiencies for the company and implementing new systems around that, including new IT procedures. There may or may not have been higher staff turnover or it may have been normal turnover. The reality is that there is ample evidence to suggest that Ms Scullino was a high functioning competent employee who was observed to be upbeat and enthusiastic about her job when she first started to the person who now presents to the Commission. She was struggling well before November 2020 and senior management knew this from at least March 2020.
Mr Shehata was no doubt a very busy man and had competing priorities and was charged with making changes.
The impacts of those changes were quite profound in so far as they impacted Ms Scullino.
Ms Scullino gives the impression of one who soldiered on, struggling with a lot of issues both inside and outside the workplace, but the workplace was a significant factor in her deteriorating health and presentation to treating practitioners. She has been consistent although I am also satisfied she may not have been the easiest person to deal with in the workplace from time to time, but at the root cause was the way in which she was managed. It certainly does not appear to have been an ideal time at the respondent and no doubt matters were exacerbated by the Covid pandemic.
I have noted earlier that Dr Vickery’s attention was directed to March 2020 and any matters in Ms Scullino’s history prior to that date which might be relevant to his report. We know that in March 2020 an appraisal process was “rolled over” because of the intervention of Mr Cameron the CFO from whom we have no evidence. It may well be that handled differently thereafter the events of November 2020 might not have occurred. Essentially a problem was ‘kicked down the road’ and Ms Scullino continued to work in what she perceived to be a highly challenging, stressful environment without proper support.
Balancing the evidence it seems that Ms Scullino’s employment from 2018 up until November 2020 significantly contributed to her psychological condition and in context then, did the disciplinary action taken amount to a separate or competing factor to a point where it could be said to be a predominant cause or was it merely as noted by Dr Rastogi the ‘straw that broke the camel’s back’. Was it a continuation of a long pattern of workplace interactions and pressures and what might be seen as a certain management style that became all too overwhelming for Ms Scullinowho had soldiered against the odds for an extended period?
As with a statement from Mr Cameron, it might have been helpful if Dr Vickery, who otherwise is in step with Ms Scullino’s doctors, had been given the full picture from all the lay witnesses points of view.
Having weighed all the employment related contributions[24]. I am not satisfied that the disciplinary process which occurred can be regarded as a predominant cause of
[24] See ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27.
Ms Scullino’s psychological injury.
I have pointed to the gaps in the evidence but it is the respondent who carries the onus.
Briefly turning to the question of reasonableness, if Ms Scullino was conducting herself in the way attributed to her including use of bad language and behaving in a way that produced complaints to other staff, it may well have been reasonable for the respondent to step in and institute a disciplinary process of the type it did.
Given the gap from March 2020 when there were issues that necessitated the intervention of a senior executive the way in which the process in November 2020 proceeded seems to me to have been less than ideal, with Ms Scullino being given very little time to prepare and having matters put to her that had not been fairly and squarely raised before. I do not make any findings on point as to reasonableness however, having determined that the disciplinary process was not the predominant cause of Ms Scullino’s psychological injury.

Work capacity

Mr Adhikary suggests that I should have regard to Dr Rastogi’s opinion that with treatment, Ms Scullino would get to a point where she could return to at least modified duties.
However, there is simply no evidence on which to base a determination of what those modified duties might be or what remuneration they might attract and Ms Scullino is able to conveniently fall back on Dr Vickery’s opinion which is that at present perhaps despite the prognosis for future improvement, she has no capacity for employment.
Ms Scullino is accordingly to be assessed on the basis of total incapacity for employment.

AWARD

There will be an award for the applicant for weekly benefits referred in the Certificate of Determination.
There will be a general order as to payment of section 60 expenses.
There is a claim for benefits under section 66 which is in dispute.
At the time Dr Vickery prepared his last report he was in agreement with Dr Rastogi that Ms Scullino’s condition had not stabilised sufficiently however, Dr Rastogi has since provided an opinion that Ms Scullino suffers from a 15% whole person impairment disability. I cannot make a fair determination on impairment in this context and the matter should be remitted back to the President for a referral to a Medical Assessor to determine whether Ms Scullino has reached maximum medical improvement.

[2022] NSWPIC 196

3 May 2022