Stojanovski v Toll Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stojanovski v Toll Transport Pty Ltd [2025] NSWPIC 508
APPLICANT:	Blagojse Stojanovski
RESPONDENT:	Toll Transport Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	25 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury caused by employer’s attempts to offer suitable alternative duties when claimant’s usual occupation ceased though the cancellation of the contract he was working under; whether injury wholly or predominantly caused by actions of the employer; whether employer’s actions as to transfer, dismissal or retrenchment reasonable; Held –injury wholly or predominantly caused by employer actions; claimant expert psychiatrist opinion unsubstantiated by evidence; Qannadian v Bartter Enterprises Pty Ltd referred to and applied; relevant actions of employer reasonable; Colin Joss & Co Pty Limited v Williams, and Northern NSW Local Health Network v Heggie considered and applied; award respondent.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. There is an award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Blagojse Stojanovski, the applicant, brings an action against Toll Transport Pty Ltd, the respondent, in a claim for weekly payments of compensation for a psychological injury that was alleged to have occurred on a deemed date of 23 July 2024.
Dispute notices were issued and an Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did Mr Stojanovski suffer an injury? and
(b) if so, do the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act) apply?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 30 July 2025 this matter was heard in person at the Personal Injury Commission (Commission) premises. The applicant was represented by Mr Luke Morgan, briefed by
Mr Michael Dababneh. The respondent was represented by Mr Fraser Doak, briefed by
Ms Chantelle Bauer. Mr Ben Clark was available for the insurer by telephone.
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)    Application to Lodge Additional documents from the respondent lodged
22 July 2025.

Oral evidence

No application was made in relation to oral evidence.

APPLICANT’S CASE

Mr Stojanovski statement 7 February 2025[1]

[1] ARD page 2.

Mr Stojanovski said he had been employed by the respondent since 2010 at the Botany Depot. He had been attached to the Opal contract since 2011, and the contract ended on
30 June 2024. He reported to the Operations Manager Mr Jeff Mabey.
At [13] he averred that he had sustained a psychological injury in the course of his employment.
He then gave a chronology of events, starting with his being subjected to drug testing at the Opal site carpark on 14 November 2023 – organised, he understood, by Jeff Mabey.
The other driver tested was Mr Stojanovski's brother, Chris.
He said “it seemed to me” that Mr Mabey had an issue with the brothers and that the testing was targeted. "To my understanding” he said “'No other driver there at the site was tested”.
At [14] he said:
“We seemed to be treated differently. The behaviour was very concerning”.
Mr Stojanovski stated that on 24 November 2023, his trailer, which had been using [BG1] for over 10 years, was replaced with an older trailer by Mr Mabey. This made Mr Stojanovski’s job a lot more physically demanding which, he said, resulted in his workdays becoming longer, so that instead of working nine to 10 hours per day, he was working over 14 hours per day.
Mr Stojanovski said:
“… Mentally and physically this took a toll on my mind and body.”
The next date mentioned by Mr Stojanovski was 4 December 2023, when Chris’ trailer had also been taken. Mr Stojanovski thought that he and his brother were being punished by
Mr Mabey, as they had both given witness statements for a colleague in a workers compensation and HR claim. Mr Stojanovski advised that Chris was a union delegate and had some subcontractors audited, which Mr Stojanovski thought had upset Mr Mabey.
Mr Stojanovski thought that he and his brother were being once again targeted. He said:
“…I felt very uneasy about it all.”
Mr Stojanovski then referred to correspondence received from the employer on
22 April 2024. This was produced by the respondent:[2]
[2] Reply page 101.
“Dear Team Members,
Toll have been in discussions with OPAL in relation to the Operations at our NSW site. As a result, Opal has recently advised that the Botany Local transport services contract will cease effective 30 June 2024, affording Toll the committed notice period. This is as a direct result of Opal needing to implement cost savings at their operation
I want to take this time to personally acknowledge the contribution that each of you make to our business and to also recognise that you are an important member of the broader Toll family. I ask that you focus on your personal safety and that of those around you during these changing times.
Next Steps
Our intent is to continue to communicate and engage with you and keep you informed. We are committed to working with each of you and will establish an individual meeting with each employee to discuss your individual requirements to assist in future planning.
EAP and Chaplaincy
Please remember you can access the Employee Assistance Program throughout this process. These services are designed to offer practical support and guidance to help you make decisions about what you do next. Information on these services is available.
If you have any questions or would like to raise any concerns over this change, please feel free to contact your manager or myself at any time.
Yours sincerely,
Amron Osman
National Operational Excellence &
Business Improvement Manager - Industrials Resources & Industrials.”
Mr Stojanovski said that there was some level of uncertainty caused by the letter, as it did not give any timeline as to what would happen next. He said:
“… It made me feel anxious and stressed as my job security and livelihood was at risk.”
Mr Stojanovski then related that on 9 May 2024 a meeting was held at Opal by Jeff Mabey, and an HR representative, Sergio Sammut, who attended by phone. Also present were Chris, Steve Goddard, another driver, and a representative from the Transport Workers Union, Peter Katar. The purpose of the meeting, Mr Stojanovski said, was to advise that there was a possible renewal of the Opal contract. As those at the meeting were already doing the work for Opal, the respondent was hopeful that its tender would be successful.
Mr Stojanovski said that Toll were unsure of the future of the drivers attached to the Opal contract, but an email would be sent regarding alternative positions within Toll.
Mr Stojanovski received further correspondence on 16 May 2024:[3]
[3] Reply page 109.
“Dear Bill,
This letter is to confirm our discussions post announcement on 9 May 2024. Unfortunately, as an outcome of changes in our contractual arrangements with our customer, OPAL, it has been determined that Toll operations will cease at the Botany Site. Toll’s last operational day at the OPAL site will be 30 June 2024.
As a result of the above, it is likely that the future of your employment with Toll Group may be affected. The primary goal throughout this time is to take all reasonable and practical steps to redeploy team members to other areas of the business to avoid the potential review of your employment due to redundancy.
We require you to complete the attached Redeployment/ Expression of Interest Worksheet by close of business, 22 May 2024 and return it to your People Leader.
In addition, a list of available job vacancies across the Toll Group is made available for your consideration. Also, if you become aware of any alternative roles which you consider could be suitable, please contact your People Leader or HR People Partner.
The external CAREERS at TOLL website can be accessed here: - we are investigating alternative roles for you, we will also provide time-off as required to attend interviews. Please liaise with your People Leader to notify us if you require time-off.
If we are unable to identify suitable deployment or alternative roles, unfortunately
I need to advise you that we anticipate that your employment will be terminated for reasons of genuine redundancy with effect on 30 June 2024.
We propose to meet with you again next week, timings and delivery method to be confirmed, regarding your views and in relation to the future of your employment with Toll Group. You are welcome to bring a support person or representative with you at this meeting.
In the meantime, please feel free to access our Employee Assistance Program (EAP), flyer attached, throughout this process for free and confidential counselling.
Yours sincerely,
Jeff Mabey
Business Manager – Industrials Glass Global Logistics R&I
Toll Transport Pty Ltd.”
The list of vacancies concerned positions both in Sydney and interstate, with openings for driver’s interstate.[4] Mr Stojanovski thought there were no suitable positions.
[4] Reply page 110.
Toll sent Mr Stojanovski a further letter on 29 May 2024 which advised him of his potential redundancy package if suitable redeployment could not be found within the business.
Jeff Mabey called a meeting by text on 5 June 2024 for 6 June 2024. Mr Stojanovski stated that Mr Mabey was aware that the union representative was interstate at the time as he said something like “yeah, good luck getting a hold of him” when Mr Stojanovski advised him.
Mr Stojanovski said at [22]:
“I felt that this was devious and planned. I lost trust for [Mabey] and the business. His actions made me feel blindsided and anxious. I remember having a terrible sleep that night as I couldn’t stop thinking about what [Mabey] had done and what was to come next. I felt very much in the dark about everything.”
In any event, the meeting took place on 6 June 2024, with Mr Stojanovski joining by phone. Chris was unable to attend because of illness, and Mr Stojanovski said that another driver, Steven Goddard attended, along with Serge Sammut.
Mr Stojanovski said that Mr Mabey started the meeting by indicating that he wished to discuss two vacant positions at Chullora, stating that there were three drivers but only two positions available. The duties would involve carting steel. Mr Stojanovski said:
“…I immediately felt pressure as there was only two roles available for the three drivers.”
Mr Stojanovski took notes, as Serge [Sammut] said he could.[5] At [26] of his statement
Mr Stojanovski said:
“26.To my disbelief, [Mabey] was very vague about the new role and gave us brief details. He gave us information about the time shifts started, the rate of pay, the location (Chullora, NSW), and the nature of the goods to be carted (we were required to cart steel). We were not provided with much more information than that. It was all very mysterious and discrete. It made me feel very nervous.”
[5] These may be the handwritten notes at ARD page 28, referred to below.
When Mr Stojanovski explained to Mr Mabey that the positions were not suitable for a number of reasons, Mr Mabey replied by saying, “right.” Mr Stojanovski said:
“…It was extremely condescending. I felt humiliated by the response in front of my peers. I couldn’t believe the disrespect I was receiving by seemingly reasonable concerns raised during a discussion about a new role.”
Mr Stojanovski described that Mr Sammut advised that no redundancies were going to be offered. Mr Stojanovski said at [29]:
“… This was contrary to what I was previously advised regarding the availability of a redundancy package should no suitable redeployment be available to me. I felt deceived by TOLL. They forced me to accept a role without giving me much detail. This was my livelihood after all and I felt that I needed to know more about the roles before making a decision. I felt that my back was against the wall.”
Mr Stojanovski reported that Mr Goddard made some enquiries as to whether they could speak to the manager of the Chullora site about the suitability of the proposed contract, and whether a probationary work trial was possible. Mr Mabey refused both ideas. Mr Stojanovski said at [32]:
“32.The reasonable suggestions that were being put to [Maybe] and shut down caused me further anxiety. I felt extremely worried about what was happening. I had palpitations and a sense of panic came over me. I was stressed and nervous.”
Mr Stojanovski said that following a discussion about future possibilities regarding the Chullora depot being moved to Erskine Park, Mr Mabey ignored him. Again Mr Stojanovski complained of feeling humiliated and “insignificant to the business which I had been loyal to and served for such a long period of time.”
Mr Stojanovski said that Mr Sammut again advised that no redundancy was going to be offered and that he could either accept the Chullora jobs or look for other work internally or externally.
Mr Stojanovski referred to his pre-existing shoulder injuries at this point, including that he had “tingling into my hands and fingers,” which meant that he could not do heavier work such as handling steel.
Mr Stojanovski again referred to questions asked by Mr Goddard, which he said Mr Mabey dismissed.
Mr Stojanovski repeated that the behaviour of both Mr Mabey and Mr Sammut was “very disrespectful”. He had been a long serving employee and he felt belittled as his genuine questions had been palmed off, dismissed or completely ignored. He felt anxious and stressed about his future. He felt “sick to my stomach”, he could not stop thinking about the meeting, and he recalled having chest pains and struggling to sleep through the following nights. He became paranoid and stressed.
He said that on 11 June 2024 he received an email from the employer stating that a meeting would be arranged by telephone on 13 June 2024. It stated:[6]
[6] Reply page 119.
“Dear Bill,
RE: Suitable Alternate Employment
This letter is to confirm our discussions with you on the 6 June regarding the opportunities within the TOLL business. As explained, we have been fortunate enough to locate two roles within our steel business which we believe are suitable alternate roles for your continuing employment with Toll.
The roles are described below

Role Title

Local Driver

Role Location

Chullora NSW

Role Duties

Local Deliveries within the Steel Business

Role Roster

0530-1330

Role Rate of pay

Your existing rate will be maintained during the transfer, this will remain your rate until the Business unit rates exceeds this within existing rate increases (this is referred as grandfather clause)

Role License requirements.

HC Licence

As we explained to you, we believe that these roles offer a great opportunity for you to continue your employment with TOLL.
If too many or too few drivers indicate that they would like to transfer to Steel, we will need to enter into a selection process which will be based on Skills and Service.
As indicated during our discussion, Clause 26 (g) of the current agreement with the TWU states:
A Transport Worker will not be entitled to receive a severance payment if Toll obtains for them suitable alternative employment.
We believe these opportunities offer suitable alternate employment. We will set up another meeting with you on Thursday the 13 June 2024 to discuss further, in the interim if you have any queries, please do not hesitate to contact myself or your HR Representative.
We are committed to providing you with the support you need throughout this transition, so please remember you and your immediate family members can access the company’s Employee Assistance Program (EAP) through Converge, who are contactable 24 hours, 7 days by calling 1300 687 327. This is available to you for the next 3 months.”

Mr Stojanovski stated at [45] that both he and his brother were on sick leave, but they were both expecting “the telephone call as scheduled.” He and his brother “were not provided with a reason why the meeting did not take place.”
Mr Stojanovski related how the Union brought an action on behalf of his brother and he in the Fair Work Commission, and again how he felt “panicked and …a tightness in my chest” when he discussed matters with Mr Mabey whom he met by chance at Ingleburn on
24 June 2024 (at [50]); and that Mr Mabey had “put me under an enormous amount of stress and financial pressure” after a telephone call with Mr Mabey on 27 June 2024 (at [51]); and how he had “felt victimised and targeted” when on 15 July 2024 he read statements prepared for the Fair Work Commission hearing (at [54]).
He confirmed that he had not worked since 28 June 2024. He consulted his general practitioner (GP), Dr Kuzmanovski on about 23 July 2024, and gave him a history of the issues at work, without obtaining a certificate of capacity.
At [58] Mr Jovanovski described how he ruminated constantly whilst awaiting the Fair Work Commission decision. He described his symptoms and said that he felt “hopeless.” The decision, given after months of waiting, in around September 2024 gave some clarity, but
Mr Jovanovski said:
“…but the damage was already done. We had already been disrespected, degraded and belittled by TOLL managers and I was already suffering from significant symptoms relating to my psychological injuries.”
Mr Jovanovski returned to see Dr Kuzmanovski around 12 September 2024, who certified him unfit for work due to a psychological injury.

Statement Stephen Goddard

Mr Goddard signed a statement on 29 September 2024. He had been employed by Toll from 1998 to 2006 as a mechanic, and then as a truck driver until 30 June 2024, driving under the Opal contract. He was made redundant because Toll lost its contract with Opal.
He said that he was at the meeting called by Mr Mabey and described by Mr Stojanovski on 6 June 2024. He said that Mr Stojanovski was in attendance with the union representative, Peter Katar. Also present were Mr Mabey, and Mr Summat, who was present “virtually.” Chris Stojanovski did not attend through illness.
Mr Goddard said that the Stojanovski brothers and he wished to remain with the business after Toll lost its contract with Opal. They “only asked that our alternative jobs be ‘like for like’ in that the duties remained the same and we received the same pay.”
At the meeting Mr Goddard said that Messrs Mabey and Summat “shunned our talking points.” The discussion was very one sided, and Mr Goddard was told that there was no chance of redundancy, that there were two spots available at Chullora, and the pay and conditions were outlined.
Mr Goddard said the work described was totally unsuitable, and that usually if a driver changed contracts he would have the opportunity to meet the new manager and see if the proposed job was a good fit. When he asked about doing the same in the proposed role at Chullora, he was told that under no circumstances would there be any pre-meeting with managers.
The discussion, Mr Goddard felt, was very one sided. His side was asking reasonable questions in good faith, but management said they were to take it or leave it. Their questions were deflected and in the case of questions about redundancy, Mr Mabey and Mr Summat said they could not comment. Mr Goddard thought they were playing games and being disrespectful.

After the meeting, Mr Goddard said that Mr Stojanovski and Mr Katar had a meeting with him and it was agreed that the union would draft a letter. Mr Goddard was aware such a letter had been sent on 18 June 2024. (The letter, signed by Mr Katar, was produced by both parties).[7] Mr Goddard mentioned the reasons why the proffered role in Chullora was unsuitable, and said that he was made redundant on 28 June 2024, after 30 years of service.

Minutes of the meeting of 6 June 2024.

[7] ARD page 31, Reply page 121.

A handwritten document was relied on by Mr Stojanovski as an alleged record of the minutes of the meeting of 6 June 2024.[8]

MEDICAL

[8] ARD page 29.

Dr David Kumagaya report 30 January 2025

Dr Kumagaya was retained as the applicant’s expert. Dr Kumagaya is a consultant psychiatrist and he reported on 30 January 2025.[9] He took a history that Mr Stojanovski had been employed by the respondent since 2010 and had been primarily assigned to the Opal contract at the Botany Depot.
[9] ARD page 61.
Dr Kumagaya recorded that the workplace challenges commenced for Mr Stojanovski towards the end of November 2023. Mr Stojanovski's brother was a union delegate and they both "came to be subjected to prejudicial different treatment."
The history given was that on 14 November 2023 the Stojanovskis were drug-tested, although no other colleagues were subjected to the same screening.
In the same month Dr Kumagaya recorded that both their trailers were changed to variants, that required more involved load securing processes and that were at a higher height from their outgoing variants. The extra time required to secure the loads and to avoid tunnels and bridges meant that Mr Stojanovski was working 14 hours per day as opposed to the rostered 10-hour workdays.
Dr Kumagaya said:
"In and amongst the workplace stressors Mr [Stojanovski] reported the onset of depressive and anxious symptoms which gradually worsened with the ongoing exposures to his prejudicial workplace environment.”
Dr Kumagaya reported that there had been progressive intensification of depressive and anxious symptoms that included low mood, anxiety, panic attacks, decreased interest and engagement in activities, sleep disturbance, concentration difficulties, low energy levels, and restlessness.
Dr Kumagaya reported that on 22 April 2024 Mr Stojanovski was notified that the Opal contract would cease on 30 June 2024. Mr Stojanovski said that he was told that his company would later discuss redeployment opportunities “although the limited information and clarification in and around as such, contributed to significant uncertainty and distress".[10]
[10] ARD page 63.
On 5 June 2024 Mr Stojanovski was notified that there was to be a meeting the following day regarding his employment and that Mr Stojanovski was not able to arrange for a union delegate to attend.
At the meeting on 6 June 2024, Mr Stojanovski was offered one of two available driving positions at the Chullora site, notwithstanding that there were three displaced drivers available for the job.
Dr Kumagaya took a history that the meeting was attended by his operations manager, the human resources manager, and a colleague. This role involved transporting steel, which
Mr Stojanovski had not done before. He told Dr Kumagaya that he raised his concerns about travel distance, lower pay, workload, and health risks, but they were dismissed by management.
He also raised concerns about his preexisting shoulder condition which might be aggravated and that was disregarded by the Operations Manager.
Further distress arose, Dr Kumagaya said, when Mr Stojanovski learned the Chullora depot would relocate to Erskine Park within 6 to 12 months which added further instability to the offered position.
Mr Stojanovski's request for a probation period to assess the suitability of the role was denied, Dr Kumagaya said.
This meeting worsened Mr Stojanovski's depressive and anxious symptoms Dr Kumagaya noted.
He said that on 11 June 2024, he scheduled a follow-up meeting for 13 June 2024, which did not take place, Dr Kumagaya was told. There was no explanation given and Mr Stojanovski's feelings of uncertainty were exacerbated.
Dr Kumagaya also took a history that on 17 June 2024, Mr Stojanovski contacted the Transport Workers Union which sent a formal letter to Toll on 18 June 2024 alleging a breach of the Enterprise Agreement.
Dr Kumagaya recorded that between late June and early July 2024 he was pressured regarding the acceptance of the Chullora role or being placed on annual leave. This occurred on 24 June 2024 and 27 June 2024.
Dr Kumagaya recorded Mr Stojanovski's treatment history as follows:[11]
“Mr Stojanovski had received a combination of psychological and psychotropic treatments through his general practitioner, psychologist, and psychiatrist.
Mr Stojanovski was attending his general practitioner at an approximate frequency of once every three to four weeks. He was attending psychological therapy with his psychologist at an approximate frequency of once every two to three weeks. Mr Stojanovski had attended one consultation with his psychiatrist.”
[11] ARD page 65.
Dr Kumagaya noted that there had been no prior psychiatric injury and diagnosed a major depressive disorder with anxious distress.
Dr Kumagaya's prognosis was guarded "when considering the enduring severity and chronicity of his psychological symptoms, which now persist more than a year following index symptom onset, despite access to treatment for such".[12]
[12] ARD page 68.
Dr Kumagaya was asked whether he considered that employment had been the main contributing factor to Mr Stojanovski's injury, which he answered in the affirmative.
He further advised that the injury was not, in his view, wholly or predominantly caused by reasonable actions taken with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, or dismissal of workers, or provision of employment benefits.
Dr Kumagaya was asked to comment on a report of Dr Sherman of 21 October 2024.
Dr Kumagaya said that the primary points of difference related to causation. Dr Kumagaya noted Dr Sherman's view that the psychological injury was wholly or predominantly caused by reasonable action with respect to transfer or possible dismissal/retrenchment.
Dr Kumagaya said:[13]
"…It was noted that Mr Stojanovski's depressive and anxious symptoms first emerged in late 2023 in the context of differential treatment by his company. His already unstable mental state was worsened by the events pertaining to his redeployment by his organization, which he experienced to be most unreasonable. Whilst the latter served to worsen his mental state it was not the whole or predominant cause of his psychological injury, nor did Mr Stojanovski experience the actions of his employer as being at all reasonable."
[13] ARD page 71.

Psychiatrist Dr Goran Stevans

Dr Stevans was retained by the respondent to manage Mr Stojanovski’s treatment. He took the following history on 12 November 2024:[14]
“[Mr Stojanovski] presented for an opinion and management plan in relation to symptoms of ‘Depression and Anxiety’ which had been present for a number of months. He said he’s been feeling symptoms since June and 2024 however since November 2023, his boss had made their working conditions difficult and the truck he drove had safety issues. His trailer was that changed to a physical more manual handling kind of trailer which meant he had to work much harder to do his job. The employer said he will change everybody’s trailer however only changed his trailer and his brother’s trailer (his brother worked in the same company). He said they had a meeting on the 6th June and their jobs were made redundant. They were asked to be redeployed without any information about the other job. He raised concerns from the union about the list of questions he had in mind in relation to the new job and this went to the Fair Work commission. The workplace adjusted the conditions of the new job to suit the Fair Work Commission hearing. The hearing was on 7th August and on
[14] ARD page 110.
13th October, the Commission wrote to him saying ‘they deemed the new job to be suitable.’ He said that because of his changed conditions in November where his trailer was changed to a manual trailer, he has suffered with R shoulder pain shoulder pain and arm pain however this has improved with resting.”

Clinical notes GP Dr Kuzmanovski[15]

[15] ARD page 74.

As noted by Mr Morgan, Mr Stojanovski did not consult Dr Kuzmanovski between 2021 and 2023. The progress notes demonstrate that Dr Kuzmanovski had been Mr Stojanovski’s GP since 2017, but that his visits were rare. He sought treatment once in 2017, twice in 2018, not at all in 2019, once in 2020 and six times in 2021 during COVID-19. The consultations were mainly for treatment for minor ailments such as URTI, or, latterly, advice about
COVID-19 vaccines. The records show that Mr Stojanovski did not consult Dr Kuzmanovski between 26 October 2021 and 27 October 2023.
On 27 October 2023 the entry recorded:[16]
“URTI with cough and sore throat.
Took some OTC medication and feels better. Didn't go to work.
Needs certificate…
….
Came for examination for renewing of drivers licence.”
[16] ARD page 80.
Mr Strojanovski’s next visit was dated 16 February 2024, and noted that he needed a certificate as he had not gone to work because of a headache.
Mr Stojanovski returned on 3 May 2024 complaining of two days of fever. Dr Kuzmanovski diagnosed “URTI – viral.”
On 7 May 2024 the record indicated that Mr Stojanovski had attended complaining of a dry and irritant cough, which was diagnosed as “post infective cough.”
The entry for 28 May 2024 recorded:
“Headache today. Didn't go to work. Needs certificate.”
The reason for the visit was given as “tension headache.”
On 12 June 2024 the entry read:
“He has been working as a truck driver.
Lately has been feeling rather tired and has lost the confidence and feels that ne needs to make a bit of a break.
He has enough sick pays and is willing to take some time off
…
Certificate Supplied
…
Plan
Take some time off
Try to relax
If not able to continue to come back for review.”
Dr Kuzmanovski recorded the next entry of 26 June 2024 as concerning:
“…right shoulder pain. It started yesterday after he threw some straps over the back of the truck.
[This] morning he felt slightly [better] but still felt that he cannot drive.”
On 23 July 2024, the following was recorded:
“His company has finished the contract and everybody has been given redundancy but he has beek asked to do a job interstate and he has been unconfortable doing the job.
He wanst t be compensated and move one but the company wnats to continue.
he has been very streseed and has been unable to slepand concentrate.
He has been asked to do the jobthat is too difficulty for him.
He is taking the company to Fair Work Comission and the appointemnt in two weeks . He hasbeen doing the job for 24 years and with this company for 12 years.
The whole situation is getting complicated.
He wanst to get redundancy until he finds a new job.
Reason for contact:
Adjustment disorder with anxious mood
….
Try without tablets. Try to resolve the problems at the comission”
(As written).
On 12 September 2024 the entry read:
“He had the court six weeks ago.
He is still on anual review.
The results of the Fair Work Comission asr still not avalable. He is very anxious and he is unale to sleep.
He has never been in this situation and he wanders if it is normal to be like this. He wakes in the middle of the night and then the whoe process is inerupted.
Then he goes walking around but nothing helps.
The company that he works for has been playng around and they don't want to give him redundancy. He still doesn't want t do the heavy job.
The Comission has told them that it will take up to 12 weeks and he is financialy struggling. He didn't wany to do Work Cover but this is work related and it is affecting his ability t work. I think he has entitlements under work cover.”
(As written).
Mr Stojanovski attended Dr Kuzmanovski again on 30 September 2024. The following entry appeared:
“The Toll has accepted provisional liability and they have approved appointment with Elisa. He wasn't able to see Dr Stevans.
He had an investigator form TOLL who has been very unpleasant and Blagojse is very upset with the whole situation.
He is still unable to sleep and has been struggling with the thoughts.
Reason for contact:
Adjustment disorder with depressed and anxious mood”
(as written).
In a certificate of capacity dated 12 September 2024 issued by Dr Kuzmanovski, the following appeared:[17]
[17] ARD page 102.
Diagnosis of work-related injury/disease or motor accident related injury(ies)

Adjustment disorder with anxiety and depressed mood, Uncongenial work environment

Person’s stated date of injury/accident (DD/MM/YYYY)

June 2024

Shaded areas to be completed for initial certificate only

Person first seen at this practice/hospital

23/07/2024

For this injury on (DD/MM/YYYY)

Injury is consistent with person’s description

of cause

X

Yes

No

Uncertain

RESPONDENT’S CASE

Statement Jeff Mabey

Mr Mabey made a statement dated 11 July 2024.[18] He was Business Operations Manager for the respondent, beginning in February 2022. Before that he had experience in freight and logistics over 17 years.
[18] Reply page 3.
He said that managed two contracts for the respondent- Oceana and Opal. The Opal contract employed three workers, the Stojanovski brothers and Mr Goddard.
From [38] Mr Mabey described the cessation of the Opal contract. He said:
“38. In or around April 2024, we were informed that the Opal Contract would cease in about 3 months. We were given some time to adjust to the changes. Part of this adjustment was attempting to redeploy our employees working in the Opal Contract.
I spoke to Managers around the business, told them I had two really good drivers and that we would not want to lose them from the business. I also gave Blagojse and Riste a list of all the available roles in Toll and I kept looking at available jobs.”

Further statement Mr Mabey dated 2 October 2024

In answer to the assertions by Mr Stojanovski, Mr Mabey made a further statement signed on 2 October 2024.[19] From [10] he summarised the chronology, including that the first notice provided to the drivers on the Opal contract of the cessation of the contract was given on
[19] Reply page 6.
[20] Reply page 123.
19 June 2023. The notice was annexed to the Reply.[20]
At [10] of his statement, Mr Mabey addressed the factual issues raised, agreeing with some, and disagreeing with others. To summarise, he agreed that:
·        he sent the text about the 6 June 2024 meeting;
·        Chris did not attend the 6 June 2024 meeting as he was ill;
·        at the meeting were Bill (Mr Stojanovski) Stephen (Mr Goddard). Sergio Summat attended remotely;
·        no job description was provided for Chullora as it was identical to the Opal contract;
·        advertisements for the Chullora jobs had been placed on hold pending their being offered to the three Opal employees;
·        Mr Stojanovski and Mr Goddard asked to trial the Chullora worksite before accepting the position, but Mr Mabey advised that was not an option;
·        Mr Mabey sent a text asking the Stojanovski brothers and Mr Goddard to attend the 6 June 2024 meeting as part of the consultation process regarding the two available positions at Chullora. There was no requirement to give 24 hours’ notice to allow union representation;
·         Mr Mabey believed that the applicant took minutes of the meeting, and
·        Mr Goddard and the applicant both advised that the Chullora depot was too far away from their homes, which was the reason the Chullora jobs were later offered only to the Stojanovski brothers.

92. Mr Mabey denied that:

·        there was any requirement for him to give more than 24 hours’ notice of the
6 June 2024 meeting so that the men could secure union representation;
·        there was any retraction concerning redundancies. Mr Mabey explained that the two available positions at Chullora were “suitable alternative positions” and whoever was offered them would accordingly not be made redundant;
·        information was withheld during the meeting about the Chullora positions. It was explained that the work would be for Bluescope Steel and what the nature of the work was;
·        the concerns of Mr Stojanovski and Mr Goddard were not heard during the meeting. Both Mr Sammut and Mr Mabey spoke at length about the details of the proposed positions;
·        either Mr Stojanovski, or particularly Mr Goddard, asked to speak to the manager at the Chullora site. Had such a request been made, Mr Mabey said he would have had no issue with them doing so, and
·        it was stated that the driver who was not chosen for the Chullora contract would not be offered a redundancy and would have to seek employment elsewhere in the business or outside it.

Mr Mabey said at [t] of his statement:
“t. It was clear to me during the meeting that neither Stephen or Bill wanted to work at Chullora, NSW. It was plainly obvious that they were simply trying to raise objections about being offered such work because it would mean that they would forgo a large redundancy payout. On this note, it was common knowledge amongst the drivers that alternative work could easily be secured by another transport provider as there is a shortage of HC drivers. Thus, the men wanted to secure the redundancy and its large payout and then secure work elsewhere. It is for this reason I believe both Chris and Bill have lodged their claims - they are annoyed they were not made redundant and instead being offered suitable alternative positions.”

Mr Mabey said that both Stojanovski brothers were offered the Chullora work, and that it was not offered to Mr Goddard, as the travelling involved was too onerous, and Mr Goddard wanted an afternoon shift, which had not been available. Mr Mabey sent a notice to both Stojanovski brothers on 11 June 2024, offering them the jobs at Chullora, and setting up a meeting for 13 June 2024. He said that Mr Stojanovski called in sick on 12 June 2024, and his brother on 13 June 2024, so “I held off contacting the men about the meeting due to their alleged medical conditions.”[21]
[21] Reply page 10.
Mr Mabey said that both men were off sick until 21 June 2024, but in the interim the Transport Workers Union had formally rejected the redeployment in its letter of 18 June 2024 and put the redeployment in dispute. Mr Mabey accordingly ceased all communication with the brothers, with the result that the proposed meeting never went ahead.

Sergio Sammut

Mr Sammut was the Senior HR People Partner for the respondent. He gave a helpful summary of events in his statement of 2 October 2024.[22] He had never met Mr Stojanovski or his brother, and had only spoken twice to them.
[22] Reply page 15.
Mr Sallut’s two discussions with Mr Stojanovski and his brother occurred on separate dates and were conducted on Teams. On 9 May 2024 he advised the date of the cessation of the Opal contract, and that efforts would be made to redeploy them, as redundancy was “only the last option” for the business.
The second discussion occurred on 6 June 2024, again on MS Teams. He was uncertain as to whether both Stojanovski brothers were present, as he was on the call to support
Mr Mabey. He knew that the agenda topic was the steel contract at Chullora and that two positions had been identified and that workers deployed to that contract would start on
1 July 2024. He had no recollection of what was said at the meeting, and did not take notes.

MEDICAL

Dr Ian Sherman

Dr Sherman is a consultant psychiatrist and was retained as the respondent’s expert. He reported on 21 October 2024.[23]
[23] Reply page 68.
In taking the history, he noted that Mr Stojanovski’s contract would be terminated at the end of the week and that Mr Stojanovski said that earlier in the year the company had told him that he would be redeployed “without any information about the new job.”

Dr Sherman noted that Mr Stojanovski “was informed that he would be delivering steel and would face a pay cut, but no further details were provided.” Dr Sherman noted that, at
Mr Mabey’s direction, Mr Stojanovski had been using a manual trailer since November 2023, when he had previously been using a “push button” trailer.
Dr Sherman took a history of the Fair Work dispute, noting that the Fair Work Commission found that the offer made by the respondent had been suitable. Dr Sherman recorded the following:
“As of 2 October, he has been at home since 30 June, worrying about having to use his entitlements. He points out that he ‘had never taken holidays in 13 years of work.’ Jeff warned that if he did not accept the offer by June 30, he would use his entitlements to pay him instead.
Last week, he received a letter stating that Fair Work had determined the proposed role to be suitable employment and that they wanted him to start at Chullora as soon as possible.
Additionally, they offered him another option to drive petrol tankers out of Parramatta or deliver military equipment on the Central Coast, which would require a four-hour commute from home.
They informed him that if he did not accept the role by October 18, he would be terminated.
He decided not to accept the role offered.”
As to Mr Stojanovski’s psychiatric sequelae, Dr Sherman noted that Mr Stojanovski had felt low, and that he “first saw a doctor in July”. He recorded further complaints. After an examination of Mr Stojanovski’s mental state Dr Sherman advised:[24]
“In my opinion, the findings were sufficient to substantiate his current psychiatric diagnosis, namely Adjustment Disorder with Mixed Anxiety and Depressed Mood, moderately severe symptoms.”
[24] Reply page 74.
Dr Sherman thought that Mr Stojanovski was not fit for full pre-injury employment. He said:
“My opinion is that his incapacity for employment does result from psychiatric injury attributable to his employment with Toll. Regardless of the outcome of the Fair Work Australia hearing, his perception of how the offered job changes were handled, and the positions offered to him had a considerable impact on his mood, resulting in the present incapacity for employment.”
In answering questions related to the application of s 11A of the 1987 Act, Dr Sherman said:[25]
It is my opinion that the work-related psychological injury was wholly or predominantly caused by reasonable action taken or opposed to be taken by or on behalf of the employer with respect to transfer or possible dismissal/retrenchment.”
[25] Reply page 77.
Dr Sherman said further:[26]
“As the Deputy President of The Fair Work Commission pointed out in his findings, there are some factors weighing against the proposed deployment. These, in particular, related to Issues to do with the claimant’s family time and ability to help his parents. It is his perception of the difficulties caused by this and his dissatisfaction with the lifestyle changes that it might entail that have caused him to become unwell and for which he requires treatment to be able to return successfully to the workplace.”
[26] Reply page 79.
Dr Sherman issued a supplementary report on 7 March 2025.[27] He was asked to respond to Dr Kumagaya’s opinion. He said, relevantly:
“14. Dr Kumagaya disagrees with your opinion on causation due to the history given by the claimant relating to late 2023, however, was this alternative history provided to you closer in time to the alleged injury? Further, does Dr Kumagaya base his opinion on any contemporary evidence/medical record/complaint etc, or relies solely on the claimant's self-reported history?
No, as I've already pointed out he did not give me this alternative history. It appears Dr Kumagaya based his opinion solely on the claimant’s self-reported history.”

[27] Reply page 80.

The Toll – TWU Enterprise Agreement 2023-2026

The Agreement was not before me, but the Fair Work Commission decision of
2 October 2024 was tendered, and it contained the relevant provisions of cl 26, as reproduced by Deputy President Easton,[28]
[28] Reply page 86.
“The terms of the Agreement
Clause 26 of the Agreement includes the following provisions:
‘26. Redundancy
·A redundancy occurs in a circumstance where Toll decides that it no longer requires the position that a Transport Worker has been doing to be done by anyone and that decision leads to the termination of the Transport Worker’s employment with Toll.
·Toll will use redundancy as a last resort. This will include Toll taking all reasonable steps at the relevant workplace to reduce the number of Outside Hires and casual Transport Workers before implementing any redundancies.
In a redundancy situation Toll will:
·undertake consultation in accordance with clause 14, and
·explore, in consultation with the affected Transport Worker(s) and the Union, opportunities for suitable alternative employment for the affected Transport Worker(s):
·provide such re-training or outplacement support to Transport Workers as may be reasonable in the circumstances; and
·provide Transport Workers with reasonable paid time off to seek alternative employment.
…
(g) A Transport Worker will not be entitled to receive a severance payment if Toll obtains for them suitable alternative employment. Such suitable alternative employment can include employment with an employer other than Toll but only in circumstances where the new employer recognises all previous service of the Transport Worker with Toll and all employee entitlements are transferred with the Transport Worker to the new employer.”
The practical effect of this agreement was explained by Deputy President Easton at [6]:
“The Toll – TWU Enterprise Agreement 2023-2026 (the Agreement) provides for very generous redundancy payments but contains a carveout where Toll “obtains … suitable alternative employment” for the redundant employee. The dispute is about whether Toll has obtained suitable alternative employment for the Stojanovskis.”

SUBMISSIONS

Mr Morgan

As the respondent had put injury in issue, Mr Morgan addressed first.
Mr Morgan referred to Dr Kumagaya’s history regarding events in November 2023 and that Mr Stojanovski was unable to arrange for a union delegate to attend the meeting on
6 June 2024.
Mr Morgan referred to the psychological symptoms identified by Dr Kumagaya on presentation, and to Dr Kumagaya’s reference to Mr Stojanovski’s treatment through his GP, psychologist and psychiatrist. Mr Morgan noted the diagnosis of a major depressive disorder with anxious distress, and Dr Kumagaya’s opinion that Mr Stojanovski’s employment with the respondent was the main contributing factor to the psychological injury of a major depressive disorder. Mr Morgan submitted that there was no suggestion otherwise than that the disorder arose out of events that were taking place at the workplace.
Mr Stojanovski’s statement supplied the relevant facts, Mr Morgan submitted. He referred to Mr Stojanovski’s reaction to the treatment he was given at the meetings concerning the offer of employment at the Chullora site. He noted that Mr Stojanovski said that he “couldn’t believe the disrespect,” and that he “felt humiliated by the response in front of my peers,” amongst other such expressions regarding his reaction. Mr Morgan referred to
Mr Stojanovski’s being “extremely worried about what was happening,” when the reasonable suggestions being put to Mr Mabey were “shut down.”
The manifestations of Mr Stojanovski’s psychological condition were apparent in his description of how he felt following the meeting about the offer of work at Chullora, Mr Morgan said. The conduct of both Mr Mabey and Mr Sammut had caused a state of panic and was disrespectful to someone such as Mr Stojanovski, who had been a long-term employee. He felt belittled and the pressure tactics exerted in the meeting made
Mr Stojanovski sick to his stomach, Mr Morgan said. Mr Morgan relied further on Stojanovski’s description of his mental state over the continuing developments in dispute, including his feelings whilst a prosecuting his case in the Fair Work Commission.
Mr Morgan referred to the statement by Mr Stephen Goddard and submitted that his evidence was a reliable indicator, from a lay viewpoint, as to how the treatment of the Stojanovski brothers by the respondent had caused and feel anxious about being instructed to work at Chullora.
Mr Morgan submitted that there was support in the notes from Mr Stojanovski’s GP to inferentially corroborate that Mr Stojanovski was suffering from psychological symptoms. He noted that Mr Stojanovski did not visit Dr Kuzmanovski at all between 2021 and 2023, but he submitted that from 2023 onwards there were visits that showed Mr Stojanovski was suffering from viral illnesses and sicknesses which were indicative of underlying psychological problems. Mr Morgan conceded that there were no overt references to any psychological distress and there was no suggestion that Mr Stojanovski might have mentioned psychological problems to Dr Kuzmanovski, who had failed to record them.
Mr Morgan submitted that the entries from 12 June 2024 could be interpreted as the treatment of a developing psychological disorder, and that Dr Sherman also agreed that
Mr Stojanovski was suffering from a psychological disorder. Dr Sherman’s findings were reflected in the dispute notice of 29 October 2024, and accordingly the onus lay on the respondent to establish that its actions had been reasonable pursuant to the provisions of
s 11A of the 1987 Act.

Mr Doak

Mr Doak, in considering the opinion of Dr Kumagaya, submitted that Mr Stojanovski had to establish facts that demonstrated that s 11A had no application. Mr Doak submitted that
Mr Stojanovski had failed to do so, a submission that I accept as will be explained in my reasons below. Mr Doak’s submissions are on the record in that regard.
As to the application of s 11 A, Mr Doak referred to the authorities of Irwin[29] and Heggie[30] regarding the concept of reasonableness. He referred to the chronology of events as outlined by Mr Mabey, noting that the first official notice given to all drivers on the Opal contract that the contract was coming to an end was on 19 June 2023. He referred to the notice of
22 April 2024 advising that the contract would end on 30 June 2024, and he noted the correspondence sent to Mr Stojanovski (amongst others) on 19 May 2024, 16 May 2024,
[29] Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998.
[30] Northern NSW Local Health Network v Heggie [2013] NSWCA 255.
29 May 2024 and the SMS of 5 June 2024.
With regard to the allegation made by both Mr Stojanovski and Mr Goddard that there was any retraction concerning redundancies, Mr Doak referred to the denial of that proposition by Mr Mabey in his statement. Mr Doak referred to Mr Stojanovski’s statement that he had been notified on 22 April 2024 that the contract was ceasing and that he attended the meeting on
9 May 2024. Mr Doak submitted that the assertion by Mr Stojanovski that the respondent was vague and unsure of the future of the Opal drivers was contradicted by Mr Goddard, who said that the three drivers were happy to be deployed elsewhere, provided a ‘like for like’ job was found.
Mr Doak submitted that it followed that the available information was given to Mr Stojanovski, and it was difficult to see how that information had been vague and brief, or that the respondent had been mysterious or disrespectful. The documents themselves with which
Mr Stojanovski had been supplied, demonstrated that the respondent had kept
Mr Stojanovski, relevantly, reasonably informed. He had been advised of the situation with the cancellation of the Opal contract, he had been advised that he would be given time off to attend interviews for other jobs, and he was supplied with a list of available opportunities within the respondent’s organisation. On 11 June 2024 Mr Doak said, the two available roles were clearly described for the positions at Chullora and were clearly communicated. It could not be said that the options were vague as was alleged by Mr Stojanovski. The position was clearly communicated and supported by the documents that had been sent to
Mr Stojanovski. This[BG2]
Mr Doak submitted that it was clear that Mr Stojanovski was unhappy with the situation for his own reasons. Mr Doak referred to the Union involvement as evidenced by the letter of
18 June 2024 from the Transport Workers Union of NSW, and the issues therein set out.
Mr Doak referred to the subsequent decision of the Fair Work Commission. He acknowledged that the decision was based on a different test and on different legislation, but he submitted that the finding of the Commission was highly persuasive of the reasonableness of the respondent’s actions. The result of the decision was that a specialist tribunal had looked at the terms of the redeployment and found them to be reasonable and not a sham.
Today that [BG3] Mr Doak referred to various inconsistencies in the applicant’s case, submitting that the various objections made to the proposed redeployment by Mr Stojanovski and
Mr Gothard were not practical. There was a conflict between Mr Goddard’s account and that of the applicant, and Mr Mabey denied that he said that they were not allowed to communicate with Chullora. Mr Doak submitted that a trial period whilst the Stojanovskis tried out the work at Chullora could not be accommodated because it would involve other drivers having to be moved, as Mr Mabey stated, was reasonable and plausible.
Mr Doak submitted that the actions of the respondent will accordingly overwhelmingly reasonable regarding the question of transfer and redundancy. Mr Stojanovski had been notified in writing of the proposed changes and the options that were available as a result of the cancellation of the Opal contract. He had been invited to meetings to discuss his options, and insofar as allegations have been made regarding them, Mr Doak submitted that I would accept the evidence of Mr Mabey. As to the handwritten document purporting to be meeting of the minutes of the meeting of [BG4] 6 June 2024 Mr Doak submitted that the commentary in the parenthesis throughout the document indicated that it was probably not contemporaneous. He submitted further that the neat handwritten printing form of the statement was inconsistent with its being created contemporaneously.
Mr Doak concluded by observing that the date of injury on Mr Stojanovski’s first medical certificate from his GP was given as “June 2024.”
Mr Doak made some submissions concerning capacity.

Mr Morgan

Mr Morgan submitted that it was clear that the respondent could not rely on the provisions of s 11A. The deemed date of injury he submitted encompassed all relevant dates, including those of November 2023. Further, Mr Morgan submitted, the treating psychiatrist retained by the respondent, Dr Stevans, took a history that was consistent with that recorded by
Dr Kumagaya and which incorporated the problems from November 2023. Dr Stevans had been retained by the respondent, Mr Morgan observed, and his diagnosis incorporated those earlier events.
Mr Morgan acknowledged that Dr Sherman had also taken that history, but “conveniently forgot that” when giving his opinion. [no see CC 84]. Mr Morgan said that there was ample evidence to satisfy the proposition that whilst the apex events occurred in mid-2024, what happened before then, from the perception of Mr Stojanovski, could not be ignored. There was, he submitted, clear tension between management and the three Opal contract drivers.
Notice was first given of the termination of the Opal contract in June 2023, Mr Morgan said. This was a “big ticket” item as it involved their very employment. Mr Stojanovski’s brother was a union rep, and the brothers were the only permanent employees to this contract. The next thing that happens Mr Morgan said, was that the Stojanovski brothers were drug tested, when no other drivers were - a fact that had not been contested. The change of trailers then occurred, which required significantly more manual labour.
Mr Morgan summarised the situation by observing that the respondent needed to “get rid of” some permanent employees, knowing that the employees were on an EBA, which meant they would get generous redundancy packages. The employees “get dragged in for drug testing when no one else does,” they were taken off the automatic truck loaders on to manual truck loaders. Mr Morgan said that they knew the contract was coming to an end and they knew they were either going to get a redundancy or be offered a job. They knew that the EBA required Toll to find a job where it could “skirt around” its obligations to give these
long-standing employees redundancies. The jobs that were found, Mr Morgan categorised as “pretend jobs,” which were designed to be suitable for the wording of the EBA, which is where the Fair Work issue came into play.
Thus, argued Mr Morgan, there existed a tension between, relevantly,[31] Mr Stojanovski and Toll from mid-2023 where the employer did not wish to pay redundancy, which it was thought Mr Stojanovski, relevantly, was “dead set” on getting. The redundancy was their industrial entitlement per the EBA. Against the backdrop of the drug testing and the change of trailers, Mr Stojanovski, relevantly, was “dragged into” the meeting of 6 June 2024, Mr Morgan said, where Mr Stojanovski was told “this is what we got for you.”
[31] Mr Morgan continued to refer to "the employees", or "the workers" rather than Mr Stojanovski individually.
When one looked at Mr Stojanovski’s perception of events, Mr Morgan submitted, the actions by the employer could not be seen as being reasonable, and one needed to look at it from the background of that overview as to “what’s really happening here.” The employer doesn’t want to pay redundancy, and Mr Stojanovski, relevantly, was keen to get one, on his analysis, and Mr Mabey said that that was what Mr Stojanovski was plainly motivated by.
Ultimately, Mr Morgan suggested, this was the dynamic against which the meeting of
6 June 2024 took place. Mr Morgan observed that Mr Goddard got his redundancy so that “he’s out.” It followed, Mr Morgan argued, that Mr Goddard “did not have a barrow to push one way or the other.”
Mr Goddard described in his statement the behaviour of Mr Mabey and Mr Sammut at the meeting. Contrary to Mr Doak’s submission, Mr Morgan submitted that this statement did not contradict that of Mr Stojanovski, and that they were both consistent.
Mr Morgan referred to the various assertions made by Mr Goddard. He referred to
Mr Mabey’s explanation that Mr Stojanovski, relevantly, wanted the generous redundancy because it would be relatively easy in any event for Mr Stojanovski to find a job because his type of driving expertise was in demand in the marketplace. Mr Morgan referred to
Mr Gothard’s assertion that Mr Mabey “shunned their talking points” and related various examples.
Mr Morgan said that it was common knowledge that more work was available through Toll, and referred to Mr Goddard’s statement that the drivers would have to go where they were told, which was confirmed by both Mr Mabey and Sammut. Mr Mabey said that
Mr Stojanovski had been motivated by the redundancy issue, but Mr Morgan repeated that
Mr Goddard had been given his redundancy.
Mr Morgan said that reasonableness was the issue, not what the EBA said. He referred to the applicant’s evidence regarding the meeting of 6 June 2024 and submitted that the conduct of the respondent had therefore not been reasonable, again relating various examples.
Mr Morgan agreed that the assessment of reasonableness was required to be on an objective basis, citing Heggie.
He agreed that the minutes Mr Stojanovski took indeed might not have been the original document, but one later copied and annotated. He referred to the factual situation in Wretkoska, a decision of DP Roche.

Mr Morgan addressed at length about the applicant’s case, quoting many factual assertions made by his witnesses. His submissions in that regard are recorded and available. They were largely repetitious.
He referred to the content of documents regarding the application to the Fair Work Commission, noting the arguments raised by the applicant. He submitted that Mr Mabey’s statement should not be given any weight and his evidence might not be accurate.
Mr Morgan concluded by summarising his submissions.
By leave, Mr Doak said that the history taken by Dr Stevans came from the applicant, and there was no support for his conclusions, in the same way that Dr Kumagaya’s history was infected.

CONSIDERATION

Injury

There has been no submission that Mr Stojanovski had not been injured, rather that the date of injury is relevant to the application of s 11A of the 1987 Act.
Section 11A provides relevantly:
“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.”

Wholly or predominantly

The applicant submitted that the provisions of s 11A did not apply, as his injury had not been wholly or predominantly caused by the relevant actions of the respondent. Mr Morgan argued that the events of November 2023 were significant, as on 25 January 2025 Dr Kumagaya had included the drug testing and the trailer change in November 2023 as significant factors to Mr Stojanovski’s injury.
Dr Kumagaya said that Mr Stojanovski’s injury was not wholly or predominantly caused by the actions of the respondent with respect to transfer or possible dismissal/retrenchment. This was because the “differential treatment” by the employer in November 2023 had caused Mr Stojanovski to suffer depressive and anxious symptoms which “first emerged in the context of” the differential treatment. The events pertaining to his redeployment worsened “his already unstable mental state,” Dr Kumagaya found.
On 12 November 2024 the employer’s treating psychiatrist, Dr Stevans, took a history similar to that of Dr Kumagaya. However, Dr Stevans was not concerned with causation and gave no opinion thereon.

Dr Kumagaya

There are significant difficulties with Dr Kumagaya’s opinion. In the first place, it would appear that he relied on the self-report from Mr Stojanovski, without enquiring as to whether there were any facts in support. Dr Kumagaya accepted that “in and amongst [the] workplace stressors,” Mr Stojanovski had “reported the onset of depressive and anxious symptoms, which gradually worsened with ongoing exposures to his prejudicial workplace environment”. These symptoms Dr Kumagaya described as “low mood, anxiety, panic attacks, decreased interest and engagement in activities, sleep disturbance, concentration difficulties, low energy levels, and restlessness.” The “workplace stressors” Dr Kumagaya identified as being the drug testing of 14 November 2023 and the change of trailers in the same month.
The question arises as to whom Mr Stojanovski reported. A person with such a constellation of psychological symptoms might well be expected to be receiving treatment, or at least have reported it to his GP. It would appear that Dr Kumagaya made that assumption, as when recording Mr Stojanovski’s treatment history he said, as indicated above:
“Mr Stojanovski had received a combination of psychological and psychotropic treatments through his general practitioner, psychologist, and psychiatrist.
Mr Stojanovski was attending his general practitioner at an approximate frequency of once every three to four weeks. He was attending psychological therapy with his psychologist at an approximate frequency of once every two to three weeks. Mr Stojanovski had attended one consultation with his psychiatrist.”
In the documentation Dr Kumagaya identified as briefed to him were: “Clinical records of
Dr Nick – Family Medicine Clinic Rockdale.” The clinical records from the Family Medicine Clinic Rockdale were before the Commission,^[32] and showed that in fact the GP treating
Mr Stojanovski clinic was not Dr Nick (whose surname was Cvetkovski), but
Dr Kuzmanovski. Further, the records do not support Dr Kumagaya’s assumption that
Mr Stojanovski had been attending Dr Kuzmanovski once every three to four weeks for “psychological and psychotropic treatments,” as is evident from the synopsis of
[32] ARD page 73.
Dr Kuzmanovski’s clinical notes below. Such treatment as was recorded had nothing to do with any psychological symptoms until 23 July 2024, when the events regarding deployment were occurring. Moreover during the period up to 11 November 2024, Mr Stojanovski did not attend any psychologist or psychiatrist. This apparent contradiction was unexplained, and of itself compromised Dr Kumagaya’s opinion.
Later in his report, when commenting as to whether Mr Stojanovski’s injury was wholly or predominantly caused by the actions of the respondent, Dr Kumagaya relied firstly on the “temporal chronology of the onset of Mr Stojanovski’s psychological injury.”[33] Dr Kumagaya repeated that Mr Stojanovski had “first experienced the onset of his depressive and anxious symptoms towards the end of 2023 in the context of differential treatment by his company.” Dr Kumagaya said that “such symptoms” were only worsened by what Mr Stojanovski noted to be unreasonable actions by the employer.
[33] ARD page 70.
I listened with interest to Mr Morgan’s submissions regarding this issue. In a most thorough exposition of the relevant evidence and the applicable principles, Mr Morgan submitted that the respondent’s actions regarding transfer and redundancy did not wholly or predominantly cause Mr Stojanovski’s injury. However, he could not point to any evidence that supported
Dr Kumagaya’s assumptions. He relied on Mr Stojanovski’s statement as to the distress he allegedly felt at being drug tested, but without more, such an event did not necessarily indicate differential treatment from the employer – particularly when the statement was made after several key events. There may have been more prosaic reasons for the administration of the drug tests, and Mr Stojanovski did not elaborate on the background of this event. There was no evidence that either brother took any steps to protest their now alleged differential treatment at being drug tested, which is somewhat surprising in view of Mr Chris Stojanovski’s being a union delegate.
Similarly, the trailer change did not generate any contemporaneous protest that was the subject of any evidence. There was in any event an inconsistency between Dr Kumagaya’s history and Mr Stojanovski’s statement in that regard. Mr Stojanovski said that following the drug testing on 14 November 2023, it was his brother’s trailer that was changed in November, but that his trailer was not changed until 4 December 2023. Dr Kumagaya took a history that both trailers were changed at the same time in November 2023.
Be that as it may, again Mr Stojanovski did not elaborate as to how this was differential treatment – particularly where there may have been a number of weeks between the trailer change for each brother, depending on which version of the story was correct.
Whilst it might be argued that the brothers did not wish to jeopardise their employment by complaining, it is more significant that there is no support from Dr Kuzmanovski.
Both counsel referred to the caution with which clinical notes are to be approached, relying on cases such as Mason v Demasi[34] and Davis v Council of the City of Wagga Wagga.[35] In Qannadian v Bartter Enterprises Pty Ltd[36] DP Michael Snell said:
“35. Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:
‘It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).”
The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence’.”
[34] [2009] NSWCA 227.
[35] [2004] NSWCA 34.
[36] [2016] NSWWCCPD 50.
The relevance of the clinical notes from Dr Kuzmanovski’s practice is that they demonstrate that Mr Stojanovski attended during the period identified by Dr Kumagaya when
Mr Stojanovski was allegedly experiencing the onset of his depressive and anxious symptoms. The notes are reproduced above[37] and demonstrate that Mr Stojanovski attended on the following occasions prior to being diagnosed by Dr Kuzmanovski with an adjustment disorder on 23 July 2024:
·        27 October 2023     - URTI and renewal exam for driver’s licence;
·        16 February 2024   - needed certificate for day off with headache;
·        3 May 2024            - URTI and two days fever;
·        7 May 2024            - post infective cough;
·        28 May 2024          - needed certificate for day off with headache;
·        12 June 2024         - tired and lost confidence as truck driver. Needs a break, and
·        26 June 2024         - right shoulder pain.
[37] From [80].
Mr Mogan referred to Davis in making a submission that it was possible to infer that these attendances were actually caused by the onset of the depressive and anxious symptoms described by Dr Kumagaya. However he had to concede that it was not suggested that
Mr Stojanovski had made any unrecorded complaint to Dr Kuzmanovski about any psychological symptoms, and I reject Mr Morgan’s submission that the entries prior to
11 June 2024 inferentially supported Dr Kumagaya’s assumptions that Mr Stojanovski had been seeing his GP once every three or four weeks for treatment and seeing his psychologist once every two to three weeks. The timing of the 12 June 2024 attendance may conceivably be related, as Mr Stojanovski was due to attend a meeting on 13 June 2024, but did not, as he said he was unwell. Equally, the attendance on 26 June 2024 may also be related, as one of the objections Mr Stojanovski raised to the proposed alternative employment at Chullora was that he had a right shoulder condition, and the proposed work would be more physically intense.
Dr Sherman was asked to comment on Dr Kumagaya’s opinion that the “differential treatment” of the Stojanovski brothers, due to Chris Stojanovski’s being a union member, was wholly or predominantly the cause of Mr Stojanovski’s injury. Dr Sherman, as noted, said:
“I am not aware of concurrent medical evidence to substantiate Dr. Kumagaya's opinion….. as I've already pointed out he did not give me this alternative history. It appears Dr Kumagaya based his opinion solely on the claimant’s self-reported history.”
I concur with Dr Sherman. Dr Kumagaya’s opinion is no more than a speculative unsupported hypothesis, based on the applicant’s recollections in January 2025, which have no contemporaneous support. I am satisfied that Mr Stojanovski’s injury was wholly or predominantly caused by the relevant actions of the respondent, and accordingly that the provisions of s 11A apply. I prefer Dr Sherman’s opinion that it was the actions of the respondent with regard to transfer or possible dismissal/retrenchment that wholly or predominantly caused Mr Stojanovski’s injury.

Section 11A

The principles applying to the defence are well known. The relevant authorities were considered by DP Sweeney in Colin Joss & Co Pty Limited v Williams[38] and they demonstrate that the test is objective. The positions of both sides have to be evaluated, the onus being on the respondent to establish that its actions were reasonable.
[38] [2025] NSWPICPD 39 from [95].
Thus, whilst the applicant has recounted those actions of the respondent that he regards as being unreasonable, the test is not subjective. In Heggie, Sackville AJA (Basten and Ward JJA agreeing) emphasised at [59] that:
“…(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.”
The emphasis in Mr Stojanovski’s claim is that the employer, through Mr Mabey and
Mr Sammut, was unreasonable in its actions during the meeting of 6 June 2024. An alleged minute of it was produced by Mr Stojanovski, and Mr Morgan relied on Mr Goddard’s statement about it, claiming that Mr Goddard was independent because he had received his redundancy.
The first notice given to Mr Stojanovski that Toll would be ceasing work for Opal was on
[39] Reply page 123.
19 June 2023 in a notice issued to “Opal Local Drivers.”[39] The notice advised that the scope of work was secured until 31 March 2024, and it encouraged employees to engage with the leadership team and ask questions over the coming months. It said that Toll was committed to working “with each of you,” and that it would continue to communicate and engage to keep him informed. It reminded Mr Stojanovski of the Employee Assistance Program, which was designed to offer practical support and guidance about what he did next. It was not suggested that this initial notice was in any way unreasonable.
Mr Morgan attempted to make a connection between that notice and the subsequent drug testing and trailer change around November 2023, but not even Mr Stojanovski suggested there had been a connection. Indeed Mr Stojanovski did not mention that first notice, but rather thought that these events had been provoked because the Stojanovski brothers had given witness statements in a workers compensation and HR dispute, and that his brother, in his capacity as a Union Delegate, had some subcontractors audited.[40]
[40] ARD page 4 [16].
Mr Stojanovski said that on receipt of the notice of 22 April 2024, which notified that the contract would ease effective [BG5] 30 June 2024, he became anxious about his job security and livelihood. Again, it was not suggested that the action of giving this notice was unreasonable by the employer. Mr Stojanovski made no complaint about the meeting that was held on
9 May 2024 with Mr Mabey, Mr Sammut (by phone), Mr Goddard and Mr Peter Katar, who was a representative of the Transport Workers Union. That meeting, Mr Stojanovski said, discussed a possible renewal of the Opal contract, although Mr Mabey and Mr Sammut said in general terms that the meeting was to confirm the notice that the Opal contract was coming to an end. In any event Mr Stojanovski acknowledged that he was told that Toll was unsure of the future for the Opal contract drivers and an email would be sent regarding alternative positions. Again, it has not been suggested that these actions were unreasonable.
The alternative positions were in fact notified by letter addressed personally to
Mr Stojanovski and dated 16 May 2024, which has been reproduced above. This confirmed that the Opal contract was ceasing on 30 June 2024, and advised Mr Stojanovski that the future of his employment may be affected. It advised that the “primary goal” was “to take all reasonable and practical steps to redeploy team members to other areas of the business to avoid the potential review of your employment due to redundancy.”
There were about 50 alternative positions that were both in Sydney and interstate.
Mr Stojanovski thought there were no suitable duties for him amongst those positions, but again no issue was raised that either the letter of 16 May 2024, or the supply of the alternative positions, was unreasonable.
Although there was a proposal in the letter of 16 May 2024 for a meeting the following week “regarding your views and in relation to the future of your employment with Toll Group,” the meeting did not in fact take place until 6 June 2024.

Meeting 6 June 2024

The first issue raised by Mr Stojanovski related to the short notice, as it is common ground that the meeting was notified by SMS the day before. He held a belief that Mr Mabey was aware that his union representative was not available, and knew that the representative was interstate, which was why Mr Mabey had called the meeting at short notice. It would appear that Mr Stojanovski came to that belief because he alleged that Mr Mabey wished him good luck getting a hold of the representative.
In his statement, Mr Mabey said there was no requirement for him to provide more than
24 hours’ notice so that union representative representation could be secured.
Mr Stojanovski’s reaction - that Mr Mabey had been devious and that he had lost trust in
Mr Mabey, was thus based on a perception he held when he made the statement on
7 February 2025. He did not refer to this allegation when giving his history to Dr Kumagaya.
There are also some inconsistencies regarding what happened next. Mr Stojanovski said that he attended the 6 June 2024 meeting “by telephone.” He said that present at the meeting were Mr Goddard, Mr Mabey “and Serge Sammut”. His brother was unable to attend because of illness.
Mr Mabey said that “both [Mr Stojanovski] and Stephen [Goddard] attended the meeting on 6 June 2024. Chris did not attend as he alleged he was sick. Sergio Summit (sic), Group Human Resources also dialled in and attended the meeting remotely. I believe that Sergio took minutes of the meeting.”[41]
[41] Reply page 8.
Mr Sammut was unsure whether both Stojanovski brothers attended, he had no recollection of what was said meeting, and he took no notes.
Mr Goddard stated that Mr Stojanovski was present with his union representative, Peter Katar and that Mr Sammut attended virtually. Mr Goddard said that after the meeting he had a meeting with Mr Stojanovski and Mr Katar where it was agreed that the union would draft a letter.
Mr Stojanovski said that in response to a question from Mr Goddard regarding minutes,
Mr Stojanovski was told by Mr Sammut that he could take his own notes, which he did, because there was no union rep and “we were unsure of what they had planned for us.”
The resulting notes were the subject of comment from both counsel. They are handwritten, extremely neat, and printed in capitals. From time to time in the document there are comments in parenthesis that indicate that they have been made subsequent to the meeting. Mr Morgan’s concession that they indeed might not be the original notes was well made but it is clear that the content reflects in some detail a version of the discussion that was held between the participants, who were noted in this document to be “Steve, Bill, Jeff and Serge. (Chris off sick).”
Mr Stojanovski’s statement, whilst alleging his disbelief that Mr Mabey was vague about the new role, is somewhat belied by the content of those minutes, which I am prepared to accept as being a version of the original notes. The comments in parenthesis throughout however are no more than somebody’s interpretation of how he (or they) interpreted the comments at a later time. As there is no evidence as to exactly when those comments were made, it is possible that they were made after the onset of Mr Stojanovski’s psychological injury and cannot be seen therefore as objective.

Mr Stojanovski’s complaint was that the drivers were not provided with “much more information” than was given, and which he conceded was given. The document confirms that the proposed deployment was discussed in some detail. As was conceded in his statement, Mr Stojanovski was told about the rate of pay, the hours anticipated being worked, and that there would be a selection process if nobody applied. When Mr Stojanovski said it was not suitable, Mr Mabey enquired as to why, and was told that the pay rate, travel, tolls involved, the start time, the deliveries involved, the dogs and chains involved were unsuitable, and that Mr Stojanovski’s health was very important, to which Mr Mabey replied “right.” On its face such a response is unremarkable and although Mr Stojanovski later alleged that Mr Mabey had been extremely condescending and that he had humiliated Mr Stojanovski in front of his peers, there is no corroboration for that assertion, which again may have been the result of ruminations and distress caused by the later onset of Mr Stojanovski’s psychological injury.
Mr Goddard in his statement said that Mr Mabey and Mr Summit “shunned our talking points.” Mr Goddard was speaking at that point in terms of enquiries during the meeting about redundancy, but he did not support Mr Stojanovski’s claim that Mr Mabey had been extremely condescending or that Mr Stojanovski complained of being humiliated.
In his statement Mr Mabey said that he did not prohibit a meeting with the Chullora manager, contrary to the content of the handwritten document, and said that had such a request been made, he would not have had an issue with it. Otherwise, he said that the concerns of
Mr Stojanovski and Mr Goddard were heard and that both he and Mr Sammut spoke at length about the details of the proposal. The handwritten document tends to confirm that statement. It may be that the comment attributed to him regarding the approach to the Chullora managers was made, but if it was, I do not see that as being in any way unreasonable in the context of the meeting as recorded by this document, nor do I find that conflict to be of any probative weight, as such minor differences can arise where a witness does not have access to contemporaneous material, which was the case with Mr Mabey.
A further denial by Mr Mabey that redundancies had not been retracted referred, presumably, to the alleged statement attributed to him that redundancies will not be offered. I accept
Mr Mabey’s evidence in that regard, as it was not suggested in the handwritten document that redundancies were ever on offer. The only mention of redundancies in the handwritten document was said to have come from Mr Sammut, who was reported as saying:[42]
“Serge – talks about the heads of agreement, in Tolls opinion it is a suitable role for all 3 drivers, and redundancies will not be offered, that’s important to remember, so will be sending letters for 2 to transfer.”
[42] ARD page 29.
At this stage, 6 June 2024, there was no suggestion that Mr Stojanovski was suffering a psychological illness. Mr Stojanovski complained on 12 June 2024 that he needed a break because he was tired and had lost confidence as a truck driver to Dr Kuzmanovski. The background to that attendance may well have been the receipt of the notice from the employer dated 11 June 2024 that set up a meeting for 13 June 2024 with Mr Stojanovski. As indicated, the notice stated, “a Transport Worker will not be entitled to a severance payment if Toll obtains for them suitable alternative employment.”[43]As also noted, a certificate was issued by Dr Kuzmanovski on 12 June 2024, but Dr Kuzmanovski did not appear to be aware of the proposed meeting for 13 June 2024.
[43] See [37] above.
Mr Stojanovski stated that he and his brother were unwell on 13 June 2024, and Mr Mabey noted that the meeting never went ahead, as the Transport Workers Union had placed the redeployment in dispute. Although Mr Stojanovski said that he and his brother were expecting a telephone call “as scheduled” whilst off sick, and that no explanation was provided why the meeting did not occur, I find Mr Stojanovski’s assertion to be disingenuous and fanciful. There was no scheduled telephone conversation (the notice spoke of a meeting), and the reason the meeting did not take place was because he and his brother were off sick. I have no reason to disbelieve Mr Mabey’s evidence, supported as it is by contemporaneous documentation.
The dispute was set out in a letter signed by Mr Katar for the TWU dated 18 June 2024. It included many of the issues raised in the 6 June 2024 meeting, and claimed that the offer for redeployment was not suitable employment. The matter went before the Fair Work Commission, which handed down its decision on 27 October 2023.
Before moving to this aspect of the case it is useful to recapitulate the above inconsistencies about this meeting.
Firstly, Mr Stojanovski stated that he attended by telephone, whilst Mr Mabey and
Mr Goddard said he was present, as did the handwritten document.
Secondly, Mr Stojanovski stated that he was distressed by the short notice, which prevented him from arranging any union representation, yet Mr Goddard said that the union representative, Mr Katar, was present, and that they had a meeting afterwards whereby it was agreed that the Union would write a letter – presumably that of 18 June 2024.
Thirdly, Mr Stojanovski said that Mr Sammut was present, whilst the other witnesses said
Mr Sammut attended on the phone. There was also some confusion as to whether
Mr Sammut took minutes – he said he did not, Mr Mabey said he believed Mr Sammut had.
Accordingly, the reliability of the detail of the allegations at this meeting are somewhat doubtful, although its general tenor was discernible enough, namely, that it was a meeting about the offer by the employer of suitable employment to continue to engage its long-term drivers, and thus about transfer.

Reasonableness

On one view, as noted by Dr Sherman, the premise of Mr Stojanovski’s claim is illogical. His injury had allegedly been caused because he had been offered further suitable employment when the contract under which he had been hired since 2010 expired on 30 June 2024. Such actions by an employer could hardly be described as unreasonable. Mr Morgan described the Chullora jobs as being “pretend jobs,” designed to “skirt around” the employer’s obligations to these three long term employees and “to be suitable to the wording of the EBA.”
I disagree, with respect. The employer’s efforts were genuine, to the point that the Stojanovski brothers were due to start at Chullora on 1 July 2024 in employment, the details of which were spelt out at the 6 June 2024 meeting.
Mr Stojanovski had refused to accept this offer under the mistaken belief that it was unreasonable within the terms of the employment contract. I have reproduced the relevant clause of the EBA above, and noted Deputy President Easton’s useful explanation as to its practical effect, to repeat:
“The Toll – TWU Enterprise Agreement 2023-2026 (the Agreement) provides for very generous redundancy payments but contains a carveout where Toll ‘obtains … suitable alternative employment’ mm for the redundant employee. The dispute is about whether Toll has obtained suitable alternative employment for the Stojanovskis.”
Mr Morgan’s submissions were directed to the meeting of 6 June 2024, on the basis
Mr Stojanovski’s injury was caused by Mr Mabey’s refusal to accept his arguments (and those of Mr Goddard) that the proposed deployment was unsuitable alternative employment. It was the action of transferring Mr Stojanovski to the Chullora plant, made plain by
Mr Mabey’s notice of 11 June 2024, that caused the injury following this meeting.
The Fair Work Commission proceedings were set in train by the letter from Mr Katar dated 18 June 2024. Mr Stojanovski’s attendance on Dr Kuzmanovski complaining of a sore right shoulder on 26 June 2024 may or may not have been related to that impending claim, but it was on 23 July 2024 that he first gave the history to Dr Kuzmanovski regarding the end of the contract. As indicated above, Dr Kuzmanovski recorded that a job interstate had been offered and that Mr Stojanovski felt uncomfortable. It was also recorded that he was taking the company to the Fair Work Commission, and that:
“He wants to get the redundancy until he finds a new job.”
It was on this occasion that Mr Stojanovski was diagnosed with an adjustment disorder by
Dr Kuzmanovski.
I found Mr Mabey and Mr Sammut to give professional and detailed statements. Mr Morgan’s complaint that they were acting under the terms of the Enterprise Bargaining Agreement to enforce its terms was quite correct, and it was part of their duties as Business Operations Manager and Senior Human Resources People Partner respectively to do so. The actions taken to comply with this agreed instrument between the workforce and Toll management were reasonable. Mr Stojanovski was notified in writing of every stage in the process, and management held two meetings on 9 May 2024 and 6 June 2024, to consult with him, under cl 14 of the Toll-TWU Enterprise Agreement 2023 -2026 (as advised in Mr Katar’s letter of
18 June 2024). A third meeting was not possible because Mr Stojanovski was off sick on
13 June 2024.
Mr Mabey summed up the motive behind Mr Stojanovski’s actions accurately when he said, as noted above:
“t. It was clear to me during the meeting that neither Stephen or Bill wanted to work at Chullora, NSW. It was plainly obvious that they were simply trying to raise objections about being offered such work because it would mean that they would forgo a large redundancy payout. On this note, it was common knowledge amongst the drivers that alternative work could easily be secured by another transport provider as there is a shortage of HC drivers. Thus, the men wanted to secure the redundancy and its large payout and then secure work elsewhere. It is for this reason I believe both Chris and Bill have lodged their claims - they are annoyed they were not made redundant and instead being offered suitable alternative positions.”
It is unfortunate that this situation has resulted in Mr Stojanovski’s injury. I am satisfied however that the respondent has met its onus of proving that whole or predominant cause of Mr Stojanovski’s psychological injury were the actions by Toll with respect to his transfer, dismissal or retrenchment, which I am satisfied were reasonable. I have already rejected the opinion of Dr Kumagaya, and I prefer that of Dr Sherman, who summed up Mr Stojanovski’s situation neatly when he found:[44]
“As the Deputy President of The Fair Work Commission pointed out in his findings, there are some factors weighing against the proposed deployment. These, in particular, related to Issues to do with the claimant’s family time and ability to help his parents. It is his perception of the difficulties caused by this and his dissatisfaction with the lifestyle changes that it might entail that have caused him to become unwell and for which he requires treatment to be able to return successfully to the workplace.”
[44] Reply page 79.
Finally, it should be said that I do not for a moment suggest that Mr Stojanovski has deliberately sought to mislead the Commission, and I have no doubt that he was attempting to give a measured account of what he experienced. However, one’s memory of past events does not reflect those events with as much reliability as, say, a contemporaneous photograph does. Memory can be affected by subsequent perceptions and be reconstructed by them – especially where the witness has an interest in the outcome. Mr Stojanovski’s statement was made on 7 February 2025. At this time, he had lost his application to the Fair Work Commission; he was not given the redundancy package he wanted; and he had been having treatment for his psychological condition since November 2024. These matters have probably caused him to reconstruct his memory as to the effects of the events he now perceives.

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Role Title	Local Driver
Role Location	Chullora NSW
Role Duties	Local Deliveries within the Steel Business
Role Roster	0530-1330
Role Rate of pay	Your existing rate will be maintained during the transfer, this will remain your rate until the Business unit rates exceeds this within existing rate increases (this is referred as grandfather clause)
Role License requirements.	HC Licence

Adjustment disorder with anxiety and depressed mood, Uncongenial work environment
Person’s stated date of injury/accident (DD/MM/YYYY)	June 2024

[2025] NSWPIC 508

25 September 2025