Sfuncia v Waverly Council
[2021] NSWPIC 20
•12 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sfuncia v Waverly Council [2021] NSWPIC 20 |
| APPLICANT: | Gregorio Sfuncia |
| RESPONDENT: | Waverly Council |
| MEMBER: | Mr Philip Young |
| DATE OF DECISION: | 12 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; several hostile events some in course of employment; perception of real events some episodes of exposure; Attorney General’s Department v K applied; predominate cause of injury given several episodes of exposure; Held- promotion issue but respondent’s section 11A case not established; award in favour of the applicant. |
| DETERMINATIONS MADE: | 1. The applicant in the course of his employment with the respondent between 22 November 2016 and 7 February 2018 suffered psychological injury which results from his exposure to hostile events and/or his perception of real hostile events. 2. The respondent’s section 11A defence is not established. 3. The applicant is entitled to awards as follows: (a) In respect of weekly payments of compensation from 12 March 2018 pursuant to section 36 of the Workers Compensation Act 1987 (1987 Act) for a period of 13 weeks. (b) Thereafter pursuant to section 37 of the 1987 Act to date and continuing with the relevant pre-injury average weekly earnings figure being $968.75 and with the respondent to receive credit for payments made. 4. A general order is made in favour of the applicant in respect of section 60 expenses. 5. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury deemed to have occurred on 12 March 2018. 6. The Delegate of the President is requested to place before the Medical Assessor a copy of the Application filed 22 December 2020 and attachments, a copy of the Reply filed 22 January 2021 and attachments, a copy of the Application to Admit Late documents and a copy of these Reasons for Decision. 7. Liberty is granted to the parties to apply by email to the Commission for further directions concerning the orders in 3. Above, if required. |
STATEMENT OF REASONS
BACKGROUND
Greg Sfuncia (the applicant) is a 49 year old man who was employed by Waverley Council (the respondent). He alleges that he suffered psychological injury arising out of and in course in his employment. He claims weekly payments of compensation, medical expenses and a section 66 lump sum compensation payment in respect of whole person impairment.
ISSUES FOR DETERMINATION
There are several factual disputes in this matter about what did and did not occur. The applicant complains of aggressive conduct by a former supervisor and there is also an issue concerning the application of section 11A because the respondent says that the applicant’s injury was predominately caused by his failure to obtain a promotion.
PROCEDURE BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing on 22 February 2021 by teleconference. Mr C Tanner of counsel instructed by Ms S Bathgate appeared for and with the applicant. Mr G Barter of counsel instructed by Mr W Murphy appeared for the respondent. Mr K Paine was present as insurer representative.
After the teleconference of 3 February 2021 the applicant on 17 February 2021 filed an Application to Admit Late Documents. Those documents which included several statements were admitted into evidence without objection.
The time available on 22 February 2021 was utilised with oral submissions by the parties. Thereafter, because of a lack of time a Direction was made that the applicant provide any written submission in reply on or before 5 March 2021 and that occurred.
EVIDENCE
Documentary evidence
The following documentary evidence was before the Commission:
(a) Application to Resolve a Dispute dated 22 December 2020 and attachments (Application);
(b) Reply dated 22 January 2021 and attachments (Reply), and
(c) Application to Admit Late Documents filed by the applicant on 17 February 2021 and attachments (AALD).
Oral evidence
No oral evidence was given.
SUBMISSIONS
It is unnecessary to summarise in detail the submissions provided in this matter as a sound recording of the submissions is available to the parties. In addition, the applicant’s final submissions in reply are written submissions which were lodged on 5 March 2021.
DISCUSSION
The evidence includes several instances where the applicant was exposed to unsavoury and/or threatening conduct in the course of his duties as well as outside his employment. The applicant’s case is that these exposures commenced on 22 November 2016 and comprise a number of experiences he had with his supervisor, Mr Baghdadi.
The applicant refers to verbal abuse being received from Mr Baghdadi on 24 May 2017 including Mr Baghdadi pacing up and down, exhibiting aggressive conduct and swearing at the applicant. The applicant describes the environment as a hostile working environment including another incident on 29 March 2017 as a result to which the applicant felt physically shaken. The applicant also observed the way Mr Baghdadi was dealing with other employees and he was upset at these dealings.
The applicant’s evidence is that on 27 June 2017 Mr Baghdadi drove a vehicle at speed at work towards the applicant and swore at the applicant whilst so doing. It appears clear that not only the applicant but also other employees[1] complained about Mr Baghdadi’s conduct and ultimately Mr Baghdadi’s employment was terminated following investigations into his conduct.
[1] For example Daniel Andou at AALD p 38.
This first section of behaviour by Mr Baghdadi is referred to in the applicant’s submissions in reply.[2] There is no serious dispute that this behaviour of Mr Baghdadi occurred but the respondent maintains that it was not causative of the applicant’s condition because the applicant remained at work.
[2] Applicant’s submission in reply 5 March 2021 at p 1.
The medical evidence on this point, however, includes histories taken by both Associate Professor Robertson[3] and Dr Ng[4] which are generally supportive of the applicant having had at least “a major interpersonal issue” with Mr Baghdadi[5] before Mr Baghdadi’s dismissal from employment.
[3] Application p 80.
[4] Reply p 119.
[5] Report Dr Ng 21 June 2018.
The respondent makes the point that the applicant’s condition was a combination of a number of separate exposures to events. The second “exposure” concerns Mr Baghdadi’s treatment of the applicant after Mr Baghdadi’s employment was terminated. It appears clear on the facts that Mr Baghdadi attended the applicant’s home residence and left threatening notes at his front door. These notes further distressed the applicant. The respondent suggests that because this is an aggravation of disease case, pursuant to section 4(b)(ii) of the 1987 Act the aggravation etc must be in the course of employment so that it is not sufficient that Mr Baghdadi’s conduct arises out of the employment.
The approach to be taken to this consideration in my view is to give consideration to cases such as Watson[6], Nunan[7] and Scarce[8]. But those cases focussed on the concept of arising out of the applicant’s employment whereas, as Mr Barter submitted, in the case of a disease or aggravation of a disease, the injury must be one which occurred in the course of employment.
[6] Qantas Airways Limited v Watson (No 2) [2010] NSWWCCPD 38.
[7] Nunan v Cockatoo Island Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119.
[8] Zinc Corporation Ltd & another v Scarce (1995) 12 NSWCCR 566.
The applicant continued work up until 7 February 2018. The events concerning Mr Baghdadi which occurred after Mr Baghdadi’s employment was terminated clearly did not occur in the course of Mr Baghdadi’s employment with the respondent. But the test does not concern Mr Baghdadi – it is whether there is such a connection between the conduct complained of and the applicant’s employment that it may nonetheless be said that the applicant’s aggravation (etc) of disease occurred in the course of his employment.
My view is that although Mr Baghdadi’s conduct occurred outside Mr Baghdadi’s employment in the sense that he was no longer employed by the respondent, there was such a material connection as a matter of common sense between this post-dismissal conduct and its affect upon the applicant that it arose in the course of the applicant’s employment. Put another way, the applicant but for his employment with the respondent would not have been exposed to Mr Baghdadi’s conduct at all, whether at work or after Mr Baghdadi’s employment was terminated.
If I am wrong about this, it is nonetheless necessary for me to evaluate all of the causative factors and thus far I have only referred to two sets of contributing factors. After the events concerning Mr Baghdadi leaving notes at the applicant’s home, the applicant was suspicious that another supervisor, Mr Francis of the respondent, had supplied Mr Baghdadi with access to personal information such as his (the applicant’s) home address. That perception clearly had a psychological effect upon the applicant. Whether or not it occurred is not entirely clear. However, the applicant’s response was triggered by a discussion he had with Mr Francis which was a real discussion in the sense contemplated as a real event by cases such as K[9]. Second, whilst there is no detailed information available, documents noted in the AALD suggest that the respondent itself considered Mr Francis’ conduct in this regard justified Mr Francis being counselled. That allows an inference to be drawn that some part of Mr Francis’ conduct in this episode justified counselling.
[9] Attorney General’s Department v K [2010] NSWWCCPD 76.
The next issue that affected the applicant concerned the applicant’s perception of his being treated unfairly because of his delay in receipt of a pay increase. The evidence is that the delay was not experienced by other workers, who obtained their increases straight away. The respondent does not dispute this delay but seeks to downplay it by saying that it was just “a failure to get a signature”. Again, the applicant reacted by perceiving a position (regardless of whether that perception was reasonable) which was a position concerning real events which were affecting him.
The next work difficulty for the applicant was his failure to obtain a promotion. The respondent of course bears the onus of establishing a section 11A defence in this regard and must show that the applicant’s condition was wholly or predominately caused by his failure to obtain a promotion and that the respondent’s actions were reasonable.
Dr Ng in his report of 28 October 2019 attributes the applicant’s psychological issue to have been predominately caused by his lack of promotion and his difficulties with Mr Baghdadi. Dr Ng does not simply say that lack of promotion was the predominate cause. Associate Professor Robertson supports the applicant in this regard. On this issue of reasonableness, it is clear that the applicant was due for performance review but this was withheld by the respondent and undoubtedly affected the applicant’s prospects for promotion. When reasons were ultimately given the respondent referred to the applicant taking too much sick leave as a reason for lack of promotion. In the absence of evidence that the applicant was not sick or not entitled to the leave he took, it is in my view unreasonable for the respondent to have considered that factor as relevant without further investigation in considerations concerning the applicant’s promotion. Additionally, although there is no cogent evidence either way on this issue, what is clear is that the respondent produces no evidence of having investigated the reasons for the applicant taking sick leave in circumstances where, as I have earlier concluded, the applicant was clearly on the receiving end of aggressive conduct by a fellow worker.
It is my view that in approaching this matter in a common sense fashion, several of the episodes of exposure to which I have referred are the predominate cause of the applicant’s psychological condition. I am not satisfied that events outside the workplace were the predominate cause, namely Mr Baghdadi’s conduct after Mr Baghdadi’s employment was terminated. It follows also in relation to the promotion argument that I am not satisfied that the respondent has established a section 11A defence. This is because firstly the applicant’s condition was not wholly or predominately caused by matters relating to promotion and secondly in the whole context of what occurred with promotion the respondent’s actions were not reasonable. Put simply, it was not fair for the respondent to reject the applicant’s promotion application for pure uninvestigated sick leave reasons when he was overdue for performance appraisal.
FINDINGS
Most of the submissions concentrated upon liability issues and there was not considerable detail offered concerning the relief sought by the applicant. Be that as it may, and doing the best I can, I make the following findings at this stage and will grant liberty to apply:
The applicant in the course of his employment with the respondent between 22 November 2016 and 7 February 2018 suffered psychological injury which results from his exposure to hostile events and/ or his perception of real hostile events.
The respondent’s section 11A defence is not established.
The applicant is entitled to awards as follows:
(a) In respect of weekly payments of compensation from 12 March 2018 pursuant to section 36 of the 1987 Act for a period of 13 weeks.
(b) Thereafter pursuant to section 37 of the 1987 Act to date and continuing
with the relevant pre-injury average weekly earnings figure being $968.75 and with the respondent to receive credit for payments made.
A general order is made in favour of the applicant in respect of section 60 expenses.
The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury deemed to have occurred on 12 March 2018.
The Delegate of the President is requested to place before the Medical Assessor a copy of the Application filed 22 December 2020 and attachments, a copy of the Reply filed 22 January 2021 and attachments, a copy of the Application to Admit Late documents (AALD) and a copy of these Reasons for Decision.
Liberty is granted to the parties to apply by email to the Commission for further directions concerning the orders in 26. above, if required.
Phillip Young
MEMBER
12 March 2021
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