Smith v Roads and Traffic Authority of NSW
[2008] NSWWCCPD 130
•4 November 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 | |||||
| APPELLANT: | Gregory Gerard Smith | |||||
| RESPONDENT: | Roads and Traffic Authority of NSW | |||||
| INSURER: | TMF/Allianz Australia Insurance Limited as agent for RTA Workers Compensation Unit | |||||
| FILE NUMBER: | WCC1376-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 3 June 2008 | |||||
| DATE OF APPEAL DECISION: | 4 November 2008 | |||||
| SUBJECT MATTER OF DECISION: | Section 11A of the Workers Compensation Act 1987 – “wholly or predominantly caused”; “reasonable action” | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Snell | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Harris Wheeler | ||||
| Respondent: | Leitch Hassan Dent | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator, dated 3 June 2008, is revoked and the following decision is made in its place: “1. That the Respondent Employer pay to the Appellant Worker weekly compensation at the following rates: 2. That the Respondent Employer pay the Appellant Worker’s expenses pursuant to section 60 of the 1987 Act. 3. That the Respondent Employer pay the Appellant Worker’s costs.” | |||||
| The Respondent Employer is to pay the Appellant Worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 1 July 2008 Gregory Gerard Smith (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 3 June 2008.
The Respondent to the Appeal is the Roads and Traffic Authority of NSW (‘the Respondent Employer’).
The Appellant Worker is now forty-nine years of age, and claims no dependants. He commenced working with the Respondent Employer in 1998, as a plant fitter at Narrandera; he was employed at that time by Skill Hire (I infer a ‘labour hire’ firm). In 1999 he became plant mechanic team leader at Narrandera, employed by the Respondent Employer. In November 2002 he was appointed to the position of ‘fleet inspector procurement’, at the Respondent Employer’s office in Newcastle. This remained his position as at September 2007. The duties appear to have been largely clerical, although to have involved the regular driving of long distances. He lives at Merewether in Newcastle.
The Appellant Worker had experienced symptoms of a psychiatric nature in 1993, recorded by the psychologist Ms Mason as “self cutting behaviour”. The psychologist Mr Dorling recorded the Appellant Worker was involved in a major truck accident in 1998, the injuries from that incident having resolved. The Appellant Worker was involved in a serious motorcycle accident on 18 December 2005. It appears he suffered significant orthopaedic injuries, histories refer to multiple surgical procedures to the right hip, and there is a suggestion he may require right hip replacement. There were two fatalities in this accident, and the Appellant Worker came under the care of the psychologist Mr Dorling during 2006. It is not alleged this accident was work related.
The Appellant Worker had time off work after the motorcycle accident. Whilst it is not totally clear from the material, it appears likely he was absent from 18 December 2005 until 15 March 2006, then worked on restricted duties until June 2006, when he resumed his normal work. There was further surgery carried out in August 2007, with an unspecified absence from work. The Appellant Worker said he worked in hospital using a laptop and a blackberry, at that time. He stated he felt “some depression” after the motorcycle accident.
The Appellant Worker’s statement described interpersonal difficulties at the Newcastle office, during 2006 and 2007, particularly involving the fleet procurement manager, Abul Quasam. It is claimed that Mr Quasam was not pulling his weight in the office. The Appellant Worker lodged two grievance applications relating to Mr Quasam, the second in January 2007. There was a meeting to deal with this. Mr Quasam subsequently ceased duties from March 2007, having taken a voluntary redundancy. Around the same time Bob Peduzie took up a “new position as external fleet inspector”. The Appellant Worker stated he then had to carry out his own work, additional to that previously carried out by Mr Quasam, and Mr Peduzie. He “had to work very long hours to keep up”, “would loose (sic) regularly 20 hours per week off (his) flexitime”, and found it “extremely difficult to cope”. He stated his work took him “constantly to Sydney, to Wollongong and to regional areas of New South Wales on a weekly basis”. He said in a typical week he would drive to Tamworth return on Monday, to Wollongong return on Tuesday (with visits to other locations on the return journey), and spend Wednesday to Friday working out of the Newcastle office, and seeing local suppliers.
Some issues developed regarding the procurement by the Appellant Worker of two cranes that had been fitted to trucks. There were complaints about the size of the cranes, although the Appellant Worker claimed they were consistent with the specifications required at the time he procured them. Replacement of these was approved by another employee of the Respondent Employer, Kevin Strange. The Appellant Worker said thereafter he found that field workers “would simply go over my head seeking to replace their equipment”.
The Appellant Worker stated he received a telephone call in September 2007 from John Dinan, the manager, fleet services, instructing him to travel to Granville for a meeting. The meeting occurred on 13 September 2007, involving the Appellant Worker, Mr Dinan and Mr Strange. In response to a query regarding how he was handling the amount of work, he told them he was “barely coping”. In his statement the Appellant Worker said matters dealt with at the meeting included:
(a) a lack of signatures, where some vehicles had not been signed off “on the final approval by the end user”. The Appellant Worker said he had verbal approvals, but experienced difficulty getting workers in the field to sign things. He was told he “needed to get signatures on everything in the future”;
(b) a crane incident report, asserting a crane (I infer procured by the Appellant Worker) was dangerous. The Appellant Worker said the crane manufacturer had trained “all end users in the operation of the truck and crane”. The Appellant Worker said he had no occupational health and safety training, nor engineering qualifications. The Appellant Worker was asked to arrange a meeting with the crane suppliers, requesting change to the design. He “found this to be totally absurd”;
(c) why the Appellant Worker was “excluding certain suppliers from quotes and tenders”. The Appellant Worker referred to difficulties with some suppliers, and also said there could be cost savings dealing directly with manufacturers. He was “directed to include these dealers and suppliers in the future”, and
(d) the Appellant Worker was “directed to work two or three days per week out of the Granville office so that (he) would have ‘managerial support’”. He said he was given no choice about this, “other than choosing the days of the week”. He suspected there were plans to relocate him to Sydney, and was concerned “because I would be away from home all week”.
The Appellant Worker was driving on the F3 freeway back towards Newcastle after the meeting, when he started to feel ill. He became anxious and upset to the point where he started crying, “just as though I should drive off the road into a ditch”. He telephoned a lady from work who had been the grievance officer, and she referred him to the employment assistance program. He telephoned someone there, made an appointment, and saw a psychologist (Ms Mason) on 18 September 2007. At that consultation he “fell apart”, and was “feeling suicidal”. On the same evening he saw his general practitioner, Dr Riedel, who certified him unfit for work. On 19 September 2007 he faxed copies of his certificates to Sydney. On Monday 24 September 2007 he was interviewed by Danna McConnell, who identified herself as “the injury management person from the insurance company”.
The Respondent Employer initially declined the Appellant Worker’s claim on 25 September 2007. On 6 October 2007 the Appellant Worker requested a review by the insurer of that decision. On 16 November 2007 the Respondent Employer wrote to the Appellant Worker advising it maintained its denial of liability, “under section 11A of the Workers Compensation Act 1987”. The attached Section 74 notice said the basis of the decision was that “The psychological condition suffered by Mr Smith did not arise due to the unreasonable action of the employer”. I should note, in passing, that this expression of the basis of the denial does not accurately reflect the operation of section 11A, and inverts the onus (which is on an employer to bring itself within the defence: Ritchie v Department of Community Services (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206). The notice had the capacity to be misleading, although was probably not intentionally so, as the accompanying letter set out the substance of the section more accurately. The assertion by the Respondent Employer that it had a defence pursuant to section 11A was the only basis it relied upon to decline liability.
The Appellant Worker lodged an Application to Resolve a Dispute (“the Application”) on 25 February 2008, claiming weekly payments from 13 July 2007 on a continuing basis, pursuant to sections 36 and 38 of the 1987 Act, together with a “general award” for medical and related expenses. The injury was described as “Major depressive disorder, recurrent current (sic) episode severe with psychotic features”. It was described as having occurred in the following circumstances:
“The worker suffered multiple physical injuries in a motor vehicle accident on 18 December 2005 with secondary depression. His condition was perpetuated and exacerbated by an interpersonal conflict with his former supervisor, the amount and complexity of his work, and a meeting with his supervisors in Sydney on 13 September 2007.”
That matter proceeded to an arbitration hearing on 27 May 2008, at which both parties were represented by counsel. There was no oral evidence. The period of the weekly claim was amended, to run from 13 September 2007 to 27 May 2008. Arrangements were in place for the Appellant Worker to resume work with the Respondent Employer on “alternate duties” from the day following the arbitration, and it was for this reason the period was closed as at 27 May 2008. The Respondent Employer applied to amend its Reply, to rely on previously unnotified matters, pursuant to section 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The additional issues it sought to raise were whether the Appellant Worker had suffered ‘injury’, and whether employment was a ‘substantial contributing factor’ to any such injury: T19.35. There was an associated application that the Respondent Employer be given leave to rely upon a late document, Dr Roberts’ report dated 2 April 2008. That psychiatric report concluded the Appellant Worker’s psychological problems did not result (even by way of aggravation) from “the circumstances and conditions of employment”, that is, there was no psychological injury. The arbitrator declined both of these applications, and thus the matter proceeded on the basis the sole issue contested by the Respondent Employer was whether it had a defence pursuant to section 11A.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 3 June 2008 records the arbitrator’s orders as follows:
“1. The Applicant’s claims made for weekly benefits in Part 4.5 of the ARD and for s60 medical expenses made in Part 5.3 of the ARD are not made out and are dismissed.
2. There is an Award for the Respondent.3. I make no order as to costs.”
The arbitrator correctly observed the only matter in issue was the application of section 11A. As it was not formally disputed, he made a formal finding the Appellant Worker “did suffer a workplace psychological injury”. The arbitrator set out passages of the medical evidence, and also referred to statements of two lay witnesses (Messrs Peduzie and Mills) relied upon by the Appellant Worker. He then noted there was little reference in the material of the psychologist, Mr Dowling, prior to September 2007, to suggest complaint of “workplace stressors”, “work performance disturbance”, or a “worsening of his psychological condition”. He went on to describe “causation to the workplace injury”, up to 13 September 2007, as “multifactorial”. He concluded the evidence did not establish “any distinct or substantive functionality disturbance in the work for the Respondent performed by Mr Smith until the 13 September 2007 meeting”. Against this chronology, the arbitrator found the “exacerbation of his psychological injury” was “wholly or predominantly caused by action taken by the employer including in the supervisor meeting of 13 September 2007”.
The arbitrator then moved to the question of whether this action was reasonable “in relation to” any of the matters set out in section 11A(1). He set out passages of the evidence going to the problems that precipitated the meeting of 13 September 2007, and how these were dealt with at the meeting. He correctly described the section 11A defence as one in which the Respondent Employer carried the onus, on the balance of probabilities. He concluded “the Respondent has discharged the requisite onus of establishing, in the terms already recited of s11A of the 1987 Act, that the injury here was wholly or predominantly caused by its reasonable action taken with respect to transfer and performance appraisal”.
ISSUES IN DISPUTE
The grounds of appeal raise the following:
(i)the arbitrator made a finding of ‘injury’, in which he accepted the depressive disorder was perpetuated and exacerbated by interpersonal conflict at work, the amount and complexity of work, and the meeting on 13 September 2007. The arbitrator then failed to give adequate reasons for not accepting the interpersonal conflict, and amount and complexity of work, were significant factors in the aggravation;
(ii)the arbitrator placed undue weight on the reports of Mr Dorling.
(iii)in assessing the factors that contributed to the injury, the arbitrator confused the concepts of ‘injury’ and ‘incapacity’, and
(iv)the arbitrator did not properly address the issue of reasonableness, nor give adequate reasons for his finding on this issue.
The Respondent Employer submits the grounds do not disclose error of law and/or fact. It is submitted the various findings made by the arbitrator were open on the evidence, and the findings were not perverse. The Respondent Employer submits the decision should be confirmed. In opposing the appeal, the Respondent Employer does not assert error in the arbitrator’s exercise of discretion, in refusing its applications to rely on previously unnotified matters, and use the report of Dr Roberts. It is not submitted the discretion should be re-exercised as part of this appeal.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The compensation at issue on the appeal is more than $5,000. As no compensation was awarded, the 20% threshold in section 352(2)(b) does not apply: Mawson v Fletcher International Exports Pty Limited [2002] NSWWCCPD 5.
The threshold provisions in section 352 are satisfied. I grant leave to appeal.
DISCUSSION AND FINDINGS
Scope of Review Pursuant to Section 352 of the 1998 Act
There have been a number of relatively recent decisions of the NSW Court of Appeal dealing with the nature of the review process, in appeals pursuant to section 352. I reviewed a number of these in Deadman v John A Gilbert Pty Limited t/as Kirklands Buslines [2008] NSWWCCPD 105. I propose applying those principles in conducting this review.
The Finding on Causation
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The matter was conducted by both parties on the basis the injury was a “psychological injury”. The issues requiring determination in such circumstances were set out by Fitzgerald JA in Manly Pacific International Hotel v Doyle (1999) 19 NSWCCR 181 (‘Doyle’):
“4 Before this Court, it was not disputed that Mr Doyle’s employment was a substantial cause of his psychological injury. That being so, the Compensation Court was required to decide whether (i) the whole or predominant cause of Mr Doyle’s psychological injury was the appellant’s action with respect to Mr Doyle’s transfer from one position to another, and, (ii) if so, whether the appellant’s action with respect to Mr Doyle’s transfer was reasonable.
5 Mr Doyle was entitled to succeed in the Compensation Court if either issue identified in the preceding paragraph was decided in the negative. If Mr Doyle established that his psychological injury was not “wholly or predominantly caused by … action taken …. by … [the appellant] with respect to [Mr Doyle’s] transfer”, he is entitled to be compensated although the appellant’s material “action” was “reasonable”. Conversely, if Mr Doyle’s psychological injury was “wholly or predominantly caused by … action taken … by [the appellant] with respect to [Mr Doyle’s] transfer”, he is entitled to be compensated if he established that the appellant’s “action” was not “reasonable”.”
And (at [8]):
“Whether or not the appellant’s transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle’s condition.”
The arbitrator, at [47] of his reasons, described the ‘injury’ as “major depressive disorder ‘… perpetuated and exacerbated by an interpersonal conflict with his former supervisor, the amount and complexity of his work, and a meeting with his supervisors in Sydney on 13 September 2007’”, then continued:
“Accurately, I believe that description, in correct context, is as to a contented (sic) compensable aggravation of a pre-existing psychological injury or condition. I concur with the Respondent that this is the correct description of it in any relevant analysis including pursuant to s11A considerations.”
This description is consistent with the aggravation on which the Appellant Worker relied having a number of causes, of which the meeting on 13 September 2007 was one. It is also consistent with the medical evidence. It is inconsistent with the proposition the injury was wholly caused by the meeting. Did the injury predominantly result from the meeting?
The meaning of “wholly or predominantly” in this context was considered by Walker J in Jackson v Work Directions Australia Pty Ltd (1998) 17 NSWCCR 70 (‘Jackson’), where his Honour said:
“109 "Wholly" is self explanatory. Psychiatric cases sometimes turn upon single traumatic events but more often they involve multiple stressors not all of which may be work related. If those stressors happen to fall into one of the categories as I have just found then the meaning of the word "predominantly" will require interpretation.
110 The Macquarie Dictionary defines the verb "predominate" as:
1. to be the stronger or leading element preponderate; prevail. 2. to have or exert controlling power. 3. to surpass others in authority or influence. 4. to be more noticeable or imposing than something else. 5. to dominate or prevail over.
111 The adverb "predominantly" appears to me to be used in the sense that the s 11A(1)(b) cause was stronger and prevailed over other causes.
112 It follows therefore that if the respondent is to succeed in this defence then it will have to be established that the actions of Ms Third in appraising the performance of the applicant and the memo of 19 July 1996 was a stronger cause of her psychological injury and prevailed over all others.”
In Temelkov v Kemblawarra Portugese Sports and Social Club Ltd [2008] NSWWCCPD 96 Roche DP said:
“The leading authority on causation in workers compensation claims is Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’) where it was observed that causation is a question of fact to be determined on the evidence in each case. That case concerned the question of whether the death of a worker had “resulted from” the relevant work injury. The present matter concerns whether “the injury was wholly or predominantly caused by reasonable action”. Acting Deputy President Handley considered the phrase “predominantly caused” in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 and applied the dictionary meaning (at [24]) of “mainly or principally caused”. I agree with that definition and intend to apply it in the present matter.”
In conformity with the earlier decisions of the Commission in Temelkov and Ponnan v George Weston Foods, I accept “mainly or principally caused” is the meaning that should be ascribed to the word “predominantly” in section 11A(1). The test on causation to be applied, as was observed in Temelkov, is the test enunciated in Kooragang Cement Pty Ltd v Bates.
A number of the grounds of appeal in this matter relate to how the arbitrator approached this question, of whether the injury was wholly or predominantly caused by one of the actions specified in section 11A(1). It is said the arbitrator placed undue weight on Mr Dowling’s reports, failed to give adequate reasons for finding the 13 September 2007 conference was the predominant cause (as opposed to the interpersonal conflict, and amount and pressure of work, which had also been found to be causative), and confused concepts of ‘injury’ and ‘incapacity’ in assessing causation.
The Appellant Worker’s evidence regarding stressors is largely to be found in his statement dated 12 November 2007. He identified difficulties with the behaviour of Abul Quasam, the procurement manager. As Mr Quasam did not do his work, “we continued to do Abul’s work”. This was at least from late November 2006 (when Mr Quasam reached agreement on his redundancy) until March 2007 (when Mr Quasam ceased actually working in the office). The Appellant Worker lodged a second grievance application in respect of Mr Quasam in January 2007. A meeting that month produced no real change in Mr Quasam’s behaviour, and the Appellant Worker and others continued to perform Mr Quasam’s duties, in addition to their own.
From March 2007, the Appellant Worker stated Mr Quasam’s position was made redundant (and therefore he was not replaced), and Mr Peduzie took up a new position, and his old position was not filled. The Appellant Worker said this left him “in the office largely on my own to do all the work that had previously been done by Bob (Peduzie) and Abul as well as my own”. He said “Over this period of time I had been feeling fairly ill.” He was, of course, still suffering the effects of the motor cycle accident at the time, in addition to whatever stressors flowed from his employment. At the meeting on 13 September 2007 the Appellant Worker told Messrs Dinan and Strange he was “barely coping”, when asked about the amount of work he was doing.
The Appellant Worker relied on a statement of a fellow employee, Robert Peduzie dated 13 November 2007. He generally confirmed the Appellant Worker worked hard, worked long hours, and travelled a lot - “He would leave early in the morning and return late when he had appointments away in areas such as Tamworth, Sydney, Wollongong, Narrandera, Dubbo, Ballina and Grafton. His work could take him anywhere within the State.” Mr Peduzie also corroborates the version of the Appellant Worker, that Mr Quasam did not work hard, and would give his work to the Appellant Worker. Mr Peduzie said that when he would catch up with Greg, “He would tell me that he was always very busy and flat out and that he didn’t have enough time to get the work done.”
There was also a statement of Mark Mills, on which the Appellant Worker relied. He had been plant and truck hire manager up to November 2006, when he resigned. Mr Mills had been Mr Quasam’s superior, and thus also superior to the Appellant Worker. He said he had “complaints from the Newcastle staff that he (Mr Quasam) regularly arrived late at work and left early, that he was often disruptive and that he would often delegate work which was designated to him specifically to other persons in the office such as Greg Smith.” Mr Mills also supported the Appellant Worker’s evidence that he travelled a lot and worked long hours. He (like Mr Peduzie) said it was difficult to get field workers to sign off on items that had been procured. Although Mr Mills left the Respondent Employer’s employ about ten months prior to 13 September 2007, his statement is generally supportive of the worker’s description of difficulties with Mr Quasam, and long hours of work accompanied by a lot of travel. This is before the resignation of Mr Peduzie and redundancy of Mr Quasam.
There were a number of emails and other documents generated by the Respondent Employer, attached to the Application. There were some emails from prior to 13 September 2007, dealing with difficulties with a truck, and possible modifications to it. There is an email from Mr Strange dated 13 September 2007, to the Appellant Worker, setting out matters said to have been agreed at the meeting that day. There is an email from Mr Dinan dated 20 September 2007. It suggests the Appellant Worker’s motorcycle accident “may be the cause of his stress as his workload is consistent with other inspectors”, and goes on “I would like to vigorously defend this as a WC claim.”
There is an email from Mr Dinan dated 24 September 2007 that describes the meeting of 13 September 2007 as being “after a number of small incidents relating to some of Greg’s work”. The topics set out are generally consistent with those described in the Appellant Worker’s statement (set out at [8] above). It goes on “Each item was raised in an appropriate manner relating to discussing work performance with a staff member. It was an informal discussion but the outcomes were noted in an email to Greg.” It specifically states of the Appellant Worker’s position “The position was not relocated – Greg was asked to work from Granville 2-3 days a week to ensure that he had appropriate management support. As Greg spent a lot of time on the road away from home this was considered a reasonable move. Greg did not raise any objections with it.” The email says, of the Appellant Worker’s problems with Mr Quasam, “Greg had raised issues with Abul in the past and these were probably reasonable”.
There is a note of a telephone conversation with the Appellant Worker dated 24 September 2007, I infer that taken by Danna McConnell (referred to at [9] above). In addition to matters covered in the Appellant Worker’s later statement, it states the Appellant Worker was “told that management were not happy with his work”. Of the request to work part of the week from Granville, the Appellant Worker said this would mean him “leaving home early Monday morning and probably not arriving home until late Friday evening as he often has to visit Wollongong, Tamworth, Dubbo and other centres…His home is in Newcastle and this is where he wants to be based.”
There is a memorandum from Mr Dinan dated 21 November 2007, responding to a letter from the Appellant Worker. It denies the meeting on 13 September 2007 was an “informal Disciplinary Hearing”, and states it was a meeting “to discuss some issues”, “reasonable management activity”. Of the suggestion the Appellant Worker work two to three days each week from Granville, it says “It appeared that spending some time in the office world not be a big imposition or change to his calendar”. It describes this proposal as having “no end date”, although “it was not a permanent option”. The memorandum deals with the substance of some of the matters discussed at the meeting, such as complaints by suppliers who felt they had been excluded, setting out why the Respondent Employer acted as it did in arranging the meeting.
The only additional document from the Respondent Employer, attached to its Reply, is a letter from the Appellant Worker dated 29 October 2007, to the Respondent Employer seeking review of the decision to decline liability on his claim. This is the document to which Mr Dinan’s memorandum of 21 November 2007 responds.
The Respondent Employer also relied upon a memorandum of Mr Dinan dated 13 March 2008, describing itself as responding to statements made by Messrs Smith, Peduzie and Mills. Most of the document responds to the statement of the Appellant Worker. The memorandum is frequently argumentative, seeking to justify the correctness of Mr Dinan’s position, in dealing with the Appellant Worker. For example, in responding to the Appellant Worker’s description of how Mr Quasam behaved prior to his redundancy, Mr Dinan stated Mr Quasam’s behaviour appeared “to be corrupt conduct”, and stated the Appellant Worker had been trained in “corruption and ethics issues”. An acceptance of the validity of the Appellant Worker’s claim for compensation would not, of course, necessarily depend upon any need to attack the actions of Mr Dinan as inappropriate.
However the memorandum does take issue with the Appellant Worker’s statement that, after Mr Quasam’s redundancy, the Appellant Worker was carrying out the tasks previously carried out by both Mr Quasam and Mr Peduzie, in addition to his own normal duties. It says Mr Peduzie’s primary task was approval of repair estimates, and this task went to people other than the Appellant Worker. It also says that part of Mr Quasam’s duties involving procurement, and management of leased items, was taken over by people other than the Appellant Worker. I do not read the memorandum as being inconsistent with the Appellant Worker carrying out some of the tasks previously carried out by Messrs Quasam and Peduzie, although it is inconsistent with the Appellant Worker carrying out all such tasks. The memorandum goes on to suggest the way the Appellant Worker carried out his position may have increased the onerousness of the duties, for example, his insistence on putting stickers on trucks “increased his travel enormously”.
The memorandum does not raise any significant disagreement with the statements of Messrs Peduzie and Mills.
Thus there is no issue that there was interpersonal conflict between the Appellant Worker and Mr Quasam, that Mr Quasam did not pull his weight in the office, and that Mr Quasam periodically gave tasks to the worker that had been assigned to Mr Quasam. The statements of Messrs Peduzie and Mills support the Appellant Worker’s version that he worked long hours and did a lot of travel. It is not disputed the state of his duties leading up to the interview was such that he said he was “barely coping”.
The earliest report of the psychologist Mr Dorling (admitted on the Respondent Employer’s application as a late document) relates to an assessment on 25 August 2006 (the date of the report is unclear on the copy). The history describes the accident in 2005, and orthopaedic injuries and treatment. It describes “more immediate psychological difficulties”, involving nightmares, tearfulness, irritability and appetite disturbance. The Appellant Worker at that time was taking antidepressants. The only reference to his job is the following:
“He explained he is employed at the RTA and over the last couple of weeks he has resumed his old duties. He is experiencing some pain but I think he has been distracted and involved in work, which is helping him maintain himself at the full time hours currently.”
Based upon the chronology set out at [5] above, this would have been about two months after the Appellant Worker resumed normal duties, following the motorcycle accident.
The next report of Mr Dorling is dated 3 July 2007, and refers to the Appellant Worker’s distress at learning an MRI had demonstrated orthopaedic difficulties, he had to see an orthopaedic surgeon as a matter of urgency, and he may well need to undergo further surgery. There is no mention of work duties in that report. The third report is dated 7 January 2008, and refers to Mr Dorling having seen the Appellant Worker on that day. It describes “months of extreme difficulties and emotional decompensation”, and states he is in a much better state, his medication has been changed, and also refers to an injection having assisted pain in the hip area. The report recommends a further six consultations. At that time the Appellant Worker had been off work since 13 September 2007, had consulted on a number of occasions with the psychologist Ms Mason, had come under the care of a psychiatrist Dr Sheng, and had presented at the Psychiatric Emergency Centre at the James Fletcher Hospital on 26 October 2007. He had been hearing voices calling him at night. There is no mention of any of this, in the report of 7 January 2008. The report restricts itself to matters relevant to the motorcycle accident, and the injuries and treatment resulting from that accident. Correspondence from GIO, in the material produced by Mr Dorling, indicates that GIO was paying for the treatment by Mr Dorling, by reference to a motor accident claim number.
After going off work, following the meeting of 13 September 2007, the Appellant Worker consulted another psychologist, Ms Mason, on 18 September 2007. She described Mr Dorling as having been overseas around that time, and the Appellant Worker was referred to her through the “EAP service provision” (this is consistent with the Appellant Worker’s statement, referred to at [9] above). Ms Mason recorded a history of the motorcycle accident and its sequelae, including the treatment with Mr Dorling. She recorded “his particular focus of distress centred on workplace issues, particularly his meeting at Granville on 13 September”. It recorded feeling “huge pressure” since late 2006 when his manager Mr Mills had left. The Appellant Worker had lost “some 10 kg” in the five weeks prior to that consultation, and drank up to half a bottle of bourbon per night as a “pain killer”. Ms Mason last saw the Appellant Worker on 10 December 2007.
Ms Mason diagnosed chronic post traumatic stress disorder, against the background of the motorcycle accident. She suggested “unresolved psychological sequelae from his accident in 2005 may be the primary cause”. Ms Mason refrained from expressing an opinion regarding whether events at work had been productive of aggravation of the underlying psychological condition, saying:
“Mr Smith’s reported workplace difficulties 2005 – 2007, in particular with Abul Quassam (sic) regarding workload and inappropriate management practices and the employer requests of 13 September 2007, that he work from Granville office and be ‘managed’ with work contacts were both stressful and damaging to Mr Smith’s self-esteem. Whether these issues were ‘substantial contributing factors’ lies beyond my capacity to comment giving the problem solving focus of our crisis management and counselling interviews.”
The psychiatrist Dr Sheng first saw the Appellant Worker on 7 November 2007. There was a history of a pervasively depressed mood since the 2005 accident. The history continued:
“In the two months prior to my initial assessment, Mr Smith had worsening of his mood, mainly in reaction to problems at his place of employment, the Road and Transit Authority. These problems included an ongoing interpersonal problem with his immediate supervisor, Mr Abul Quasem (sic)and an increase in workload and duties without adequate and effective supervision and support, following Mr Quasem’s (sic) redundancy. Mr Smith described two months of emotional lability, severe anhedonia; weight loss; initial, middle and terminal insomnia with early morning wakening; variable energy; low self-esteem; excessive guilt and suicidal ideation.”
Dr Sheng’s opinion on the possible causal relationship between the history of work difficulties, and aggravation of the underlying condition, was as follows:
“The precipitants for Mr Smith’s illness would appear to be multiple. His Motor Vehicle accident and its consequences is certainly a factor. However, it is clear that his symptoms have been perpetuated and exacerbated by his problems at work and work must be considered to be a substantial contributing factor to his condition.”
The above represented the only expressions of medical or psychological opinion relevant to the issue of causation, that were before the Commission. The reports of Mr Dorling, while relevant on the issue of the underlying condition following the accident in 2005, are of little or no assistance in dealing with the issue of causation of the admitted aggravation. His reports are totally silent as regards not only any history of problems at work, but also the significant absences, escalating symptoms and treatment, subsequent to 13 September 2007. This may well be because he confined his reports to the consequences of the accident in 2005, in circumstances where the Appellant Worker was initially referred to him for treatment after that accident, and the treatment was being funded by the motor accident insurer. Clearly the focus of his reports is the accident in 2005 and its consequences.
The reports of Ms Mason are of some assistance. They confirm a history of the work related difficulties, of which the meeting of 13 September 2007 was one, at the initial consultation. There is a history of significant weight loss over a period of five weeks prior to the first consultation, that is, over a period predating the meeting of 13 September 2007. Ms Mason expressed no view regarding which of the work related factors, of which she had a history, were causally related to the aggravation.
Dr Sheng described the various problems at work of which he had a history, as resulting in exacerbation of the Appellant Worker’s underlying psychiatric condition. The history recorded in his report does not refer to the meeting of 13 September 2007, but rather to the other problems with Mr Quasam, the workload and duties.
Thus there is no medical evidence to support the contention the pleaded psychiatric injury resulted wholly or predominantly from the meeting of 13 September 2007. That meeting was the only action by the Respondent Employer, on the evidence, that could possibly be submitted to comprise one of the actions specified in section 11A(1).
The arbitrator’s acceptance of the proposition the aggravation was wholly or predominantly caused by the meeting of 13 September 2007, was largely based upon an absence of recorded histories of work related complaint, or absence from work, prior to 13 September 2007. Referring to the reports of Mr Dorling, the arbitrator said (at [48]):
“It is noted that Mr Dorling had been actively treating Mr Smith in the trauma sequelae from the motorcycle incident for some time. The predominant, almost singular, focus in the observations contemporaneously made within these Reports is as to reflections upon the motorcycle accident trauma clinical outcomes. As active and contemporaneous treating reportages, it might not unreasonably be expected that their content might carry some pertinent references to workplace stressors during this consultancy period with Mr Dorling, but there are hardly any.”
At [50] the arbitrator continued:
“While Mr Smith was and is actively, and understandably in my view, obtaining clinical treatments in consequence substantively of the December 2005 motorcycle incident, and although he harboured frustrations, anger or complaint as to certain work processes or personalities, the reliable balance of material does not have the Applicant as, on my view of matters, suffering work performance disturbance (in the normal run of his tasks at least as he undertook them), nor an apparent worsening of his psychological condition, in periods, in particular in any period, antecedent to September 2007.”
The arbitrator at [52] said:
“From these aspects, I am not of the view that the reliable balance of evidence on the materials before me is supportive of the contention that there was a ‘multifactorial’ or ‘multifaceted’ attribution of causation to the workplace injury as pleaded here. This was the position in my view in the period up to September 2007.”
This represents a conclusion there was no causal relationship, between the events at work prior to September 2007, and the admitted aggravation. However there was a further finding made at [57] of the reasons in these terms:
“Accordingly, upon the closest analysis, while there were certain antecedent ‘facets’ to the psychological presentation of Mr Smith, over a period of time since the motorcycle incident of December 2005, I am led to the conclusion, I believe reliably, and determine, that the exacerbation of his psychological injury, in the terms pleaded, was, including by reference to s11A(1) of the 1987 Act, wholly or predominantly caused by action taken by the employer including in the supervisor meeting of 13 September 2007.” (emphasis added)
There are difficulties with this. The Respondent Employer had been refused leave to dispute the unnotified issue of ‘injury’, and amend its Reply, and thus there was no issue the pleaded injury occurred. That pleaded injury included various things predating 13 September 2007. A finding the injury in the terms pleaded did not occur, or was not causally related to the aggravation, was inconsistent with the admission in the Reply, in its unamended form. Additionally, such a finding was inconsistent with the finding apparently made at [47] of the reasons, described at [27] above.
The finding made at [57] is that the injury was “wholly” or “predominantly” caused by action taken by the Respondent Employer. The two are different, if such a finding were to be made, it needed to be one or the other.
Additionally, section 11A does not operate as a defence in respect of all reasonable action by an employer. It operates where reasonable action is taken, or proposed to be taken, in respect of the matters specified in section 11A(1), being transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. The finding at [57] is that the causative actions included the meeting of 13 September 2007. To the extent this represents a finding the injury resulted from a number of actions by the Respondent Employer, of which the meeting on 13 September 2007 was one, this is inconsistent with the finding previously made at [52], which dismissed the causal relevance of the other matters relied upon, prior to September 2007.
Furthermore, of those aspects of the employment alleged to be causative of the aggravation, or for which there is any suggestion in the evidence they were causative, only one, the meeting of 13 September 2007, could conceivably fall within the classes of action specified in section 11A(1). So if the finding at [57] is read as a finding the aggravation was caused by a number of matters, including the 13 September 2007 meeting, this would require further consideration of the causes, to determine whether the meeting was the predominant cause.
A further difficulty with the finding is that there was no medical evidence to support it. The reports of the two psychologists, Mr Dorling and Ms Mason, were silent on the question of causation of the aggravation. In some cases, for example traumatic amputation, questions of causation may well be obvious, even in the absence of medical evidence. There are cases where, in the absence of medical evidence, questions of causation can be resolved by “using the common knowledge and experience of mankind”: Nicolia v Commissioner for Railways (NSW) (1971) 45 ALJR 465 per Barwick CJ.
However, in the current matter the only report from a medical practitioner (also the treating psychiatrist) opined the precipitants of the psychological injury were “multiple”, and the “problems at work and work” were substantial contributing factors to the condition of the Appellant Worker. This view was consistent with how the injury was pleaded, and with the finding on ‘injury’ initially made by the arbitrator at [47] of his reasons. The first question then posed, by the section 11A defence, became whether the meeting of 13 September 2007 was the predominant cause of this injury. If so, did that meeting fall within one of the classes of action referred to in section 11A(1), and was the Respondent Employer’s action in respect of it ‘reasonable’?
It was necessary to consider whether the Respondent Employer could discharge its onus, of establishing the meeting, when considered along with the other causes of the aggravation, was the predominant cause. In the circumstances of the case, that exercise could not be adequately performed, other than (at least in part) by reference to medical opinion. It was not feasible to differentiate between the various causes, with a view to deciding whether the meeting was the predominant cause, relying simply upon “the common knowledge and experience of mankind”.
The arbitrator’s analysis was essentially based upon an observation psychological problems had not been incapacitating the Appellant Worker prior to 13 September 2007, and complaints of work related psychological problems were not made before that date. However this does not necessarily lead to the conclusion events prior to 13 September 2007 were not causative, possibly predominantly causative, of the aggravation. It is not uncommon, in cases of psychological injury, for the incapacitating effects of such injury to manifest themselves long after the causative events (by way of example see Cooke v State of NSW & Anor [2006] NSWSC 655). To conclude events prior to the meeting of 13 September 2007 were not (or not significantly) causative of the psychological injury, based upon an absence of complaint and incapacity, when this conclusion was opposed to the only expression of relevant medical opinion in the case, in my view was erroneous.
The fact finding described at [59] to [68] above is, in my view, indicative of error. This is persuasive that the decision should be revoked: Cook v Midpart Pty Ltd t/as McDonalds Foster & Anor [2008] NSWCA 151 at [10]. In reviewing the decision, I am not of the view the arbitrator’s decision is “true and correct”, to use the words of Spigelman CJ in State Transit Authority of NSW v Chemler (2007) 5 DDCR 287 at [30].
There was no oral evidence in the matter. I have the same documentary evidence as was before the arbitrator. I have transcript of the submissions of the parties at the arbitration hearing, and the parties’ written submissions on this appeal. I am in as good a position as the arbitrator to determine the matter. It is appropriate that I substitute my own view.
The evidence of the Appellant Worker in respect of the various stressors relied upon, including the meeting of 13 September 2007, is summarised at [6] to [9], [33] to [36] and [45] above. Whilst the material put on by the Respondent Employer, from Mr Dinan, takes issue with some of the Appellant Worker’s evidence, much of it is not disputed. Mr Dinan does not take any serious issue with the statements of Messrs Peduzie and Mills. The material leaves me comfortably satisfied the Appellant Worker worked long hours, and did a lot of travelling in association with these hours. There were difficulties between the Appellant Worker and Mr Quasam. Mr Quasam did not pull his weight in the office, and passed on to the Appellant Worker work designated to be done by Mr Quasam. The Appellant Worker was “barely coping” with his workload in the lead up to the meeting of 13 September 2007.
At the arbitration hearing the Appellant Worker’s counsel submitted that, although the meeting of 13 September 2007 “clearly brought matters to a head and perhaps was the straw that broke the camel’s back”, this was in the context of the difficulties with Mr Quasam, and the Appellant Worker’s struggle with his workload (T28). It was submitted the cause of the aggravation was multifactorial. In support of the submission that other factors prior to 13 September 2007 were also significant stressors, the Appellant Worker’s counsel referred to the histories given by the Appellant Worker to the mental health practitioners he saw for help after 13 September 2007, Ms Mason and Dr Sheng. Those histories refer to a number of work related stressors, in addition to the meeting. I accept that submission.
Clearly the Appellant Worker suffered a period of incapacitating psychiatric symptoms from 13 September 2007. These were symptoms of the aggravation of the Appellant Worker’s depressive condition. I accept the opinion of Dr Sheng that the pre-existing depressive condition was exacerbated by the various problems at work of which Dr Sheng obtained a history. I accept his opinion there were multiple precipitants. This is consistent with the evidence overall. It is also consistent with the question of ‘injury’ having been conceded by the Respondent Employer, it having failed to include it in the section 74 notice, or to plead it.
The Respondent Employer carries the onus of establishing its defence pursuant to section 11A of the 1987 Act. It has no medical evidence to support the contention the psychological injury sustained by the Appellant Worker resulted wholly or predominantly from the meeting that occurred on 13 September 2007. Given the multiple precipitants for the injury, identified by Dr Sheng, in my view the Respondent Employer has not discharged the onus it carries. I am not satisfied the psychological injury suffered by the Appellant Worker was caused wholly or predominantly by the meeting of 13 September 2007.
This is sufficient to dispose of the appeal. Should it become relevant, I will briefly deal with other matters arising in the appeal.
‘Transfer’ and ‘Performance Appraisal’
In upholding the Respondent Employer’s defence pursuant to section 11A, the arbitrator characterised the meeting of 13 September 2007 as “transfer and performance appraisal” (at [66] of his reasons). The meaning to be given to the word “transfer” in the section was considered by the Court of Appeal in Doyle, where Davies AJA, in a passage with which the other members of the Court agreed, said:
“30 The trial Judge did not express his conclusion in that way. The trial Judge held, first, that the move which Mr Doyle was required to undertake, from that of Larder Chef to Sauciere, was not a transfer. The trial Judge said that “transfer” usually involves a shift from one place to another and that Mr Doyle was moved only a short distance within the kitchen of the Manly Pacific.
31 In my opinion, that interpretation of the word “transfer” was too narrow. The word is used in the employment context. As such, it encompasses a move from one position to another whether or not there is any change in location. In determining whether or not there is a transfer, a change in the nature and responsibilities of the work performed may be of more importance than a change in the place where the work is carried out. Mr Doyle was moved from the position of Larder Chef to that of Sauciere. That was a transfer.”
The only potential element of “transfer” associated with the meeting of 13 September 2007, was the direction that the Appellant Worker work two to three days per week out of the Granville office, rather than the Newcastle office. The Appellant Worker’s position was not changed. It is not suggested his job description was varied. The email from Mr Dinan dated 24 September 2007 (referred to at [38] above) specifically asserted “The position was not relocated”. In my view, there is considerable doubt regarding whether the meeting can be regarded as action taken by the Respondent Employer with respect to transfer.
There is also, in my view, considerable doubt regarding whether the meeting can be properly characterised as action with respect to “performance appraisal” (see the discussion of the meaning of that phrase in Irwin v Director-General of School Education, Geraghty J, NSWCC No 14068/97, 18 June 1998, unreported (‘Irwin’), Dunn v Department of Education & Training (2000) 19 NSWCCR 475,and Bottle v Wieland Consumables Pty Ltd (1999) 19 NSWCCR 135) (‘Bottle’).
The word “discipline” in section 11A has been given a broad meaning (see Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339). However the matter was not conducted on that basis. The Appellant Worker’s counsel (who addressed first) referred to “discipline”, and drew a comparison between what happened at the meeting, and the Respondent Employer’s “Discipline Procedures”, which were formalised, and set out in a Human Resources Manual, relevant passages of which were attached to the Application. The meeting did not comply with the formal procedures set out in the Manual. The Respondent Employer, in its submissions at the arbitration hearing, specifically disavowed reliance on “discipline” as a basis for the application of section 11A (T40.15).
The arbitrator’s characterisation of the meeting as action in respect of “performance appraisal” and “transfer”, within the meaning of section 11A(1), was not challenged by the Appellant Worker in this appeal, and accordingly the appropriateness of that characterisation was not addressed by the Respondent Employer. It is inappropriate that I come to any concluded view on that topic, or rely on it for the purpose of deciding this appeal. I should simply note that, it not having been argued, I express no view regarding whether the meeting was properly held to be action by the Respondent Employer with respect to transfer or performance appraisal.
Reasonableness
The grounds of appeal assert error in the finding that the relevant actions of the Respondent Employer were “reasonable” within the meaning of section 11A(1), and in how that question was addressed. Additionally, it is submitted the arbitrator failed to give adequate reasons for his finding on this issue.
In Doyle Fitzgerald JA (Mason P agreeing) at [6] said:
“In my opinion, the act of transfer of a worker by an employer, i.e., the communication of a decision to transfer (or a proposal to transfer) the worker, is an “action taken or proposed to be taken by or on behalf of the employer with respect to transfer …” of the worker within the meaning of subs 11A(1). The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.”
In Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 Basten JA said:
“There is a clear distinction to be drawn between a statutory test which requires an objective assessment by the Commission of the reasonableness of the action of the employer and a test by which it is sufficient for the employer to demonstrate to the Commission that, in all the circumstances, the action appeared to it to be reasonable. In my view, the present statutory provision engages the former test. An example of the latter may be found in the Anti-Discrimination Act 1977 (NSW), s 49I(1), discussed in Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 256-7 and 262E-263A (Kirby P). If it were sufficient that the employer took action because it appeared to the employer, on grounds upon which it was reasonable to rely, to be reasonable action, the legislature could have said so. However, it did not. In my view, if, in the view of the Commission, the action taken by the employer in transferring an employee is not reasonable in all the circumstances, the employer cannot rely upon s 11A because it held a genuine belief, based on reasonable grounds, that its action was reasonable.”
For the purposes of the current enquiry, the arbitrator found the meeting on 13 September 2007 constituted action by the Respondent Employer in respect of transfer, and performance appraisal, a finding not challenged in this appeal. Consistent with the above passages, the reasonableness of the Respondent Employer’s actions at the meeting require consideration of whether the decisions made by it in respect of transfer and performance appraisal, and the manner of communication of such decisions, were reasonable. What is required is an objective assessment of those actions. It is insufficient that the employer took the action, relying on grounds on which it was reasonable to rely, the action appearing reasonable to the employer.
The arbitrator’s consideration of the issue is at [58] to [64] of his reasons. He dealt firstly with an argument by the Appellant Worker, that it was unreasonable to direct the Appellant Worker to attend the meeting on short notice, without giving him adequate notice of the matters to be discussed. The arbitrator rejected this argument, on the basis there had been some emails exchanged prior to the meeting regarding “ ‘Truck Modifications’ and the like”. He concluded the content of the meeting would not “have come as significant surprise”.
He next dealt with an argument the meeting was unreasonable in the circumstances, with the “ ‘flavour’ of a Disciplinary” meeting or hearing. The arbitrator said “there were substantive safety issues at large as to the operation of the Palfinger cranes”. He also said the need for signed (by field staff) procurement agreements was something that needed to be “procedurally addressed”. He said it was not unreasonable the Respondent Employer raised such matters, “within the realm of appropriate performance appraisal”.
The arbitrator referred to the direction that the Appellant Worker work out of the Granville office two to three days per week as “a duty transfer”. He described it as having “an optional element”, namely the reference to ‘preferred days’”. He said this direction sought to address elements of support for Mr Smith. He concluded this direction was “not unreasonable”.
The arbitrator ultimately concluded (at [66]):
“I am satisfied, on the reliable balance of all the material before me, and for the reasons given, that the Respondent has discharged the requisite onus of establishing, in the terms already recited of s11A of the 1987 Act, that the injury here was wholly or predominantly caused by its reasonable action taken with respect to transfer and performance appraisal.”
In Ritchie v Department of Community Services (1998) 16 NSWCCR 727, Armitage J quoted at [44] (and expressed his agreement with) the following helpful passage from the decision of Geraghty J in Irwin:
“The question of reasonableness is one of fact, weighing all the relevant factors. That 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 employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
Much of what transpired at the meeting was, in my view, reasonable. Having regard to both the description of the meeting in the Appellant Worker’s statement, and the email from Mr Strange dated 13 September 2007, the Appellant Worker’s superiors gave him direction regarding what they wanted done about some perceived problems with cranes, and adoption of a more rigorous process of having field staff sign off on procurements. The question of excluding certain suppliers was also raised. According to Mr Dinan, it was necessary, if there were difficulties with suppliers, that a supplier assessment be documented, and ‘non conformances’ raised. Problems with poor performance should be fed back to the relevant supplier, for improvement. There were no documented supplier assessments or non conformances. Mr Dinan thought it appropriate to get the Appellant Worker’s response to complaints by certain suppliers (see Mr Dinan’s memorandum dated 13 March 2008).
The Appellant Worker may not have agreed with the position of the Respondent Employer on these matters. Be that as it may, the Respondent Employer was perfectly entitled to require that its internal procedures for completion of paperwork on procurements be adhered to. It was perfectly entitled, safety concerns having been raised by field staff in respect of the cranes, to explore such matters with the Appellant Worker and the crane supplier. The Respondent Employer was perfectly entitled to raise the complaints by certain suppliers with the Appellant Worker, for his comment. In Bottle, Neilson J said of the employer’s actions “Mrs Bottle was merely being told how to carry out her work; she was just being given lawful instructions by her employer.” In my view, a similar observation could be made about those matters set out in this and the preceding paragraph. I do not detect any element of unfairness in relation to these matters.
The situation is different, however, in respect of the direction the Appellant Worker work for two to three days per week out of the Granville office. There was “no end date on the time based at Granville”, although “it was not a permanent option” (Mr Dinan’s memorandum dated 21 November 2007). This must be the matter the arbitrator characterised as “transfer”.
The Appellant Worker resided in Newcastle. He had been employed at the Newcastle office since November 2002. It is not suggested he had any prior warning of the possible need to work from Granville, prior to the meeting on 13 September 2007. The Appellant Worker’s statement said he regularly made lengthy trips by car, between Newcastle and places such as Tamworth and Wollongong. He estimated in a typical working week this would occupy two of his days. Mr Peduzie’s statement described the Appellant Worker travelling to areas such as Tamworth, Sydney, Wollongong, Narrendera, Dubbo, Ballina and Grafton. If the Appellant Worker were required to work from the Granville office for two to three days each week, this would have the effect the Appellant Worker would, on average, be working out of the Newcastle office (where he resided, and where he was theoretically based) for perhaps one day per week, perhaps not at all. The Appellant Worker said he was given no choice about this arrangement, “other than choosing the days of the week”.
In his memorandum dated 21 November 2007, Mr Dinan said “It appeared that spending some time in the office would not be a big imposition or change to his calendar.” Mr Dinan, in an email dated 24 September 2007, said “As Greg spent a lot of time on the road this did not appear to be a problem”, and “As Greg spent a lot of time on the road away from home this was considered a reasonable move”. He said the Appellant Worker raised no objection when the change was put to him. Ms McConnell’s file note of her telephone conversation with the Appellant Worker on 24 September 2007 records him saying:
“Mr Smith said this would mean leaving home early Monday morning and probably not arriving home until late Friday evening as he often has to visit Wollongong, Tamworth, Dubbo and other centres. He said that while he is used to travelling, he does not want to be based in Sydney and this was never part of the job before. His home is in Newcastle and this is where he wants to be based.”
The Appellant Worker’s estimate, in the above telephone conversation, of his time away each week under the proposed arrangement, is consistent with the evidence regarding how much travelling he had to do to other centres. It would not even have been realistically possible for the Appellant Worker to move his residence from Newcastle to Sydney to accommodate the change. The period of the change was “open ended”, but not meant to be permanent. It is difficult to see the logic in Mr Dinan’s stated belief, that as the Appellant Worker travelled a lot in any event, this made it more acceptable that the balance of his working week also be spent away from home. The suggestion by Mr Dinan that the time spent by the Appellant Worker in Granville was to be “at a time that suited him” is essentially nonsensical – virtually the whole working week would have been spent travelling to regional centres, or working from Granville.
Mr Dinan indicated the reason it was suggested the Appellant Worker work out of Granville for two to three days each week, was that “Greg needed a little more support from his managers” (email dated 24 September 2007). The material does not suggest any other means of providing that support (perhaps regular telephone contact, or having a manager visit the Newcastle office periodically) was considered.
It is appropriate I consider the question of reasonableness weighing the rights of employees against the objective of the employment. It is appropriate I do this having regard to questions of fairness. In my view the requirement communicated to the Appellant Worker at the meeting on 13 September 2007, that he work for two to three days per week out of the Granville office, cannot be regarded as reasonable.
Thus, even if the view were taken, contrary to mine, that the psychological injury did result wholly or predominantly from the meeting on 13 September 2007, the defence pursuant to section 11A would not be made out.
The Weekly Award
It follows from the above that the defence pursuant to section 11A fails. There was no other issue between the parties. The amendments to the weekly claim made by the Appellant Worker on the arbitration hearing reduced the period claimed. The commencement date of the period claimed was amended from 13 July 2007 to 13 September 2007. The claim, which had originally been on a continuing basis, was closed as from 27 May 2008. The weekly claim was ultimately framed in the following terms:
$1,311.23 pw from 13 September 2007 to 12 March 2008 pursuant to section 36
$$1,048.98 pw from 13 March 2008 to 27 May 2008 pursuant to section 38
Counsel for the Respondent Employer, on the arbitration hearing, made submissions going to quantification of any weekly award. He submitted the Appellant Worker was not totally incapacitated throughout the period of the claim pursuant to section 36, and the requirements for an award pursuant to section 38 were not satisfied. He submitted there were deficiencies in the evidence, for example whether the Appellant Worker had requested the Respondent Employer to provide suitable employment.
Counsel for the Appellant Worker responded to this by submitting (at T50):
“And lastly, of course, the difficulty about the argument about incapacity is what is the dispute that’s been referred to the Commission. In my respectful submission, the question of incapacity has never been raised, and that’s why we end up in this difficulty about the lack of evidence. In my respectful submission, it’s not a matter – ultimately you make a finding of injury, in my respectful submission, and what flows from that flows from that, and what flows is what was claimed, and it’s not ever been put in dispute. Even in the reply it’s not suggested that what was alleged by the plaintiff in terms of his period of incapacity was disputed. So, how can we refer a dispute that hasn’t been put in issue?”
This submission has merit. The section 74 notice did not put incapacity in issue. The Reply, responding to a weekly claim more extensive than that ultimately brought, did not seek to raise any issue regarding incapacity, quantification of the award claimed, or whether section 38 had application during the period it was relied upon. It is hardly surprising there was little evidence going to incapacity, or the applicability of section 38 of the 1987 Act. These matters simply were not in issue, in either the section 74 notice, or the Reply.
In these circumstances, I accept the Appellant Worker is entitled to an award as set out at [99] above.
DECISION
The decision of the arbitrator dated 3 June 2008 is revoked and the following decision is made in its place:
“1. That the Respondent Employer pay to the Appellant Worker weekly compensation at the following rates:
(a) $1,311.23 from 13 September 2007 to 12 March 2008 pursuant to section 36 of the 1987 Act;
(b) $1,048.98 from 13 March 2008 to 27 May 2008 pursuant to section 38 of the 1987 Act.2. That the Respondent Employer pay the Appellant Worker’s expenses pursuant to section 60 of the 1987 Act.
3. That the Respondent Employer pay the Appellant Worker’s costs.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.
Michael Snell
Acting Deputy President
4 November 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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