Stojanovski v Toll Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stojanovski v Toll Transport Pty Ltd [2025] NSWPIC 351
APPLICANT:	Riste Stojanovski
RESPONDENT:	Toll Transport Pty Ltd
MEMBER:	Parnel McAdam
DATE OF DECISION:	23 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; contract for the provision of logistics ending; potential redundancy or transfer of staff; whether injury included allegations of bullying and harassment or limited to circumstances of transfer; section 11A defence raised pursuant to transfer; whether actions of employer were within the concept of “transfer” in section 11A; Held – bullying and harassment not part of injury; injury wholly caused by reasonable actions of employer in respect to transfer; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Stojanovski was employed by Toll Transport Pty Ltd (the respondent) as a truck driver. Although still employed by the respondent, he has not worked for a considerable period due to what is claimed is a psychological injury arising out of his employment.
Mr Stojanovski commenced his employment with the respondent in January 2011, attached to a contract operating out of the Botany depot. His role involved the delivery of paper reels to various parts of the Sydney metropolitan area, being part of a logistics contract operated by Toll for a paper manufacturer. His duties were consistent for very many years until April 2024, when the contractor advised Toll that the delivery contract would be coming to an end on 30 June 2024.
As is understandable, on being informed of the end to a contract, the respondent took steps to determine the status of its workforce. This, for Mr Stojanovski, involved potential redundancy or transfer to an alternative depot, to perform similar suitable work (i.e. as a truck driver, on a delivery route). Staff were informed of developments. Mr Stojanovski, who was a union delegate, became involved in industrial proceedings with the respondent that ultimately ended in a determination in the Fair Work Commission.
Mr Stojanovski also made a claim for workers compensation benefits due to a psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) – this is on a specific basis, relevant to bullying and harassment;
(b) whether any psychological 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, retrenchment or provision of employment benefits, pursuant to s 11A of the 1987 Act, and
(c) the extent of any incapacity suffered by the applicant pursuant to s 33 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The matter proceeded to hearing on 10 July 2025. The applicant was represented by Mr Goodridge of counsel, instructed by MD Law Group Pty Ltd. The respondent was represented by Mr Davis of counsel, instructed by Colin Biggers & Paisley.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    an Application to Lodge Additional Documents, filed by the respondent on 22 May 2025, attaching financial records of the applicant.

The applicant’s statement

The applicant provides a statement dated 7 February 2025. He states that he suffered a psychological injury due to “the behaviours of my superiors at TOLL”. The applicant then describes events that occurred in 2023 prior to the cessation of the Opal contract.
The applicant goes on to describe the events following the notification from Opal that the contract would be ending, including information communicated by Toll, the outcome of meetings, the alternative roles that were presented to him (and his brother), and the proceedings in the Fair Work Commission. The applicant also describes his ongoing symptoms.

Report of Dr Kumagaya

The applicant relies on the medicolegal opinion of Dr Kumagaya, a psychiatrist, dated 28 January 2025. Dr Kumagaya takes a history of “differential treatment” due to Mr Stojanovski’s role as a union delegate, which commenced in around November 2023.
He then sets out the history of the loss of the contract with Opal and the steps taken by the respondent following this. When asked about whether employment was the main contributing factor to injury, Dr Kumagaya supported the connection and opined:
“Mr Stojanovski described his protracted experience of a series of workplace stressors during his employment with Toll Group, characterised by differential treatment, an unsupportive workplace environment, and inadequate procedural fairness with respect to a prospective change in his work arrangements.”
Dr Kumagaya provides commentary on the s 11A issue raised in this case. As was cautioned by both parties in submissions, I have not taken the doctor’s views on reasonableness into account (as that is a matter for the Commission). He does comment on the causation issue in the following terms:
“It was Mr Stojanovski’s experience of such workplace stressors, in conjunction with differential treatment in the lead up to his prospective work changes, which Mr Stojanovski experienced to have been most unreasonable. Such resulted in the onset of his psychological injury.”
Dr Kumagaya explains his difference of opinion with Dr Ahmed, who provides a report for the respondent:
“Having considered the medical evidence, it is noted that it was not specifically the prospective transfer that was causative of Mr Stojanovski’s psychological injury, but rather, the significant delays experienced by Mr Stojanovski when he sought information about this transfer, the lack of information provided by his employer in relation to the change in his work arrangements, as well as the pressure he experienced by his employer to accept a transfer based on limited information, which resulted in his psychological injury. Mr Stojanovski also noted his experience of differential treatment prior to such workplace stressors, which contributed to the causation of his injury.”

Reports of Dr Ahmed

Dr Ahmed provides a report dated 9 October 2024. He takes a history of no problems prior to March 2023, when the first letters were sent out regarding the cessation of the contract with Opal. Dr Ahmed takes the following history:
“When asked about the difficulties, he said it was primarily around the redeployment that was communicated to them in June. He said it was inappropriate. I note since then this has gone to the Fair Work Commission, and it has been deemed a suitable role. The claimant is struggling to accept this.”
Dr Ahmed opined that the applicant’s “difficulties are from his employment. Employment was the main contributing factor”. He goes on to state (in response to a question about whether the condition has ceased):
“His employment. His symptoms are entirely a reaction to the disagreement he had regarding industrial issues in his employment. It is likely to pass in due course, although he feels a sense of mistreatment and injustice.”
He then states that the aggravation has “largely ceased” and that the “matters are entirely industrial”. Dr Ahmed opines that the applicant has partial capacity of 20 hours per week.
Dr Ahmed provides the following opinion in respect of the s 11A issue:
“Any psychological condition was wholly caused by reasonable action taken by the employer regarding transfer. He is quite open in suggesting that he was seeking a redundancy as the best possible outcome. In my opinion, during the interview, he was still coming to terms with the quite recent Fair Work decision which was unfavourable to him. A handful of psychology sessions may help him reach acceptance and get on with his life and return to work.”
Dr Ahmed provides a supplementary report dated 5 March 2025. He reiterates that the matters are entirely industrial. In respect of the history of issues prior to the cessation of the Opal contract, he says this:
“I note in my original report, he said there were no real issues until they received the initial letter about a possible change in job site. From memory, he did say that sometimes he did not feel entirely supported or heard by his manager, although this was strongly linked to his feelings surrounding the industrial process and outcomes he was upset by.”

Clinical records

Attached to the Application are the applicant’s clinical records from his treating general practitioner, Dr Cvetkovski. I have reviewed that material and will refer to relevant records in findings and reasons, below.
There are a series of reports and notes from Dr Stevans, a treating psychiatrist. These are mainly relevant for the question of capacity, although Dr Stevans was clearly aware of the context of the symptoms.
There are a series of consultation notes from attendances with Elisa Najdenksa, a treating psychologist.

Other evidence

There are a series of statements provided by other employees of the respondent, including a supervisor (Mr Mabey, who provides two statements), another employee in a similar position as Mr Stojanovski (Mr Goddard), and a HR representative (Mr Sammut).
Employment documents are also attached, including the communications between the respondent and Mr Stojanovski concerning the end of the Opal contract, and steps taken after that.
Also attached to the Reply is a decision of the Fair Work Commission in the matter of Transport Workers Union of Australia v Toll Holdings Pty Limited. Although a dispute between the union and the respondent, Mr Stojanovski is named in the decision and it applies to his job. Certain parts of the decision were referred to by the parties in submissions. I have approached my consideration of that decision with caution, noting that it concerns different issues and a different legal question to that before me.
Rather than summarise that material here, I will refer to it below.

SUBMISSIONS

The parties provided oral submissions at the hearing of this matter. I do not intend to repeat those submissions in full, as they were recorded.
The applicant started submissions by identifying that there is a need to separate out the parts of injury said to constitute s 11A issues. The applicant’s case is that primarily, the actions of the employer were not within one of the categories in s 11A, not event approximate with one of those.
In respect of injury, the applicant submits that it started in mid 2023, when he was targeted for drug tests along with his brother. Those facts are not disputed. The second part of the worker’s injury commences with an ultimatum given on 6 June 2024, which was a direction for one of three staff to self-sacrifice so that the other two could have a job – this is not something that s 11A contemplates.
The applicant submits that even if s 11A were engaged, then the respondent must satisfy me that the injury was wholly and predominantly caused by one of the relevant categories, and that the employer’s actions in that regard were reasonable. The applicant then went to a number of relevant authorities on s 11A.
The applicant sets out the conduct that the employer should have engaged in, including holding a meeting with all three affected drivers, responding to Mr Stojanovski’s relevant questions, refrained form making threats, and dealt with representations made form the union in a constructive way. There was inadequate procedural fairness which makes the actions unreasonable.
The applicant submits that he is totally incapacitated. In respect of the medical expenses, a general order would be made, bar one claimed item, being printing.

Respondent’s submissions

The respondent submits that the applicant’s submissions make it appear to be a far more complex process than it was. The matter falls within the definition of “transfer” or “retrenchment” within s 11A.
In respect of injury, the respondent submits that if one looks at the evidence there is no reference to any other work related complaints, which is entirely consistent with the history given to Dr Ahmed. We only hear about other allegations after the retrenchment. To determine the contribution of the earlier incidents, you have to look at the contemporaneous records. The attendance in February 2024 was due to gastro, not due to any psychological symptoms. The first complaint of stress at work occurs on 3 June 2024. There is no complaint about bullying and harassment – it doesn’t feature anywhere.
In terms of the Fair Work process, it is wrong to say it occurred in the latter part of the year. The decision was handed down on 2 October 2024 but the process started much earlier, with the letter from the Transport Workers Union on 18 June 2024. Mr Stojanovski’s representations about his pay guarantee being made two days before the Fair Work hearing are also factually disputed, as this was set out in a letter of 11 June 2024.
The reason for injury is transfer and it is not unreasonable for the respondent to transfer workers in the circumstances it found itself in. There was a sound and reasonable basis for the employer to engage in the process and relevant workers were made aware some time out. In respect of the redundancy of Mr Goddard, this was completed in June, and he was in different circumstances to the applicant and his brother, as he was on an evening shift (whilst they were on day shift). Toll took steps to identify other opportunities, and any assertion that there were no consultations or people were forced is refuted. I would accept assertions supported by the contemporaneous documentation.
In terms of specific steps taken, including why the respondent didn’t contact Mr Stojanovski, it was submitted that he was off sick (as was his brother) and that was reasonable on the employer’s part.
The applicant’s assertion that it was a case of “one must go” is a flourish on the part of the applicant, and is not supported by contemporaneous documentation. The reality was that there were two positions at Chullora and other positions available within the business.
The applicant’s psychiatric condition is as a result of the transfer process and nowhere is there support for psychiatric sequelae from incidents that occurred previously.
In respect of incapacity, the respondent submits that the incapacity results from the transfer process which was reasonable, but alternatively to that the incapacity is entirely due to industrial issues, or that it is only 20 hours per week.

Applicant in response

The applicant submits that there has been an injury arising out of employment, and it is all entwined. You couldn’t just say that industrial issues do not arise out of employment.

FINDINGS AND REASONS

There are a number of issues that must be determined in this case in a cascading way. The applicant has the onus to prove injury whilst the respondent has the onus to prove the defence raised under s 11A. As the parties are both aware, the issues concerning injury and s 11A are somewhat intertwined in this case, but I still must determine each in turn.

Injury

Injury is not disputed in the traditional sense. There are no external, non-work related factors that are relevant for consideration (although potentially the “industrial issues”, arising out of the proceedings in the Fair Work Commission, may fit within that classification, although that is disputed by the applicant). Dr Kumagaya opines that employment was the main contributing factor to Mr Stojanovski’s psychological injury. Dr Ahmed agrees: “His difficulties are from his employment. Employment was the main contributing factor”.
The issue in this case concerns the causative aspects of employment that have contributed to Mr Stojanovski’s psychological injury. There is the most obvious issue, being the cancellation of the Opal contract, and the steps taken by the respondent following that (which will be considered below, in the context of whether those steps concerned “transfer” within the meaning of s 11A of the 1987 Act). Prior to that issue are a number of allegations that Mr Stojanovski claims form part of his psychological injury. If those issues do, indeed, form part of the injury as alleged, the respondent will have greater difficulty in proving their defence pursuant to s 11A, particularly on a “wholly or predominantly” basis. It is thus apparent, as is often the case in cases such as this, the intermingling of the issues of injury and s 11A.
The applicant’s description of injury in the Application to Resolve a Dispute is “Bullying, belittling, degrading, disrespectful behaviour from managers”. The date of injury is said to be 13 September 2024, being a deemed date (the first date of incapacity).
Mr Stojanovski’s statement describes a series of events, commencing in June 2023:
(a)    June 2023 – Mr Stojanovski was a support person for a colleague intending to join the union. He later provided a statement to an investigator, after the colleague made a claim for workers compensation;
(b)    October 2023 – he received complaints from other drivers about job security;
(c)    14 November 2023 – he was one of only two drivers subject to drug testing (the other was Mr Stojanovski’s brother), which he states “felt targeted because I assisted a colleague with his HR dispute and workers compensation claim”;
(d)    4 December 2024 – his job was made more difficult when he was given a different truck trailer, which was more physically demanding and involved extra hours (again this is attributed to punishment for assisting a colleague);
(e)    9 May 2024 – a meeting was held between Opal and Toll, who were hopeful they would maintain the contract, and
(f)    22 April 2024 – Mr Stojanovski received a letter form Toll, confirming that the Opal contract was ceasing on 30 June 2024.
I have ceased with that history here, as the remainder of the events set out in Mr Stojanovski’s statement concerns the loss of the Opal contract, the steps taken by Toll after that, and the proceedings in the Fair Work Commission. The events prior to 22 April 2024 are those that I understand are in dispute as contributing to Mr Stojanovski’s injury.
Mr Stojanovski’s claim form is dated 19 September 2024. He describes the cause of his injury in the following terms:
“Caused by a forced redeployment by toll management, pressure and coercion by managers, belittled and talked down to by managers.”
The first certificate of capacity issued, on 13 September 2024, provides the following work-related cause:
“Excessive pressures and stress with forced transfer to increased potential work loads with company restricting and location change.”
The first clinical record mentioning any type of symptomatology in a psychological sense is on 3 June 2024, which records “Also stressed with work, due to be made redundant” (acknowledging here that per s 11A(7) “stress” is not a psychological injury per se).
On 22 July 2024, a comprehensive clinical note records an attendance for “adjustment disorder with anxious mood”. Dr Cvetkovski records “Over the past month has been having increased stresses”, which the applicant “relates it to the complexity of the employer”. Reference is made to the announcement of redundancies in June, with transfer to Chullora. It is recorded that Mr Stojanovski “would have preferred or at least be given the option of redundancy or alternate job than make his options limited”.

Mr Stojanovski had a further attendance on 11 September 2024 with ongoing symptoms, “related to his employer’s changes as disucsse don priro assessment” [sic]. The “idea of Chullora in place of Botany” was burdensome in his mind.
On 13 September 2024 Mr Stojanovski again attended his general practitioner to obtain an initial certificate of capacity as “seeing no other option for himself”. Dr Cvetkovski records “the pressure of having to travel further and earlier to a different location (Chullora as opposed to Botany) as well as having to deal with heavier workloads are the repsiding issue” [sic].
Dr Kumagaya takes the following history of incidents prior to the Opal contract loss:
“Mr Stojanovski described how he experienced differential treatment during his vocational tenure with Toll Group owing to his position as union delegate. Mr Stojanovski noted that such manner of treatment commenced in and around November 2023. He recalled how his employer differentially replaced his and his brother’s trailers to longer variants, whilst the original trailers for other colleagues were retained. He also
described being preferentially subjected to random drug testing, although such was not extended to his workmates. When problems arose in his truck, he described how his employer would delay necessary repair work, resulting in concerns regarding the safety of his vehicle.”
He does, however, go on to say: “In the context of such workplace stressors, Mr Stojanovski experienced the onset of depressive and anxious symptoms in June 2024.” That is, that symptoms did not arise out of the earlier events discussed above.
Dr Ahmed took a different history in respect of earlier issues:
“I asked him whether there were any problems prior to March 2023, when the first letters were sent out regarding the end of the contract with Opal, which is the key route that they were conducting. He said there were no such problems.”
In his supplementary report, in response to a question about the causation opinion expressed by Dr Kumagaya, Dr Ahmed states:
“I note in my original report, he said there were no real issues until they received the initial letter about a possible change in job site. From memory, he did say that sometimes he did not feel entirely supported or heard by his manager, although this was strongly linked to his feelings surrounding the industrial process and outcomes he was upset by.”
On 30 January 2025, Mr Stojanovski attended with his treating psychologist. On that occasion, he provided details about some aspects consistent with his statement. Dr Stevans, treating psychiatrist, records on 6 November 2024 that “He has now applied for WC Leave given his anxiety and stress which consumed his life in relation to the job change”.
I am satisfied that Mr Stojanovski has a psychological injury arising out of his employment. That is the consistent and agreed medical opinion in this case.
However, having considered all of the evidence in this case, including the medicolegal opinions and the contemporaneous clinical records, I am not satisfied that the events prior to the loss of the Opal contract have contributed to his psychological injury. That is, any of the events described in his statement, or in the history recorded by Dr Kumagaya relating to Mr Stojanovski’s role as a union delegate, and perceived reprisals because of that role, have not contributed.
Mr Stojanovski did not report those events as contributing to his general practitioner. He did not attend Dr Cvetkovski until 3 June 2024, which at that time was due to stress caused by the upcoming potential transfer to the Chullora site. There are no records before that of any work-related stressors, let alone anything constituting a psychological injury. Mr Stojanovski’s claim makes no reference to those earlier incidents. It is not until the attendance with his psychologist on 30 January 2025 that any record of concerns prior to the loss of the Opal contract is recorded. I note, however, that at that time the first s 78 notice had been issued, and Mr Stojanovski was in the process of preparing his statement. He was likely in receipt of legal advice at that time, potentially concerning the impact of s 11A and the “wholly and predominantly” question raised in that section.
Whilst the history recorded in the statement is consistent with that reported to Dr Kumagaya and to his psychologist, I am not of the view that they formed part of series of events that caused Mr Stojanovski to suffer a psychological injury. The applicant’s description of injury in the Application is not binding nor is it a strict pleading. The cause of Mr Stojanovski’s psychological injury is the loss of the Opal contract and the actions taken by Toll following that.

Section 11A of the 1987 Act

Section 11A is a defence available that disentitles a worker to compensation where a psychological injury has been caused in certain circumstances:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Given my finding about injury above, excluding any actions or allegations of a bullying and harassment nature prior to the incidents after Toll lost the contract with Opal, it appears that the “wholly and predominantly” aspect of s 11A is satisfied. There have been no other contributing factors.
However, the applicant’s case in opposition to the s 11A defence is not solely on the basis of “wholly and predominantly”, but rather that the actions of the respondent were not in respect of one of the identified categories within s 11A. If the actions, whether taken or proposed to be taken, do not fit within one of the identified categories (in this case, transfer), then s 11A cannot be engaged at all, and the consideration of the issue would end there. The respondent’s defence would fail.
The applicant categorised the actions of the respondent not as a transfer, but as a direction for one of three staff to self-sacrifice so that the two others could have a job. This requires consideration of the meaning of the word “transfer” within the section. It is an exercise of statutory interpretation, but not an issue without previous judicial consideration.
Manly Pacific International Hotel v Doyle [1999] NSWCA 465 (Doyle), Fitzgerald JA said this at [6]:
“In my opinion, the act of transfer of a worker by an employer, i.e., the communication of a decision to transfer (or a proposal to transfer) the worker, is an “action taken or proposed to be taken by or on behalf of the employer with respect to transfer …” of the worker within the meaning of subs 11A(1). The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.
In Doyle, an interpretation that “transfer” involves a physical shift from one place to another was rejected as being too narrow (see Davies AJA at [30]). It was not rejected that this could not be included in the definition. In present circumstances, there is a physical move of location, but also a change in job conditions (albeit slightly). His Honour explained the criterion in the section:
“The criterion of s 11A(1)(b) is ‘reasonable action taken … by or on behalf of the employer’. The words ‘with respect to’ are of wide application. Transfer, demotion, promotion, etc may be the subject of the action or proposed action taken by or on behalf of the employer or matters with respect to which that action or proposed action is connected or may themselves constitute the action or a part of the action. However, the provision does not speak of an injury caused by the transfer, demotion, promotion, etc of a worker but of an injury caused by action taken or proposed to be taken by or on behalf of the employer with respect to such a matter. The words ‘performance approval, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers’ all clearly refer to matters other than the performance by a worker of his duties. The paragraph is thus looking to the worker’s response to the employer’s action or proposed action, not to the worker’s response to employment conditions encountered after a transfer, demotion, promotion, etc. Senior counsel for Mr Doyle put the matter well when he submitted that the section was looking to the process of transfer, demotion, promotion etc rather than those acts per se.” (emphasis in original)
The words in 11A, regardless of what category is being relied upon, are of wide application.
The applicant submits that Mr Stojanovski, his brother, and a third person (Mr Goddard) were directed to choose between the two of them who would keep their jobs, and which person would take a redundancy. This, it was said, was not an action of transfer. Consideration of this issue requires an analysis of the factual underpinnings of the end of the Toll contract with Opal and the steps taken by the respondent thereafter. Some of the factual circumstances are in dispute and will need determination.
Based on my review of the material, my understanding of the timeline for the issues surrounding the end of the Opal contract are as follows:
(a)    19 June 2023 - first official notice of an end to the Opal contract given to drivers (see statement of Mr Mabey dated 2 October 2024 and letter from Toll dated 19 June 2023 attached to the Reply);
(b)    July 2023 – employees at Toll, including the applicant, were made aware of the end date for the Opal contract (see email from Mr Goddard dated 18 December 2023, which was also sent to the applicant and his brother);
(c)    19 December 2023 – Toll communicated with the drivers on the Opal contract, via email, about the potential outcomes of the end of the Opal contract, which was due to end 31 March 2024 (with possibility of extension);
(d)    April 2024 – Opal confirmed that the contract with Toll would cease at the end of June 2024;
(e)    9 May 2024 – a meeting took place with Mr Stojanovski, his brother, Mr Goddard, and Mr Mabey, confirming that the Opal contract would cease on 30 June 2024. The emailed agenda for that meeting was:
“HR individual phone calls and finding work.
Work opportunities including Steel / copper / wharf / b double / fuel
Definition of job (Driver with strapping loading etc… opportunities to upskill etc)
30th June completion of duties”;
(f)    16 May 2024 – Toll provided a formal letter to the applicant indicating that the opal contract was ceasing on 30 June 2024. The “primary goal of Toll was “to take all reasonable and practical steps to redeploy team members to other areas of business”. If suitable deployment or alternative role was not found, employment could be terminated for reasons of genuine redundancy;
(g)    21 May 2024 – Mr Stojanovski received a list of potential vacancies and completed and returned a “worksheet” in respect of the cessation of the Opal contract;
(h)    29 May 2024 – letter sent by Toll to the applicant identifying a suitable redeployment opportunity, but that Toll would “continue to explore all other options with you” (I note that Mr Stojanovski statement indicates that he first learned about redeployment on 6 June 2024 through a colleague, but this letter contradicts this);
(i)    6 June 2024 – a teams meeting was held titled “Botany Consultation meeting”. Mr Stojanovski was on sick leave at the time, but the other affected drivers attended. Mr Mabey (operations manager) texted Mr Stojanovski beforehand to determine if he was well enough to attend, but the applicant confirmed he was not able to;
(j)    11 June 2024 – Toll sent a letter to Mr Stojanovski, confirming the existence of suitable alternative employment. This identified the job at Chullora delivering steel. This letter also confirmed that Mr Stojanovski’s existing rate of pay would be maintained (contrary to the applicant’s statement and submissions made at the hearing of that confirmation occurring just prior to the Fair Work Commission proceedings);
(k)    18 June 2024 – the Transport Worker’s Union wrote to Toll, indicating that they did not consider the “offer of redeployment” as suitable alternative employment, for a series of reasons. Proceedings were then instigated in the Fair Work Commission (on an undisclosed date);
(l)    7 August 2024 – the dispute between the Transport Workers Union and Toll was heard in the Fair Work Commission;
(m)     13 September 2024 – Mr Stojanovski attended his general practitioner to obtain a certificate of capacity (noting that he had attended prior to this date, describing relevant psychological symptoms);
(n)    19 September 2024 – Mr Stojanovski lodged his claim for workers compensation, and
(o)    2 October 2024 – Fair Work Commission issued their decision concerning the dispute arising under different legislation.
There are some discrepancies between the documentary evidence and the facts in the applicant’s statement. I put those down to a slight difference in recollection rather than any lack of credibility. The dates largely correlate. I find that the first notification of any potential alternative job opportunity was given at the meeting on 9 May 2024. It was included in the agenda as “work opportunities”. I also find that Mr Stojanovski, whilst not in attendance at the meeting on 6 June 2024, was made aware of the discussions that took place at that meeting almost immediately.
In terms of the index question to be determined, that is whether the actions of the employer in this case could be considered to be in respect of “transfer”, I am satisfied that they were. Per Doyle, the words “with respect to” in s 11A are of wide application. The words themselves are undefined in the legislation, giving them their ordinary meaning. A transfer, in the context envisioned in the legislation and specific to the factual circumstances, includes a transfer to a different role within an organisation. There may be many reasons necessitating such a transfer, but it is in my view that clear one such reason could be due to operational needs.
It was also clear, from June 2023, that there would potentially be a change in the business arrangements and requirements at Toll. As a logistics company serving a variety of different contracts, the existence and continuation of those contracts informs the needs of the business. From time to time contracts will change or cease, requiring Toll to review their workforce needs. This is entirely legal and consistent with the enterprise agreement entered into between Toll and the Transport Worker’s Union. I do not have that document before me but it is clear that the agreement exists and is discussed at length in the decision of the Fair Work Commission.
Not only is the documentation between Toll and Mr Stojanovski clear on the potential outcomes of the cessation of the contract with Opal, including either redundancy or (as preferred by Toll), redeployment (noting here that I am satisfied that the description of “redeployment”, used throughout those communications, is consistent with a transfer), but the potential of the transfer was also clearly weighing on Mr Stojanovski.
The first relevant clinical record refers to stress from work, “due to be made redundant”. At that time redundancy was a potential outcome of this procedure, and Mr Stojanovski was aware of that. Transfer was a potential alternative. On 11 September 2024, Dr Cvetkovski describes symptoms of “the idea of Chullora in place of Botany being burdensome on his mind”.
The existence of only two positions, for three drivers, does not take the actions of the employer outside of the realm of “transfer”. The mere fact that there were less jobs available than people at the specific Chullora site does not mean that the actions of Toll, in attempting to redeploy (or “transfer”) Mr Stojanovski to a different role, came outside of the concept of a transfer in s 11A. That is no doubt a regularly common occurrence in the circumstances faced by Toll. As they consistently communicated to Mr Stojanovski, redeployment was their preferred option, but ultimately his position would no longer exist on 30 June 2024.
The applicant’s submissions attempt to make more of the situation than factually existed. This was not some corporate Hunger Games type situation where Mr Stojanovski, his brother, and Mr Goddard were told they needed to compete in order to survive. I do not even think this gets as far as Mr Stojanovski’s perception of that (in the sense of State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 and Attorney General’s Department v K [2010] NSWWCCPD 76 and similar decisions). It was not a real event. It was simply a fact that there were three people occupying positions in the business that would no longer exist after 30 June 2024. Toll needed to find roles for those people, or make them redundant.
Accordingly, I am satisfied that the actions of the respondent were in respect of “transfer”. I am similarly satisfied that the injury suffered was “wholly” caused by those actions. As I have discussed in respect of my injury determination above, there were no relevant actions that could be considered bullying or harassment. There were some disagreements about functions but those, in my view, do not rise any higher than that. That is normal within any organisation. Similarly, as I have already said, there were no outside factors that have contributed in any way. The medical evidence and medicolegal opinions are consistent and clear. Mr Stojanovski’s injury was wholly caused by the cessation of the Opal contract and proposed transfer to the Chullora site. This fits within the definition in s 11A, and constitute actions, or proposed actions, with respect to transfer.
The final question then is whether the actions of Toll were reasonable in the circumstances.
Geraghty J in Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998 (Irwin) said this of the question of reasonableness:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
The concept looks not only to the end result but the manner in which it was affected (Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) per Truss CCJ). This is important because in separate proceedings considering separate statutory concepts, the Fair Work Commission determined that the alternate positions offered at the Chullora site were “suitable alternative employment”. That is, the outcome of the proposed action (transfer) was a suitable option. That is not the question – the question is whether the process undertaken by Toll, with respect to that proposed action, was reasonable.
Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie), although concerning “discipline” within s 11A, provides important guidance on the statutory language in the section. Per Sackville AJA at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression "action with respect to discipline". It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”

The test is an objective one (Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 at [50]), but it is, per Heggie at [61]:
“the reasonableness of an employer's action for the purposes of s 11A(1) of the WC Act is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonably diligent inquiries.”
I have set out the facts known by the employer at the time, as well as how they were communicated to Mr Stojanovski, above. Toll knew in June 2023 that the Opal contract was going to end in March 2024 (which was later extended until 30 June 2024). On discovering this, no doubt Toll took steps to determine the impact this would have on the business as a whole, as well as individuals. There is no specific evidence of this, however. Toll, on 19 June 2023, confirmed a working relationship with Opal until 31 March 2024. This is an extensive period of time.
Business continued for Mr Stojanovski as usual. Further questions were asked (by another employee, Mr Goddard, although Mr Stojanovski was included in the correspondence) on 19 December 2023.
31 March 2024 came and went, with the work with Opal continuing. There was obviously a need for Opal to delay the cessation of the contract and the shift to whatever their new logistics structure would entail. Mr Stojanovski continued deliveries with Opal during that time.
On 9 May 2024, Mr Stojanovski was first made aware of the precise date when the relationship with Opal would cease, although he had been aware of that potential from June 2023, and reminded of it in December 2023. I have also made a finding that this is when Mr Stojanovski was first formally told of the two potential outcomes of the cessation of the contract, being a redundancy or transfer. This is based on the agenda of the meeting that occurred on that day. The above discussions were reinforced with a letter on 16 May 2024. The “transfer” process, in my view, extends back to the meeting on 9 May 2024, when the potential of a transfer was first identified. The respondent’s “actions” or “proposed actions”, for the purpose of s 11A, commenced from that date, although consideration of the earlier activities of the respondent goes to what it knew and whether it was reasonable, in the circumstances, to take those actions.
Mr Stojanovski was therefore aware from 9 May 2024 of the potential that another role would be identified for him, as opposed to his employment being terminated (albeit with a “very generous redundancy payment”, per the description in the decision of the Fair Work Commission). This process, of identifying suitable alternative employment options, was commenced by Mr Mabey, the applicant’s manager (per his statement dated 11 July 2024).
On 29 May 2024 the position was identified, being the site at Chullora. This is one month before the contract with Opal would cease and Mr Stojanovski would otherwise be made redundant. All of the steps taken up until this point, in my view, were reasonable.
Given the time until the contract with Opal was set to elapse, Toll continued to engage in discussions with the applicant and his brother. Unfortunately, Mr Stojanovski was sick at the start of June (with the flu, unrelated to any psychological issues, although at that time psychological symptoms had appeared), and was unable to attend the meeting on 6 June 2024. It is important here to recognise that the entirety of the conduct must be found to be reasonable (Department of Education and Training v Sinclair [2005] NSWCA 465):
“The statutory test could not be satisfied merely by identifying two respects in which the Appellant’s conduct was unreasonable. It remained necessary to determine whether, notwithstanding those blemishes in the decision-making process, ‘reasonable action’ was the sole or predominant cause. On the submissions before his Honour, it was incumbent upon him to determine whether or not the sole or predominant cause was the employer’s reasonable action, in circumstances where the investigation itself, the delay in completing it, and the Transfer, were all found to be reasonable. His Honour did not address that issue.”
Submissions were made specifically about this meeting by both parties. I agree with the respondent’s suggestion that in some ways, they were in a situation of “damned if you do, damned it you don’t”. The contract with Opal was fast coming to a conclusion. A meeting was arranged to further discuss the upcoming potential transfer to the Chullora site. Mr Stojanovski was on (sick) leave at the time. Steps were taken to inquire as to whether he was capable of attending, which he said he was not. Mr Stojanovski was not the only staff member affected by the cessation of the Opal contract, and the meeting proceeded.
A particular circumstance of this case is that Mr Stojanovski’s brother was also affected. He was thus able to obtain information about the outcome of the meeting on 6 June 2024, which the applicant was not able to attend, almost immediately after it occurred. I am satisfied that the steps taken by the respondent were reasonable in all of the circumstances. If the meeting had not taken place, Mr Stojanovski and the other employees would have remained in limbo. Mr Stojanovski was not able to return to work until 21 June 2024. He was still sick at that time, and had further time off work on 26 June 2024.
In the interim, the Transport Workers Union wrote to the respondent disputing the redeployment. This put the respondent in a position of potential upcoming litigation and probably placed the situation between the applicant and respondent in a more strained position. The commencement of litigation is not an action taken by the respondent, however. That litigation was commenced by the Transport Workers Union and responded to by the respondent.
There was also some dispute about the nature of the role and the pay that would be attached following any transfer. I do not accept the applicant’s submissions, or assertion in his statement, that he was not informed that he would retain his rate of pay until the day prior to the Fair Work Commission hearing. That is contradicted by documentary evidence (the letter dated 11 June 2024).
In considering reasonableness in the context of s 11A, I am of the view that it is appropriate that I need to consider the nature of the transfer. Although separate industrial proceedings have determined that the job at Chullora was a suitable redeployment option, that cannot be binding on me for the purpose of s 11A. Nor would I approach that decision with comity as the foremost consideration in mind.
There are circumstances where a proposed transfer would be almost unreasonable with any consultation process. This might be an interstate or international transfer. I cannot see how that could be considered to be reasonable. In present circumstances, the transfer of job site involved slightly different duties (perhaps a heavier chain and a different truck), an earlier start, and a longer travel time (of up to 35 minutes per day). I am satisfied that these form part of the relevant factors I must consider in determining the respondent’s reasonableness in the circumstances. I am also satisfied that the identified role was reasonable.
The steps taken following the letter of the Transport Worker’s Union, up until the hearing on 7 August 2024, were consumed largely with that impending litigation. Until the cessation date of the Opal contract on 30 June 2024, the applicant was on sick leave and worked occasional days. From 28 June 2024, the applicant (and his brother) used leave entitlements.
The only other circumstance that requires consideration is the issue of redundancy. This was an alternative to transfer and would, likely, have been offered to the person unsuccessful (or not chosen) in a transfer to the Chullora site. This was not, as I have held above, a forced competition of three down to two candidates. On 26 June 2024, the third affected staff member, Mr Goddard, was told he was being made redundant. I assume he was offered a “very generous redundancy payment”, having worked there for 30 years. It may be that that redundancy payment would have been attractive to Mr Stojanovski.
In the totality of the circumstances, I do not find the conduct of the respondent as unreasonable. Mr Goddard, as has been identified, was in a different position. He worked the afternoon/evening shift, whilst Mr Stojanovski and his brother worked the morning shift. The role at Chullora was closer to both the brother’s roles than Mr Goddard’s. In those circumstances, as well as the ongoing litigation, the redundancy offer to Mr Goddard was reasonable (in the context of the actions taken with respect to Mr Stojanovski per se 11A, that is not offering the redundancy to him).
For all of the above reason, I am satisfied that Mr Stojanovski’s psychological injury was wholly caused by reasonable actions of the employer in respect of transfer. Section 11A of the 1987 Act is thus engaged. The respondent has made out their case and there will be an award for the respondent.

[2025] NSWPIC 351

23 July 2025