Sirijovski v Coles Supermarkets Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sirijovski v Coles Supermarkets Australia Pty Ltd [2023] NSWPIC 644
APPLICANT:	Peco Sirijovski
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	18 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and medical and related treatment expenses for psychological injury following disciplinary action and dismissal after worker discovered using his personal Flybuys card on customers’ transactions; whether action taken by or on behalf of the respondent was reasonable pursuant to section 11A(1); extent of incapacity resulting from injury; Held – although it was reasonable for disciplinary action to be commenced, the respondent failed to discharge its onus of demonstrating that the process undertaken was reasonable; certificates of capacity issued by general practitioner relied on to find that the applicant had no current work capacity.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has failed to discharge its onus of establishing that 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 discipline and/or dismissal pursuant to s 11A(1) of the Workers Compensation Act 1987. 2. The applicant has had no current work capacity as a result of the injury from 8 June 2022 to date. The Commission orders: 3. The respondent to pay the applicant weekly compensation from 8 June 2022 to date and continuing pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987, based on a pre-injury average weekly earnings rate of $655.46, periodically adjusted in accordance with s 82A of the Workers Compensation Act 1987. 4. The respondent to have credit for any payments already made. 5. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Peco Sirijovski (the applicant) was employed by Coles Supermarkets Australia Pty Ltd (the respondent).
On 4 July 2022, the applicant served a claim for compensation in respect of a psychological injury said to have occurred as a result of a disciplinary process resulting in termination for inadvertently breaching the respondent’s “Flybuys” policy.
Liability to pay compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 14 July 2022.
The applicant’s solicitors sought review of that decision on two occasions. The insurer notified the applicant that liability to pay compensation remained disputed in notices issued on 12 December 2022 and 8 June 2023.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) on 20 July 2023. The applicant sought weekly compensation from 8 June 2022 onwards.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 26 October 2023 in Sydney. The applicant was represented by Mr Dewashish Adhikary of counsel, instructed by Mr Ben Govan. The respondent was represented by Mr Stuart Grant of counsel, instructed by Mr Brad Quillan and Ms Tatijana Stancevic. A representative from the self-insurer, Ms Guirguis was also present.
During the conciliation conference, leave was granted, without objection, to the applicant to amend the ARD to include a claim for incurred medical and related treatment expenses by way of a general order.
Directions were made admitting late documents lodged by the applicant into evidence.
The respondent confirmed that although disputes had been notified as to whether the applicant had sustained an injury by reference to ss 4, 9A and 11A(3) of the Workers Compensation Act 1987 (the 1987 Act), those disputes were no longer pressed.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether 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 discipline and/or dismissal pursuant to s 11A(1) of the 1987 Act;
(b) the extent and quantification of incapacity resulting from the injury during the period from 8 June 2022 to date and continuing, and
(c) the entitlement to medical and related treatment expenses pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to the Application to Admit Late Documents lodged by the applicant on 19 October 2023.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 20 June 2022 (unsigned), 19 August 2022 and 19 May 2023.
In his first statement, the applicant said he was first employed by the respondent as a casual night filler in 2014. After five or six years of doing morning and afternoon shifts and working up to 40 hours per week the applicant became a permanent part-time employee. About a month later, the applicant was told that there had been an error in giving him permanent hours. After that, the applicant was only given 23 hours per week and was never offered more hours. The applicant noticed that younger kids would be offered more hours but that never happened for him.
Following some changes with delivery trucks, the applicant was moved into the Fresh Produce department on Wednesdays and Fridays. The applicant was asked to work early mornings despite usually commencing work at 6.00pm. By working mornings, the applicant was losing money and was unable to look after his elderly mother. Despite there being vacancies in night fill, the applicant was given no flexibility.
The applicant worked the early morning shift for about a year while younger staff were doing the refills. When vacancies arose, the applicant asked to change shifts but his requests were declined. The applicant asked his manager whether he was being discriminated against because of his age, which she denied. Eventually the applicant was allowed to start at 6.00pm but still in Fresh Produce.
One Wednesday, the applicant went to work and discovered that he was not working in Fresh Produce but was instead working on the registers. The applicant had received no advance warning of this. The applicant had never worked on registers or had any training on registers. Despite telling the duty manager that he knew nothing about registers, the applicant went and worked on the registers as directed.
The applicant thought this was a one-off occurrence but when the applicant went to work the next Friday he was again put on registers. The applicant was given no explanation. The applicant was there by himself with no one to tell him what to do. The applicant did three or four shifts like this with no one around to help or train him.
On a couple of occasions, the applicant asked his manager not to leave him on the registers. The applicant explained that he was 63 years old and there were plenty of young kids who were better than him and who had been trained to use registers. Those kids were being put in the back while the applicant was put on registers with no training or knowledge. The applicant felt humiliated and was not getting any help.
Every time the applicant saw a customer with a full trolley he felt stressed and did not understand what he was doing. A lot of customers knew the applicant and they could see he did not know what he was doing. This was embarrassing for the applicant.
While doing the register work, the applicant noticed that some customers had Flybuy cards and some did not. When a customer did not have a Flybuy card, the applicant thought it was okay to use his personal Flybuy card to take the points. The applicant had seen other staff doing the same thing.
At some point, a customer complained about the applicant using his Flybuy card when he served them on the register. This was confirmed on the cameras and the applicant admitted to doing this when asked.
On 7 June 2022, the store manager called the applicant on his mobile and asked him to come into the office for a meeting. The applicant asked why he wanted to have a meeting a few times but was just told it was related to the code of conduct. The applicant was asked to attend a meeting on 8 June 2022 at 2.30pm.
The applicant tried to think what he had done and the matter sounded very serious. The applicant was told he could take someone with him to the meeting. The applicant called the union and spoke to ‘Vera’ who agreed to come with him.
The applicant went to the meeting the next day and was shaking and sweating. His mind was racing. The store manager read a letter saying there had been complaints about the applicant using his Flybuy card. The applicant agreed he had done this and said he did not know that there was anything wrong with that. The applicant said he had worked for the respondent for many years and had never done anything stupid. The applicant was a consistent, honest and hard worker. The applicant offered to give up the points or give the money back.
The store manager left the meeting and went to another room to speak to human resources. When he returned, he told the applicant that his claim of not having had training was incorrect and the applicant had been trained in 2014 when he started. The applicant reiterated that he had not been trained on the handling of Flybuy points.
The manager then went to another room and talked to human resources again. On return, he said there had been a test done the previous year in store. The applicant said he had never done this test.
The manager left the room again to tell human resources what the applicant had said. When he came back, he told the applicant that he was going to be suspended for two days with pay and to come back on Friday to hear the outcome.
After this meeting, the applicant’s attended his general practitioner, Dr Sokolovska, and got a certificate for stress and anxiety. The doctor sent the forms to the respondent.
On Friday, 10 June 2022, the applicant called the store and said he was not in the mood to come in. The applicant asked for the decision to be emailed or couriered to him. The manager insisted the applicant come in in person and bring someone with him. The applicant spoke to Vera from the union who said not to go in because he had a doctor’s certificate. The applicant asked his manager for an email contact for human resources. The manager refused to give that to the applicant and insisted he come in, otherwise he would not know whether he had been dismissed or not.
The applicant said he had received no warning he was going to be dismissed. He attended a meeting on 17 June 2022 with his wife at which he was told he had been dismissed.
The applicant said he had previously been diagnosed with depression and prescribed anti-depressants about 10 years ago. The applicant had no other conditions or personal problems relevant to the claim.
In his second statement, the applicant said he did not recall working on the registers prior to April 2022. The applicant said when he was first shown how to use the registers the manager just logged in and then left. The applicant maintained that he had not been trained on using the registers. Although he may have had ethics training he did not recall any training on Flybuy cards. The applicant understood Flybuys to be a separate company to the respondent and that if a customer did not use their points they would just go to waste.
The applicant responded to the written statements of the respondent’s witnesses. The applicant also described an incident in which he was sexually assaulted at work in December 2020.
In his third statement, the applicant provided further detail as to the disciplinary proceedings and his dismissal.
The applicant said that when he received the phone call from his manager on 7 June 2022 he was in the waiting room of a dentist’s surgery.
The applicant said,
“I started to think about what I might have done and could only think that a staff member must have made up some allegation about me, or maybe something I had said to someone had been taken out of context. I had to worry about this and still go through with the root canal surgery and then drive myself all the way back to Wollongong with thoughts running through my mind about what the meeting was going to be about.”
The applicant said it did not occur to him that the meeting would be about the Flybuys points.
With regard to the phone call on with his manager on 10 June 2022, the applicant said,
“I confirm that during this call I reminded him (repeatedly) that I had a medical certificate stating I was totally incapacitated for work and that he shouldn't ask me to come in, but he insisted (repeatedly) that I come in.
I was not able to attend the store that day because of my high levels of stress and anxiety.
I was not sleeping, I couldn't relax for even one minute of the day, and I was constantly stressed out over what was happening to me and what might be the outcome of the investigation.
When I finally attended the store a week later, on 17 June, I found out for the first time that I had been dismissed.
I was not given any prior warning that this was coming.
Also, at no stage was counselling offered to me by my employer, through an Employee Assistance Program or otherwise.”

Respondent’s evidence

Mr Sweeney

Store manager, Mr James Sweeney, prepared a written statement on 24 June 2022. Mr Sweeney confirmed the applicant’s employment details and confirmed the applicant’s claim that he was not given extra hours. Mr Sweeney said this was due to the applicant’s work ethic and attitude. Although the applicant was reliable turning up for work, he was not motivated to get things done in a timely manner and would not go over and above what he was required to do. A duty manager had spoken to the applicant about his attitude and his response was to shrug his shoulders. Some female duty managers had reported that the applicant was demeaning towards them although no formal complaint or counselling had been undertaken.
Mr Sweeney confirmed that the decision was made to move the applicant to the registers. Mr Sweeney said there was no doubt that someone would have trained the applicant to work on the registers. The normal practice would be to partner the applicant with another team member to work side-by-side with them. It was not possible for an untrained person to simply start operating a register.
Mr Sweeney said it had been brought to his attention by a team member that they had witnessed the applicant using his personal Flybuy card to take points to which a customer would have been entitled. Mr Sweeney phoned the regional manager and the applicant’s use of his Flybuy card was investigated. It was discovered that between April and the end of May 2022 there were 85 transactions where the applicant had used his personal Flybuy card when working on the registers.
Mr Sweeney said he held a discussion record meeting with the applicant at 2.30pm on 8 June 2022. The applicant was given 24 hours’ notice of the meeting and brought a union delegate with him.
Mr Sweeney said he put the allegations to the applicant and he admitted the breach. The applicant’s excuse was that he did not know he had done anything wrong. The applicant said he was not told he was not allowed to do that.
The meeting was adjourned until the following Friday as some clarity was required around the applicant’s responses and the fact that he had made so many transactions.
Mr Sweeney confirmed that a WorkCover claim certificate was emailed on 9 June 2022 and the applicant said he would not be coming in for the meeting. Mr Sweeney said he was fine with that and they would wait until the certificate expired and the applicant was fit for work.
On 16 June 2022, the applicant called and asked to come in to find out what the outcome was. The applicant was still covered by his workers compensation certificate but after getting clarification from People and Culture, Mr Sweeney agreed to arrange a meeting for the following day.
The applicant attended the meeting with his wife as a witness. Before discussing the issues at hand, Mr Sweeney checked that the applicant was fit and well enough to proceed with the meeting. Mr Sweeney told the applicant that his employment had been terminated due to his fraudulent misuse of the Flybuy card and that the applicant had done this knowingly.
At no stage in the meeting or on any other occasion had the applicant claimed that he was experiencing stress or anxiety.
Mr Sweeney said his dealings with the applicant were fair and reasonable and conducted in a professional manner. The applicant was treated with dignity and respect.

Ms McCrory

The respondent also relies on statement evidence from the applicant’s previous store manager, Ms Vikki McCrory dated 24 June 2022.
Ms McCrory gave evidence that the applicant’s productivity was quite poor and described several instances in which she had discussions with the applicant around unacceptable behaviour. Due to the applicant’s poor productivity, his unwillingness to help in other areas and comments made by the applicant that some tasks were “women’s work”, Ms McCrory decided to place the applicant in a department where there was more supervision. The applicant was scheduled to work in the service department.
Ms McCrory said the applicant would not have been able to log into the registers without training. Usually, the applicant would be rostered as an extra person and buddied with someone experienced. The service area was quite small and each person on a register was close by. Various training modules could be completed online including in relation to workplace behaviours and values. Ms McCrory said she had personally helped the applicant to gain access to the training modules.
Ms McCrory said she was at the meeting on 8 June 2022 as well as the meeting on 17 June 2022. Ms McCrory said her dealings with the applicant were fair and reasonable and she conducted herself in a professional and businesslike manner. Ms McCrory said she observed Mr Sweeney conduct himself in the same manner. The applicant never disclosed that he felt bullied, threatened, harassed intimidated or abused.

Mr Muhammed

Duty manager, Mr Zarif Muhammed, prepared a written statement dated 24 June 2022. Mr Muhammed said that there was a buddy system to train staff to work on the registers. Staff would work with an experienced service team member until they were comfortable. Mr Muhammed said he personally saw the applicant being buddied with a team member. Mr Muhammed said that the applicant had told him the work was “good” and described it as “easy”.
Mr Muhammed said that a team member told him that the applicant was using his Flybuy card on customers’ purchases. Mr Muhammed said he understood this to be stealing and informed Mr Sweeney.
Mr Muhammed was not at the meetings between the applicant and the store manager.

Other documents

Attached to the ARD is a ‘Discussion Record’ in relation to the meeting on 8 June 2022. The record noted that the meeting was attended by the applicant, Mr Sweeney, Ms McCrory, Vera Kavanagh and the applicant’s wife.

According to the record, the reason for the meeting was to discuss an alleged breach of the code in relation to inappropriate use of the Flybuys loyalty program card. The meeting was intended to give the applicant an opportunity to respond to those concerns before a decision was made as to whether any disciplinary action or other corrective actions were warranted. Particulars were provided to the applicant of at least 85 customer transactions between 1 April 2022 and 18 May 2022 in which the applicant accrued at least 4,266 points valued at over $800.
The applicant was advised that the code made clear that misleading or defrauding the respondent was likely to result in termination of employment. The applicant had been made aware of his obligations through his induction in 2014 and the completion of workplace behaviour training and a Coles Values video on 25 June 2021.
It was alleged that the applicant intentionally scanned his own Flybuy card to obtain Flybuy dollars and points for his own personal gain. This was considered to be a serious breach of the code. The allegation was said to be based on evidence including a review of records, the identification the applicant as the primary cardholder of the card used in the transactions, CCTV footage, a customer complaint and witness evidence from team members.
The applicant’s response was noted. The applicant referred to his honesty and his personality. The applicant said nobody ever told him he could not use his own card. The applicant had only been on service for three to four shifts. If he knew it was against policy, he would not have done it.
A section titled “discussion outcome” listed a number of potential outcomes of which “termination of employment” was circled. The document was signed by the applicant on 17 June 2022.
A termination notice was prepared by Mr Sweeney, dated 20 June 2022. The letter notified the applicant that his employment was terminated with notice effective Friday, 17 June 2022. The applicant was to receive five weeks’ notice and was not required to work during the notice period. The reasons for termination were said to be as previously explained to the applicant in a discussion on Friday, 17 June 2022.
A ‘call centre report’ reported from the “SDA NSW Membership System” recorded that on 17 June 2022 the applicant called the union and reported:
“member wwas [sic] terminated today due to him using his flyby card at service. Members had never done service before [sic] now and was not trained or shown what he should and should not be doing. Please refer to industrial [sic] team.”

Treating evidence

The applicant relies on a certificate of capacity issued by his general practitioner, Dr Emilija Sokolovska, on 8 June 2022. According to the certificate, the applicant had an anxiety disorder after being accused of making a mistake at work and working at a task without formal training. The applicant had no current work capacity until 22 June 2022.
Subsequent certificates of capacity, continuing to certify the applicant as having no current work capacity, have been provided covering the period until 31 October 2023.
Consultant psychiatrist, Dr James Heiner, prepared a report for Dr Sokolovska on 20 June 2022 in which he recorded a history as follows:
“He tells me some weeks ago (late April or early May) he was moved onto the cash registers. He did not feel comfortable with this but accepted the posting as part of his job. He tells me that he realised that many people were not using their flybys cards, and he got into the habit of scanning his own flybys when they did not do this. He saw this as a victimless crime, as he thought that the flybys points accrued elsewhere and that this was not in fact stealing.
Not surprisingly, Coles management became aware of this, and defined what he was doing as stealing. He was shocked by this, as when it was pointed to him he realised that this was in fact what was occurring, but he had not realised that initially. He lost his job. He was not charged but remains quite upset about what occurred.”
Dr Heiner noted that the applicant described distress and embarrassment but wished to get his job back.
Dr Heiner diagnosed an adjustment disorder with anxiety and depression but did not prescribe any medication or make any appointments to see the applicant again. Dr Heiner said there was not much he could do from a therapeutic point of view and expressed hope that the applicant would be reinstated.
Dr Heiner prepared a further report for Dr Sokolovska on 24 November 2022. Dr Heiner said he had seen the applicant on and off over the years. Dr Heiner said the applicant had asked whether his current anxiety and depression could be related to an event that occurred two years ago when the applicant was sexually harassed. Dr Heiner responded:
“The difficulty he has is that I can see no evidence that he has sought treatment, or that there was any change in his behaviour. He tells me the incident was embarrassing, which I can understand and that it was unfair. (If he had done this to a woman, he would have been dismissed .. .... this did not occur to the female involved). I suspect that there may be some truth in what he is saying but there is no longitudinal history to suggest that he suffered any new symptoms or was impaired in any way since this until recently. He certainly remembered this incident and hopes this may give him some negotiating power with Coles but, I do not have enough evidence to back up his claims.”
Dr Heiner said he had not commenced the applicant on any treatment and had not made a further appointment at this time.
In a report to the applicant’s solicitor about the same matter, dated 21 March 2023, Dr Heiner said the applicant had reported symptoms which were distressing based on his description but not disabling. There was no objective evidence other than the now recalled incident and recent symptoms.

Dr Whetton

Psychiatrist, Dr Peter Whetton, prepared a medicolegal report for the applicant’s solicitor on 29 August 2022. Dr Whetton recorded a history that was consistent with the applicant’s statement evidence. After performing a mental state examination and considering the documentary evidence provided to him, Dr Whetton made an assessment as follows:
“He gives a history of being moved from his position as a night filler in April 2022 to work on the registers at Coles. He reports that this was an area for which he was not trained and had no experience and struggled with the role. It required him to ask for help which may have caused delays in attending to customers with feelings of embarrassment and frustration.
It was in this setting that he was using his own FlyBuys card for purchases made by customers who did not have a FlyBuys card themselves. He indicated that he had seen other people do this and did not think that it was wrong. The matter was discovered and he was brought to a meeting and his employment terminated. He has been angry and critical of the employer that he was put into a position for which he was not experienced and not trained and that he was not given a chance to make amends for what he considered to be a mistake.
In this setting, he has developed strong feelings of anger, frustration and preoccupation with what has happened. There is anxious worry about his future and with his physical injuries the limited possibilities for further employment.
On examination on 24 August 2022, he warrants a diagnosis of Adjustment Disorder with Anxiety.”
Dr Whetton gave the opinion that the applicant’s adjustment disorder was “secondary to the workplace discipline and dismissal from his job”.
In assessing the applicant’s current functioning, in particular his employability, Dr Whetton commented:
“He would work if a position were available, concerned otherwise with how he would survive financially without a job.”
Dr Whetton recommended that the applicant attend for psychological treatment as recommended by his general practitioner.

Respondent’s submissions

The respondent submitted that the real issue in the case was whether it was reasonable to dismiss the applicant. The respondent submitted that by helping himself to customers’ Flybuy points, the applicant was effectively stealing. The action of the respondent in dismissing the applicant was reasonable in these circumstances.
The respondent referred to the report of Dr Heiner, dated 20 June 2022. Although the applicant thought this was a “victimless crime”, the Flybuys scheme involved an award being given to customers for their custom. The applicant was helping himself to customers’ points. It beggared belief that he would not realise that he was not authorised to do this.
The respondent noted that although other workplace matters were raised by the applicant, the claim form made no reference to those other issues.
Turning to the steps in the disciplinary process, the respondent noted that management had been notified by a customer of the applicant’s use of his personal Flybuy card. The applicant was invited to come to a meeting on 7 June 2022. The applicant consulted his union had attended the meeting on 8 June 2022 with a union member assisting him. The applicant admitted to the misconduct and was told that he would be stood down on pay. The applicant attended a further meeting on 17 June 2022 with his wife at which he was informed that he would be dismissed for what was regarded as stealing.
The respondent submitted that a reasonable person would understand what Flybuy points were and that they are effectively a monetary benefit given to the person acquiring the points. It was nonsense to suggest that a reasonable person would not think the applicant knew full well what he was doing. In those circumstances, dismissal was a reasonable approach to take. Section 11A(1) of the 1987 Act applied and was a complete defence to the claim.
The respondent submitted that incapacity was also a live issue. The applicant had been receiving medical certificates from his general practitioner certifying total incapacity but those certificates flew in the face of the other material. The respondent submitted that the Commission would find the treating psychiatrist’s views very persuasive.
Dr Heiner did not commence the applicant on any treatment or make any further appointments. Dr Heiner’s more recent report suggested that the applicant was hoping to garner some negotiating power with the respondent. The applicant’s symptoms were distressing but not disabling. The respondent submitted that clearly the treating psychiatrist did not consider that any symptoms would prevent the applicant from working, otherwise he would have said so. It was difficult to marry that opinion with the certificates of capacity.
The respondent observed that Dr Whetton also reported that the applicant would work if a position were available. Dr Whetton did not express a view contrary to the applicant’s own report and did not suggest the applicant had total incapacity despite the certificate from his general practitioner.
The respondent observed that the applicant appeared to have been paid until 29 June 2022 and submitted that any award for weekly compensation should provide for adjustments to be made in that regard.
The respondent submitted that the applicant was clearly helping himself to points for monetary gain. The respondent’s actions were reasonable and the s 11A(1) defence should succeed. If not, in the face of Dr Whitten and Dr Heiner’s views, the Commission would find that the applicant was entirely able to do his pre-injury duties.

Applicant’s submissions

The applicant submitted that the focus ought to be on the respondent’s actions rather than the applicant’s actions. Viewed objectively, those actions were not reasonable. The applicant referred to the relevant authorities and noted that the respondent bore the onus with respect to s 11A(1) of the 1987 Act.
The applicant submitted that the disciplinary process commenced when he was contacted by Mr Sweeney. The applicant gave evidence that he asked Mr Sweeney a few times with the meeting was about that he was told that it was about the code of conduct. The applicant was told no more and was left to imagine what he had done wrong. The applicant submitted that Mr Sweeney’s statement corroborated the applicant’s evidence in this regard.
The applicant was, in a sense, ambushed. The applicant was expected to defend himself at a meeting with no information having been given to him as to why the meeting was arranged, despite multiple requests for an explanation.
At the first meeting, the applicant was read a letter and asked to respond to it on the spot. The applicant was expected to deal with Mr Sweeney, Ms McCrory and human resources. The applicant had no idea what he was going to be asked to respond to. The applicant was given no agenda and was asked to respond to issues on-the-fly. The meeting was accusatory and the applicant was on the back foot. The applicant was not given an opportunity to gather evidence to defend himself or prepare a response. The applicant did not know in advance what was going to be put to him.
The applicant submitted that it was not reasonable for the respondent to rely on the applicant having received training in 2014. During the eight years that followed, the applicant had not been performing service duties. It was not far-fetched to assume that the training may have been forgotten over time.
A disciplinary decision to suspend the applicant was taken at the first meeting. The applicant was told to come back on the Friday for the outcome of the disciplinary process. The applicant submitted that the decision to suspend the applicant was not objectively reasonable. It was following this meeting that the applicant obtained a certificate of capacity from his doctor.
After this, the respondent was aware that the applicant had a psychological condition but nonetheless required him to attend an in-person meeting to hear the outcome of the disciplinary process. In circumstances where the respondent was aware of the applicant’s condition, the applicant was effectively threatened that if he did not attend the meeting he would not know the outcome. The applicant submitted that it was not reasonable to require the applicant to attend an in-person meeting. The applicant had also been given no warning that he could be dismissed until the telephone call requiring him to attend.
The applicant submitted that the dismissal itself was not reasonable. The applicant was blindsided by the entire process and given no proper opportunity to respond. The decision to dismiss the applicant was not explained. The applicant could have been warned or given further training. The step taken to dismiss the applicant was drastic and, in all the circumstances, unreasonable.
The applicant said he did access training modules but these did not address Flybuys and at the time the applicant was not working in service. The applicant said he saw other staff using their Flybuy cards in the same manner.
The applicant noted that he was not offered any counselling or assistance service.
With regard to the issue of capacity, the applicant submitted that the Commission would give no weight to the respondent’s submissions. The applicant referred to the presidential decision in Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 and submitted that the applicant’s own perception of his capacity was not determinative and had to be weighed against the other evidence. Although the applicant had told Dr Whetton and Dr Heiner that he wanted his job back there was direct evidence of incapacity in the certificates issued by Dr Sokolovska.
The applicant submitted that Dr Heiner’s comments in relation to the sexual harassment allegations had no relevance to the matters which were the subject of the present claim and did not detract from the certificates of capacity.
Dr Whetton just recorded the applicant’s subjective views without commenting further on capacity.
Given the certificates of capacity were unambiguous, the applicant had established a prima facie case of total incapacity. The applicant referred to Ridolfi v Hammond[2012] NSWCA 3 and Purkess v Crittenden [1965] HCA 34 and submitted that the onus lay with the respondent to demonstrate that the incapacity was due to other causes. No other cause for the applicant’s incapacity was suggested by the evidence.

Respondent’s submissions in reply

The respondent agreed that the other workplace issues addressed in the applicant’s statement evidence had nothing to do with the case.
The respondent reiterated that the employer had acted reasonably when it came to their attention that the applicant was helping himself to customers’ Flybuy points. It was reasonable to request a meeting. It was not unreasonable to put the detail of the allegations to the applicant at the meeting as opposed to in writing. The applicant was advised to come with a support person and did so. The applicant was not ambushed but simply asked to come to a meeting. The applicant should not have required training not to take customer’s Flybuy points for his personal monetary gain.
The respondent submitted that it was clear from Dr Heiner’s reports that he had known the applicant over a period of time. It was apparent that when the applicant went to see Dr Heiner in November 2022, he wanted his job back and was looking for a negotiating position to gain leverage. Dr Heiner was not prepared to give him that support.
Dr Heiner’s report for the applicant’s solicitor described the applicant as distressed but not disabled. Clearly Dr Heiner did not think the applicant was incapacitated. Dr Heiner’s comments were consistent with Dr Whetton’s comments. The specialists’ views were completely contrary to the certificates issued by the applicant’s general practitioner. The general practitioner was not an expert in psychiatry, whereas Dr Heiner and Dr Whetton were. The Commission would give more weight to the specialists’ opinions than those of the general practitioner.

FINDINGS AND REASONS

A psychological injury which meets the statutory definitions in ss 4, 11A(3) and 9A of the 1987 Act will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:
“(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.”
Sub-section 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[1]
[1] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Hamad v Q Catering Ltd,[2] Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“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.”
[2] [2017] NSWWCCPD 6.

The test of reasonableness is an objective one.[3] In Commissioner of Police v Minehan[4] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[5]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[3] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[4] [2003] NSWCA 239.
[5] (unreported 18 June 1998).
In New South Wales Local Health Network v Heggie,[6] Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:
[6] (2013) 12 DDCR 95; [2013] NSWCA 255; BC201311746.
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii)If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
There is no dispute between the parties in these proceedings that action taken or proposed to be taken by or on behalf of the respondent with respect to discipline and/or dismissal was the whole or predominant cause of a psychological injury. Although the applicant’s statement evidence identified other events in the workplace which he found distressing or embarrassing, it has not been suggested, either in the applicant’s submissions or his evidence, that those events were causative of a diagnosable psychological condition.
Both parties relied upon the medicolegal opinion of Dr Whetton, who expressed the view that the applicant’s injury was secondary to the workplace discipline and dismissal.
There is, however, a dispute as to whether those actions were objectively reasonable. The respondent’s submissions in this regard focused heavily on whether it was reasonable for the respondent to have commenced disciplinary action and to have dismissed the applicant from his employment in the relevant circumstances.
The applicant has admitted to using his personal Flybuy card to accrue points on purchases made by customers who did not have their own card. The applicant has, however, denied knowing that this conduct was wrongful, and says he was not trained on the proper use of Flybuy cards.
Notwithstanding the applicant’s explanation for his conduct, I accept that he in fact used his employment position for personal gain to the value of approximately $800. I further accept that it was objectively reasonable for disciplinary action to be commenced in those circumstances. If required, I would also be prepared to find that such conduct was of a nature as to be capable of warranting dismissal.
In order for the respondent to discharge its onus, however, it is not sufficient that it was reasonable for disciplinary or dismissal action to be initiated. The process itself must be reasonable.
It is common ground between the applicant and the respondent’s witnesses that upon the applicant’s conduct coming to light, he was invited to a meeting with Mr Sweeney and Ms McCrory. The applicant was advised to bring a support person and in fact had the support of a union delegate at the meeting.
Based on the signed discussion record, I accept that the particulars of the alleged misconduct provided to the applicant at the meeting were sufficiently detailed as to identify the alleged misconduct and enable a meaningful response. The applicant was advised that the conduct was considered to be a serious breach of the respondent’s code of conduct and that misleading or defrauding the respondent was likely to result in the termination of his employment.
The applicant provided a response to the allegations at the meeting and was invited to attend a further meeting to discuss the outcome of the disciplinary process. In the meantime, the applicant was suspended with pay.
I accept that the originally scheduled second meeting was deferred due to the applicant having obtained a certificate of capacity from Dr Sokolovksa.
There is some discrepancy between the witness evidence on the question of whether the applicant attended the final meeting on 17 June 2022 in person at his own insistence or the insistence of Mr Sweeney. Mr Sweeney’s evidence and handwritten notes on the formal discussion record suggest that the meeting was convened, notwithstanding that the applicant’s certificate of capacity remained in effect, at the applicant’s particular request. Mr Sweeney said inquiries were made at the commencement of the second meeting as to whether the applicant was fit and well enough to participate.
The applicant’s own evidence is that he was reluctant to attend the meeting on 17 June 2022 but did so after effectively being threatened that he would not know the outcome of the disciplinary process if he did not attend.
In any event, the meeting was convened and the applicant attended with his wife as a support person. The applicant was advised at this meeting that his employment had been terminated and he was given five weeks’ notice.
The respondent’s witnesses have given evidence that they behaved in a professional and businesslike manner during both meetings and treated the applicant with respect and dignity. No complaint has been raised by the applicant with regard to the behaviour of either Mr Sweeney or Ms McCrory.
Leaving aside the circumstances in which the meeting on 17 June 2022 was convened, I am satisfied that these aspects of the respondent’s handling of the disciplinary process were objectively reasonable.
There are, however, aspects of the disciplinary process which the applicant has suggested were unreasonable. The applicant suggested that it was unreasonable for him to be informed of the initial meeting without being given any detail as to what was to be discussed. The applicant has described being taken by surprise by the allegations made against him and, in particular, the respondent’s assertion that such behaviour constituted a breach of the code of conduct. The applicant has described exhibiting physical signs of stress such as shaking and sweating during the first meeting. The applicant has said he received no warning that he was going to be dismissed. The applicant also made reference to his age, the relatively lengthy duration of his employment with the respondent, being a period of more than eight years, prior good conduct and his lack of relevant training.
The applicant’s evidence with regard to these issues raises real questions around whether he was given a real and meaningful opportunity to respond to the allegations and the proposed disciplinary action and the reasonableness of the decision to dismiss him in the particular circumstances of his case. The respondent’s evidence is, to a large degree, unresponsive to these issues.
The respondent’s witnesses gave little insight as to what actually happened at the meetings on 8 and 17 June 2022 or how the decision to dismiss the applicant was reached.
For example, it is unclear whether the applicant was given time to consider the allegations and gather his thoughts before responding to them. It is not apparent whether the applicant was given an opportunity to consult with or talk privately with his union representative during the meeting once the allegations were put to him. It is not apparent whether it was made clear to the applicant that, if substantiated, the allegations would result in dismissal or whether other disciplinary action was being considered. Although the applicant appears to have been informed that misleading or defrauding the respondent would result in termination, it is evident that the applicant expressed the view that his conduct was not deliberately deceptive.
It is not apparent whether the applicant was given an opportunity to comment on the proposed action as opposed to other disciplinary options. It does not appear that any further opportunity was given to the applicant to respond to the allegations or proposed disciplinary action after the meeting, for example, by writing. Given the applicant’s evidence that his psychological distress would have been physically apparent and his surprise at the allegations, it is not clear whether any accommodations were made to enable him to more meaningfully respond. The applicant’s evidence that he was not referred to any employee assistance program or counselling service is also unchallenged.
The respondent’s evidence also does not clearly demonstrate that the applicant’s explanations or responses were taken into account in weighing the disciplinary options before the decision was made to dismiss him. Although reference was made to certain training having been undertaken, the material before the Commission does not demonstrate whether that training specifically addressed fraud or the Flybuy program. The evidence does not demonstrate whether the applicant’s age, employment history with the respondent, the relatively brief time in which he had been working on the registers and the extent of his training were factors which were considered before the decision was taken to dismiss the applicant. The reasons for the decision to dismiss the applicant are not clearly articulated in the discussion record, letter of termination or the witness evidence.
The disciplinary process and dismissal action need not be perfect, only reasonable. I do not intend to suggest by the foregoing that each and every one of these matters ought to have been addressed in the respondent’s evidence. It is, however, the respondent’s onus to demonstrate that its actions which were causative of the injury were objectively reasonable. In light of the concerns raised by the applicant, the respondent’s evidence was lacking in relevant detail.
In weighing the evidence, I note that although the applicant obtained a certificate of capacity from Dr Sokolovska after the initial meeting, Dr Whetton and Dr Heiner’s evidence suggest that the dismissal action was also causative of the applicant’s psychological injury.
After careful consideration of the documentary evidence and the parties’ submissions, I am not satisfied that the defence in s 11A(1) of the 1987 Act is made out. In those circumstances, the applicant’s psychological injury is one which is compensable.

Capacity

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Section 36 of the 1987 Act provides:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37 of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
For the applicant to be entitled to weekly compensation pursuant to ss 36(1) and 37(1) of the 1987 Act, he must demonstrate that he has, during the relevant period had “no current work capacity”. The expression, “no current work capacity” is relevantly defined in item 9 of Schedule 3 to the 1987 Act as follows:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
In support of his claim, the applicant relies upon certificates of capacity issued by his general practitioner, Dr Sokolova, which certified him as having no current work capacity for essentially the entire period of the claim.
Despite this prima facie evidence of incapacity, the respondent relies on comments made in the reports from Dr Heiner and Dr Whetton to submit that the Commission should go behind the certifications and make a finding of current work capacity.
It should be noted that the respondent has not qualified its own medicolegal expert to provide an opinion as to the extent of any incapacity resulting from the injury.
The comments on which the respondent relies are essentially a recount of the applicant’s self-expressed desire to return to work.
In his first report, Dr Heiner said that the applicant described distress and embarrassment but wished to get his job back. Dr Heiner noted that the applicant had expressed hope that he would be reinstated and expressed support for the applicant in this endeavour.
Dr Heiner did not, in this report, express any direct opinion as to the applicant’s capacity to engage in suitable employment or his pre-injury duties. Although it is true that Dr Heiner did not prescribe any form of treatment and said there was little he could do from a therapeutic point of view, he did make a diagnosis of an adjustment disorder with anxiety and depression. Dr Heiner noted that the applicant was “obviously quite distressed at the moment”. There was a discussion about the ways in which the applicant could cope.
Dr Heiner provided two further reports, however, these were predominantly directed at whether the applicant had sustained a psychological condition as a result of events occurring several years earlier in the nature of sexual harassment. It is not appropriate, in my view, to read Dr Heiner’s comments as to the applicant’s response to those earlier events as a comment on the applicant’s response to the events which are the subject of these proceedings. In describing the response to the earlier events as “distressing but not disabling”, I do not understand Dr Heiner to be expressing any view as to the applicant’s condition following the more recent disciplinary and dismissal action. It is clear from his first report that Dr Heiner considered that the actions with respect to discipline and dismissal had caused a diagnosable psychological condition.
I am also not prepared to draw an inference from the suggestion that that the applicant was hoping to gain some negotiating power with the respondent, that the applicant in fact had a relevant capacity to work.
The applicant’s willingness and desire to work was also a matter commented upon by Dr Whetton in assessing the applicant’s current functioning. I am not satisfied, however, that Dr Whetton’s comments amounted to an opinion that the applicant had capacity to engage in suitable employment or pre-injury duties.
Dr Whetton noted that the applicant was agitated and at times tearful. The applicant described feelings of frustration, anger and anxious mood. The applicant was noted to be largely inactive and doing little during the day. A psychological condition was diagnosed.
Although Dr Whetton considered the applicant’s prognosis was positive for resolution of his symptoms, particularly with further employment opportunities, I again do not take this to be an opinion as to the extent of the applicant’s current capacity for employment.

I do accept that neither Dr Whetton nor Dr Heiner’s reports suggest the applicant was significantly incapacitated by his psychological symptoms. To some degree, the reports are difficult to reconcile with the certificates of capacity issued by Dr Sokolovska.
There is no report from Dr Sokolovska or clinical notes explaining her continuing certifications of the applicant as having no current work capacity. The certificates themselves contain little detail.
It is, however, relevant that the applicant was being reviewed by Dr Sokolovksa at regular intervals. The certificates noted that the applicant was prescribed Lexapro and had been referred for psychological counselling. I accept that as a general practitioner, Dr Sokolovska was appropriately qualified to comment on the applicant’s capacity to engage in employment. Her opinions are the only qualified evidence as to capacity before me.
Had there been some direct opinion on capacity from Dr Heiner or Dr Whetton, it may be that I would be inclined to place more weight on their opinions as specialists in psychological or psychiatric conditions. I do not accept, however, that either specialist has provided an opinion on the question currently under consideration. The material before me does not provide a sufficient basis to go behind the certificates issued by Dr Sokolovska.
I am satisfied that in the period from 8 June 2022 to date the applicant has had no current capacity for employment as a result of his compensable psychological.
I am satisfied that the applicant is entitled to weekly compensation in accordance with ss 36(1) and 37(1) of the 1987 Act.
The applicant’s pre-injury average weekly earnings (PIAWE) rate was agreed between the parties at $655.46. That rate will be subject to periodic indexation in accordance with s 82A of the 1987 Act.
As there was some suggestion that the applicant continued to be paid wages beyond 8 June 2022, it is appropriate that the respondent have credit for payments made in the relevant period in accordance with the legislation.
There will be an award for the applicant in respect of the claim for weekly compensation.
It is also appropriate that an order of a general nature is made with respect to the claim for medical and related treatment expenses in light of the findings above.

[2023] NSWPIC 644

18 December 2023