Sheck-Townsend v Downer EDI Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sheck-Townsend v Downer EDI Ltd [2024] NSWPIC 310
APPLICANT:	Benjamin Sheck-Townsend
RESPONDENT:	Downer EDI Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	14 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses for psychological injury; respondent did not dispute injury but relied on defence pursuant to section 11A; discipline and/or transfer; Hamad v Q Catering Limited, Ponnan v George Weston Foods, Kooragang Cement Pty Ltd, and Fisher v Nonconformist Pty Ltd considered; Held – applicant’s injury not wholly or predominantly caused by respondent’s action; respondent failed to establish section 11A defence; applicant has no work capacity; award for applicant of weekly benefits and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant of weekly benefits pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $1,161.38 per week, as indexed, to date and continuing. 2. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Benjamin Sheck-Townsend (Mr Sheck-Townsend) was employed by the respondent, Downer EDI Limited (Downer) as a truck driver.
It has been accepted that the applicant has sustained a psychological injury.
By letter dated 2 March 2023, the respondent’s insurer, Allianz, advised the applicant that it would provide him with “provisional help”, which was available even if he had not made a formal claim, or it had not finished assessing liability for his injury.
On 12 July 2023, Allianz issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998.
Allianz disputed that the applicant was entitled to compensation because his psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or transfer, pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act).
Allianz also disputed that the applicant had an incapacity for work resulting from an injury, and that medical or related treatment was reasonably necessary as a result of an injury.
The applicant apparently requested on 6 September 2023 that Allianz review its decision, although the request is not in evidence.
On 19 September 2023, Insurance and Care NSW (icare) issued the applicant with a review notice. Allianz’s decision to dispute liability was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on
13 February 2024.
The applicant claimed to have sustained a “disease” injury, deemed to have occurred on
14 September 2022. He claimed to have a psychological injury arising as a result of being treated poorly and ostracised as a result of the confidentiality of his safety concerns being broken.
The applicant claimed weekly benefits from 3 August 2023 to date and continuing; and medical expenses of $231.80.
The respondent lodged its Reply on 5 March 2024.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a) whether the respondent has a defence to the claim pursuant to s 11A of the 1987 Act, and
(b) the applicant’s capacity for work.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 7 May 2024, on the Teams platform. Mr Adhikary of counsel, instructed by Ms Sutcliffe, appeared for the applicant, who was present in Ms Sutcliffe’s office. Mr Hanrahan of counsel, instructed by Mr Kim and
Ms Loganathan, appeared for the respondent. Ms Middleton of Allianz also attended.
The Application was amended by consent to plead that the deemed date of injury was
3 February 2023, the first date of the applicant’s incapacity. The applicant sought a general order for medical expenses, pursuant to s 60 of the 1987 Act.
The respondent did not dispute that the applicant had sustained a psychological injury. It relied on a defence to the claim, pursuant to s 11A of the 1987 Act, specifically its action with respect to discipline and/or transfer.
The applicant sought to rely on late documents, to which the respondent did not object. The documents were emailed to me prior to the commencement of the hearing. The applicant was directed to file an Application to Admit Late Documents (AALD), attaching the documents, on or before 10 May 2024, and has complied with the direction.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,451.73.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s AALD dated 8 March 2024 and attached documents;
(d)    applicant’s AALD dated 18 April 2024 and attached documents, and
(e)    applicant’s AALD dated 8 May 2024 and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Benjamin Sheck-Townsend

The applicant’s first statement is dated 13 March 2023. It was provided to an investigator retained by Allianz.
Prior to working for Downer, he worked at the same premises, and was employed by R & B Practical Consultants. Downer then took over the contract.
He had not suffered from anxiety or depression prior to commencing work with the respondent.
He commenced work for the respondent in August 2022. His role was truck driver, public sales and WHS (Work Health and Safety). He did “a bit of everything.” He had been on the WHS committee and was a first aider and fire warden. He was fully trained in WHS.
He was based at Lavington. The core business of the “SDO” was to take surplus or out of use stock from the Australian Defence Force. They determined if items were sold or destroyed.
He reported to Mark Burgess, the team leader in his area. Mr Burgess reported to Brad Thompson at Downer, and SDO Commonwealth representative, “Gavin”.
There were four people in his team – Troy Wally, Kate Beeson, Mark Burgess, and himself.
His duties included working in public sales, triaging stock, making up pallets of stock, doing computer work, and driving the truck between the Lavington depot and the auction house for one to two weeks a month.
There were four of them with an HR (heavy rigid) licence. He sometimes loaded the truck, but usually Kate or Troy loaded it. He moved the curtains and gates and ensured the truck was loaded properly. He was the designated truck driver.
There had been no formal performance issues raised with him. The only time he was “pulled up” was when he was given a written warning around his language.
He went for two leading hand positions, and was not successful, but was praised for his excellent work. He was told he was next in line, but the other person had more leadership experience. “In the chat” after he was unsuccessful, the feedback was that he was doing a great job and was very versatile. He was encouraged to apply again.
Things first became difficult at work in August 2022. He was able to go to work and complete his tasks, but in August and September he was bringing work issues home and feeling upset and sick while he was at home. He was waking at night, worrying about work. That all started after he reported safety breaches and was “grilled” by Brad Thompson.
There were a number of incidents where he believed Leigh Stoekel was not working safely. He had made notes, which were attached to the statement, about them.
On 19 August 2022, he was asked by Leigh to hop into a skip bin to push the rubbish down. He refused as he believed it was not safe. Leigh commented that “this generation is lazy and have no drive”. He told Leigh he was not lazy, but it was not safe, and he would get another skip. Leigh was not happy, there was some “back-and-forth chat”, and Leigh walked away.
On 7 September 2022, he and Leigh were unloading a truck. They needed to remove a 4 tonne box. He told Leigh they needed the 7 tonne forklift. Leigh “shooshed me” and tried to remove the box using the 2.5 tonne forklift. The back of the forklift lifted off the ground.
On 8 September 2022, Leigh tried to move a double stack of pallets in one lift. They fell to the floor and damaged the container and antenna inside. The incident was not reported.
On 9 September 2022, Leigh again used the 2.5 tonne forklift to move a 4 tonne box. Ben Perrier commented that he needed to use the 7 tonne forklift, but Leigh insisted it would be OK. He had a pattern of taking risks with equipment and working in an unsafe manner.
He spoke to Ian Cartwright in confidence about Leigh’s repeated behaviour. Ian was the WHS manager employed by Downer. Before Downer took over, he was the “safety guy at work”.
After Ian Cartwright spoke to Leigh about the incidents, everyone appeared to know he had reported it. He felt his reputation was being questioned because he had reported safety breaches. He was told by one worker they agreed with him, but “dobbing Leigh in was a ‘dog act’”. A number of workers went quiet around him. Others, including Ben Perrier and Darren Cooke, were supportive.
He was called to a meeting with Brad Thompson on 14 September 2022. He told Brad he was disappointed with what had happened after he reported a safety breach. Brad’s reaction was to question him over his mobile phone use at work. He tried to pick him out for random things, but the accusations were without merit.
They had sporadic alarms, practised fire evacuation, and had to mark themselves as safe using their phone. They had a lockdown alarm that also relied on using their phone. He felt he had “rubbed Brad up the wrong way”, and he was “trying to find something to stick on me”, and “pin things on me.” In both September and February, Brad accused him of taking longer breaks than allowed, and being on his phone. Both times were unwarranted.
Prior to the February 2023 meeting with Brad, there had been issues with Kate Beeson. She asked him to do something that did not make sense. He raised it with Mark Burgess.
Kate had told him to clean his work area while she loaded the truck. He could not do that, as it was not the proper process when he was the driver. He had a meeting with Mark Burgess and HR and said the instruction did not make sense. “Mark was fine with it.”
In January 2023, he was waiting for a strapper and Kate accused him of time wasting. She told him to get another pallet. He replied, “No, I’ll wait, Troy is nearly done”.
During the meeting with Mark Burgess and Felicity Hall from HR on 9 February 2023, he was provided with a written warning regarding using poor language. He denied being aggressive to Kate, but agreed he said “fuck.” It was not directed at anyone. Everyone swore in most conversations every day. He felt targeted, victimised, harassed, and bullied in the meeting.
At the conclusion of the meeting, Mark brought up the strapper incident. The only time Kate asked him to do something, and he said no, was in December 2022. The task “didn’t make sense”. He would have had to leave what he was doing and move the item. It was a pointless task.
By that time, his working relationship with Kate had broken down. His trust had diminished. Her accusation against him led to a written warning. He told Mark Burgess he was happy to do what managers asked, but if Kate asked him to do a pointless task, he would say no. He would work with Kate and be civil but could not be friends with her. Mark was fine with everything he said.
He had provided his notes of a meeting with Brad Thompson on 21 February 2023. He was not provided with the option of bringing a support person. He felt unsafe at work after the meeting.
Brad told him Kate was on leave due to his behaviour. She felt so uncomfortable around him that she was not at work. He asked what he had done to make her uncomfortable, and he would rectify it. Brad said, “You are a big guy with a big presence.”
He told Brad he did not try to make anyone uncomfortable. The conversation “went downhill”, and he became threatening about his job and behaviour.
Brad appeared to be very angry with him. He suggested that if he “stuffed up the contract renewal process”, he would be in trouble. Brad gave him an ultimatum to apologise to Mark and Kate and hope they would accept him back in the team, or provide his CV, and he would look to find him another role in Downer.
Brad suggested he told Kate to “get fucked” as he said goodbye on 9 February [2023]. He asked Brad if he had asked Troy Wally about the conversation. Brad had no idea there was any witness, “as Kate had left that part out of her statement.” She had also left out key parts of the incident with the strapper, where she was holding Troy up by talking about her personal life.
Brad accepted that Kate told him she was unsure if she had clearly heard him, as she had not seen his lips move, and he was walking out. He recorded a typed statement that day, before he knew this was going to become an “incident”. He was recording any interaction with Kate. He did not trust her intentions or reasoning for him “making her uncomfortable”.
He had told Mark Burgess on 9 February 2023 how he was feeling. He told Mark he respected him, but his trust had been broken after the way he dealt with the incidents with Kate. Mark had “blindsided” him with HR. He told him he was constantly worried about being written up with a complaint. He could see Kate writing things down any time he was on the phone or took a toilet break. He felt he was constantly watched by Kate. He was walking on eggshells. He knew he was doing his job well but was also being questioned over small matters.
During the meeting with Brad on 21 February, he was asked for an answer by 3:30pm that day. He took some of his personal items when he decided to go home. He saw David Piper and asked him to tell his supervisor he was going home.
He went home and called his doctor for an appointment the next morning. He then emailed Mark. He got a phone call from Brad that afternoon, asking where he was. He told him he had gone home and was not comfortable with the conversation or his ultimatum. Brad’s attitude then changed. He suggested they had got off on the wrong foot. He told him he was going to his doctor and would provide a certificate the next day.
Brad had been trying to suggest he had problems in his homelife that were impacting his behaviour at work. That was not true.
He was extremely distressed after the meeting with Brad and called his partner. He decided he had to leave work as he no longer felt safe.
The key incidents/issues that led to his injury had been a lack of support from management regarding his complaint about Leigh’s unsafe practices. He was not after support from Ian. He needed support from management. There had also been bullying, intimidation and harassment from Brad Thompson in the way he conducted the meetings in September 2022 and February 2023, when he gave him an ultimatum and threatened his job.
He first consulted his GP (general practitioner) about work-related issues on 3 February 2023 and again on 22 February. Dr Shafquat Faisal was not his usual GP. He went to the Doctors at Lavington Practice and saw whoever was available. He also went to the doctor in late January 2023, around the time of the written warning. He had felt nauseous and anxious, and had four days off, telling his supervisor he would be no use at work.
His symptoms at the time he saw his doctor included constantly needing to go to the toilet. He had diarrhoea for almost three weeks and had lost weight. He was barely eating. His thoughts were scattered. His doctor gave him medication for chest pain. He could barely drive. His sleep was difficult. He was prescribed Temazepam, but it had not really helped. When he had his kids, he did school drop off. He put on his work uniform because he did not know how to explain to them why he was not at work.
His GP referred him to a psychologist at Thrive Psychology, but they did not do New South Wales WorkCover. He had not seen a psychologist or been prescribed other medication.
There were no non-work-related factors that might have contributed to his condition.

Attachments to the statement

The applicant has documented what he regarded as unsafe work practices on
19 August 2022, 7 September 2022, 8 September 2022, and 9 September 2022.
The applicant recorded that he spoke to Ian (Cartwright) about this in confidence, “yet not half an hour after Leigh was asked about these matters, everyone at work knew it came from me”.
“This whole spate of behaviour” had left the applicant feeling very undervalued and caused him to lose his confidence and ability to report anything safety related.
The applicant also recorded a conversation with Mr Thompson on 14 September 2022. He told Mr Thompson he was “pretty down”, and disappointed in the processes after he reported a safety breach.
Mr Thompson asked the applicant his “side of the story”. He explained what he had recorded and said he wanted their area to be better monitored to stop anyone cutting corners.
Mr Thompson asked about his break times and phone usage, which he thought was “a bit odd given we were talking about everything but that”.
Mr Thompson reminded the applicant that he was on six months’ probation, which he could review at any time. The quarterly review was coming up and any troublemakers, gossip mongers, and rumour starters would be gone – “the gossip and rumours will stop this week.”
This conversation left the applicant quite anxious and upset. They were told to report any safety breaches. He did this, followed the right channels, and informed his OHS (occupational health and safety officer) Ian Cartwright.
The applicant felt as though he was being very poorly treated. Being told he was “on notice” because he reported safety breaches was extremely unprofessional. He was extremely worried about his position.
The applicant has also documented his meeting on 9 February 2023 with Mr Burgess and
Ms Hall.
Ms Beeson had made two allegations against him in a week. He was feeling targeted, victimised, harassed, and bullied. Her saying goodbye to him on 9 February 2023, after she had not said anything to him all day, made him feel extremely uncomfortable and anxious.
The applicant’s second statement is dated 17 January 2024. Much of the statement repeats his previous evidence.
On 14 September 2022, Brad Thompson asked to meet with him. He was not told what the meeting was about or provided with the opportunity of a support person.
When Brad asked for “my side of the story”, he assumed he was referring to the safety breaches. He told him he was disappointed that his confidence had been broken.
Brad did not respond to this issue, raising unrelated issues about break times, phone usage, and gossiping. He said words to the effect, “the gossip and rumours will stop this week.” This made him feel highly anxious and uncomfortable, like he was being accused. The issues he had raised were not addressed.
Brad told him that because he was still on probation, his employment could be reviewed. The clear implication was that he could get rid of him at any time. This made him feel he had a target on his back.

He continued to perform his normal duties but had anxiety going to work. He was worried about being pulled in for a further meeting. He was worried for his job and supporting his family. He felt like his head was on the chopping block. In his eyes, he had done the right thing reporting safety concerns.
He started to withdraw at work. There were days when his anxiety made him feel sick and he had constant diarrhoea. He took days off sick because he did not want to be at work. He changed his lunch break so he could eat on his own. He was “on the toilet constantly from an upset stomach” caused by anxiety.
His alcohol consumption increased from one bottle of vodka per week to three bottles per week from August/September 2022.
Prior to 23 December 2023, he had a good working relationship with Kate Beeson. He was not sure why this changed. He reported the incident where he refused to clean while she loaded his truck to Mark Burgess. He was not aware that anything further came of the issue. The incident did not sit well with him, especially since he already felt he had a target on his back and did not want to add fuel to the fire.
He started to worry when he was around Kate. She had a notebook that she constantly wrote in. She would stare at him, look at her watch, and write in the notebook. He felt like everything he did was being recorded.
On 2 February 2023, he was called to a meeting with Felicity Hall, people and culture manager. He had received an email on a day off saying he was required to attend a phone meeting with her that afternoon. He was not told what the meeting was about. This caused his anxiety to go through the roof.
During the phone meeting, Felicity said there had been allegations that he had acted aggressively and sworn at Kate, and it was being investigated. He agreed that he swore in a conversation with Kate but denied swearing at her or anybody. He told Felicity he could not continue his duties while the investigation was undertaken and was going to get a doctor’s certificate.
On 3 February 2023, he told Dr (Navindra) Madawala, GP at The Doctors at Lavington, that he had been having workplace difficulties for five months. He also told him about the meeting. Dr Madawala gave him a certificate for about five days and told him to return if he felt he needed more time off.
On 6 February 2023, he received a written warning for a swearing incident. This upset him as there was considerable swearing in the warehouse, and he was not aware of any other staff singled out to receive a warning.
This warning, on the back of the workplace issues reported in August/September 2022, the meeting with Brad on 14 September 2022, and the altercations with Kate in December 2022 and January 2023, made him feel he had been targeted, which was his fear all along. He was becoming hypervigilant to any situation that could see him become the target of further complaints and impact his job.
On 9 February 2023, he was told by Mark Burgess that he had to attend a meeting that afternoon with him and Felicity Hall, to discuss the warning. He was not given an agenda. He was not offered a support person. He did not know he was entitled to one. If he had known, he would have advised Mark that he wanted to bring somebody. He felt ambushed. He did not understand why there was further discussion about his written warning, as he thought it had been dealt with.
During the meeting, Mark brought up concerns regarding his and Kate’s working relationship. He said he did not understand why this was being brought up with Felicity from HR, as he had not had an opportunity to provide his version of events, and he did not think it was appropriate or fair. Mark said that, as they were together, he would raise it. Felicity left at this point.
He and Mark continued to talk for a short period. He told Mark he was disappointed and felt he could not trust anybody at work. All he wanted was to do his job, and he would prefer not to interact with Kate on any level other than as colleagues, reporting to her, and taking direction as his 2IC (second in command). He said that was OK.
He continued to perform his normal duties until 21 February 2023, whilst suffering from anxiety, a constantly upset stomach, and worry.
On 21 February 2023, he was on his lunch break when Brad asked if he could grab him in half an hour for a chat. He was not given an agenda, told what it was about, or offered a support person. He would have had one if he had known what the meeting was about, and that he was entitled to one.
During the half hours’ notice he was given, he was “a wreck”, worried about what was going to be raised with him. He referred to his earlier statement regarding the meeting.
He felt like Brad went into the meeting with the purpose of getting rid of him. There was no indication that he acknowledged any issues he raised or wanted to understand his point of view. It was clear he had already made up his mind, and this was reinforced when he said he needed an answer by 3:30pm.
He left the meeting just after 2:00pm, giving him less than 1.5 hours to decide his future at Downer. His understanding was that Brad wanted to know if he was prepared to apologise to Kate and Mark, and hope they accepted his apology if he wanted to keep his job. He did not feel like he had any option if he wanted to sustain his employment. He was expected to go back to work for 1.5 hours while trying to think about what answer he would give. It was not long after this meeting that he left work for the day.
He had previously said he had not suffered anxiety or depression before commencing work with Downer. He had been referred to a consultation with Dr Ali Siddiqui on 20 May 2020.
His ex-partner had moved out and he was struggling to come home to an empty house and not seeing the kids. She was “threatening” him for child support, which was going to be a significant financial strain.
It did not take long to reach a financial settlement, whereby he was not required to pay ongoing support. This improved their relationship. He changed jobs, which meant he could see the children more. Any anxiety or depressive feelings were alleviated.
He did not have any further feelings of anxiety until approximately August/September 2022, when he started to worry about the WHS issues. Until then, he was working unaffected.
As regards Bradley Thompson’s statement, it was untrue that he had made a previous similar claim. He had never lodged a WorkCover claim with a previous employer.
There was only one instance where Mark raised issues regarding his and Kate’s interactions. This was in relation to the written warning.
Bradley stated there were reports that he responded negatively towards Leigh when he did not get the leading hand role. The role was not advertised and was not a position he applied for. Leigh was awarded it shortly after Downer commenced the contract as SDO. He was not angered or annoyed and considered himself a friend of Leigh.
He believed Leigh was the obvious choice for the role and was happy he was given the opportunity. Once in the role, his attitude dramatically changed. Ben Perrier and others witnessed this. The safety issues were legitimate concerns and a reportable offence.
He agreed he was moved from the inbound to the outbound team. He was not advised that his behaviour or performance was the reason. He was asked if he would like to move as there was an opening for a truck driver. Michelle Jones (then warehouse manager) mentioned the opportunity for promotion was better in that area.
Bradley’s exact words were, “you’re a big guy with a big presence”. Throughout their conversation, Bradley belittled him, threatened his position, and made him aware he could fire him at any moment. He did not try to help him.
As regards Mark Burgess’ statement, Mark never discussed his phone use during the morning meetings. He was always attentive. In relation to his toilet breaks, he experienced excessive bowel movements, which he now understood was a symptom of his work-related anxiety.
Mark was not employed with Downer when he was part of the inbound team. During his employment in that team, his performance, work ethic, and behaviour were not questioned.
He was not angered or annoyed by the decision to award Leigh the leading hand position, and he did not “miss out on the role”. Mark was not employed with SDO during that time.
On 18 January 2023 he was offsite for most of the day and had minimal to no interaction with Kate. She did not ask him to sign a document until 3:30pm, when he was leaving. This complaint was blown out of proportion, as he swore under his breath. This was not directed at anyone in particular, and he tried to convey this during his meeting with Felicity Hall.
He was waiting for the strapper while Kate was talking to Troy about their children. He was unable to get additional work to complete until he had strapped his pallet and would safely move it from his workstation. There was no practical way he could get more work without using the strapper first. This was being held up by their conversation.
He had previously been told by HR to notify his manager of his pending absence. His manager was Robert Brook. His supervisor was Mark Burgess. He was suffering from anxiety and of the opinion that Robert Brook was the most appropriate person to advise. On “ESS”, leave had to be approved before it was taken, which was why he emailed his manager and did not apply through ESS.
Robert Brook did not pass onto Mark Burgess that he was taking personal leave. He was too unwell to communicate to Mark Burgess directly.
When he was not at his workstation, he was being closely watched [by Kate] and felt targeted and the subject of a “witch hunt”, even when needing to use the bathroom. This made him feel very uneasy and victimised.
The conversation he had with Mark about following work directions was in relation to being asked to complete tasks that could not be completed logically. He had no issues following direction from Kate that was logically appropriate. She provided minimal direction, and he was therefore unsure how he continued to undermine her.
Mark had mentioned he was more subdued. This was due to the feeling of being watched and “witch-hunted”. He kept to himself as he was increasingly anxious. He would be accused of doing something he did not do or saying something that was untrue. He spoke about work and when spoken to, kept talk to a minimal [sic].
Mark had mentioned that he had sworn at Kate on 9 February. This was untrue and was not formally investigated. He did not swear at Kate.
He reinforced that he did not pursue Leigh’s leading hand role. He was not annoyed or upset at Kate’s appointment. He was not going to apply and was encouraged to apply by Robert Brook.

Evidence of Mark Burgess

Mr Burgess is Downer’s outbound team leader. His statement was signed on 27 March 2023.
He was based at Lavington at Disposal Services. He reported to Rob Brook, the delivery manager, and Brad Thompson.
The applicant worked in a team that included Troy Walley and Kate Beeson.
He had needed to raise some performance issues with the applicant, related to his behaviour towards Kate Beeson. He had also started to build up some information, noting how often the applicant went missing for up to 15 minutes most mornings. He regularly appeared not to listen at the team talk, often checking his phone. He then went to the toilet for up to 15 minutes. It was starting to become an issue. Other than that, he had good and bad days, but was mostly competent.
Some members on the inbound team advised him they did not wish to work with the applicant as he was argumentative and confrontational at times, and they felt he was lazy. Some may have become distant from him. He was advised that Leigh left due to ongoing issues with the applicant, but came back to work as a storeman, and worked in a different area.
The applicant missed out on the leading hand role to Leigh. Leigh told him there was conflict because the applicant felt he was more entitled to it. He would regularly not take direction from Leigh and was known to swear at him.
On the outbound team, the applicant generally did what was asked and his work was generally OK. Everything changed when Kate Beeson was appointed leading hand. It was noticeable. Kate, the applicant, and Troy all applied. That was when the relationship between the applicant and Kate appeared to sour.
He returned to work from leave on 20 January 2023 and was informed of an incident that took place on 18 January. The client, on a site, had complained about the applicant’s behaviour.
Kate had been asked to provide all the team with a simple document to sign, regarding confidentiality. It had been given to her at short notice. Earlier in the day, she had asked the applicant to sign it that day, because he was taking leave the following day. He had ample time to complete it.
At the end of the shift, the applicant was walking through the office and Kate asked him again for the signed documents. He was seen to “blow up” and heard swearing at Kate. He had slammed his bag on the table, while loudly saying “For fuck’s sake.” He still did not sign the documents properly.
The client and three or four others saw what happened. It was a “bad look in front of the client.” Kate had given the applicant some simple directions “and she got that response.” Lots of witnesses agreed with what the client said. The complaint went to Downer from the client.
In relation to the incident the applicant had referred to as occurring in December 2022, that was not raised with him until a meeting with HR, when the applicant got his formal warning letter on 9 February 2023. He did not raise it on the day in December.
On 1 February 2023, Kate told him she had had another altercation with the applicant. He was leaning on his bench. Kate was talking to Troy Walley. Troy had the strapper used for the pallets.
Kate said to the applicant, “You look bored.” He said he was waiting for the strapper. Kate suggested he get something else to work on. He “reportedly stared at her for a prolonged time and said he would just wait”. She believed he was resisting any direction from her.
On 2 February, he spoke to Kate to clarify what happened. At 11:33pm on 1 February the applicant sent a text to advise he would not be in on 2 February.
On the afternoon of 2 February, he emailed Robert Brook to find out if he had been notified of the applicant’s intention to return to work on Friday. He was advised that the applicant had told Robert he would be off on 2 and 3 February.
Robert had requested that the applicant follow the correct procedure, apply though ESS to him and left him know his intentions. The applicant had been present at the team meeting only days before, when he instructed the team on the correct procedure. This was another instance where the applicant’s attention was not with him.
On 6 February 2023, he texted the applicant to find out why he had not reported for work and asked if everything was OK. The applicant replied that he had told Robert Brook that “until this issue is resolved, I won’t be coming in”. He believed the applicant was referring to the investigation of the complaint. The absence was a surprise, as he was not contacted by the applicant.
Late on 7 February 2023, he was advised by HR that they had been provided with a certificate for the absence.
The applicant went back to work on 8 February. He had told Felicity Hall that if the applicant was to be given his warning letter, he wanted her to be present during the conversation he was to have regarding the interaction with Kate from the previous week. He needed to reinforce that if Kate gave the applicant a direction, he needed to follow that.
In the meeting on 9 February, the applicant commented that he felt “witch-hunted” and targeted. He denied being aggressive towards Kate but admitted swearing. Kate and the applicant’s relationship changed as soon as she won the leading hand role.
As for the claim that the applicant was “constantly being watched” by Kate Beeson, she was able to allocate work. Given his deteriorating attitude towards her, she was noting instances of poor behaviour, and, on his direction, times that the applicant was absent from his workstation without notice, as he was made aware it was happening more than just in the morning.
At the end of the meeting on 9 February, the applicant claimed he was being targeted. He told him he had wanted Felicity on the call to be fair and transparent. The applicant said he no longer trusted him or Kate.
He spoke to the applicant after the meeting and told him he was not targeting him and would continue to be open and transparent. The applicant felt the warning letter was not warranted and did not agree with it. If he did not agree with reasons for tasks, he would refuse to do them.
There had already been a complaint by a client about the applicant getting aggressive, and not following a simple direction, and he was now saying a few days later that he would not take direction if he felt it was unnecessary, essentially undermining him and Kate to effectively manage him.
The applicant had been emailed the warning letter prior to the meeting on 9 February. The meeting with HR was for Felicity to get his response. She told him of the expectation regarding his behaviour and advised it was a formal warning. He was told that a further incident of that nature could result in his termination.
Between 9 and 21 February, the applicant did his tasks, but was more subdued. He did not talk much and there was a lot of tension in the room. He had tried to find tasks for either the applicant or Kate, to provide space and reduce the risk of further incidents.
There was another alleged incident on 9 February. The applicant was not talking to anyone. Kate Beeson came to him in the afternoon, crying and visibly upset. She had said to Troy, “have a good night, see you tomorrow”, and then said the same to the applicant, who ignored her.
She said to the applicant that she was not sure if he heard her, but she “just wanted to say, ‘have a good night and I’ll see you tomorrow’”. He replied, “Get fucked”, while walking away from her.
Kate said she did not know how to deal with the applicant’s behaviour. She was not sure she could continue as leading hand if things continued. He stated that should not happen, and he would ask Felicity for some advice.
He tried to call Rob Brook about culture in the outbound team, with the applicant ignoring and swearing at Kate. He told her he would find work for her where she could work separately from the applicant. Kate was having trouble dealing with these issues from the start and had one absence on 8 February 2023 due to the deteriorating work environment.
HR told him they would only investigate after a formal complaint from Kate. She sent HR an email on 17 February and made a formal complaint. She was fearful of the applicant’s possible reaction, was seeking outside help for coping strategies, and did not feel safe at work, especially when alone with the applicant. She believed she was being prevented from performing her role effectively, due to the breakdown in communication. That was why Brad Thompson came down to talk to the applicant.
They were a small team, and the applicant’s behaviour was creating tension. His whole attitude changed when he did not get the leading hand job. He was briefed that in the applicant’s Culture Amp responses, his assessment of Downer was scathing. He openly expressed his views that he was not given appropriate consideration for roles within the warehouse, but he was given multiple opportunities to upskill, in many ways more than others.
He was not present at the meeting with Brad Thompson. The applicant did not speak to him that day and left early. He emailed over an hour after leaving without notice and said he was going to get a certificate. Brad Thompson told him that he advised the applicant of the formal complaint, and told him if that was what happened, he needed to apologise, or he could be terminated.

The applicant had agreed that the incident with the strapper had happened. He decided to wait and not do the tasks Kate asked him to do. He agreed that he had ignored Kate. He agreed that he had replied with “for fuck’s sake” in January, but denied it was aggressive.
In his email sent on 21 February, after the meeting with Brad Thompson, the applicant said he felt anxious about attending work due to harassment. He claimed he felt bullied and harassed by leadership and the constant false allegations were affecting his anxiety.
It struck him as strange that the applicant was now denying any of the incidents had occurred, when he had previously admitted the occurrences and witnesses were present. He provided the applicant with the number for the employee assistance program (EAP) and advised him to seek help if he was struggling or feeling anxious.
He knew that when the applicant missed out on the leading hand job to Leigh, things went downhill. Again, he missed out on a job to Kate Beeson, and that led to the issues with her.

Evidence of Bradley Thompson

Mr Thompson is the senior director of the respondent’s defence acquisition and sustainability program account. His statement is dated 24 March 2023.
He was not aware if the applicant had submitted any prior claims but had heard he may have made a similar claim with a previous employer.
He was aware that Mark Burgess had needed to raise some performance issues with the applicant, although he understood they were behavioural issues, generally related to his interactions with Kate Beeson.
In September 2022, he was attending the workplace in Lavington. Leigh Stoekel stated that the applicant’s attitude towards him [changed] after Leigh won the leading hand position.
Leigh resigned due to the way the applicant was treating him. In his resignation letter, he mentioned the incident the applicant had referred to and noted all other witnesses felt it was not reportable. He referred to the applicant making rude and snide remarks to him, which were having an impact on him. Reports from other staff were that the applicant responded negatively towards Leigh when he did not get the leading hand role.
After Leigh left, the applicant was moved into the outbound team, to try to change the dynamic.
He met the applicant on 14 September (2022), and it was more of a conversation than a meeting. He did not recall the specifics of the conversation. He said openly to all staff that the rumours needed to stop, and if there were concerns, they could come to him.
He wanted to help uplift the culture. They had all previously been subcontractors. For the most part, staff adapted well. He may have spoken to the applicant about his phone use and break times, but it was an informal discussion.
Kate Beeson was appointed leading hand on 12 January 2023. Shortly after, the client made a complaint about the applicant’s behaviour towards her. The applicant was given a formal warning during a meeting on 9 February with Mark Burgess and Felicity Hall. He understood the applicant was warned that any further incidents could result in his termination.
He saw the applicant on 21 February 2023. He was visiting the entire team and not having a specific meeting with the applicant. The applicant was sitting in the lunchroom, and he asked if they could have a chat later. Soon after, they met in the boardroom.
He denied that he was angry during the conversation. The chat was informal. He told the applicant to relax and made sure his posture was relaxed. His intent was to try and understand what was happening with the applicant. He asked if everything was OK at home, and he advised that his homelife was great. He had earlier that week done a “personal share” on mental health, sharing some of his own issues with the staff. He was encouraging workers to be open about challenges outside work, and genuinely asking the applicant if everything was OK.
A lot of staff had complained about the applicant’s behaviour. He was trying to keep him on staff because they needed staff at that workplace. He told the applicant he was the only one sticking his neck out for him, wanting to give him chances and options, and keep him in the role. Mark Burgess was patient and considerate, and he could see he was trying to support them all.
When he offered to take the applicant’s CV and find him another role, it was a genuine attempt to keep him employed and offer him opportunities. The applicant said he loved the job and wanted to stay.
He had suggested to the applicant that he could be physically intimidating to Kate. The applicant is tall and heavily built, with multiple tattoos. Kate is around five feet tall, and a lot smaller. The applicant did not accept that.
He had spoken to Kate, and she was visibly upset with interactions with the applicant. She wanted more support from Downer, which he had been arranging.
At the end of their chat, he asked the applicant to speak to him again after work. He nodded and left. He phoned the applicant at around 3:30pm and asked where he was. He said he had left early and gone to a doctor. The applicant said he never wanted to be in a room by himself with him again. He said he was “distraught” and felt he had threatened his job.
The applicant said he was unwell, was going to “go through the appropriate channels”, and would email Mark Burgess. He told the applicant he was sorry for how he was feeling, but he was genuinely trying to find a way forward for him.
The aim of the chat was that he was hoping to help the applicant see that some of his behaviours needed to change, but they valued him as an employee. He wanted the applicant to understand why he needed to address the issues with him.

Evidence of Felicity Hall

Ms Hall is the respondent’s people and culture manager. Her statement was signed on
4 April 2023.
She met with the applicant on 2 February 2023, when they were first investigating his behaviour towards Kate Beeson. That was the first time anything formal had been raised.
In 2022, Brad Thompson and Rob Brook had mentioned some issues around the applicant’s attitude at work that they were working through. Nothing required escalation to HR.
She attended a meeting with the applicant on 2 February 2023. She had sent him a meeting request to discuss a complaint and allow him to respond to the allegations made by the client, the Department of Defence.
Kate Beeson had been appointed a leading hand some weeks earlier.
Once the investigation was concluded, they had to communicate the outcome to the applicant. He was on personal leave, and they had to do this by email. Normally they would communicate the outcome face to face, but he had advised that he would not return to work until he knew the outcome. The complaint was substantiated.
The applicant eventually returned to work. She understood he spoke to Mark Burgess about the outcome letter but was not sure when.
Mark Burgess had sought her guidance on some concerns with the applicant’s relationship with Kate Beeson and asked her to be present at the meeting when it was discussed.
She was on the Teams call with Mark and the applicant on 9 February, aiming to reinforce that a similar incident could result in further disciplinary action, up to and including termination. She wanted to offer to answer any questions he had about the letter.
Their discussion was not targeting or harassing. They were just completing an investigation and allowing the applicant to ask questions. She did not recall him making comments about lack of trust. They were simply confirming what had been communicated in writing.
She did not have contact with the applicant after 9 February.
The secondary incident raised was by Kate Beeson. Mark emailed HR to advise she had raised issues, and she emailed her formal complaint on 17 February 2023. The complaint related to incidents that took place after the applicant returned from personal leave and received his formal warning.
They had not got to the point of investigating those further incidents. Mark Burgess was trying to manage the relationship. It could be escalated to HR if needed.
Brad Thompson was already going to Lavington the following week. He believed he had a good relationship with the applicant and would have a chat to see what was going on.
As for the applicant believing Brad had threatened his job, he had been warned that further incidents could result in further disciplinary action, up to and including termination. She understood Brad was reinforcing this.
Kate and the applicant had a good relationship when they were co-workers. This behaviour started after her promotion. The applicant was “a big guy”, and his aggressive behaviour was difficult for Kate.

Correspondence regarding complaint of the applicant’s behaviour on 17 January 2023

Ms Hall wrote to the applicant on 6 February 2023, regarding the outcome of the investigation.
Ms Hall confirmed that it was alleged that on 17 January 2023, the applicant acted aggressively and swore loudly towards his acting team leader when she asked him to complete a reasonable task. This was witnessed by a number of bystanders, including client representatives.
The respondent had decided that the allegation was substantiated. It had determined that the applicant’s conduct breached the DG-CS-ST002 Standards of Business Conduct. Consequently, a formal disciplinary process would be undertaken. HR or his responsible manager would contact the applicant about the next steps. He was reminded of the availability of EAP.
The applicant was issued with a formal warning letter by David French, general manager, people capability, dated 6 February 2023. This was his first warning letter. (Emphasis in original). Should he demonstrate this type of behaviour again, Downer may take further disciplinary action, up to and including termination of employment.

Complaint by Kate Beeson

Ms Beeson emailed Ms Hall on 17 February 2023.
Ms Beeson complained that on 1 February 2023, the applicant was working extremely slowly. He disappeared twice for 20 minutes.
Ms Beeson referred to the conversation with the applicant in which she suggested he get another pallet while he waited for the strapper. She reported this to her team leader.
On 9 February 2023, Ms Beeson said good night to the applicant. He did not respond but said “get fucked” as he left.
Ms Beeson had been afraid to say anything else to the applicant, fearful of his reaction. She had been in tears more than once, and it was affecting her mental health, work, and personal relationships.
The workplace was uncomfortable, and she felt unsafe when she and the applicant were in the outbound area alone. Her team leader had been supportive of her and the applicant.

Evidence of Stephanie Tate

Ms Tate is the applicant’s partner. Her statement was signed on 5 December 2023.
Prior to August 2022, she would describe the applicant as happy, calm, vigilant, sprightly, and adventurous.
She began noticing changes in the applicant’s demeanour shortly after he commenced work with Downer. The changes were:
·        easily angered/agitated;
·        reduced cognition;
·        sleep disturbance;
·        fluctuating mood;
·        missing meals;
·        decreased libido, and
·        increase in bowel movements.
The applicant told her he was not being listened to, especially in relation to comments by Leigh Stoekel following safety breaches. He felt he was not taken seriously when he made a complaint to the WHS manager, and there was no confidentiality in the workplace.
After the incident with Leigh Stoekel, the applicant told her he was being treated differently by his colleagues, and they did not trust him anymore.
The applicant told her he complained to Brad Thompson. He felt he had a “target on his back” and could not trust anyone at work. He had considered leaving the safety committee.
She noticed the applicant becoming more agitated when coming home from work. He was feeling targeted by Kate and felt he could not even go to the toilet without her writing it down.
The applicant phoned her following a meeting with Brad Thompson on 21 February 2023. He was distressed and began to cry. He was “unable to problem solve on what he should do.” She encouraged him to leave work.
On 21 February 2023, after leaving work, the applicant went into a store with his daughter. He sent a text message advising he felt dizzy and was required to sit on the floor. He felt he was having a panic attack.

Evidence of David Piper

Mr Piper was formerly employed by Downer. His employment ceased on 24 November 2023. His statement is dated 8 January 2024.
The applicant was “a great co-worker, he was always up for a yarn.” He was always there if he needed a hand.
He did not witness the interaction between the applicant and Kate. The applicant told him she “had a go at him” about talking, and told him to get back to work, while she was talking with a co-worker.
The applicant told him he was trying to move out of outbound to do mills work but was getting “roadblocked”.
He had never seen the applicant aggressive. He could tell something was going on, as the applicant became less talkative and at times a bit absent.

Evidence of Ben Perrier

Mr Perrier worked with the applicant. His statement is dated 17 January 2024.
The applicant was a good worker and easy to work with. He had never witnessed him to be aggressive. He would walk away or stop engaging.
In or about August/September 2022, he witnessed Leigh Stoekel drop a container off a forklift. He saw that the top load was unstable and commented that it would fall.
He and the applicant had discussed the incidents about which the applicant gave evidence.
Leigh showed little regard for workplace safety, and took no notice when colleagues raised issues. The applicant told him he had to say something, as he was a safety rep[resentative], and had to report it to Ian, which he understood he did.
He heard colleagues saying they believed the applicant did wrong by Leigh by reporting the safety breaches. He spoke up in support of the applicant. He witnessed colleagues be less friendly with the applicant. This seemed to reinforce Leigh’s behaviour.
In early 2023, the applicant told him Brad Thompson seemed to be punishing him for reporting safety issues. He was being moved to outgoings, and Rob was making things difficult for him. He did not feel he was being given an option.
He noticed the applicant became withdrawn and seemed defeated. He seemed to be very isolated from a lot of people.

Medical evidence

The Doctors at Lavington

On 31 July 2017, Dr Katharina Ebert recorded that the applicant was “pretty stressed”. He had split up with his partner but they might reconcile. He had no one to offload to and declined counselling.
On 9 February 2018, Dr Ebert recorded that the applicant felt stressed. His ex-partner was still living with him and there were daily arguments.
On 12 May 2020, Dr Siddiqui recorded that the applicant had been feeling anxious for three months. His mood fluctuated. He was depressed at times. He was stressed about the financial aspect of his job, and had a new partner, “relationship up and down.”
Dr Siddiqui referred the applicant to Ms Yulia Hruz.
On 3 February 2023, Dr Madawala recorded that that the applicant was having a hard time at work, due to some people. He had to take personal leave yesterday. He was under investigation for an allegation of aggressively swearing at someone. He was not comfortable to go back today. He was under a lot of stress and would like some time [off] early next week also. “Ongoing issues for the last 5 months – quite stressed”.
On 22 February 2023, Dr Faisal recorded that “workplace bully” accused the applicant of swearing at someone, but he said he did not swear at her, “just did it out of frustration.” The boss “pulled him in yesterday” and said he had to say sorry again. The applicant thought he was a threat to others because of his size and appearance. Since yesterday he had been teary, frustrated, sick in the stomach, loose stool. He wanted a WorkCover claim. A similar incident actually started back in September 2022.
On 2 March 2023, Dr Faisal referred the applicant to Thrive Psychology, but he received no treatment.
On 17 March 2023, Dr Faisal referred the applicant to Mr Joel Valente.
On 26 April 2023, Dr Faisal referred the applicant to Ms Karen Black.
On 21 June 2023, Dr Faisal referred the applicant to Ms Helen Pynta.

Certificates of Capacity (COCs)

The applicant has consistently been certified with no capacity for work.

Dr Suresh Goriparti – psychiatrist

Dr Goriparti was qualified by the respondent and reported on 10 May 2023.
Dr Goriparti recorded a history “that it all started” after a meeting with Brad Thompson in August 2022. The applicant reported some safety incidents and the person he reported left soon after. The applicant was called into the office and reminded that he was still on probation and could be terminated any time. He felt that he had to keep his mouth shut and just wanted to focus on his job. “Everything went quiet after that.”
The applicant got a call from HR in January and was advised they were investigating a complaint. He was unsure what it was about. He attended a meeting and was accused of “aggressively swearing at my direct supervisor”.
The applicant told them he wanted it to be investigated and would only return once the investigation was concluded. He went to his GP and got a medical certificate until Wednesday the following week.
When the applicant returned to work, he was given a formal written warning. He felt he did not deserve it but just wanted to move forward. He “kept my head down and did my job” until February.
The applicant was called for another meeting with his manager in February 2023. He did not have a support person. He was informed that a colleague left because of him. He was unsure what the manager was talking about. He was told he was “a big guy with a big presence”.
The applicant started writing a journal in August 2022. He showed it to a director in February. He was told that his problem was that he was always right. He was asked to apologise to his supervisor, and his job depended on whether the apology was accepted. He was asked to return with an answer by 3:30pm. He went home and emailed his team leader that he would forward a doctor’s certificate. He had not been back to work.
The applicant admitted that he went for a leading hand job last year and was unsuccessful. He accepted that the other person had more experience. He was told he was next in line, and when he applied again, he had the same experience. They never mentioned his attitude before the warning.
Dr Goriparti recorded that the applicant started “feeling sick” in August 2022, and “it all started to fizzle out.” He started “feeling sick again” in January 2023. He worried about going to work. He was not able to reset at home. His stomach was “in knots”. He was “really emotional” and easily irritable. He felt physically ill on Sundays, thinking about returning to work on Monday. He had diarrhoea for a few weeks.
The applicant had been referred to three different psychologists, none of whom saw WorkCover clients. He finally managed to find Ms Black but had not yet seen her.
The applicant was now “nowhere near as bad.” He felt ill when he drove past work. He saw his manager on Anzac Day and felt instantly sick, with cold sweats. His mood had been “up and down” since he stopped working. He wanted to go back to work as he had done courses that he could not use elsewhere.
Dr Goriparti opined that the applicant presented with signs and symptoms suggestive of an adjustment disorder. He reported improvement, but still had residual symptoms.
Dr Goriparti reported that the applicant’s description of the injury was not consistent with the factual investigation findings. He noted that the factual investigation only took into account statements by the applicant’s manager, HR manager, and director. The investigator did not approach other colleagues.

Dr Goriparti opined that the applicant’s symptoms were work related. He first noticed symptoms after receiving the written warning, but they worsened after the meeting with the director. The onset and exacerbation of symptoms followed the timeline when he was given a warning and then the meeting with the director.
Dr Goriparti opined that the applicant’s incapacity for work was directly related to the workplace injury. He did not have capacity for work at that stage. He would have some capacity after psychological treatment, but it depended on his response.
The applicant’s prognosis for a full recovery was very good. Dr Goriparti believed he could achieve full recovery within three months with appropriate treatment. He was confident the applicant would be able to return to work gradually with appropriate treatment.

Dr Martin Allan – consultant psychiatrist

Dr Allan was qualified by the applicant and reported first on 31 July 2023.
Dr Allan referred to the applicant’s statement dated 13 March 2023, which I have discussed above.
Dr Allan recorded a history that issues had initially arisen with regard to how the applicant was treated by Leigh Stoekel. The WHS manager had “essentially” spoken to Mr Stoekel in front of various colleagues, so there was no confidentiality in the applicant raising concerns.
Mr Stoekel walked out and did not come back for three months.
The applicant said that after this, he was treated as untrustworthy. He felt uncomfortable. He was no longer treated in a friendly way. He felt he was accused of being a “dobber”. He raised concerns with Brad Thompson about his confidentiality being broken. Instead of receiving support, he had his performance questioned, about using his phone, not adhering to appropriate hours, and gossiping.
In September 2022, the applicant had extreme worries regarding his position. He felt under threat. He began experiencing symptoms of adjustment disorder. Issues had arisen in late 2022 and 2023 with Kate Beeson. She had begun instructing and directing the applicant to do things that were not “her place to ask.” The tasks made no sense to him.
By February 2023, a meeting had taken place with Mark Burgess and Felicity Hall. The applicant was given a warning. Allegations had been raised that he had been swearing and acting aggressively towards Kate, which he “entirely denies.” He felt he was being treated unfairly.
It was “insinuated” to the applicant that he would be provided with assistance finding employment elsewhere. He felt entirely abandoned. His opinions were being dismissed and his concerns were not being addressed. His symptoms, which were ongoing and fluctuating since around September 2022 had continued to escalate and he went off work and sought treatment for the first time.
The applicant had encountered difficulty finding a psychologist and had had no treatment. He remained anxious and ruminative. He had initially hoped to return to Downer but no longer had confidence that he would be able to tolerate returning.
Dr Allan diagnosed the applicant with adjustment disorder with anxious mood. His condition arose as a result of him raising concerns about safety and being treated poorly as a result. As per his account, he was “outed” as having raised concerns about others’ conduct. Allegations had been made that he “entirely denies”.
Dr Allan opined that it was poor unfair treatment that led to the development of adjustment disorder, with the onset of symptoms in around September 2022. He did not believe the allegations were consistent with the onset of mental distress. The applicant’s distress had arisen in September 2022 and continued to fluctuate thereafter. His mental health difficulties significantly pre-dated any comments about his own alleged misconduct. His account was that the complaints were entirely vexatious and a response to him raising reasonable concerns about issues in the workplace.
Dr Allan did not believe that any discussion with the applicant regarding the written warning was the cause of his condition. It was not the whole or predominant cause of the injury. The treatment he received from September 2022 onwards led to the onset of a psychological condition.
Dr Allan opined that the predominant cause of the applicant’s difficulties related to him raising appropriate concerns and having confidentiality seemingly ignored. The “final straw” related to the disciplinary issues, but his mental health difficulties markedly pre-dated the warning and the issues of February 2023.
Dr Allan opined that the applicant had no capacity for work. He required at least around two months of psychological treatment before capacity for work could be assessed. His opinion regarding diagnosis, capacity for work, and treatment was consistent with that of Dr Goriparti.
Dr Allan provided a supplementary report dated 18 January 2024, having been provided with the applicant’s second statement, the evidence of Ms Tate, Mr Perrier and Mr Piper, and the medical records of The Doctors at Lavington.
Dr Allan opined that the limited experience of distress the applicant reported in May 2020 was in no way consistent with a prior psychiatric condition. His initial findings were entirely unchanged. He considered that the applicant sustained a work injury and employment was the main contributing factor to the injury. His original opinion was entirely unchanged.

SUBMISSIONS

Counsel’s submissions have been recorded, so I will summarise them briefly.

Respondent

The respondent submitted that the applicant had had previous problems with anxiety and depression, which he addressed in his supplementary statement.
The respondent submitted that the applicant was a valued worker, whom it wished to retain. Its difficulty was with his behaviour and attitude. His response to others’ promotion was unacceptable, and required at least a conversation with him, even an informal one. It was significant that Leigh Stoekel and Kate Beeson were provocative of his behaviour because they were promoted. He resisted direction from Kate Beeson.
The respondent submitted that it had to take seriously a complaint by a major client. It had to be resolved as quickly as possible.
The respondent submitted that the question of reasonableness needed to be considered from the point of view of those who were present at the time. A broad construction of reasonable action should be taken. It may not have done everything pristinely. There may have been escalation to more formal action by calling in the union and providing a support person. One blemish was insufficient to regard its whole response as not reasonable.
The respondent submitted that the applicant’s behaviour (swearing) occurred in public, and others noticed. It was not something it could “brush under the carpet.” It had to be addressed, and this was done in a reasonable manner.
As regards incapacity for work, the respondent relied on Dr Goriparti’s evidence. Dr Goriparti expected a full recovery within three months with appropriate treatment.
In reply to the applicant, the respondent submitted that Dr Allen had no access to its evidence. The applicant did not attend his GP before 3 February 2023.
The respondent disputed that the applicant was “ambushed”. He was on probation. It was compassionate to bring to his attention that his job was at risk. There was no unfairness in asking him to apologise.

Applicant

The applicant submitted that there was no evidence to demonstrate he had capacity for any form of employment. He referred to the evidence of Drs Allen and Goriparti, and the COCs lodged as late documents.
The applicant submitted that the respondent did not satisfy s 11A of the 1987 Act on its own case. He referred to Hamad v Q Catering Limited,[1] submitting that there is a need for cogent medical evidence to deal with relevant causative events. If Dr Goriparti’s evidence regarding the whole or predominant cause of the injury was not accepted, the s 11A case fell away.
[1] [2017] NSWWCCPD 6 (Hamad).
The applicant referred to Northern NSW Local Health Network v Heggie,[2] submitting that it was the reasonableness of “that action” that must be assessed.
[2] [2013] NSWCA 255.
The applicant submitted that his mental distress, including increased drinking, occurred well before the formal meeting or warning. There was not a “fair climate” for Dr Goriparti’s evidence, as its underlying basis was factually inaccurate.
The applicant submitted that the meeting and the warning exacerbated or aggravated his condition, but injury had already been sustained by that stage. He was already on edge after the meeting with Brad, before the disciplinary action. He saw his GP before the formal warning and meeting.
The applicant referred to the evidence of his partner and Mr Perrier, who said the applicant was withdrawn and defeated before he received the warning.
The applicant relied on Dr Allan’s evidence. He submitted that none of the evidence he had provided had been provided to Dr Goriparti, despite the respondent having the onus.
It was the applicant’s case that s 11A of the 1987 Act did not apply. Alternatively, he submitted that the respondent’s conduct was not reasonable. The pattern of its conduct was that he was “ambushed” and mistreated throughout the interactions.
The applicant referred to Irwin v Director-General of School Education.[3] He submitted that at no point were his rights adequately weighed or considered. It was also not enough that the respondent believed in good faith that it was compelled to act as it did.
[3] Unreported 18 June 1998.
The applicant submitted that he thought the warning was the end of the matter. He was then told by Mr Burgess of a meeting with him and Ms Hall to discuss the warning. He was not provided with an agenda or told he could bring a support person. He was not told what the “chat” with Mr Thompson was about. He was given a short period to decide what to do about his employment.
The applicant submitted I would accept his evidence where it conflicted with that of
Mr Thompson or Mr Burgess, but his witnesses supported his evidence about s 11A.
Mr Perrier had witnessed a lot of the issues.
The applicant submitted that s 11A was inapplicable because the whole or predominant cause of his injury was not discipline and/or transfer, and it was not reasonable.

SUMMARY

The only issues to be determined are whether the respondent has a defence to the claim pursuant to s 11A of the 1987 Act, relying on its action with respect to discipline and/or transfer; and the extent of the applicant’s incapacity for work.

Section 11A

Section 11A of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1)     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.
(3)     A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)     This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
...
(6)     This section does not extend the definition of ‘injury’ in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)     If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
The respondent bears the onus of establishing a defence pursuant to s 11A of the 1987 Act.[4]
[4] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.

Was the injury wholly or predominantly caused by action taken by or on behalf of the respondent?

“Wholly or predominantly” has been held to mean “mainly or principally caused”: Ponnan v George Weston Foods Ltd.[5]
[5] [2007] NSWWCCPD 92 (Ponnan).
Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd.[6] He dealt with causation on the basis that Kooragang Cement Pty Ltd v Bates[7] applied. Roche DP said, “causation is a question of fact to be determined by the evidence in each case.”
[6] [2008] NSWWCCPD 96.
[7] (1994) 35 NSWLR 452; 10 NSWCCR 796.
The Court of Appeal recently considered the application of a “common sense” test of causation in Fisher v Noncomformist Pty Ltd. [8]
[8] [2024] NSWCA 32 (Fisher).
The appellants in Fisher argued that invocations of “common sense” were inconsistent with the statutory requirement in s 9A of the 1987 Act, relying on what French CJ, Bell, Gageler, Keane and Nettle JJ said in Comcare v Martin. [9]
[9] [2016] HCA 43; (2016) 258 CLR 467 (Martin).
In Fisher, Kirk JA (Meagher JA and Simpson JA agreeing) said [at 106]:
“To begin with, the High Court here did not suggest that any invocation of common sense in relation to issues of causation involved legal error. Indeed, in Hunt & Hunt[10], three members of the High Court – including French CJ, who was in Martin – said the following: ‘Causation is largely a question of fact, to be approached by applying common sense to the facts of the particular case’ (at [43]). Whilst that judgment was three years prior to Martin, it was well after the authority cited in Martin in the passage just quoted. The notion of common sense has been invoked by members of the High Court more recently with respect to related factual assessments: see eg Military Rehabilitation and Compensation Commission v May per French CJ, Kiefel, Nettle and Gordon JJ; Lewis v Australian Capital Territory per Gordon J; Queensland v Masson per Nettle and Gordon JJ”. (Citations omitted).
[10] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613.
It is usually the case that medical evidence as to causation with respect to a psychological injury is required.
In Hamad, Snell DP said (at [88]):
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
The applicant has given evidence that things first became “difficult” at work in August 2022. He was able to work but was bringing work issues home and feeling upset and sick. This started after he reported the safety breaches and was “grilled” by Mr Thompson.
The applicant’s evidence about the meeting in September 2022 has not been refuted by
Mr Thompson. Mr Thompson was apparently concerned about the applicant’s attitude towards Mr Stoekel, which led to the latter’s resignation, but the applicant perceived a lack of support and a threat to his position while he was on probation.
The applicant has also given evidence that after the meeting with Mr Thompson he took sick leave, changed his lunch break, and increased his alcohol consumption.
The applicant’s evidence is supported by that of Ms Tate, Mr Perrier, and, to a lesser extent, Mr Piper.
While the applicant did not seek medical attention before February 2023, Dr Madawala recorded on 3 February 2023 that there had been ongoing issues for the last five months, that is, from September 2022.
Dr Faisal also recorded on 22 February 2023 that “a similar incident started in September 2022.”
Both clinical entries were made at a time before liability was disputed and the applicant had been informed of the respondent’s reliance on s 11A of the 1987 Act.
Dr Goriparti recorded that “it all started” after the meeting with Mr Thompson in August 2022. The applicant started feeling sick again in January 2023.
Dr Goriparti opined that the applicant first noticed symptoms after receiving the warning, but they worsened after the meeting with the director (that is, Mr Thompson) in February 2023. That does not accord with the history he recorded.
Dr Allan, unlike Dr Goriparti, had access to the statements of Ms Tate, Mr Perrier and
Mr Piper, and the applicant’s clinical records. Dr Allan opined that the applicant’s mental health difficulties pre-dated any allegations of misconduct. He specifically opined that the discussion about the written warning was not the whole or predominant cause of the applicant’s injury. The disciplinary issues were the “final straw”.
Having considered the lay and medical evidence, particularly the evidence of Dr Allan, I do not accept that the applicant’s injury was wholly or predominantly caused by the respondent’s action with respect to discipline and/or transfer. His condition pre-dated the disciplinary process but appears to have worsened as a result of that process. The respondent has therefore failed to establish a defence to the claim pursuant to s 11A of the 1987 Act; and it is unnecessary that I consider the reasonableness of its action.

Incapacity

I accept that the applicant has at all relevant times had no capacity for work. As I have noted, the COCs have consistently certified him with no capacity.
Dr Goriparti opined in May 2023 that the applicant had no capacity for work. He would have some capacity after treatment but has had minimal treatment. Dr Allan agreed and said his opinion in this regard was consistent with that of Dr Goriparti.
There will be an award for the applicant pursuant to s 37 of the 1987 Act from
3 August 2023 to date and continuing, at a rate that is 80% of his PIAWE.
The applicant sought a general order for s 60 expenses, which is appropriate.

I determine as follows:
(a) the applicant’s injury was not wholly or predominantly caused by the respondent’s action with respect to discipline and/or transfer;
(b) the respondent does not have a defence to the claim pursuant to s 11A of the 1987 Act;
(c) the applicant has had no capacity for work from 3 August 2023;
(d) the applicant is entitled to an award of weekly benefits pursuant to s 37 of the 1987 Act from 3 August 2023 to date and continuing, and
(e) the applicant is entitled to a general order pursuant to s 60 of the 1987 Act.
The orders are set out in the Certificate of Determination.

[2024] NSWPIC 310

14 June 2024