Slingsby v Allity Management Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Slingsby v Allity Management Services Pty Ltd [2022] NSWPIC 188
APPLICANT:	Deborah Lee Slingsby
RESPONDENT:	Allity Management Services Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	29 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation; psychological injury; worker had accepted exacerbation of pre-existing psychological condition; whether injury was wholly or predominantly caused by reasonable action with respect to discipline; finding that the respondent had not discharged its owners to establish that the injury was wholly or predominantly; Held- matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from psychological injury.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury arising out of or in the course of her employment with the respondent (deemed date 11 December 2019). 2. The applicant’s injury was not caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline within the meaning of section 11A of the Workers Compensation Act1987. 3. The matter is remitted to the President for referral pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 to a Medical Assessor for assessment of whole person impairment as a result of the applicant’s psychological injury with deemed date 11 December 2019. 4. The documents to be referred to the Medical Assessor for the purposes of the assessment are: (i) Application to Resolve a Dispute and attachments; (ii) Reply and attachments, and (iii) Report of Associate Professor Michael Robertson dated 6 May 2020.

STATEMENT OF REASONS

BACKGROUND

Deborah Lee Slingsby (the applicant) was employed by Allity Pty Ltd (the respondent) as a general service officer in the laundry and kitchen at Calare Nursing Home. Her duties included washing up, preparing morning tea, unloading deliveries and doing the laundry service.
Ms Slingsby claims she sustained a psychological injury as a result of being subjected to repeated harassment, intimidation and bullying by co-workers and management, and unreasonable disciplinary action.
The respondent does not dispute that Ms Slingsby sustained a psychological injury by way of aggravation of a pre-existing psychological condition arising out of or in the course of her employment with deemed date 11 December 2019. However, the respondent maintains that her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline. The respondent relies on section 11A of the Workers Compensation Act 1987 (the 1987 Act).
The respondent has issued dispute notices dated 27 February 2020, 3 June 2020, 1 June
2020 and 3 December 2021.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on 28 January 2022, Ms Slingsby claims lump sum compensation under section 66 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Ms Slingsby’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken with respect to discipline, and
(b) if so, whether such action was reasonable.

PROCEDURE BEFORE THE COMMISSION

Parties attended a conciliation/arbitration hearing before the Commission on 25 March 2022. Ms Slingsby was represented by Mr Luke Morgan of counsel, instructed by Mr Tobias Tancred. The respondent was represented by Mr David Baran of counsel, instructed by
Mr Nicholas Totoro. Parties were unable to reach agreement and the matter proceeded to a hearing.
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 Commission and considered in making this determination:
(a)    ARD and attached documents,
(b)    Reply and attached documents, and
(c)    report of Associate Professor Michael Robertson dated 6 May 2020.

Oral Evidence

Neither party sought leave to adduce oral evidence or cross-examine any witness.

Ms Slingsby’s evidence

Ms Slingsby provided a statement dated 15 January 2020 to an investigator, and further statements dated 23 January 2020, 26 June 2020, 22 July 2020, 15 February 2021 and 18 January 2022.[1] She recounts incidents in the period from around September 2019 to December 2019. The following is a summary.
[1] ARD pages 1 to 77.

Statement dated 15 January 2020

In her statement to the investigator, Ms Slingsby describes her duties in the laundry and kitchen as “stressful, time pressured and physical” because of short staffing. On 30 September 2019, another worker was off sick and she had to do both jobs. Her supervisor, Phil Davis, told her she had “an attitude problem” after he heard her interaction with another worker. She told him he was the one with attitude and he then “hassled” her about where to put some containers. When she said she would not put up with his attitude, he told her she knew “where the front door is”.
On 1 October 2019, Ms Slingsby arrived at work to find that dishes had not been done the previous night. Another worker told her that Mr Davis had directed her and another staff member not to touch the dishes and to leave them for Ms Slingsby the next morning.
Ms Slingsby reported what had happened to Danny Oakenfull, the general manager.
On 12 October 2019, Ms Slingsby had a conversation with another worker about their shifts. When she arrived at work on 14 October 2019, the other worker had been sent home and her mother-in-law, also a worker, told nursing staff they were “Kitchen Bitches”. Ms Slingsby asked Mr Oakenfull to talk to the woman and later spoke to her herself. She says it took about a week for the other woman to “calm down and begin talking to [her] again”.
Ms Slingsby was on holiday from 1 November 2019 to 14 November 2019. On her return, she had a conversation with Mr Oakenfull about her new contract. She went to see him the following day and he asked Mr Davis to join them. When Mr Davis arrived, Mr Oakenfull closed the door. He apologised because it was her first day back, but said he had heard rumours she was trying “to get rid” of Mr Davis. He had also heard rumours that she was hoping “the audit would fail” and that she had deliberately taken holidays to avoid the audit and to sabotage it. He had also heard rumours that Ms Slingsby was unhappy because she had not been offered another staff member’s shifts. They had a discussion about her new contract, the hours she was going to work, and why she had not been offered another worker’s shifts. Mr Davis told her he wanted the shifts shared among the staff.
On 22 November 2019, Ms Slingsby was doing morning teas. When she returned to the trolley, another worker whom she knows only as Bill, was helping himself to a drink from her trolley without gloves on. When she reached out to take the cup from him, he pointed his finger in her face and “yelled at [her] over and over that [she] was a racist”, claiming she let white workers take drinks or food from her trolley. She asked him to leave her alone. After “a few minutes of verbal abuse”, she asked a registered nurse to get him away from her. He continued to point his finger in her face and threatened to punch her in the face.
Mr Davis arrived with the care manager and asked what was going on. He took Ms Slingsby to his office where he asked her what had happened and wrote down her version of events. Back in the kitchen, she broke down in tears, and had to force herself to continue working.
On 26 November 2019, Ms Slingsby worked with Katrina Hurst who kept pressing her about what was wrong because she had been quiet that day, and she wanted to know why
Ms Slingsby was “cranky with her”. Ms Slingsby said she was not cranky, she “simply did not trust anybody” and wanted to keep to herself. She said she had been through “a tough few months”.
On 29 November 2019, Ms Slingsby asked Mr Davis what was happening about the incident with Bill as she had not heard anything. He went to see Mr Oakenfull and came back to say the matter was still under investigation. Ms Slingsby said she wanted to be kept updated and would not work on the same floor with Bill. Later, she walked past another worker and overheard her say “Here comes trouble”.
On 3 December 2019, Mr Oakenfull came to see her and said he had just read an email from Mr Davis about the “Bill incident”. He said he did not realise how serious it had been because he thought Mr Davis and the care manager had dealt with it at the time. Mr Oakenfull said he “would have instantly dismissed Bill if he had … been aware how serious it was”.
On 5 December 2019, Mr Oakenfull handed Ms Slingsby a letter while she was working in the laundry, advising her to attend a meeting the following day.
On 6 December 2019, Ms Slingsby attended a meeting with Mr Oakenfull and an HR person. When she asked Mr Oakenfull about the complaint against Bill, he said he was not able to discuss it, or the outcome, with her. She then received a formal written warning about failing to show respect to fellow employees, being Ms Hurst and another employee. Ms Slingsby states that she was “really hurt and surprised by the information contained in the formal warning” and felt like they were “simply trying to get rid of her”.
On 7 December 2019, Ms Slingsby and another worker were reviewing the roster and noticed that a new staff member had been given all the early shifts that Ms Slingsby had been doing for the past six months. She felt hurt because she had been told she could not have those shifts.
On 8 December 2019, she began shaking after she “bumped into Bill” at work. She told
Mr Davis that seeing Bill had upset her but she was willing to remain at work because she knew Bill was about to finish his shift. She asked Mr Davis for a copy of “the report he had post my complaint about Bill”. He said he had thrown it out and that he “simply had a bullet point email” that he had sent to Mr Oakenfull. Ms Slingsby went to see the care manager later that morning and said she was feeling unwell and had to go home. She was allowed to go home.
Later that afternoon, Mr Oakenfull called her and said she would be suspended on full pay until further notice. She then received a letter stating that she was suspended “due to engaging in acts that were of a serious nature that may put others at risk”. She felt she could not cope. On 13 December 2019, she saw her family doctor, Dr Moriarty, and told him what had been going on at work. He prescribed antidepressants and certified her totally unfit from 13 to 20 December 2019 and diagnosed acute situation crisis with anxiety.

Statement dated 23 January 2020

In her statement dated 23 January 2020, Ms Slingsby states that she did not have an opportunity to read her statement to the investigator carefully before signing it, and there were a number of things she told him that he did not include. She refers to “chronic” staff shortages for the previous six to seven months which Mr Oakenfull had acknowledged and had said they were “trying to do something about it”. She refers to Mr Davis telling her “on more than one occasion that she knows where the front door is”. She gives more details of the conversation with Mr Oakenfull and Mr Davis on 15 November 2019 about her hours.
With respect to the “Bill incident”, Ms Slingsby says she did not speak to Bill in a disrespectful manner; he became “very loud and physically threatening”, he pointed his finger in her face and she genuinely believed he was going to assault her. She has not seen the written report Mr Davis prepared or his email to Mr Oakenfull, and no one has offered her any support, counselling or comfort. When she told Mr Davis she had seen Bill again later and was scared of him, he did nothing.
With respect to the meeting on 6 December 2019 and the letter she received after it,
Ms Slingsby says it was alleged at the meeting that she had intimidated a worker who had later resigned. She says the worker resigned because she had found full-time work. The matter was not raised with her until the meeting. She refers to a text message she sent to
Ms Hurst following their exchange on 26 November 2019[2] stating:
“Kat, I am not cranky at you or anyone, I have been going through a lot of emotions, I came back to work with a new outlook and have copped a lot since I got back plus prior to holiday the crap that went on and aimed at me, and Friday really shook me up and I am not coping with any of it. I just need to keep to myself just go to work and come home don’t want to rude but I need to keep to myself while I’m going through all this. I don’t want to talk about it at work because I don’t need to be breaking down at work I need you to not take it personally.”
[2] ARD page 11.
Ms Slingsby refers to the telephone call from Mr Oakenfull on 11 December 2019. She states she has received no details of any allegations and has not had any discussions with anyone, or been interviewed, about them.
Ms Slingsby describes the work environment as “toxic for the entire time” she has worked there; staff are “unhappy and unmotivated” and there is “a lot of complaining about the work additions and management”. She says Mr Davis is “a difficult person to work with”, he speaks to people rudely, uses foul language and ignores company policies. She refers to a policy known as “Residents Choice” which entitles them to a meal of their choice from a number of options. She refers to an incident when she says Mr Davis said residents would only have what he was making that day. She refers to another worker whose conduct and body was consistent with him being an ice addict; he would “fly off the handle” for no reason, and
Mr Davis did nothing about his behaviour.
Attached to her statement are screenshots of a series of text messages between
Ms Slingsby and Ms Hurst. Not all are dated but they appear to commence around mid-October 2019 and continue to some time after late January 2020. They discuss rosters and make comments about Mr Oakenfull and Mr Davis. The following are extracts (reproduced verbatim) of what appear most relevant:
“KH: They will always put someone in there, even if it’s a RAO, you need to think off yourself, that’s exactly right, Sandra rang HR yesterday and reported Lyndel, so shit is really going to hit the fan now, about time everything came to a head.
DS:   Who did they get for both arvo shift yesterday
My stomach is so knotted up from management, Phil n admin after all we have done for them in to be called kitchen bitches and told we know where the front door is …
KH:   Yep, the order was fucked up again yesterday, she didn’t order what was written… The stores is in such a mess and I’m not taking the blame,… I think Lyndel is trying to sabotage the audit …
….
Yeah and we are the toxic ones, it’s a friggin joke, I’ve had it
…
DS:   He just had the hide to ask me to do the 2.30 shift today I didn’t look at him n just said NO
I REMEMBER HIM SAYING THAT I GET NO MORE OR NO LESS THAN MY CONTRACTED HOURS …”
An exchange follows about being asked to do extra shifts, including:
“KH: Yep, staff need to start standing up for themselves and stop being used, it’s not right, I told him to go and fuck themselves, I’m back on Monday and I don’t care how short they are, it’s there problem …
DS: He just came up again and asked me to do 6.30 in the morning said No I’m going on holidays tomorrow he he he
Now his turn to have no staff
….
KH: I told him he can’t work [Chloe] to death, because she does have kids”
In a further exchange, apparently after Ms Slingsby left work in January 2020:
“DS: … I love working with you too, I miss it when your not there …
KH: That’s no good, I hope that you’re getting help, we really need to be meet up one day for a talk …
DS: I just stay housebound on lounge all day”

Ms Slingsby also attached handwritten notes dating from around 30 September 2019 in which she records various conversations and meetings with Mr Oakenfull and Mr Davis, the conversation with Ms Hurst, the “Bill incident”, and other incidents referred to in her statements.

Subsequent statements

In her subsequent statement, Ms Slingsby provides details of her employment since leaving Calare Nursing Home and the effects of her employment on her mental health. In a statement dated 22 July 2020, she responds to statements from Mr Oakenfull, Mr Davis and others. She says she has spoken to Mr Oakenfull on a number of occasions about the treatment staff are subjected to by Mr Davis in the kitchen. She denies treating other staff badly.
Ms Slingsby states that she was not given any advance notice of the meeting on her first day back from holidays when Mr Oakenfull said he needed to see her. When she got to his office she had to wait while he got Mr Davis and she was then given the allegations. She states this was the first time they had been discussed with her. She was never advised of the outcome of the investigation into the “Bill incident”. She describes how her duties were “not inherently stressful” but became so because of short staffing and increased workload. She denies that Mr Davis ever discussed allegations that she was becoming impatient or agitated. She says Ms Hurst was often “the instigator” of conversations about Mr Davis and Mr Oakenfull, and she attaches a series of text messages between herself and Ms Hurst.
With respect to a statement by Mr Malla (“Bill”), Ms Slingsby denies grabbing his finger and twisting it and says she “simply pushed his finger back out of [her] face as [she] was scared”. She denies she ever had a heated discussion with Mr Malla as he alleges.
With respect to comments about her personal relationship, Ms Slingsby says she was having problems with her partner in 2017 but she attended work and does not believe her work was affected. She states that they reconciled for a time before separating in February 2019.
In her statements dated 15 February 2021 and 18 January 2022, Ms Slingsby refers to her appointments with Dr Graham Vickery, psychiatrist, who saw her for assessment at the request of the respondent, and says she felt he was not listening to her.

Statements of other employees
Mr Oakenfull

Mr Oakenfull is the general manager at Calare Nursing Home. Mr Davis reports to him. He provided a statement dated 23 January 2020 to the investigator.[3]
[3] Reply page 36.
Mr Oakenfull refers to “an incident with one of the care staff” that was “being handled via the HR process”. Ms Slingsby also had “an active bullying and harassment claim against [her that] was being dealt with in accordance with relevant policies and procedures”. He refers to the letter dated 11 December 2019 suspending her from duties. He states that the investigation into the allegation of bullying and harassment had been placed on hold “due to her workers compensation claim”. At the time of his statement, an investigation had been undertaken and “an outcome meeting” would be held with her on her return to work. The outcome was that the allegations had been unsubstantiated.
Mr Oakenfull states that he understands Ms Slingsby had had some difficulty with her partner but he did not know the extent, and he did not know of any other external stresses she had been dealing with. The last time he spoke to her, in January 2020, she “appeared to be okay” and was planning to return to work after a meeting with her doctor on 17 January 2020. He told her that, before she could return to the roster, the disciplinary matter against her needed to “reactivate” and he made an appointment to meet with her on 20 January 2020. The outcome meeting of the disciplinary matter had to be rescheduled after Ms Slingsby provided a medical certificate certifying her unfit until 31 January 2020.

Mr Oakenfull refers to a conversation on 14 October 2019 with Ms Slingsby about “Annie” being upset because Ms Slingsby had not been treating “Chloe” well and she no longer wanted to work in the kitchen if Ms Slingsby was there. Annie “did not want to elaborate on that comment”. He discussed the roster with Ms Slingsby and recalls that she “did not take my comments well” but he did not recall what she said.
Mr Oakenfull states that he does not recall the discussion Ms Slingsby describes on 14 November 2019. He recalls meeting with her on 15 November 2019. He recalls giving her “advanced warning” that he needed to meet with her and that he told her he had heard rumours she had taken leave during the audit so that Mr Davis would fail, and that she was “actively trying to get rid of” Mr Davis, both of which she denied. They discussed her attitude at work and she “admitted it had not been very good around that time, and that she’s working on improving her attitude”.
With respect to the “Bill incident”, Mr Oakenfull states that he was on leave at the time. He was “skimming emails” and noticed emails from Mr Davis and “Joy” about it and that they would discuss it with him on his return. When he reviewed the matter on his return, he “realised that it was more serious and should have been dealt with differently”. He then “[commenced] dealing with the matter in the correct way”. He called Emma Ashby from HR who advised him to inform Ms Slingsby that he was reviewing the matter and was taking it seriously. He then spoke to Ms Slingsby, “apologised for Bill’s actions” and told her that further investigations would be undertaken into the incident. He would not have instantly dismissed Bill as he did not have that authority.
Mr Oakenfull states that he recalls the meeting with Ms Slingsby on 5 December 2019 “where allegations were put to her”. He states that he met with her on 6 December to advise her of the outcome of the investigation into the “Bill incident”. He told he could not advise her what had happened to Bill because of confidentiality. From his point of view, the incident had then being fully dealt with.
Mr Oakenfull states that, around the same time, a complaint was received from Ms Hurst and an investigation commenced into it. That complaint formed the basis of the investigation that had been put on hold in Ms Slingsby’s absence.
Mr Oakenfull states that he agrees with Ms Slingsby’s description of events on 11 December 2019. He states that she was suspended, following “discussions with HR”, while Ms Hurst’s allegations were being investigated.

Mr Davis

Mr Davis is the Hospitality Manager at Calare and Ms Slingsby’s direct supervisor. He provided a statement dated 23 January 2020 to the investigator.[4]
[4] Reply page 23.
Mr Davis describes Ms Slingsby’s duties and says she is “competent in her role”. Her duties were “time pressured” because meals had to be served by a certain time, and they could be repetitive. He states that, in the lead up to her going on sick leave, she “was becoming very agitated, impatient and intolerant (towards the staff members that she was dealing with)”. He refers to her “tumultuous” relationship with her partner from whom she had recently broken up, and that her son often required financial assistance from her.
Mr Davis recalls a discussion with Ms Slingsby on 30 September 2019 about her shifts, and that she said words to the effect of “why did these people apply for these jobs, when they do not want to work, I am sick of this crap”. He denies saying “fuck Carolyn” and says he did not “hassle” anyone to work a shift. He agrees that he told Ms Slingsby she had “an attitude problem” and says that, while he was on holidays a co-worker had resigned because of the way she treated him, and two others who lasted only one shift due to her attitude. He states that her “attitude issues” started when he did not give her the hours she wanted.
Mr Davis says he recalls Ms Slingsby being “short and abrupt” towards another worker and he “passed comment” that she needed to be careful how she spoke to people. He recalls asking her “not to dry things on the Bain Maree [sic]” because he needed the area free. He “may have told her that if she did not like it she knew what she could do” due to her “refusing to follow my (reasonable) instructions”. With respect to dishes being left unwashed on 1 October 2019, he recalls that she had shown “frustration and antagonism” and left work the previous day leaving them unwashed and he instructed staff to leave them for her next day.
With respect to the meeting on 15 November 2019, Mr Davis agrees the context was as described by Ms Slingsby. Mr Oakenfull expressed his reluctance to increase her hours because she had already been working over her contracted hours.
Mr Davis states that, in the lead up to his holidays, Ms Slingsby was “stressed about the audit” and he had been reassuring her. He was surprised to learn she had applied for holidays in the lead up to the audit. While he was away they lost the two staff members he referred to in his statement. He had also heard rumours that Ms Slingsby was “trying to get rid” of him and that they would not be able to pass the audit without her and another staff member. The mood at the end of the meeting was “somewhat more positive” and
Ms Slingsby said she understood about the hours.
As to the “Bill incident”, Mr Davis states he heard “raised voices from Deborah and Bill”. When he went to see what was happening, Ms Slingsby asked him “Can you please tell this man that he is not allowed to touch my trolley”. Mr Davis states that he cannot recall details of what they said, and they returned to their duties. Subsequently, it was decided the clinical manager would interview Mr Malla and Mr Davis would interview Ms Slingsby. He met with her, got her version of events and emailed it to Mr Oakenfull with a copy to the clinical manager. That was the extent of his involvement in the matter.
With respect to events on 29 November 2019, Mr Davis states that he believed the investigation into the incident was still ongoing. He recalls telling Ms Slingsby that he understood her point of view and would let her know as soon as he knew anything.
With respect to events of 7 December 2019, Mr Davis says Mr Oakenfull made the decision to give another staff member the early shift. Mr Davis did not want Ms Slingsby doing them because her attitude had deteriorated in the kitchen and he wanted flexibility in the kitchen.
Mr Davis states that the handwritten notes he made during his interview with Ms Slingsby on 8 December 2019 were disposed of once he had made “formal bullet point notes” which he sent to Mr Oakenfull. He states he “instead showed Deborah the report I had written on the matter which included all the points”. He states that she was “happy with what I had done in respect of my meeting notes with her”.

Ms Hurst

Ms Hurst provided a statement dated 23 January 2022 to the investigator.[5] She states that she is a kitchen hand at Calare. Her relationship with Ms Slingsby is that they are “simply workmates when we are on shift together”.
[5] Reply page 43.
Ms Hurst states that, in the lead up to Ms Slingsby’s “present period of sick leave”, Ms Slingsby was saying she was tired but she had to continue to work. She refers to Ms Slingsby’s “on and off” relationship with her partner whom she eventually left, and that her son was “constantly seeking financial support from her”.
With respect to events on 26 November 2029, Ms Hurst states that Ms Slingsby and her team member had ignored her all day. She asked Ms Slingsby if she had done something to upset her. Ms Slingsby replied “with a snarl” that she was not going to let Ms Hurst treat her “like you treated Lyn”. Ms Hurst responded “You have got to be kidding”. She was shocked by Ms Slingsby’s response and they said no more to each other. She went to see
Mr Oakenfull as she did not want to Ms Slingsby making accusations against her. She told him Ms Slingsby had been ignoring her, and the comment Ms Slingsby had made.

Mr Malla

Birendra (“Bill”) Malla provided a statement dated 23 January 2020 to the investigator.[6] He states that he has a “very limited” relationship with Ms Slingsby as she works in the kitchen and he is part of the resident care team.
[6] Reply page 46.
Mr Malla states that he last spoke to Ms Slingsby on 22 November 2019. She was “very angry and aggressive” towards him. He recalls that he “grab something to drink” from her trolley. It was “only a small drink, in the bottom of a small plastic cup”. As he did so, she “snatch the drink” from his hand and “aggressively” told him he could not have it. He said it was “her trolley” and he could not have a drink. He thought she was joking because all staff take drinks from the trolleys. When he realised she was not joking, he began to feel she was being racist because she was singling him out, and he told her so.
Mr Malla states they then had an argument and he “pointed towards” her face and told her she could not speak to him in such a manner. She then “grabbed my finger and twisted it”. He became upset and told her not to twist her finger “otherwise I will punch you in the face”.
Mr Malla states that he spoke to his supervisor and said he would be willing to apologise to Ms Slingsby if asked to do so. He heard no more about the matter until he was asked to speak to the manager and someone from HR. Had he known Ms Slingsby was going to lay a complaint against him, he would have laid one against her for assault.
Mr Malla refers to “a heated conversation” with Ms Slingsby, on a date he cannot recall, when he was helping her with a delivery to the kitchen and she “yelled” at him for putting things in the wrong place.

Other documents

Notice to attend meeting

The letter to Ms Slingsby dated 5 December 2019 was signed by Mr Oakenfull.[7] It refers to Allity’s vision of “making every day the best it can be” and the importance as team and individually of maintaining “high level of performance and conduct”. It states it may be necessary to meet at times on a formal basis to discuss an aspect of work that is not meeting the required standards.
[7] ARD page 263.
The letter identifies a concern that the standards have not been met and, specifically, that Ms Slingsby was not complying with employee behaviour standards which,
“include but may not be limited to:
·On the week of the 25^th November you failed [to] show respect to a fellow employee Katrina Hurst by communicating with her in a rude and confrontational manner
·On several occasions you failed to treat new employees with respect. On one occasion this directly led to the resignation of a staff member Melinda Nicol
·Behaviour inconsistent with Allity values”
The letter advised Ms Slingsby she was required to attend a formal meeting the following day to discuss the issues raised and to give her an opportunity to respond. It advised that she could bring a support person with her. It directed her to maintain confidentiality during the investigation, to not interfere in any way with it, and to respond honestly to it. It advised that, if she failed to adhere to those directions, separate disciplinary action might result. It advised that, after “consideration of the factors in relation to these concerns, including your response, disciplinary action up to including the issuing of a warning maybe an outcome” of the meeting. It referred to support available from the Employee Assistance Program.

Outcome letter – formal warning

By letter dated 6 December 2019, Mr Oakenfull advised Ms Slingsby of the outcome of the meeting that day.[8] The letter referred to the written notice of the meeting and its purpose, and confirmed that Ms Slingsby had a support person in attendance.
[8] ARD page 265.
The letter referred to discussion of “the details of the concerns” and Ms Slingsby’s denial that she had failed to show respect to Ms Hurst “by communicating with her in a rude and confrontational manner” and that she had failed to treat new employees with respect. It referred to her version of those events and concluded that the allegations had been substantiated, specifically that she had “failed to conduct [herself] in line with the expectations of our behaviour standards including in accordance with the Allity values, particularly around Respect and Team Work”.
The letter advised Ms Slingsby of a Formal Warning and that, if there were “ongoing issues surrounding [her] performance and/or conduct, if substantiated, it may result in further disciplinary action up to and including termination of [her] employment”. It directed
Ms Slingsby to ensure interactions with staff complied with Allity values, to comply with Employee Behaviour Standards and to complete a bullying and harassment online learning module by 13 December 2019.

Notice of suspension from duty

By letter dated 11 December 2019, Mr Oakenfull advised Ms Slingsby that a decision had been made to suspend her from duty on full pay, effective 12 December 2019 “following receipt of information which alleged you have engaged in conduct of a serious nature that may result in a risk to the health and safety of others”.[9]
[9] ARD page 267.
The letter confirmed that “no decisions or findings have been made surrounding the validity of these allegations” but she was directed not to attend work until further notice “as a means to protect both you and any other parties involved in the allegations” and to ensure “an objective and thorough investigation”. It advised that, as part of the investigation she might be directed to attend a formal meeting but, otherwise, she remained suspended until further notice. It did not provide details of the allegations.
The letter advised, “[g]iven the seriousness and sensitivity of this matter”, that Ms Slingsby was to adhere to directions with respect to confidentiality, not to interfere with the investigation and to respond honestly to it.

Medical evidence
Dr Moriarty’s records

Clinical records of Ms Slingsby’s general practitioner, Dr Mark Moriarty, are in evidence.[10] They date from 1 August 2014 to 3 April 2020 when Ms Slingsby moved to Newcastle. They refer very occasionally over the years to long hours at work. Then, on 12 September 2019, Dr Moriarty recorded, among other complaints, that Ms Slingsby “only had one day off in 6 weeks – [had] to beg for that”.
[10] ARD page 342.
On 5 December 2019, Dr Duong recorded:
“….
but also having a ‘nervous breakdown’
prefers to talk to usual GP Dr Moriarty
working 12 hour shifts, 7 days/week
work colleage [sic] threatened to punch her
Wants to have cancer because she doesn’t want to be around anymore, wants to go to sleep and not wake up because she’s so tired”
On 13 December 2019, Dr Moriarty recorded that Ms Slingsby had an “acute stress reaction”:
“got bullied at work a few weeks ago …
threatened by nurse …
people spreading rumours …
so much going on …
they suspended me …
first and final warning 2 weeks ago …
can’t even think …
suspension (with pay) –
accusations of intimidation, spreading rumours, disrespectful
has been in contact with WorkCover
applying for bullying and harassment”
On 13 December 2019, Dr Moriarty certified Ms Slingsby unfit for work by reason of “acute situation crisis with anxiety”. The Workcover certificate notes that she was under suspension at work, that she alleged workplace bullying and harassment and that she reported being “under suspension at work for same”.[11]
[11] ARD page 410.
On 20 December 2019, Dr Moriarty recorded with respect to her work situation that
Ms Slingsby had “not heard anything” and as far as she knew she was still on suspension. He diagnosed adjustment disorder with anxiety.
On 30 December 2019, Dr Moriarty reported to the insurer in response to a number of questions (which do not appear to be in evidence). His responses show that Ms Slingsby first presented with her current complaint on 13 December 2019. He made a provisional diagnosis of adjustment disorder with anxiety. She reported that the cause of her current condition was conflict in her workplace and she alleged bullying and harassment. She “freely divulged” that she was also under investigation for alleged bullying and harassment and was currently suspended.
On 3 January 2020, Dr Moriarty recorded Ms Slingsby’s complaints of “bullying at work”, that work was short -staffed and she was asked to do a double shift, that things were “left on the kitchen” and that there were allegations that she had bullied another worker.

Dr Vickery’s first report

Dr Vickery saw Ms Slingsby for assessment on 2 November 2020 and by telehealth on 27 October 2021. He provided reports dated 19 November 2020 and 4 November 2021.[12] In addition to clinical records and reports, he had Ms Slingsby’s statement to the investigator and her statement dated 26 June 2020, statements of Mr Oakenfull, Mr Davis, Mr Malla and Ms Hurst and the letters and notices referred to above, and he noted Dr Moriarty’s clinical records.
[12] Reply pages 56 and 69.
In his first report, Dr Vickery recorded that Ms Slingsby told him she had suffered from anxiety all her life. She reported no “significant personal stressors” that were not related to the workplace injury.
Dr Vickery was asked to obtain a history from Ms Slingsby “including details of the injuries, events and/or incidents said to be causative of his [sic] alleged injury”. He noted her general practitioner’s clinical notes recorded “relationship problems” in 2017, and “stressful home life and stressful work” in 2018 and, in January 2020, about her complaints of bullying at work.
Under “History of Presenting Complaints”, Dr Vickery took a history from Ms Slingsby that she had “a very high workload”, that she sometimes worked double shifts and sometimes on her own, and if staff made any complaints, they “were told we knew where the front door was”.
Dr Vickery recorded that Ms Slingsby reported that she was “threatened with being punched in the face by a staff member who was helping himself to the patient morning tea trolley” and that she reported the incident but “nothing was done”. She reported that, in October 2019, she had been working “seven days for a few months” and, when she applied to take holidays, the manager told her she was “sabotaging the audit” because of going on holidays. She said that, when she was suspended in December 2019, “it just put me over the edge” and she saw her doctor and was “placed on WorkCover”. Dr Vickery recorded that she said she could not “turn [her] mind off” because she was so angry at the respondent “because of the shift work and long hours at work”.
Dr Vickery diagnosed Ms Slingsby as having a pre-existing psychological condition of panic disorder and generalised anxiety disorder. He considered she was “suffering from an exacerbation of her pre-existing psychological condition due to performance review”. Her employment was the main contributing factor to the aggravation of her pre-existing condition. (Dr Vickery uses “exacerbation” and “aggravation” interchangeably but nothing turns on this).
In response to a question as to when Ms Slingsby’s current psychological symptoms and condition commenced, Dr Vickery reported that her current symptoms were related to her pre-existing panic disorder and generalised anxiety disorder “as the work-related exacerbation has ceased”.
In response to a question as to whether any pre-existing injury or condition and/or any non-work related incident or event had wholly or partially contributed to Ms Slingsby’s current condition, Dr Vickery said there had been “multiple pre-existing personal stressors and health issues” that had contributed to her symptoms.
Dr Vickery was asked whether he considered the suspension of Ms Slingsby’s employment and the meetings prior to her suspension were the whole or predominant cause of her alleged injury. In response, he referred to the Factual Investigation and quoted from it. The source of each quote is not clear but nothing really turns on this.

In his response, Dr Vickery noted the discussion at the meeting on 15 November 2019, and that Mr Oakenfull said he had provided Ms Slingsby with advance notice of the meeting. He noted that she denied trying to cause the audit to fail and trying to get rid of Mr Davis. He noted that she admitted at the meeting that her attitude had not been good and that she was working on improving it. He noted the “Bill incident”, apparently citing from Mr Malla’s statement, because he refers to Ms Slingsby “twisting” his finger (which she denies). He noted the formal warning issued on 6 December 2019 and its reasons, and that Ms Slingsby said she was hurt and surprised by it. He noted the telephone call on 11 December 2019 from Mr Oakenfull notifying her of her suspension.
Dr Vickery concluded his response by stating:
“The suspension of Ms Slingsby’s employment and the meetings prior to her suspension in relation to performance review were the whole or predominant cause of her alleged psychological injury due to an exacerbation of her pre-existing condition on the basis of the history provided.”

Dr Vickery’s second report

In his second report, Dr Vickery took a similar history from Ms Slingsby of events during her employment with the respondent. He did not consider Ms Slingsby to be exaggerating or feigning but he found “no diagnosable DSM-IV/DSM5 psychiatric disorder or injury”.
In response to a question whether the suspension of Ms Slingsby’s employment and the meeting prior to her suspension were the whole or predominant cause of her alleged psychological injury, Dr Vickery stated that the alleged injury had resolved. He considered she had recovered since Associate Professor Robertson’s report of 30 July 2021 (below).
In response to a request to apportion the relative contribution to Ms Slingsby’s psychological condition of (a) the alleged bullying and harassment; (b) the suspension of her employment and the meeting prior to the suspension in relation to her performance review; (c) relevant nonwork related factors; and (d) any other pre-existing psychological injury, conditional abnormality, Dr Vickery assigned 0% to each.

Associate Professor Robertson’s first report

Associate Professor Michael Robertson first saw Ms Slingsby for assessment by telehealth on 6 May 2020.
In his first report, Associate Professor Robertson stated he had been provided with Ms Slingsby’s statement to the investigator and a further undated statement, and Dr Moriarty’s medical records.
Associate Professor Robertson reported that Ms Slingsby described “bullying behaviour” by her supervisor PD (apparently a reference to Mr Davis) who was “indifferent” to staff’s escalating workloads and seemed to expect that she and others would perform duties outside the job description. She said she was working long hours and PD would frequently refuse what she considered reasonable requests for leave or weekends off. She considered him to be “inflexible, hostile and at times physically menacing” and had seen him punch the fridge door during a “heated exchange” with a co-worker. As a result of his behaviour, there had been “multiple resignations” that were left unfilled and she was particularly aggrieved when forced to work with a co-worker whom she suspected was using ice. She states that PD did nothing about this until the man’s drug use “was made known in the popular press”.
Ms Slingsby reported that the situation reached “a critical point” in November 2019 over the “Bill incident” when she was accused of being racist and threatened to be punched in the face. According to Ms Slingsby, the situation was not handled adequately. A short time later, she was accused of being rude and discourteous to a fellow employee whose complaint became the subject of disciplinary action.
Ms Slingsby told Associate Professor Robertson that she first saw her doctor in mid- to late-2019 complaining of physical manifestations of anxiety and, over time, she experienced diminished motivation, dysphoria and reluctance to go to work, and she had worsening panic attacks.
Associate Professor Robertson noted that Ms Slingsby was diagnosed with panic disorder when she was 16. He diagnosed “a work-related exacerbation of long-standing anxiety panic disorder with agoraphobia”. Noting the history she gave of behaviour that she considered to be bullying and that she was subsequently threatened with violence by a co-worker, he considered that the nature and conditions of her employment was the “primary cause” of the exacerbation. He stated:
“Whilst employment was not a significant contributing factor to the onset of panic disorder with agoraphobia, it was clearly the primary contributing factor to the current exacerbation of the condition.”

Associate Professor Robertson’s second report

Associate Professor Robertson saw Ms Slingsby for review by telehealth on 26 July 2021 and provided a report dated 30 July 2021.[13] He had Dr Vickery’s first report and the clinical records. He noted that Ms Slingsby reported ongoing symptoms of panic and “associated phobic avoidant behaviour”.
[13] ARD page 90.
Associate Professor Robertson reported that he remained of the view that Ms Slingsby’s presentation was consistent with a work-related exacerbation of her previous panic disorder with agoraphobia. She had since evolved “morbid problems” with a major depressive disorder and chronic pain related to physical injuries (unrelated to these proceedings).
Associate Professor Robertson stated that the “critical issue” appeared to be the circumstances of the exacerbation of Ms Slingsby’s pre-existing condition. He considered that Dr Vickery had taken “a narrow view of the situation, focusing exclusively on the disciplinary action taken by the employer in response to one aspect of a multitude of problems in the workplace” as outlined in his earlier report. He said he disagreed with that formulation, “noting that the broader context of the exacerbation … related to the nature and conditions of her employment”. Her experience was that she was subject to bullying behaviour and that disciplinary action was inappropriately enacted. Her situation had deteriorated and appeared to have stabilised.
Associate Professor Robertson rated Ms Slingsby’s whole person impairment at 19% with a 1/10^th deduction for her pre-existing condition, equalling 17%.

SUBMISSIONS

The respondent’s submissions

Mr Baran refers to the analysis of section 11A of the 1987 Act by Geraghty CCJ in in Irwin v Director-General of Education[14] followed in cases including Commissioner of Police v Minehan[15] and Northern NSW Local Health Network v Heggie.[16] Mr Baran submits that what happened in this case has to be considered with regard to an employer’s objective to have a harmonious workplace and to take action when lines are crossed.
[14] (Compensation Court of NSW, Geraghty CJ, 18 June 1998, No 14068 of 1997, unreported) (Irwin).
[15] [2003] NSWCA 239; 1 DDCR 57 (Minahan).
[16] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
Mr Baran refers to the letter to Ms Slingsby dated 5 December 2019 which sets out the respondent’s objective to make “every day the best it can be” and “maintain a high level of performance and conduct”. It set out three allegations as to how Ms Slingsby was not complying with the Employer Behaviour Standards, by failing to show respect to Ms Hurst on 25 November 2019, but failing to treat new employees with respect on several occasions, and “behaviour inconsistent with Allity values”.
Mr Baran submits it is inconceivable that Ms Slingsby did not have fair and reasonable notice of the issue, of what would be put to her, that they were not put with reasonable particularity, and that she did not have a reasonable opportunity to consider and prepare for the meeting. Further, the letter advised she could bring a support person, it contained no warning, and it advised that an alternative time could be arranged if she needed it.
With respect to the “Outcome letter” Mr Baran submits it advises Ms Slingsby of the outcome. It confirms that she had a support person present and sets out what was discussed. The letter shows that the meeting the previous day was not confrontational or accusatory, that Ms Slingsby was asked what happened and that she apologised. She explained herself. The outcome was reasonable and explained what was required in future. It put her on notice of possible further action.
At that point, Mr Baran submits, Ms Slingsby obtained a medical certificate. She was given the suspension letter on her return to work on 11 December 2020. She was suspended on full pay. The letter advised that no decision had been made but that an investigation would be undertaken to protect all involved; it explained what would happen and gave Ms Slingsby the standard direction to keep matters confidential.
With respect to Ms Slingsby’s statements of evidence, Mr Baran submits that her original statement to the investigator is closest in time and encapsulates her evidence. From there, she started adding to her statements. She wants me to believe that her employer was biased and created an unsafe work environment, but all the evidence shows it was not. Mr Baran submits that the evidence shows that the respondent was always mindful of employees’ safety. Mr Oakenfull’s acknowledgement that the complaint against Ms Slingsby was found to be unsubstantiated is further evidence of a reasonable employer, and it cannot be said that the respondent was not objectively fair.
With respect to Mr Oakenfull’s and Mr Davis’s statements, Mr Baran submits they show the basis of the disciplinary action taken against Ms Slingsby. Ms Hurst’s statement is important because she was one of Ms Slingsby’s main “victims” and was ostracised by her. Ms Hurst was entitled to make a complaint, whatever its merits, and the respondent was entitled, and obliged, to investigate it.
With respect to the “Bill incident” Mr Baran submits that Ms Slingsby assaulted him and the matter had to be investigated. This was the “thin end of the wedge”, the culmination of her behaviour.
With regards to the medical evidence, Mr Baran submits that Associate Professor Robertson gives a sympathetic view but Dr Vickery looks at all the material which describes Ms Slingsby’s “tragic, shocking” life, and her multiple medical issues. Mr Baran submits that it all “came to a head” when people made reasonable complaints about Ms Slingsby as they knew they could do in the respondent’s tolerant workplace. Dr Vickery identified, applying the test in Hamad v Q Catering[17], that nothing else was happening in the workplace or outside that was causative of her injury. The general practitioner’s notes show that the main issues arose around this time and it is undeniable that it was the whole or predominant cause.
[17] [2017] NSWWCCPD 6 (Hamad).
Mr Baran submits that Dr Vickery’s report shows that he considered all of the facts and concluded that the suspension and meetings leading up to them were the whole or predominant cause of Ms Slingsby’s injury. His opinion coincides directly with the medical evidence and there are no other relevant events. What led Ms Slingsby to go on workers compensation was once the disciplinary process was put in motion.
Mr Baran submits that the only conclusion I can reach is that the respondent has discharged its onus to establish that Ms Slingsby’s injury was wholly or predominantly caused by action which was at all times reasonable on any objective basis.

The applicant’s submissions

Mr Morgan submits that the first issue for consideration is whether the disciplinary action was the whole or predominant cause of Ms Slingsby’s injury. In this regard, Hamad emphasises the need to consider the medical evidence as to whether, in the context of more than one potentially causative event, events were causative of psychological injury. Mr Morgan refers to the decision of Deputy President Wood in Secretary, Department of Education v BB which applied Hamad.[18]
[18] [2021] NSWPICPD 21 (BB).
With respect to Dr Vickery, Mr Morgan submits that the events in Ms Slingsby’s workplace in December 2019 cannot be viewed in isolation. Dr Vickery records her complaints of high workload; he takes a three-paragraph history of events, and then arrives at a bare ipse dixit that her injury was due to the performance review. He confirms his opinion without any analysis. He refers to the whole history of events at work but does not explain his conclusion.
Mr Morgan submits that Mr Davis’s statement is indicative of a most dysfunctional workplace. Mr Davis states that Ms Slingsby was becoming “impatient”, he denies conversations that occurred, and he told her she had the “attitude problem”. He “vaguely recalls” his interaction with her about another worker resigning because of how she had treated him. He acknowledges that he “may have told” Ms Slingsby that she “knew what she could do” if she did not like his instructions.
Mr Morgan submits that everything was not “by the book” as the respondent suggests, and evidence shows that management behaviour was not appropriate. He refers to Mr Davis telling staff of an aged care facility to leave plates lying around until the next morning, which Mr Davis acknowledges he did it to “teach Ms Slingsby a lesson”.
Mr Morgan submits that Mr Davis’s evidence shows that he was hostile and antagonistic towards Ms Slingsby. Mr Davis acknowledges that he did not want her hours increased.
Mr Morgan submits he was “clearly in cahoots” with Mr Oakenfull and “conspiring” to
Ms Slingsby’s detriment. There was a “stitch up” to get her out of the workplace. Mr Davis confirms that he had “heard rumours” about her, and Mr Oakenfull also had heard “rumours” that she had taken leave to “sabotage the audit” and that she was “trying to get rid of”
Mr Davis. Mr Morgan submits that these “rumours” are further evidence of a dysfunctional workplace. Moreover, a suggestion that she attempted to be sabotage the audit is serious but nothing was done about it.
With respect to the “Bill incident”, Mr Morgan submits that Mr Oakenfull acknowledges it was dealt with inappropriately. Mr Davis did nothing about it.
Mr Morgan submits that, before considering whether the December meeting and the respondent’s action was reasonable, I would have to be satisfied that all was “sweetness and light” as the respondent maintains. Ms Hurst’s statement is evidence of vitriol towards
Ms Slingsby and stands in contrast to the SMS trail between them which indicates they were on quite good terms and both were unhappy about Mr Davis and the demands being placed on them. Mr Morgan submits that the SMS trail shows that the workplace was chronically understaffed, accusations were being made against them and they had a supervisor who was clearly bullying them.
Mr Morgan submits that there is ample factual evidence that what happened in December 2019 was not the whole or predominant cause of Ms Slingsby’s injury. He refers to the decision of Deputy President Roche in St George Leagues Club Ltd v Wretowska.[19]
[19] [2013] NSWWCCPD 64 (Wretowska).
Mr Morgan submits that the general practitioners’ notes on 5 December 2019 show that
Ms Slingsby told Dr Duong about problems at work and, on 13 December 2019, she reported that people had been spreading rumours about her.
With respect to Associate Professor Robertson’s report, Mr Morgan submits that he noted the full history in his report of 6 May 2020. What he recorded is consistent with what Mr Davis and Ms Slingsby say including referring to gossiping and rumours. Associate Professor Robertson confirms his opinion that it was the “overall nature and conditions” of her employment that led to her injury. He took a complete history and gave a considered opinion, as opposed to Dr Vickery’s bare ipse dixit.
Mr Morgan submits that, if I find that the disciplinary action was the whole or predominant cause, it was not reasonable action. In particular, in suspending Ms Slingsby, Mr Oakenfull relied on an investigation that had not even been completed at the time of the suspension.

Reply

In reply, Mr Baran submits that I would reject entirely the submission that Dr Vickery did not analyse the material. He identified the material he looked at, he did not leave out any relevant history, and the attack on his report cannot be sustained.
Mr Baran submits that it is unhelpful to suggest a “conspiracy” between Mr Davis and
Mr Oakenfull. Mr Oakenfull’s statement shows he was on leave when the “Bill incident” occurred. He saw the emails and decided he would discuss them on his return to work. He concluded the incident should have been dealt with differently, and should have been escalated on account of Ms Slingsby’s and Mr Malla’s behaviour.
Mr Baran submits that, if it was the toxic workplace complained of by Ms Slingsby, she would not go and discuss the matter with Mr Oakenfull and lodge a complaint; she did so because she knew that management would be responsive and take care of her.

CONSIDERATION

Section 4 of the 1987 Act defines “injury” to mean personal injury arising out of or in the course of employment, and includes a “disease injury”, which means a disease contracted in the course of employment, or the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to contracting the disease or to the aggravation, acceleration, exacerbation or deterioration of the disease.
There is no dispute that Ms Slingsby has a long-standing pre-existing psychological condition, diagnosed by Associate Professor Robertson as panic disorder with agoraphobia and by Dr Vickery as panic disorder and generalised anxiety disorder.
There is no dispute that Ms Slingsby had a work-related exacerbation of her condition to which her employment was the main contributing factor. The respondent maintains, however, that her injury is not compensable by reason of section 11A(1) of the 1987 Act.
Section 11A(1) provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent bears the onus of establishing, on the balance of probabilities, that the action relied on was action within the meaning of s 11A(1), that it was the whole or predominant cause of Ms Slingsby’s injury, and that the action was reasonable: Pirie v Franklins Ltd[20]; Department of Education and Training v Sinclair[21].
[20] [2001] NSWCC 167; (2001) 22 NSWCCR 346.
[21] [2005] NSWCA 465; (2005) 4 DDCR 206.
“Wholly” and “predominantly” are separate concepts and a finding of one or the other needs to be made.[22]
[22] Smith v Roads & Traffic Authority of NSW [2008] NSWWCCPD 130.
“Wholly” and “predominantly” are separate concepts. “Predominantly caused” means “mainly or principally caused”.[23] The test of causation is the commonsense test as set out in Kooragang Cement Pty Ltd v Bates[24], and not the proximate cause test or the “but for” test.
[23] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92.
[24] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
The respondent must prove, firstly, that the injury was wholly or predominantly caused by the appellant’s action (or actions) in relation to any of the matters referred to in section 11A and, secondly, that the action was reasonable.[25]
[25] Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181.
The respondent maintains that Ms Slingsby’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken with respect to discipline.
Dr Vickery states in his first report to “the whole or predominant cause” of her injury was the suspension of her employment and the meetings prior to it in relation to “performance review” but nothing turns on this description of the relevant action. There is no dispute that the action relied on by the respondent was action with respect to discipline.

In Wretowska, Deputy President Roche said at [110]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook[2009] HCA 28 at [25] and [27]). That is especially so in cases concerning a psychological injury where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011, and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
In Hamad, Deputy President Snell 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.”
Ms Slingsby does not dispute that the meetings leading up to her suspension, including the formal warning, and the suspension itself, contributed to her psychological injury but she maintains that action and what followed was not its whole or predominant cause. She cites incidents and events dating from around September 2019 (which is also around the time Mr Davis identifies as the time when her “attitude issues” commenced).
Ms Slingsby’s evidence is that her work was stressful and time-pressured because the workplace was short-staffed. She complains of being bullied and harassed, in particular by Mr Davis. She cites conversations with Mr Davis from around September 2019 in which she says he pressured her to work additional shifts and declined to give her the shifts she had asked for, giving at least some to another worker instead.
The evidence shows that, whether or not Mr Oakenfull and Mr Davis had good reasons for allocating shifts as they did, it was a source of ongoing frustration and stress for Ms Slingsby (and, it appears, to Ms Hurst). In addition to her own statements and the history she gave to her general practitioners, Dr Vickery and Associate Professor Robertson, the exchange of text messages with Ms Hurst indicates they were both aggrieved about their hours. (Ms Hurst wrote that “staff need to start standing up for themselves and stop being used”).
Mr Oakenfull refers to a conversation on 14 October 2019 with Ms Slingsby about another worker being upset because Ms Slingsby had not been treating “Chloe” well and she no longer wanted to work in the kitchen if Ms Slingsby was there. He discussed the roster with Ms Slingsby and recalls that she “did not take my comments well” but did not recall what she said.
Ms Slingsby refers to Mr Davis saying words to the effect that “she knew where the front door was” if she did not like it. Mr Davis concedes that he “may have” made statements to this effect, although he says they were in response to Ms Slingsby’s refusal to comply with his reasonable directions.
Ms Slingsby told the investigator that Mr Davis “hassled” her about putting dishes in the bain marie and said she thinks he was upset because she had not agreed immediately to work a double shift. She cites an incident in which he directed staff to leave dishes overnight for her “to teach her a lesson”. Mr Davis acknowledges in his statement that he did so.
Ms Slingsby refers to the “Bill incident” when Mr Malla threatened to punch her in the face. There is a dispute as to whether she twisted his finger in response to him pointing his finger in her face or whether, as she claims, she merely moved his hand out of the way when he continued to point in her face. She recounted this incident to her doctors and to Dr Vickery and Associate Professor Robertson.
Ms Slingsby says Mr Oakenfull told her when he learned of the “Bill incident” that he would have dismissed Mr Malla. Mr Oakenfull gives a different account. He says when he returned from leave he realised the matter was serious and “should have been dealt with differently”. He spoke to Ms Slingsby and “apologised for Bill’s actions”. He told her that further investigations would be undertaken but he says he would not have instantly dismissed
Mr Malla as he did not have that authority. I am inclined to accept Mr Oakenfull’s account over Ms Slingsby’s. Nevertheless, she maintains that the incident was not dealt with adequately and Mr Oakenfull’s evidence is that it “should have been dealt with differently”.
Ms Slingsby refers to rumours put to her in November 2019 that she had tried to “sabotage the audit” and that she was trying to get rid of Mr Davis. Dr Moriarty recorded on 13 December 2019 that, among other things at work, she said people were spreading rumours about her.
There is no real dispute that these incidents occurred and that Mr Oakenfull and Mr Davis made the comments described by Ms Slingsby. As already referred to, Mr Oakenfull says he did not tell her he would have dismissed Mr Malla, and Mr Davis denies saying “fuck Carolyn” about a worker who was not available for her shift, but these are really among details of a series of events that are agreed to have occurred. There is no challenge to her evidence that Mr Davis said on one occasion that residents could have no choice about their meals, that he “punched” a door and that he failed to deal with the worker who was believed to be addicted to “ice”.
Mr Baran submits that the respondent was an exemplary employer and provided a workplace in which staff felt able to take complaints to managers because they knew they would be dealt with. Mr Morgan submits it was a “toxic” environment in which Ms Slingsby’s managers conspired against her. On the evidence before me, neither is a fair description. There were clearly ongoing issues about staff shortages and the hours Ms Slingsby (and, it seems, Ms Hurst) were asked to work, and Mr Oakenfull agrees that the “Bill incident” was serious and was not dealt with appropriately.
There is limited evidence of Ms Slingsby seeking treatment in respect of any effects of the actions she complains of before December 2019. However, that is not determinative of injury or the relative contribution of particular incidents or events.
On 12 September 2019 Dr Moriarty recorded, among other complaints, that Ms Slingsby “only had one day off in 6 weeks” and that she had “beg for that”. This was just at the time when she was discussing her shifts with Mr Davis and when he says her “attitude issues” commenced.
On 5 December 2019, Dr Duong recorded that Ms Slingsby was “having a ‘nervous breakdown’”; she was working 12 hour shifts, 7 days a week” (it is not clear from the evidence whether this is accurate); and she referred to a work colleague threatening to punch her (clearly a reference to the “Bill incident”). She wanted to go to sleep and not wake up because she was so tired.
Dr Moriarty issued a Certificate of Capacity on 13 December 2019 certifying her unfit for work by reason of “acute situation crisis with anxiety”. The Certificate noted that she was under suspension, that she alleged workplace bullying and harassment and that she reported being “under suspension at work for same”.
Associate Professor Robertson considered that Ms Slingsby’s psychological injury was due to the “nature and conditions” including the history of what she considered was bullying, being threatened with violence by a co-worker.
Dr Vickery recorded the same complaints by Ms Slingsby about a range of matters at her workplace although, as discussed below, he did not evaluate adequately their relative contribution to her injury.
I am satisfied that the work-related causes of Ms Slingsby’s injury were multifactorial. Not all formed part of the disciplinary process. In particular, her interactions with Mr Davis from around September 2019 including about her workload, and the handling of the “Bill incident” were not part of the disciplinary process which appears to have commenced in early December 2019.
I am not required to determine which of the causative factors identified by Ms Slingsby could be regarded as the predominant cause of her injury. I have to determine whether the actions relied on by the respondent with respect to discipline were the whole or predominant cause of the injury[26].
[26] Wretowska at [135].
As discussed by Deputy President Roche in Hamad, a case such as this requires medical evidence which addresses the relative causal contributions before a finding as to whether the reasonable actions of a respondent wholly or predominantly caused the injury in dispute.
Mr Baran submits that the respondent’s actions in suspending Ms Slingsby were reasonable given its objective of providing a harmonious and efficient workplace and given her conduct. However, before considering whether the action taken or proposed to be taken was reasonable, it is necessary to determine whether it was the whole or predominant cause of her injury. In that regard, the respondent relies on Dr Vickery’s report.
Dr Vickery had Ms Slingsby’s original statement to the investigator and her subsequent statement. He took essentially the same history as set out in her statements and as taken by Associate Professor Robertson. As already discussed, that history is not in dispute other than as to some details.
Having recounted Ms Slingsby’s presenting complaints, Dr Vickery set out what appear to be extracts from statements of Mr Oakenfull, Mr Davis and Mr Malla. Some may be from
Ms Slingsby’s statements although that is not clear. In any event, Dr Vickery then concluded:
“The suspension of Ms Slingsby’s employment and the meetings prior to her suspension in relation to performance review were the whole or predominant cause of her alleged psychological injury due to an exacerbation of her pre-existing condition on the basis of the history provided.”
Mr Baran submits that Dr Vickery’s report shows that he considered all of the facts and concluded that the suspension and meetings leading up to them were the whole or predominant cause of her injury. I do not agree.
In my view, Dr Vickery did not engage in a consideration of whether the events complained of by Ms Slingsby contributed to her psychological injury. Having taken a history from her in some detail and having been provided with her general practitioners’ records which documented her complaints about long hours, being threatened by a fellow employee, and being bullied by her manager, Dr Vickery did not engage with that evidence; he did evaluate the extent of their casual contribution. Having said that “multiple pre-existing stressors and health issues” contributed to her symptoms, he did not evaluate their contribution with respect to the workplace factors. He simply arrived at his conclusion without any real explanation.
It is true that Dr Vickery was provided with more extensive documentation than
Associate Professor Robertson who states that he was provided with two of Ms Slingsby’s statements, her doctors’ clinical records and Dr Vickery’s report of 19 November 2020. Associate Professor Robertson did not have the statements of her managers or fellow employees, or the letter and notices issued to her. However, he had a history from Ms Slingsby which is largely uncontentious and essentially the same as that taken by Dr Vickery.
Associate Professor Robertson reported, correctly in my view, that the “critical issue” appeared to be the circumstances of the exacerbation of Ms Slingsby’s pre-existing condition. He disagreed with Dr Vickery’s “narrow view of the situation” which, he said, focussed exclusively on the disciplinary action in response to “one aspect of a multitude of problems in the workplace”. He described those problems as “the broader context of the exacerbation of her anxiety symptoms related to the nature and conditions of her employment”.
In his second report, Dr Vickery was asked to “apportion the relative contribution” to
Ms Slingsby’s psychological injury between the alleged bullying and harassment, the suspension and meeting leading up to it, relevant non-work related factors, and any other pre-existing psychological injury or condition. He responded by assigning 0% to each.
With respect to Dr Vickery, he did not answer the question asked of him. Having previously diagnosed a work-related exacerbation of her pre-existing psychological condition, and having concluded that the disciplinary action was the “whole or predominant cause” of her psychological injury, it was no answer to assign 0% because, in his view, her injury had resolved.
In my view, Dr Vickery failed to engage with the evidence and he failed to respond to what was asked of him as to the relative contributions of various factors. He did not explain his reasons for concluding that the disciplinary action was the whole or predominant cause of Ms Slingsby’s injury.
For these reasons, I am not satisfied that the respondent has discharged its onus to establish, on the balance of probabilities, that Ms Slingsby’s psychological injury was wholly or predominantly caused by reasonable action within the meaning of section 11A of the 1987 Act.

[2022] NSWPIC 188

29 April 2022